In Re Proportionality Review Project

¶1concurring in part and dissenting in part.

¶2I share the Court’s conviction that the universe of cases for proportionality review must include all defendants who, by the *99nature of their crime, were eligible for the death penalty, whether or not they were capitally prosecuted. Review encompassing all death-eligible cases is necessary to ensure that the death penalty is being administered fairly and consistently in each defendant’s case, and is just as essential to monitor and prevent systemic discrimination in the prosecution of capital cases and the imposition of death sentences. I am of the view, therefore, that the legislative amendment limiting the universe to cases in which a death sentence has been imposed, N.J.S.A. 2C:11-3e, L. 1992, c. 5 (eff. May 12, 1992), “abolishes proportionality review as a meaningful procedural safeguard.” State v. Loftin, 157 N.J. 253, 442, 724 A.2d 129 (1999) (Loftin II) (Handler, J., dissenting). As such, the amendment impedes this Court’s judicial exercise of appellate review, see id. at 285, 724 A.2d 129, and is unconstitutional. The Court continues to delay in deciding the matter. See ante at 82-83, 735 A.2d at 535; Loftin II, supra, 157 N.J. at 285, 724 A.2d 129. I maintain my objection to that delay. See Loftin II, supra, 157 N.J. at 442, 724 A.2d 129 (Handler, J. dissenting).

¶3I write to express two concerns raised by the Court’s review of the recommendations of Special Master David S. Baime presented in the Report of the New Jersey Supreme Court: Proportionality Review Project (Apr. 28,1999) (Baime Report).

¶4I

¶5First, I urge that the Court, now declining to implement the method recommended by Judge Baime for introducing mitigating factors into salient factors testing, see ante at 89-90, 735 A.2d at 538-38, not lose sight of the sound motivation for Judge Baime’s recommendation — that is, the need for some accounting of mitigating factors in our statistical review. The salient-factors test, as originally designed and to this date as applied, considers only aggravating factors. As such, the test fails to account for and may even act as “a device for concealing” significant mitigating factors. State v. DiFrisco, 142 N.J. 148, 233-34, 662 A.2d 442 (1995) (Handler, J., dissenting) (DiFrisco III), cert. denied, 516 U.S. *1001129, 116 S.Ct. 949, 133 L.Ed.2d 873 (1996). The late numerical-preponderance-of-aggravating-and-mitigating-factors test was flawed because it weighed factors quantitatively, but was nevertheless commendable for its ability to take mitigating factors into account. See id. at 234, 662 A.2d 442 (Handler, J., dissenting). Now that the Court has abandoned the numerical-preponderance test, see Loftin II, supra, 157 N.J. at 294-95, 724 A.2d 129, it is more important than ever that we adopt a statistical method by which we may properly analyze the effect of discrete mitigating factors, and thereby proportionality, in death sentencing decisions. Frequency analysis cannot serve as a well-rounded complement to precedent-seeking review without taking mitigating factors into account.1

¶6II

¶7The second point I address concerns the Court’s standard for assessing disproportionality. This Court has long recognized as a general rule that “ ‘[a] death sentence is comparatively excessive [and thus disproportionate] if other defendants with similar characteristics generally receive sentences other than death for committing factually similar crimes in the same jurisdiction.’ ” State v. Marshall, 130 N.J. 109, 131, 613 A.2d 1059 (1992) (Marshall II), *101cert. denied, 507 U.S. 929, 113 S.Ct. 1306, 122 L.Ed.2d 694 (1993) (quoting Tichnell v. State, 297 Md. 432, 468 A.2d 1, 17 n. 18 (1983)). We have also stated that “[proportionality review seeks to determine only whether a particular death sentence is aberrational, not whether it compares perfectly with other sentences.” State v. Bey, 137 N.J. 334, 351, 645 A.2d 685 (1994) (Bey IV), cert. denied, 513 U.S. 1164, 115 S.Ct. 1131, 130 L.Ed.2d 1093 (1995) (citing Marshall II, supra, 130 N.J. at 131, 613 A.2d 1059). Heretofore, the “aberrational” standard and the “general imposition” standard have been invoked interchangeably. See State v. Harvey, 159 N.J. 277, 289, 308, 731 A.2d 1121 (1999) (Harvey III); State v. Chew, 159 N.J. 183, 195, 731 A.2d 1070 (1999) (Chew II); Loftin II, supra, 157 N.J. at 321-22, 724 A.2d 129; DiFrisco III, supra, 142 N.J. at 160, 166, 662 A.2d 442; State v. Martini, 139 N.J. 3, 20, 28, 651 A.2d 949 (1994) (Martini II), cert. denied, 516 U.S. 875, 116 S.Ct. 203, 133 L.Ed.2d 137 (1995); Bey IV, supra, 137 N.J. at 343, 351-52, 645 A.2d 685.

¶8These standards were derived from the principles of Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), which this Court adopted in its earliest proportionality review.2See Marshall II, supra, 130 N.J. at 124-31, 613 A.2d 1059; see also State v. Ramseur, 106 N.J. 123, 326-27, 524 A.2d 188 (1987) (quoting Gregg, supra,428 U.S. at 206, 96 S.Ct. at 2940, 49 L.Ed.2d at 893). In Gregg, supra,the Supreme Court referred to a death sentence as “aberrational,” and, specifically, a jury as “aberrant,” in circumstances where a death sentence was imposed for a certain kind of murder for which “juries generally do not impose the death sentence^]”

*102The provision for appellate review ... serves as a check against the random or arbitrary imposition of the death penalty. In particular, the proportionality review substantially eliminates the possibility that a person will be sentenced to die by the action of an aberrant jury- If a time comes when juries generally do not impose the death sentence in a certain kind of murder case, the appellate review procedures assure that no defendant convicted under such circumstances will suffer a sentence of death.

[Id. at 206, 96 S.Ct at 2940, 49 L.Ed.2d at 893.]

¶9See State v. Burns, 979 S.W.2d 276, 283 (Tenn.1998) (“A comparative proportionality review ... is designed to identify aberrant, arbitrary and capricious sentences by determining whether the death penalty in a given case is ‘disproportionate to the punishment imposed on others convicted of the same crime.’ ”) (quoting Pulley v. Harris, 465 U.S. 37, 43, 104 S.Ct. 871, 876, 79 L.Ed.2d 29, 36 (1984)).

¶10The Court today reiterates that “[pjroportionality review seeks to determine only whether a particular death sentence is aberrational,” ante at 76, 735 A.2d at 530 (internal quotation marks and citations omitted), but, as in State v. Cooper, 159 N.J. 55, 731 A.2d 1000 (1999) (Cooper II), fails to make clear or even to mention the fact that proportionality review is a search for death sentences not generally imposed. In Cooper II, supra, I accused the Court of having “changed the standard to produce findings of proportionality,” id. at 167, 731 A.2d 1000 (Handler, J., dissenting), and of narrowing its standard without explanation, id. at 167-68, 731 A.2d 1000 (Handler, J., dissenting). My reasons for doing so may seem somewhat obscure considering the Supreme Court’s language in Gregg, supra,which refers to sentences that are the result of a jury’s aberrant acts as well as sentences not generally imposed. As such, the aberrational and general imposition standards are expressions of the same principle; an aberrational sentence in the lexicon of proportionality is a sentence that is not generally imposed. This Court, however, applies the aberrational standard in a manner that is distinct from the concept of proportionality review put forth in Gregg, supra,and a departure from its purpose. As employed by the Court, the aberrational and general imposition standards are “substantively different” and *103“inconsistent.” Harvey III, supra, 159 N.J. at 358, 731 A.2d 1121 (Handler, J., dissenting) (emphasis omitted). For this reason, the Court’s quiet interment of the general imposition standard, see ante at 76, 735 A.2d at 530-31, demands a response.

¶11A sentence that is disproportionate is, by definition, one that is not in balance with others.3 The notion of aberrance, as commonly understood,4 is used to denote disproportionality. Surely the Supreme Court assumed such interpretations in Gregg, supra,when it designated the identification of “aberrant jur[ies]” as a core purpose of proportionality review.

¶12This Court has adopted an odd, I dare say deviant, view of proportionality, one which accords with, and is indeed manifest in, the Court’s equally odd view of aberrance. The Court uses the term aberrance in the sense of extreme disproportionality and applies that sense of disproportionality as the operative measure of sentencing. In our most recent proportionality review decision, the Court declared: “Our aim in conducting proportionality review is not to insure symmetry, or even a high degree of correlation, in the sentences imposed on comparable defendants. Our primary objective is the detection and prevention of aberrational sentences.” Cooper II, supra, 159 N.J. at 107, 731 A.2d 1000 (citation omitted). Needless to say, the purpose of proportionality review is to insure symmetry, that is, to insure that a sentence does not differ from those generally imposed.

¶13*104We are thus compelled to struggle over the meaning of “aberrational.” This is more than a word game, which I would not indulge. The Court’s statement in Cooper II, supra, was not nonchalant, but was made with firm conviction. Indeed, the claim that symmetry is not required for proportionality is an aphorism for the Court’s method of review: the Court’s altered definitions reflect an altered and restrictive application of proportionality review, one which has potentially severe effects for capital defendants. In Harvey III, supra, and Cooper II, supra, for example, the Court went to great lengths to explain why the defendants’ death sentences were not disproportional, even though the sentences were not consistent with those generally imposed; it delved into minute detail in precedent-seeking review to find a rational explanation for why similarly situated defendants were sentenced to life.

¶14In Harvey III, supra, the Court justified defendant’s death sentence by distinguishing it from the life sentences of two other similarly-situated defendants, Charles Ploppert and Lance Phillips. The feature recognized by the Court as distinguishing Harvey was that Harvey was older than the others. 159 N.J. at 318, 731 A.2d 1121. Harvey killed his victim, a woman in her thirties, upon being surprised to find her home; he did so quickly and, apparently, with little pain to the victim. Ploppert and a co-defendant killed a blind man known to the defendant after chatting with him amicably at his kitchen table. Ploppert beat the man unconscious by hitting him with his fists and kicking him, and then set the man on fire. See id. at 336-38, 731 A.2d 1121 (Appendix A); id. at 406-07, 731 A.2d 1121 (Handler, J., dissenting). Phillips and his accomplices raided a house for cocaine, shooting everyone they found there, including a twenty-year-old man, his girlfriend, a seventeen-year-old girl and an eleven-year-old girl. The man was shot five times and died from his wounds. See id. at 335-36, 731 A.2d 1121 (Appendix A); id. at 406, 731 A.2d 1121 (Handler, J., dissenting). To rely on the basis of age to determine that Harvey’s death sentence is not an aberration is fallacious. The Court’s distinction of Harvey from Ploppert and *105Phillips becomes understandable only if one acknowledges that the Court’s search is for extreme disproportion.

¶15In Cooper II, supra, the Court compared the defendant to Gary Lippen. Cooper raped and then killed by strangulation a six-year-old girl, apparently without extended suffering by the victim. Lippen and his co-defendant “beat, raped, strangled, stabbed, and tortured a seventeen-year-old girl. After the two took turns raping the victim, Lippen beat her in the head with a stick, punched her in the jaw, and kicked her. The two co-defendants then hoisted her into a tree and broke her legs.” 159 N.J. at 178, 731 A.2d 1000 (Handler, J., dissenting); see id. at 136-37, 731 A.2d 1000 (Appendix). Despite Lippen’s initial attempts to evade investigators with lies, blame his co-defendant and, indeed, his conviction for hindering apprehension, the Court attempted to justify Cooper’s death sentence by stating: “Lippen’s cooperation with law enforcement authorities, combined with the likelihood that Henderson was the dominant actor, probably accounts for the prosecutor’s decision to forego capital prosecution of Lippen.” Id. at 104, 731 A.2d 1000.

¶16From the Court’s decisions in Harvey III, supra, and Cooper II, supra, one may reasonably infer that unless a defendant and the circumstances of the crime are entirely dissimilar, no death sentence will be aberrational. By the Court’s review, a finding of disproportionality requires an utter lack of correspondence. That is plainly contrary to the principles of proportionality review. Further, it breeds a fundamental inconsistency between standard and goal because, as I argued in Loftin II, supra, “where all defendants are ultimately distinguishable from one another, one’s death sentence can never be an aberration, no less disproportionate.” 157 N.J. at 440, 724 A.2d 129 (Handler, J., dissenting).

¶17The range of proportionate sentences has thus been expanded and the measure of disproportionality narrowed. The result is that the Court’s proportionality review fails to provide an objective assessment of proportionality that would ensure that our administration of the death penalty is reasonably coherent and consistent. *106The Court’s narrowed review only heightens the hopelessly subjective nature of the process. See id. at 440-41, 724 A.2d 129 (Handler, J., dissenting); Marshall II, supra, 130 N.J. at 273-75, 613 A.2d 1059 (Handler, J., dissenting).

¶18I, therefore, strongly urge the Court to define as proportional only those sentences that are generally imposed on similar defendants who have committed similar crimes; and recognize. as disproportional those sentences that do not conform, which would always include aberrational sentences. In that manner, proportionality review may “serve[ ] as a check against the random or arbitrary imposition of the death penalty.” Gregg, supra,428 U.S. at 206, 96 S.Ct. at 2940, 49 L.Ed.2d at 893.

¶19Concurring and dissenting — Justice HANDLER — 1.

¶20For adoption and modification — Chief Justice PORITZ and Justices POLLOCK, O’HERN, GARIBALDI, STEIN, and COLEMAN — 6.

¶21ORDER

¶22The Court having previously Ordered that the Appellate Division Presiding Judge David S. Baime should serve as a Special Master in the within matter,

¶23And Judge Baime having filed a report with the Court that recommended, inter alia, that the Court appoint a retired Superi- or Court judge to serve as a Standing Master to assist in proportionality review,

¶24And the Court having determined that the Standing Master recommendation should be adopted pursuant Judge Baime’s report,

¶25And the Court having further determined that the work of a Standing Master will be more effective and efficient if the development and implementation of the approved modifications to the proportionality review system are undertaken by Judge Baime in the light of his experience as Special Master,

¶26*107And good cause appearing;

¶27IT IS ORDERED that the appointment of Appellate Division Presiding Judge David S. Baime as Special Master shall continue pending the further order of the Court; and it is further

¶28ORDERED that when the revised proportionality review structure is in place, the Court shall appoint a Standing Master who may, as necessary, consult with Judge Baime in respect of the operation of the proportionality review system.