This case raises numerous novel questions concerning New Jersey's death penalty statute, N.J.S.A. 2C:11-3(c).
The prosecutor, at the time of arraignment, filed and noticed the defendant of an aggravating factor, thereby designating the matter as a capital case. At the time of the pretrial, and after plea negotiations with defendant's counsel, the State made application to the court to withdraw the aggravating factor previously filed. A plea agreement had been entered into whereby in return for the defendant's plea of guilty to four counts of murder, the State agreed to withdraw the aggravating factor, recommend dismissal of two other counts of the same indictment and recommend four concurrent life sentences with 30 years of minimum parole ineligibility.
This plea agreement raises the following questions:
I. May the prosecuting attorney withdraw an aggravating factor which is supported by the evidence in order to remove the death penalty as a possible sentence?
II. Is a de facto procedure whereby a defendant may plead guilty to avoid the death penalty constitutionally permissible?
III. Does the court in a capital case have jurisdiction to entertain a plea agreement and consider and weigh the aggravating and mitigating factors?
A historical review and analysis of the U.S. Supreme Court cases which struck down previous death penalty acts as unconstitutional is required in order to determine the legislative intent in connection with the present New Jersey death penalty statute, N.J.S.A. 2C:11-3(c).
The U.S. Supreme Court declared the Federal Kidnapping Statute unconstitutional in U.S. v. Jackson, 390 U.S. 570, 88
S. Ct. 1209, 20 L. Ed. 2d 138 (1968) because it "needlessly penalize[d] the assertion of a constitutional right" as a result of the "chilling effect" upon a defendant's right to trial by jury where that defendant must waive his right in order to avert the death penalty. Id. at 583, 88 S. Ct. at 1217. New Jersey's prior death penalty statute was found unconstitutional based upon the reasoning of Jackson in Funicello v. N.J., 403 U.S. 948, 91 S. Ct. 2278, 29 L. Ed. 2d 859 (1971); State v. Funicello, 60 N.J. 60 (1972).
The Supreme Court in Jackson stated:
The Congress can of course mitigate the severity of capital punishment. The goal of limiting the death penalty to cases in which a jury recommends it is an entirely legitimate one. But that goal can be achieved without penalizing those defendants who plead not guilty and demand jury trial. In some States, for example, the choice between life imprisonment and capital punishment is left to a jury in every case -- regardless of how the defendant's guilt has been determined. [390 U.S. at 582] [88 S. Ct. at 1217]
Subsequently, the Court constitutionally condemned death-penalty statutes which were subject to arbitrary and capricious sentencing procedures and which lacked appropriate legislative guidelines for the sentencing adjudication. Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972); Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976); and Jurek v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976).
In Furman the Supreme Court said:
The high service rendered by the "cruel and unusual" punishment clause of the Eighth Amendment is to require legislatures to write penal laws that are evenhanded, nonselective, and nonarbitrary, and to require judges to see to it that general laws are not applied sparsely, selectively, and spottily to unpopular groups.
Thus, these discretionary statutes are unconstitutional in their operation. They are pregnant with discrimination and discrimination is an ingredient not compatible with the idea of equal protection of the laws that is ...