(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in
the interests of brevity, portions of any opinion may not have been summarized).
Argued June 7, 1999 -- Decided August 5, 1999
O'Hern, J., writing for a majority of the Court.
In all death penalty cases in which the conviction and sentence of death are affirmed on direct appeal, the
sentence is then subject to a "proportionality review." That review seeks to ensure that the death penalty is being
administered in a rational, non-arbitrary, and evenhanded manner, fairly and with reasonable consistency.
In State v. Loftin, a death penalty case decided earlier this year, the Court considered the existing system of
proportionality review and determined that several aspects of the process needed to be evaluated. During the
pendency of that case, the Court appointed retired Appellate Division Judge Richard S. Cohen as a Special Master.
In his report to the Court, the Special Master made a number of findings and recommendations. Additional
questions also were raised. As a result, the Court affirmed Loftin's sentence on proportionality review but appointed
a new Special Master to investigate and report on issues involving the "universe of cases" to be considered on
proportionality review, the "index-of-outcomes" test, the "salient-factors" test, any effect of race on the review
process, and the desirability of maintaining proportionality review as a separate proceeding in death penalty cases.
The Court selected David S. Baime, a Presiding Judge of the Appellate Division, as the new Master. Judge
Baime filed a report with the Court on April 28, 1999. Although he made findings and recommendations in respect
of most of the issues identified in the Court's Order of appointment and remand, Judge Baime deferred
consideration of the "race effect" issue for the receipt of additional information and analysis. The Court solicited
comments on the Master's report from the Attorney General, the County Prosecutors' Association, the Public
Defender, and the Association of Criminal Defense Lawyers. Oral arguments were heard on June 7, 1999.
HELD: Proportionality review seeks to determine only whether a particular death sentence is aberrational and not
whether it compares perfectly with other sentences. The Court adopts many of the recommendations of Special
Master David S. Baime, P.J.A.D., in respect of modifications to the proportionality review system. These include
the appointment of a Standing Master to oversee the system, modifications to the "salient-factors" test, abandonment
of the "index-of-outcomes" test for individual review, future consolidation of the proportionality review process into
the direct appeal of defendants sentenced to death, and further consideration of possible systemic problems dealing
with race after the filing of a supplemental report by Judge Baime in October.
1. The Court accepts Judge Baime's recommendations that a retired judge should be appointed as a Standing Master
to supervise the screening, coding, and data collection of "death-eligible" matters for inclusion in the universe of
cases. The Standing Master will preside over confidential hearings that relate to the foregoing functions. Criminal
Case Managers will provide the Administrative Office of the Courts with additional information that relates to the
classification and evaluation of cases. Furthermore, a pilot program will be run in which trial judges would
complete questionnaires in potentially death-eligible homicide cases. The Court declined to accept Judge Baime's
recommendation that the evidence of capital-murder elements be "overwhelming" to be included in a death-eligible
universe. This issue is to be considered further by the Standing Master and the parties. (pp. 17-22)
2. Judge Baime has made several recommendations for modifications to the "salient-factors" test. The Court agrees
that organizing of cases by the statutory aggravating factors -- with a few exceptions where subcategories are
desirable -- is appropriate. (pp. 22-24)
3. Pending further consideration by Judge Baime and the Standing Master, the Court is retaining the principle that
each case is assigned to one category for salient-factor review, even though the case may in fact contain multiple
identifying factors. (pp. 24-26)
4. The Court has declined to accept Judge Baime's recommendation that the salient-factors test should be modified
to permit the consideration of mitigating factors. (pp.26-27)
5. The Court approves Judge Baime's recommendation that the salient-factors test be used to aid in the selection of
cases for the precedent-seeking review portion of proportionality review. The parties will help the Standing Master
to determine the cases that the Court should consider. (pp. 27-28)
6. Judge Baime recommended that the "index-of-outcomes" test be abandoned as a part of proportionality review.
The test is based on a statistical tool, multiple regression analysis, that requires stable models to ensure its viability.
Judge Baime concluded that the models were unstable because they were using data from a relatively small number
of cases to explain the effect of too many different factors on the likelihood of receiving the death penalty. The
Court finds that there is no reason to retain the test in its present form. (pp. 29-32)
7. Statistical modeling certainly will be needed to examine systemic disproportionality. Judge Baime and his
consultants are continuing to attempt to create more reliable models to achieve the goals of systemic proportionality
review. He plans to report his results by October 1999. That report will deal with statistical models that address
whether race is or is not an impermissible factor in capital-sentencing decisions. (pp. 32-34)
8. Judge Baime also recommended that pending the filing and consideration of his supplemental report, the Court
should approve a model jury instruction that reminds a jury that it is not to return a verdict of death unless it would
return the same verdict no matter what the race, color, religious beliefs, national origin, or sex of the defendant or
victim might be. The Court leaves the formulation of such a charge to the Committee on Capital Causes. In the
meantime, trial courts should give an instruction that generally comports with Judge Baime's proposal. (pp.34-35)
9. The next scheduled proportionality reviews will be conducted in accordance with the revised format approved by
the Court. In conjunction with its consideration of pending proportionality review matters, the Court will determine
when and how to conduct proportionality review consolidated with a defendant's direct appeal. (pp. 35-38).
HANDLER, J., concurring in part and dissenting in part, agrees with the Court that the universe of cases
considered in proportionality review must include all defendants who were eligible for the death penalty, whether or
not they were capitally prosecuted. He believes, however, that there needs to be some accounting of mitigating
factors in the Court's statistical review. In addition, he urges that the Court should define as "proportional" only
those sentences that are generally imposed on similar defendants who have committed similar crimes, while
recognizing as disproportional those sentences that do not conform, which would always include aberrational
sentences.
CHIEF JUSTICE PORITZ and JUSTICES POLLOCK, GARIBALDI, STEIN, and COLEMAN join
in JUSTICE O'HERN's opinion. JUSTICE HANDLER has filed a separate concurring and dissenting
opinion.
SUPREME COURT OF NEW JERSEY
A-
98 September Term 1998
IN RE: PROPORTIONALITY REVIEW
PROJECT
Argued June 7, 1999 -- Decided August 5, 1999
On review of the Report of Special Master.
Claudia Van Wyk, Deputy Public Defender II,
and Mordecai D. Garelick, Assistant Deputy
Public Defender, argued the cause on behalf
of the Office of the Public Defender
(Ivelisse Torres, Public Defender, attorney).
Paul H. Heinzel, Deputy Attorney General,
argued the cause on behalf of the Attorney
General of New Jersey (John J. Farmer, Jr.,
Attorney General, attorney).
Lawrence S. Lustberg argued the cause on
behalf of amici curiae Association of
Criminal Defense Lawyers of New Jersey and
New Jersey State Conference of NAACP Branches
(Gibbons, Del Deo, Dolan, Griffinger &
Vecchione, attorneys).
The opinion of the Court was delivered by
O'HERN, J.
When the United States Supreme Court restored the
constitutionality of the death penalty, it imposed a concomitant
obligation on states to provide “the further safeguard of
meaningful appellate review” of every death sentence. Gregg v.
Georgia,
428 U.S. 153, 195,
96 S. Ct. 2909, 2935,
49 L. Ed.2d 859, 887 (1976). This matter arises out of our exercise of that
function and concerns specifically our system for proportionality
review of death sentences. By that we mean not the review of any
legal error in the imposition of the sentence but, rather, the
review of the sentence itself. We seek to determine “[w]hether
the sentence of death is excessive or disproportionate to the
penalty imposed in similar cases, considering both the crime and
the defendant.” Id. at 167, 96 S. Ct. at 2922, 49 L. Ed.
2d at
871. Proportionality review seeks “to ensure that the death
penalty is being administered in a rational, non-arbitrary, and
evenhanded manner, fairly and with reasonable consistency.”
State v. Marshall,
130 N.J. 109, 131 (1992), cert. denied,
507 U.S. 929,
113 S. Ct. 1306,
122 L. Ed.2d 694 (1993) (Marshall
II). That review serves as “a means through which to monitor the
imposition of death sentences and thereby to prevent any
impermissible discrimination in imposing the death penalty.”
State v. Ramseur,
106 N.J. 123, 327 (1987), denial of habeas
corpus aff'd sub nom., Ramseur v. Beyer,
983 F.2d 1215 (3d Cir.
1992), cert. denied,
508 U.S. 947,
113 S. Ct. 2433,
124 L. Ed.2d 653 (1993). “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, 352 (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). Our goal is to prevent the death
penalty from being imposed “capriciously or in a freakish
manner.” Gregg, supra, 428 U.S. at 195, 95 S. Ct. at 2935, 49 L.
Ed.
2d at 887. Our dissenting member argues that we should
insist that death sentences be “generally imposed” in similar
cases for a sentence of death to be found to be proportional.
Post at ___ (slip op. at 11).
Because New Jersey jurors have been sparing
in their imposition of the death sentence, it
will never be the case that death would be
“generally received” or “received in a
defined preponderance of cases.” Because
juries impose death infrequently, we have
recognized that “death need not be normal or
general to be a licit sentence.”
[State v. Loftin,
157 N.J. 253, 322 (1999)
(Loftin II) (quoting Marshall II, supra, 130
N.J. at 153).]
Our dissenting member asks for more. He “would have us find that
death is the normal sentence [for similar cases] when that can
never be so.” Ibid.
In Loftin II, supra, 157 N.J. at 279, we considered our
existing system of proportionality review and the effect of
N.J.S.A. 2C:11-3e, which limited proportionality review “to a
comparison of similar cases in which a sentence of death has been
imposed.” The details of our system of proportionality review
are fully described in that opinion and need not be repeated here
in any detail. We give this brief summary.
The system consists of two parts. The first part is
frequency analysis, a statistical measure of the numerical
frequency with which similar cases have resulted in sentences of
death. The second part is precedent-seeking review, a
traditional judicial way of comparing the files in similar cases
to determine whether a defendant's death sentence is freakish or
aberrational or the result of impermissible influences.
Until recently, similar cases were identified for purposes
of frequency analysis by: (1) their salient factors (for
example, cases involving prior murders or a sexual assault); (2)
the raw numbers of statutory aggravating and mitigating factors
(aggravating factors are those that make a murder death-eligible,
such as the murder of a public official or murder in the course
of committing a felony, and mitigating factors are those that may
be weighed by a jury in determining whether to impose a sentence
of death, such as extreme mental disturbance); and (3) an index
of outcomes, a composite statistical test incorporating various
statutory and non-statutory factors (such as motive or extent of
premeditation) that sought to rank cases by the presence or
absence of factors that appear to influence prosecutorial and
jury decision-making.
These three statistical methods were applied to those cases
that were clearly death-eligible, including cases in which the
State had not sought the death penalty or defendants had obtained
non-capital pleas. We refer to this as the universe of similar
cases for purposes of comparison. The Administrative Office of
the Courts (AOC) collects and organizes the data. Thus, each
proportionality review involves an examination of prior cases
through frequency analysis and precedent-seeking review. In
Loftin II, supra, we found that because the raw numbers failed to
account for the qualitative nature of aggravating and mitigating
factors, the numerical preponderance test had not contributed to
the Court's proportionality reviews and in light of its inherent
flaws could not be expected to do so in the future. 157 N.J. at
295. We determined that test should be abandoned. Ibid.
In Loftin II we also expressed concern that the statistical
methods used in the index-of-outcomes test to predict the
probability of any defendant receiving a sentence may lack
sufficient reliability. Id. at 295-96. We also examined the
data in support of a contention that there had been
“impermissible discrimination in imposing the death penalty.”
Loftin II, supra, 157 N.J. at 275 (quoting Ramseur, supra, 106
N.J. at 327). We referred to this as an inquiry into systemic
proportionality review as opposed to individual proportionality
review. In connection with that inquiry, we appointed retired
Appellate Division Judge Richard S. Cohen to conduct a review and
make findings and recommendations concerning whether a
defendant's race or the race of the victim possibly affected
prosecutorial decisions to seek, and jury decisions to impose,
the death penalty. Following the receipt of Special Master
Cohen's report and supplemental report, we concluded that the
data did not demonstrate racial disparity in the imposition of
the death penalty. Nevertheless, because many questions had been
raised by the parties, by Special Master Cohen, and by the AOC,
about our present systems of both individual and systemic
proportionality review, we decided to remand the contested issues
to a Special Master appointed to hear and take testimony and to
report to the Court on the efficacy of the system.
Finally, in Loftin II we considered, but did not decide,
whether N.J.S.A. 2C:11-3e would impermissibly infringe on our
exercise of appellate review. We summed up our review of the
system of proportionality review as follows:
Our experience teaches us that the
proportionality review methodologies we use
are not without substantial shortcomings and,
accordingly, warrant careful reconsideration.
Our goal is to retain those elements of the
present system that provide useful
information, to refine and improve that which
we retain, if appropriate, and to reject
methods that have proved unhelpful. We seek
a practical approach that ensures every
defendant before us a rigorous and complete
review of his or her sentence of death.
Our reconsideration extends to four
discrete areas of concern: the size of the
universe of comparison cases; particular
issues in respect of individual
proportionality review; questions relating to
the statistical models used in both
individual and systemic proportionality
review, and the status of proportionality
review as a separate proceeding in death
penalty appeals. . . . Because these issues,
with one exception, cannot be resolved on the
record before us, we are appointing a Special
Master to conduct additional fact-finding and
make recommendations to the Court. On our
receipt of his report, we will be in a
position to determine whether the statutory
limitation on the proportionality review
universe prevents meaningful appellate
review.
On February 1, 1999, this Court appointed Superior Court Judge David S. Baime, a Presiding Judge in the Appellate Division, as Special Master to evaluate the Court's proportionality review methodology, which was modeled after a proposal by the first Special Master, see David C. Baldus, Death Penalty Proportionality Review Project: Final Report to the New Jersey Supreme Court (Sept. 24, 1991), and first used in Marshall II, supra. See Loftin II, supra, 157 N.J. at 453-57. Generally, the Special Master was assigned to conduct a review, perform analyses, and make findings and recommendations relating to the discrete areas of concern that we had identified. Id. at 454-55.
Specifically, the Court ordered the following:
(1) The Special Master shall conduct
additional fact-finding concerning the
proper scope of the proportionality
review universe. The Special Master
shall make an independent evaluation of
the deathworthiness of a sample of cases
previously classified by the
Administrative Office of the Courts
(AOC) as either death-eligible or death
ineligible. The "provability" of the
selected cases and the presence or
absence of aggravating and mitigating
factors shall be considered and the
results compared to the data-coding
decisions made by the AOC. If there is
a variance between the survey results
and the AOC data-coding decisions,
possible causes of the variance shall be
identified along with recommendations
for improved data-coding procedures.
The Special Master shall consider
whether a questionnaire should be filled
out by the judge in each case and used
to improve both the data-collection and
data-coding process. Alternatively, if
the Special Master determines that the
intrinsic difficulties and ambiguities
of data-coding death-eligible cases
cannot be overcome, the Special Master
shall consider the impact of anticipated
coding errors on the AOC models;
(2) The Special Master shall review data
coding generally and make
recommendations for improvements if
appropriate;
(3) The Special Master shall attempt to
determine, based on projections about
the size of the database over time and
other relevant considerations, how long
it will take before frequency review
results can attain a level of
statistical reliability;
(4) The Special Master shall undertake a
review of both the strengths and
weaknesses of the index-of-outcomes test
and make recommendations whether the
statistical models can be modified and
improved or whether the index-of
outcomes test should be eliminated;
(5) The Special Master shall consider
methods by which to select a
representative number of cases within
the group of similar cases for
consideration and comparison to the
defendant's case in the salient-factors
test and precedent-seeking review. The
Special Master shall examine alternate
case sorting approaches that account for
mitigating factors. The Special Master
shall assess whether some reduction in
the number of case classifications is
possible without compromising the
principle that only similar cases be
compared;
(6) The Special Master shall attempt to
develop parsimonious statistical models
for more reliable regression studies of
race effect and shall consider whether
the process of purging, i.e., the
removal of the indirect effects of race
from variables that appear to be
unrelated to race, produces results that
are useful;
(7) The Special Master shall consider
Special Master Cohen's recommendation,
submitted in State v. Loftin, supra
[Loftin II], that the Court appoint a
panel of judges to perform periodic
assessments of penalty-trial outcomes,
along with the composition and mandate
of such an independent judicial panel,
as independent verification of the
culpability ratings derived from the
models;
(8) The Special Master shall develop a
factual record and issue findings
concerning the desirability of
maintaining proportionality review as a
separate proceeding or, alternatively,
conducting proportionality review in
connection with a capital defendant's
direct appeal . . . .
Pursuant to that order, Judge Baime interviewed all personnel of the AOC responsible for screening cases, and gathered all protocols pertaining to AOC procedures. See David S. Baime, Report to the New Jersey Supreme Court: Proportionality Review Project at 18 (Apr. 28, 1999) (Baime Report). He conducted an independent screening of 105 AOC files for death-eligibility and enlisted retired Appellate Division Judge Charles Villanueva to screen an additional 105 files. See ibid. He asked the Attorney General and the New Jersey County Prosecutors' Association to present evidence concerning the extent to which prosecutors decided not to seek the death penalty, and specifically sought information from prosecutors regarding cases that were not capitally prosecuted but that Judge Baime found to be "clearly death-eligible." See ibid.
With respect to data coding, Judge Baime directed two law clerks to simulate the process in accordance with AOC protocols for twenty-four case files each and to compare their results with the AOC's. See id. at 42. With the aid of John P. McCarthy, Jr., Esq., Director of the Office of Trial Court Services, and Joseph J. Barraco, Esq., Assistant Director of Criminal Practice, Judge Baime considered all 433 death-eligible homicides in an attempt to discern meaningful case characteristics and the effect of mitigating factors on deathworthiness. See id. at 52-53. Further, Judge Baime retained statisticians Dr. David Weisburd and Dr. Joseph Naus as consultants to study the performance of the index-of-outcomes test. See id. at 4.
The Special Master's report recommended the following:
(1) retention of the clearly death-eligible universe of cases for proportionality review with the following improvements in the AOC's methodology;
(a) appointment of a retired judge to serve as Standing Master to supervise AOC screening, data collecting and data-coding functions, and to preside over hearings pertaining to these subjects;
(b) adoption of a protocol or rule mandating that all hearings before the Standing Master be kept confidential, that all information divulged by counsel during such proceedings may not be used for any purpose other than proportionality review, and that all transcripts and records of such proceedings be sealed;
(c) adoption of a protocol or rule requiring that all criminal division managers forward to the AOC additional sources of information for data-coding and screening, including the judgment of conviction, presentence report, notice of aggravating factor(s), any order resulting from a motion to dismiss, decisions pertaining to evidentiary questions, the requisite plea form, indictment or accusation, all defendant statements provided in discovery, all witness statements provided in discovery, all investigative reports from any law enforcement agency, defense notice of mitigating factors, autopsy and medical examiner reports, psychiatric evaluations and psychological reports;
(d) adoption of a protocol on an experimental or pilot program basis requiring trial judges to complete questionnaires in all potentially death-eligible homicide cases;
(e) modification of the AOC's evidence typology to require that evidence of capital murder elements must be "overwhelming" as a prerequisite for inclusion of a case in the death-eligible universe;
(2) adoption of a protocol requiring "double coding" and editing by individual members of the AOC staff, memorialization of all interpretive rules respecting key variables, and periodic updating of the data base to reflect changes in data-coding rules;
(3) adoption of a modified salient factors test that accounts for mitigation and contains fewer categories;
(4) abandonment of the index-of-outcomes test and logistic multiple-regression analysis for individual proportionality review because of the instability of current models and the relatively limited projected increase in New Jersey's data base;
(5) continued experimentation toward the creation of a reliable statistical model for the purpose of systemic proportionality review;
(6) adoption of a model charge reminding jurors of their duty to consider each case fairly and without regard to race, religion, national origin or gender; and
(7) continuation of bifurcated proceedings until the proportionality review process is streamlined and the Court can assess the feasibility of consolidation.
On May 18, 1999, the Attorney General, the Public Defender and amici curiae, the Association of Criminal Defense Lawyers of New Jersey (ACDL) and the New Jersey State Conference of NAACP Branches (NAACP), submitted briefs expressing their views on the Baime Report. (To distinguish this report from prior reports we refer to the Baime Report or Baime I, in anticipation of its second part.) Each of the parties also filed a response brief on May 26, 1999. We have now reviewed Judge Baime's Report concerning the statistical models used in individual proportionality review. As noted, we have not yet received Judge Baime's report concerning the statistical models used to examine systemic proportionality review. Although the size of the universe, and the effect of N.J.S.A. 2C:11-3e, “cannot be considered apart from those other questions[,]” Loftin II, supra, 157 N.J. at 285, rather than await the second half of the Baime Report, we proceed on a step-by-step basis to determine “those elements of the present system that provide useful information, to refine and improve that which we retain, if appropriate, and to reject methods that have proved unhelpful.” Id. at 286. Specifically, we will determine whether the “practical difficulties attendant to data collection and analysis of noncapital cases,” id. at 289, would counsel that we accord comity to the expressed preference of the Legislature and the Attorney General for a smaller universe consisting of either the group of death-sentenced cases or, in the alternative, cases in which a penalty trial has occurred or a prosecutor has served notice of capital aggravating factors. Ultimately, we must decide whether the statute would impermissibly infringe on the exercise of the judicial function, which is reserved exclusively to the Court. Id. at 264. For now, in the discharge of that function we shall continue to use the larger universe to conduct proportionality review. We do not anticipate that the revisions of the system now or in the future will call into question any previously-conducted proportionality reviews.
For convenience, we will follow generally the format of Judge Baime's report. It is our intention in this opinion to express our conceptual disposition of the major topics covered in Baime I. It is not our intention, nor is it within our capacity, to perform the actual computer programming that is necessary to store and sort the data. We have always believed that proportionality review need not be a mysterious exercise. The computer is used to compile, sort, and electronically store a list of case characteristics as we would have done a generation ago on a legal pad or on index cards. Once the cases are sorted, we hope to see how often death is the penalty for similarly sorted cases. “We seek a practical approach that ensures every defendant before us a rigorous and complete review of his or her sentence of death.” Id. at 286.
The initial proportionality review report submitted to the Court in Marshall II was largely in narrative form and, including its brief descriptions of comparable cases, did not exceed eighty pages: forty pages dedicated to frequency analysis and forty pages dedicated to precedent-seeking review. Over time, proportionality review reports have taken on an arcane style vexing to judges and lawyers untrained in statistical analysis. The Chew/Harvey/Cooper Report, largely tabular in form, contains approximately 800 pages consisting of proportionality review tables and appendices.
One of Judge Baime's recommendations is the appointment of a retired Superior Court judge to serve as a Standing Master to assist in proportionality review. We expect that such a judge, experienced in criminal matters, would be able to assist us in achieving a practical approach, while ensuring a rigorous and complete review of each sentence. If this opinion provides insufficient guidance to implement the revised system of proportionality review, we invite further inquiry. In the meantime, Judge Baime will assist the Court further during this transitional phase. He will continue as the Court's Special Master while developing and implementing the system that will be used by a Standing Master who will be appointed by the Court at a future date.
As a matter of abstract logic, we agree with Judge Baime that a universe limited to cases in which the death-penalty sentence has been imposed cannot support a coherent proportionality system. This is so because “[w]ithout knowledge of the life-sentenced cases, [a court] would be unable to determine whether there is a 'meaningful basis' for distinguishing the death sentences it reviews from the 'many cases' in which lesser sentences are imposed.” Baime Report, supra, at 10 (citation omitted).
What Judge Baime has identified for us are the limits of logic. He has observed that the validity of the inclusion of death-eligible cases in the universe depends substantially on “questions of feasibility.” Id. at 16. We are satisfied, as was Judge Baime, that the studies that he conducted with the assistance of retired Judge Villanueva, law clerks and AOC staff,
clearly indicate that reasonably consistent and accurate screening decisions can be made based upon the presentence reports and judgments of conviction. Indeed, many of these decisions can fairly be characterized as mechanical. . . . Of the 2104 cases that have been screened since the beginning of the proportionality review process, only 433 homicides have been classified as clearly death-eligible, approximately twenty-one percent.
We specifically approve of recommendations (1) (a), (b), (c), and (d), calling respectively for: the appointment of a retired judge as a Standing Master to supervise the AOC's screening, data collecting, and data coding function, and to preside over confidential hearings pertaining to these subjects; a requirement that Criminal Case Managers forward to the AOC additional available sources of information; and a pilot program under which trial judges would complete questionnaires in potentially death-eligible homicide cases.
A primary objective of those recommendations is to assist this Court in conducting precedent-seeking review, particularly with respect to those homicide defendants whose ultimate sentences were imposed as a result of a guilty plea or a conviction following a non-penalty phase trial. As we observed in State v. Cooper, 1 999 WL 350913 at *22 (N.J. June 3, 1999):
The difficulty inherent in the process of precedent-seeking review is exacerbated when the Court attempts to compare defendant's case to the cases of other defendants whose ultimate sentences were imposed as a result of a guilty plea or a conviction following a non-penalty phase trial. In some cases, the AOC's summary is sufficiently detailed to permit the Court to deduce by inference what considerations may have persuaded the prosecutor to forego a penalty trial. In other cases, the reasons why the prosecutor elected to forego a capital prosecution are less apparent. The lack of a contemporaneous and reliable summary by the prosecutors of the various factors that were considered in arriving at the decision to forego capital prosecution diminishes the effectiveness and reliability of our precedent-seeking review.
We are certain, with the reservations noted hereafter, that judicial questionnaires will provide a reliable measure, at least to a detached judicial observer, of the considerations that may have led to non-capital disposition of murder charges that were on their face death-eligible (as, for example, in the case of murder in the course of sexual assault).
Concerning judicial questionnaires, we ask that they be reviewed by the Trial Judges' Committee on Capital Causes to determine both their usefulness and their potential to encroach on judicial autonomy and resources. Although both judges and the Standing Master would have the power to compel the State and a defendant to supply discoverable materials helpful to the process of classifying and coding cases, we will not require trial judges or the parties to express their personal views about the weight of the evidence involved, nor will we ask trial judges to require prosecutors or defense attorneys to do so. We acknowledge that cases at a trial level are far from over. Prosecutors and defense attorneys would be justifiably hesitant to furnish subjective evaluations of the weight of the evidence or the reliability of witnesses for either side. Once disclosed, that information could become part of future proceedings. Given the reasonably reliable results of the existing coding process, we believe that with the additional provision of all discoverable materials and a suitable questionnaire from trial judges, the Standing Master will be able to resolve remaining disputes over which cases are clearly death-eligible. There is no need to revisit case summaries prepared under the existing protocols. Specific case summaries have been challenged by the parties from time to time and the net product is sufficiently reliable to move forward.
We do not adopt recommendation (1)(e), which would require, as a prerequisite for inclusion of a case in the death-eligible universe, that evidence of capital-murder elements be overwhelming. Under that rubric, the universe might not contain some “clearly death-eligible homicides.” Marshall II, supra, 130 N.J. at 135. We leave to the Standing Master and the parties the further resolution of this issue. We will keep this docket open to resolve any remaining disputes. We trust that we may continue to call on the expertise of Judge Baime.
We adopt Judge Baime's recommendation 2 for administrative changes related to the improvement of the data-collection process by introducing a system of “double coding,” whereby “[t]wo AOC staff members . . . independently code all of the cases, and then discuss and resolve their differences.” Baime I at 48. We also adopt the recommendation that the AOC draft and maintain specific protocols for data-coding. Ibid. We agree that the database should be updated periodically to keep the information “current and accurate.” Id. at 49.
In connection with that work, we ask the AOC to consider, in consultation with Judge Baime, the argument of the Attorney General that it is inconsistent that capitally-charged cases not resulting in a capital indictment by the grand jury are included for proportionality review, whereas cases rejected by the trial jury are not. Both petit and grand juries are the ultimate arbiters of what constitutes a death-eligible case.
Judge Baime recommends retention of a few discrete subcategories. First, he would leave the subcategory denominated as "with particular violence or terror" in the sexual assault classification because defendants so classified seem to be viewed by prosecutors and juries as particularly deathworthy. Id. at 58. He recommends that strict guidelines be developed to avoid the inherent subjectivity in defining this subcategory, and specifically suggests that the subcategory include multiple stabbings, gunshot wounds and mutilations, as well as cases involving children. Id. at 58-59.
Judge Baime recommends that the robbery category be subdivided into "residential, business and other," eliminating the numerous categories that currently exist. Id. at 59. The creation of the three categories is presumably an attempt to reduce the large number of cases in the robbery-murder category for purposes of review.
Finally, Judge Baime would retain subcategories in the multiple victims category. Id. at 59. He believes that because many of those cases involve intrafamily and rage killings, and prosecutors have not ordinarily capitally prosecuted such cases, those cases should be distinguished. Ibid. In addition, he notes that cases involving drug transactions between the victim and the defendant have "rarely resulted in capital prosecutions and death sentences." Ibid. With the exception of those instances, Judge Baime observes that defendants who kill multiple victims in the course of the commission of another crime are viewed as particularly deathworthy. Id. at 59-60. He therefore recommends breaking the category into two subcategories - aggravated and non-aggravated cases. Id. at 60. He would denote multiple killings in the course of other felonies as "aggravated," excluding multiple killings in the course of drug crimes and intrafamily and rage killings. Id. at 59-60.
Judge Baime proposes that mitigating factors be introduced into the salient-factors test. Id. at 64-65. Acknowledging the difficulty in accurately representing the mitigating factors given that a unanimous jury need not find a factor in order for it to be present, as well as the fact that juries weigh mitigating factors differently, he nevertheless recommends that the salient-factors category be divided into "low” mitigation and "high” mitigation subcategories. Ibid. As originally contemplated, the salient-factors test was expected to include mitigation in that analysis. Marshall II, supra, 130 N.J. at 146.
In order to channel the salient-factors analysis into a simpler reading of the data, we reject for now the incorporation of mitigating factors into the analysis. Judge Baime has recommended maintaining the principle of unique assignment because "the number of aggravating factors is not particularly relevant in assessing deathworthiness . . . ." Baime Report, supra, at 60. The same may be true for mitigating factors as predictors of the lack of culpability. Precedent-seeking review is better suited to handle the presence of mitigating factors.
Use of the Salient-Factors Test in Selection of Comparison Cases
In attempting to reduce the number of cases the Court is obliged to examine in precedent-seeking review, Judge Baime recommends that the Court leave that responsibility to the parties, under the supervision of a Standing Master. Id. at 74. Because the parties are in the best position to make arguments for including similar cases in the Court's review, we accept this approach, and note that it can serve to correct potential errors made in the salient-factors analysis. If some of the categories are split into subcategories, it is important that the Court remain open to recommendations from both parties concerning cases that may have been erroneously excluded from or included in the reviewed category. Judge Baime recommends that the Standing Master consider the arguments advanced by the parties and provide the Court with a recommendation. Ibid. The Court will make the ultimate decision concerning which cases are to be considered for precedent-seeking review.
Judge Baime recommends abandoning the index-of-outcomes test due to the instability of the regression models.See footnote 11 Baime I, supra, at 77. He notes that the main problem is the lack of parsimony in the models, which means that the computer models are using the data from a relatively small number of cases to explain the effect of too many different factors on the likelihood of receiving the death penalty. While finding that the increase in the number of cases over time has had a positive effect on the stability of the models, “this fact does not itself mean that the models are now stable, but rather that they have met a very minimal requirement of stability.” Id. at 90. In examining the size of the coefficients produced in schedules over time, Judge Baime found some settling of the factors, but cautions that “the coefficients are still large overall for logistic regression analyses and tend to suggest substantial model instability.”See footnote 22 Id. at 92. In addition, Judge Baime notes that although an examination of the culpability estimates for each defendant over time shows some overall consistency, the levels for certain defendants have undergone substantial changes with the addition of new cases each year. Id. at 93-94.
Judge Baime identifies the following possible causes of instability in the models: (1) if an important predictor of a death sentence is left out of the model, the culpability predictions will likely be unreliable and will challenge the validity of the individual case rankings for proportionality review; (2) if an excluded variable is related to a factor in the model, the measurement of the included variable would be biased by the exclusion of the independent variable; and (3) there remains a persistent lack of parsimony in the models. Id. at 96 101. The problem with the index-of-outcomes test is that there are too many independent variables (degree of victimization, extent of premeditation, nature of offense) in relationship to the relatively few dependent variables (death verdicts) to reach a reliable conclusion about the effect of the independent variables. This in turn has led to unreliability in ranking the cases in terms of overall culpability or deathworthiness. In the end, Judge Baime concludes that any attempts to overcome these problems will not produce meaningful results.
For an analogy, return to the example of the effect of gender on pay scales for workers described in Loftin II, where we said that regression analysis
is used in employment discrimination cases when it is claimed that a class of employees has been denied promotion or accorded differential compensation based on factors such as race or gender. Salary would be the dependent variable to be explained whereas gender and race would be the explanatory or independent variables. EEOC v. Sears Roebuck & Co., 839 F.2d 302, 325 (7th Cir. 1988).
Judge Baime recommends that his consultants continue to attempt to create more reliable models to achieve the goals of systemic proportionality review. He will work with Professors Naus and Weisburd, and plans to report the results by October 1999. Baime I, supra, at 108 n.13.
Experience gleaned from studies elsewhere may refine the statistical methods that enable one reasonably to conclude whether race is or is not an impermissible factor influencing capital-sentencing decisions. See Kent S. Miller & Michael L. Radelet, Executing the Mentally Ill: The Criminal Justice System and the Case of Alvin Ford, 128-29 (1993) (noting 1990 General Accounting Office study showing “that, other things being equal, those who murdered whites were more likely to be sentenced to death than those who murdered blacks” and that over “half of the studies reviewed found that race of the defendant also influenced the likelihood of . . . receiving the death penalty”); David C. Baldus, George Woodworth, David Zuckerman, Neil Alan Weiner & Barbara Broffitt, Racial Discrimination and the Death Penalty in the Post-Furman Era: An Empirical and Legal Overview, With Recent Findings From Philadelphia, 83 Cornell L. Rev. 1638 (1998) (describing studies of racial discrimination in Philadelphia capital-death sentencing).
In the meantime, Judge Baime recommends that a model jury instruction be given that reminds jurors that they are not to consider race, color, religious beliefs, national origin, or sex of the victim, and that the jury is “not to return a sentence of death unless it has concluded that it would return the same verdict no matter what the race, color, religious beliefs, national origin or sex of the defendant or the victim might be.” Baime Report, supra, at 109 (citing 21 U.S.C.A. 848 (o)(1) (Supp. 1998). The Special Master recommends that the instruction be given only at the request of the defendant and only “in appropriate cases.” Ibid.
While cautioning that a true bigot would certainly ignore the charge, Judge Baime contends that it might well have an impact on some who “attach an irrational significance to race or another nongermane criteria that is outside their awareness.” Ibid. He has faith in a jury's ability to pay close attention to instructions and to apply them diligently. Id. at 110 (citing State v. Breakiron, 210 N.J. Super. 442, 468-69 (App. Div. 1986), (Baime, J.A.D., dissenting), rev'd in part, 108 N.J. 591 (1987)). We share that faith.
We recently approved a Model Criminal Charge instructing juries to consider, when relevant, the possible effect of race on a witness's ability to make a correct identification. State v. Cromedy, 158 N.J. 112 (1999). Perhaps, when relevant, sexual orientation should be included in the proposed charge, in accordance with the Legislature's hate crime statute. See N.J.S.A. 2C:44-3e. We leave the formulation of the charge to the Committee on Capital Causes. For now, trial courts should, when appropriate, give an instruction generally in the form suggested by Judge Baime.
That practice made sense in an era in which capital punishment jurisprudence was unsettled and the likelihood of a reversal great. Although death penalty cases remain extremely complex, many difficult issues have now been resolved and the original rationale for bifurcation is perhaps less compelling. Moreover, “this practice . . . exacts a cost by drawing out the appeals process when a death sentence is affirmed.”
[Baime Report, supra, at 111 (quoting Loftin II, supra, 157 N.J. at 316) (footnote omitted).]
Judge Baime wrote:
I favor consolidation. Whatever the deterrent value of capital punishment -- an issue upon which reasonable persons can and do differ -- it is surely diminished with the passage of time caused by endless appeals. I believe that the process can be streamlined if my recommendations are accepted. As I noted earlier, much of the attention and time of the Court and counsel have been devoted to the fruitless endeavor of attempting to find meaning in the results yielded by the index of outcomes test. Eliminating the index of outcomes test will streamline the system at virtually no cost to the parties. The rights of the defendant will be fully protected by relying on the salient factors test and precedent seeking review. On balance, I believe that consolidation will conserve more resources than it will cost in the relatively few cases that are reversed on direct appeal.
The next stage is for the AOC, with the guidance of Judge Baime and, ultimately, the Standing Master to be appointed by the Court, to establish the procedures for individual proportionality review in accordance with the directives herein. That will require recalculation of the data and the production of revised reports. The Clerk of the Court will discuss with the parties briefing and argument schedules that reflect the new procedures. Systemic proportionality review will have to be conducted under the existing methods of analysis. In conjunction with those proceedings, we shall determine when and how to conduct consolidated proportionality review. Consolidation will demonstrate the principle that a responsible judicial system can be both just and efficient.
We recognize that consolidating proportionality review will be an added burden to the already burdened prosecution and defense teams, and we will work with them to integrate the new system for proportionality review into the direct appeal process. In connection with the next proportionality reviews conducted under the revised format, the parties should submit their views concerning procedures for implementing consolidation. We shall request that the parties confer with the Standing Master and the Clerk of the Court before submitting their views to us as part of those appeals.
To sum up, one of the participants has observed that conducting proportionality review is not like completing the Human Genome Project. We are identifying and then sorting, by very familiar characteristics, about thirty to thirty-five cases per year. We have permitted technical debate to obscure substantive meaning. Our task is to ensure that technical problems with issues such as confidence intervals, model convergence, and more (or less) parsimonious models, be translated into an understandable legal format that we and the parties can apply. We expect, with the help of Judge Baime and the Standing Master, AOC staff, the parties, and amici, that we can achieve this goal. It is to them and those who have assisted them, including our own clerks, that the Court expresses gratitude for their efforts to build on and improve the system of proportionality review recommended by Special Master David Baldus. All participants approached the task without effort at obstruction. Their cooperation in recognizing past problems when evident and pointing out potential future problems has been of great assistance to Judge Baime and to the Court. We all share one goal, “to ensure that the death penalty is bei