Court Stays All New Jersey Executions Pending "Reasoned Medical Opinion"
The death penalty in New Jersey is administered by lethal injection. The regulations governing its administration were amended by the Department of Corrections in 2001 to delete a former requirement that an emergency cart be available to revive the inmate in case of a last minute stay. The rationale for this change, apparently, was that once the lethal drugs are administered, their deadly effects are irreversible.
In response to a lawsuit challenging this and other features of New Jersey's death penalty regime as cruel and unusual, a New Jersey appellate court has now stayed all New Jersey executions, for want of record evidence to support the DOC's assumption that execution by lethal injection is, and necessarily must be, an irreversible process. A prisoner whose execution-in-progress is stayed enjoys a constitutionally protected interest, according to the court, in having attempts made to revive him, if such efforts are feasible. "Consequently, unless and until DOC comes forward with strong medical evidence that there is no possibility of reversibility and no other suitable drugs whose effect is reversible, we are persuaded that a death sentence cannot be carried out under these regulations." The court also held that certain restrictions on media coverage of executions, including a blanket prohibition against filming the executions themselves, could not withstand First Amendment challenge without further evidence supporting the DOC's contention that the restrictions are necessary to promote legitimate safety, security, and penological objectives. The court remanded the action for further development of the factual record in the trial court. See In re Readoption with Amendments of Death Penalty Regulations N.J.A.C. 10A:23, by the New Jersey Department of Corrections, No. A-0899-01T1 (N.J. Super. Ct. App. Div. Feb. 20, 2004) (Pressler, Ciancia, & Alley, JJ.) (unpublished).
On the reversibility issue, the court articulated at least three characterizations of the evidence absent which it could not sustain the regulations against constitutional challenge: a "reasoned medical opinion," an "articulated medical basis," and "strong medical evidence." If these expressions mean different things, it is the third, seemingly, that will govern. The first two characterizations were of what the record did not (yet) contain, in the court's view; the third characterization, "strong medical evidence," was used to describe what evidence would in fact be needed.
What standards of reliability would the New Jersey courts ordinarily require such evidence to meet? Except in toxic tort cases, New Jersey broadly adheres to Frye's "general acceptance" test for expert testimony. See State v. Harvey, 151 N.J. 117, 699 A.2d 596 (1997), cert. denied, 528 U.S. 1085 (2000). Under the Harvey decision, general acceptance can normally be shown in any of three ways: by expert testimony, by authoritative scientific and legal writings, or by citation of judicial opinions reflecting general acceptance of the relevant theory. But other fine points of New Jersey law that fall beyond our ken may also be relevant here. For example, the deference sometimes afforded to agency "expertise" may be a factor. It will be fascinating to see what kind of evidence the Department of Corrections develops on this issue.
In response to a lawsuit challenging this and other features of New Jersey's death penalty regime as cruel and unusual, a New Jersey appellate court has now stayed all New Jersey executions, for want of record evidence to support the DOC's assumption that execution by lethal injection is, and necessarily must be, an irreversible process. A prisoner whose execution-in-progress is stayed enjoys a constitutionally protected interest, according to the court, in having attempts made to revive him, if such efforts are feasible. "Consequently, unless and until DOC comes forward with strong medical evidence that there is no possibility of reversibility and no other suitable drugs whose effect is reversible, we are persuaded that a death sentence cannot be carried out under these regulations." The court also held that certain restrictions on media coverage of executions, including a blanket prohibition against filming the executions themselves, could not withstand First Amendment challenge without further evidence supporting the DOC's contention that the restrictions are necessary to promote legitimate safety, security, and penological objectives. The court remanded the action for further development of the factual record in the trial court. See In re Readoption with Amendments of Death Penalty Regulations N.J.A.C. 10A:23, by the New Jersey Department of Corrections, No. A-0899-01T1 (N.J. Super. Ct. App. Div. Feb. 20, 2004) (Pressler, Ciancia, & Alley, JJ.) (unpublished).
On the reversibility issue, the court articulated at least three characterizations of the evidence absent which it could not sustain the regulations against constitutional challenge: a "reasoned medical opinion," an "articulated medical basis," and "strong medical evidence." If these expressions mean different things, it is the third, seemingly, that will govern. The first two characterizations were of what the record did not (yet) contain, in the court's view; the third characterization, "strong medical evidence," was used to describe what evidence would in fact be needed.
What standards of reliability would the New Jersey courts ordinarily require such evidence to meet? Except in toxic tort cases, New Jersey broadly adheres to Frye's "general acceptance" test for expert testimony. See State v. Harvey, 151 N.J. 117, 699 A.2d 596 (1997), cert. denied, 528 U.S. 1085 (2000). Under the Harvey decision, general acceptance can normally be shown in any of three ways: by expert testimony, by authoritative scientific and legal writings, or by citation of judicial opinions reflecting general acceptance of the relevant theory. But other fine points of New Jersey law that fall beyond our ken may also be relevant here. For example, the deference sometimes afforded to agency "expertise" may be a factor. It will be fascinating to see what kind of evidence the Department of Corrections develops on this issue.
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