NJ Death Penalty Repeal Leads to Split on Sentencing Remedy for Pending Case

On May 12, 2009, the NJ Supreme Court decided State v. Fortin. The decision may be found here. In 1985, Fortin was charged with capital murder. In August 2000, six months before the penalty phase of his trial, the Legislature adopted a law to "take effect immediately," which permitted imposition of life without parole in certain capital cases. This was more severe than the prior sentencing scheme, which permitted a 30-year parole disqualifier. In 2001, defendant was convicted and found by a jury deserving of the death penalty. The Supreme Court then reversed and remanded the case for a new trial. Incidentally, the Court then noted that the use of the new sentencing scheme would have had ex post facto constitutional problems.

After the new trial, in 2007, Fortin was once again convicted. But before the sentencing phase, the Legislature amended the statute and replaced the death penalty with a mandatory life imprisonment without parole penalty. Previously, Fortin could have been sentenced to life in prison with a 30-year parole disqualifier, a lesser sentence.

The State requested that Fortin be sentenced automatically to life without parole under the new statute. The Trial Court refused, citing the constitutional prohibition on ex post facto laws (those imposing greater penalties than existed at the time of the crime). The Appellate Division agreed. The Supreme Court affirmed in part and reversed in part.

The answer to the question of how to handle this situation was not addressed by the revised statute. In other words, how do we treat defendants whose sentences were not yet rendered at the time of the statute's enactment? The Court majority adopted a "hybrid" approach, which is not set forth in the statute. The Court reasoned that, because defendant had knowledge of the possible death penalty at the time of the crime, then it is not fair to continue with the death penalty sentencing procedure (as previously in place but now repealed) before the jury. If the jury chose death, then it would not be unfair -- or violative of ex post facto -- to sentence defendant to life imprisonment as under the new statute. If, however, the jury rejected a death sentence, then defendant would be sentenced under the prior statutory scheme to life with a 30-year parole disqualifier.

In dissent, Justices Albin and Long argued that the majority's analysis was wrong and ignored the ex post facto problem previously recognized in its earlier Fortin decision. The Court was permitting imposition of a greater penalty than that permitted when Fortin committed the crime. Accordingly, the life-without-parole option is constitutionally infirm. The majority's hybrid analysis cannot be squared with the Court's earlier Fortin decision on this basis.