determining there is no state constitutional prohibition against compelled self-incrimination, but statutory provisions are “no less urgent and protective”
How later courts described this case
- determining there is no state constitutional prohibition against compelled self-incrimination, but statutory provisions are “no less urgent and protective”
- "It is no more proper for a jury to conclude that death [would] be a proper penalty because a life sentence may be commuted or the defendant paroled, than it would be for a trial judge in other criminal cases deliberately to impose an excessive sentence to frustrate the statutory scheme committing parole to another agency."
- which dealt, however, with evidence of insanity and mental deficiency
- “the Legislature committed to the jury the responsibility to determine in the first instance whether punishment should be life or death. It charged another agency with the responsibility of deciding how a life sentence shall be executed. The jurors perform their task completely when they decide the matter assigned to them upon the evidence before them. What happens thereafter is no concern of theirs.”
Written by the judges who cited it.
The opinion
*181 Heher, J.
(concurring in reversal). There are crucial questions of policy involved in the course to be taken by the trial judge when the jury inquires as to whether life imprisonment recommended under B. S. 2:138-4, upon a conviction of murder in the first degree, is subject to executive or administrative intervention by way of pardon, parole, or time off for good behavior. An instruction in the affirmative is fraught with grave danger of prejudice to the accused, even though accompanied by an unequivocal declaration that it has no place in determining whether the punishment shall be death or life imprisonment. And a refusal to respond to the inquiry may have some hazard, even though the utter irrelevancy of the subject matter is made clear to the jury. But the former is by far the greater peril, for the parole function would in that event be delineated in its essentials, and the jury would then be told to disregard it as entitled to no weight in fixing the penalty pursuant to the statute.
The information thus given could induce the withholding of the alternative penalty of life imprisonment, and it could induce a conviction. There can be no assurance of the individual juror’s subjective reaction or against unwitting or subconscious adverse influence. As to punishment, the death penalty prevails unless the jury shall, by its verdict, recommend life imprisonment; and, to be effective, the recommendation must be the unanimous affirmative choice of the jury. State v. Bunk, 4 N. J. 461 (1950).
And there is every reason to believe that such was the intent and purpose of the current statute, the cases of State v. Schilling, 95 N. J. L. 145 (E. & A. 1920); State v. Barth, 114 N. J. L. 112 (E. & A. 1935); State v. Leaks, 126 N. J. L. 115 (E. & A. 1941); and State v. Dworecki, 124 N. J. L. 219 (E. & A. 1940), to the contrary notwithstanding. The amendment of 1919, c. 134, provides that one convicted of murder in the first degree shall suffer death unless the jury shall, ccby its verdict, and as a part thereof, upon and after the consideration of all the evidence, recommend” life imprisonment, and in that case “this and no greater punishment shall be imposed.”
*182 The history and the interpretation given the original act of 1916, c. 270, in State v. Martin, 92 N. J. L. 436 (E. & A. 1919), make clear the import and intent and the essential quality of the provision. The evidence in the case is to be considered; the pardon and parole potential plays no part in the inquiry. Under the original act, the jury were vested with an arbitrary discretion; under the amendment, L. 1919, c. 134, the current act, the jury exercise judgment and discretion based on the evidence. State v. Cooper, 2 N. J. 540 (1949). The Legislature obviously had in view circumstances in the particular case calling for a mitigation of the full rigor of the law, in the jury’s sound discretion. But there is no occasion to pursue the inquiry. My views in this regard are given expression in the dissents in State v. Molnar, 133 N. J. L. 327, 337 (E. & A. 1945), and State v. Bunk, supra, and need not be restated here.
The general rule is that the jury should not be informed as to the law upon the subject of pardon and parole, and its request to that end should be denied. See, e. g., People v. Barclay, 40 Cal. 2d 146 , 252 P. 2d 321 (Sup. Ct. 1953); People v. Osborn, 37 Cal. 2d 380 , 231 P. 2d 850 (Sup. Ct. 1951); Jones v. Commonwealth of Virginia, 194 Va. 273 , 72 S. E. 2d 693 , 35 A. L. R. 2d 761 (Sup. Ct. App. 1952); Strickland v. State, 209 Ga. 65 , 70 S. E. 2d 710 (Sup. Ct. 1952) —these among others collected in 35 A. L. R. 2d 769.
Accordingly, I would reverse the conviction and direct a new trial.