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State v. Fortin2/3/2004
d does not provide much insight into the meaning of the statute. However, in this case, the policy considerations that gave rise to the statute inform our interpretation of the Legislature's intent. We recognize that applying the statute to murders that occurred both before and after the enactment of N.J.S.A. 2C:11-3b(4), with due regard to the right of defendants to invoke or waive protection of the Ex Post Facto Clause, would give the most wide-ranging effect to the legislative mandate. The State counters that the Legislature was aware of the Ex Post Facto Clause in passing N.J.S.A. 2C:11-3b(4) and would not have intended the statute to apply to cases beyond its constitutional reach by leaving to individual defendants the opportunity to opt in by waiving the clause. If the statute were not intended to apply to defendant's case, then the Ex Post Facto Clause would not come into play and the issue of waiver would be moot.
We conclude that the policy objectives of the legislation clearly support the most far-reaching application of the statute. That means the statute embraces all capital murder cases proceeding to the penalty phase after the legislation's effective date, provided that, in cases in which the murder preceded the effective date, the defendant must be willing to waive the protection of the Ex Post Facto Clause. We reach this result for several reasons. One of the obvious statutory objectives was to eliminate recidivism for those who commit society's most abhorrent crimes. In those cases in which the penalty-phase jury finds beyond a reasonable doubt an aggravating factor but does not return a death verdict, the Legislature upgraded the punishment from thirty years to life with a thirty-year parole disqualifier to life without parole, thus removing any chance of the convicted murderer's release. We cannot discern any reason why the Legislature would not have wanted to extend that punishment to the greatest number of cases constitutionally permissible. Additionally, assuming that the odds of a death verdict increase if the jury does not have the option of a life-without-parole sentence, we cannot discern any reason why the Legislature would have wanted to divide the fates of defendants, who had yet to proceed to the penalty phase, between those whose crimes occurred before and after enactment of N.J.S.A. 2C:11-3b(4). The legislative goal of proportionality in capital sentencing favors similar treatment for similarly situated defendants, to the extent possible. N.J.S.A. 2C:11-3(e). Applying N.J.S.A. 2C:11-3b(4) to the greatest number of cases constitutionally permissible furthers the goal of proportionate sentencing. We also are mindful that when a criminal statute is at issue, "we are guided by the rule of lenity" and "interpret ambiguous language in favor of a criminal defendant." State v. Livingston, 172 N.J. 209, 218 (2002). In light of the purpose of the new law, in cases such as this one, we cannot find a legislative intent to have a jury return a death verdict only because it did not have the option of returning a life-without-parole sentence.
We next address whether the defendant can waive the protection of the Ex Post Facto Clause. The United States and New Jersey Constitutions prohibit ex post facto legislation.
The Ex Post Facto Clause was intended to interdict the retroactive application of criminal laws that harm the accused. Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 2451, 96 L.Ed. 2d 351, 359-60 (1987) (quoting Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed. 2d 17, 23 (1981)); State v. T.P.M., 189 N.J. Super. 360, 366-67 (App. Div. 1983). The drafters of that clause understood that it would be unjust to prosecute a person for a crime or
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