I Witnessed an Execution

Article by Peter H. Lederman, Esq.

Published in the New Jersey Law Journal

An argument for diversionary programs for some DWI offenders.

The key to a “good execution” is adherence to procedure. Procedure in an execution sanitizes the most profound event experienced by living beings, the loss of life. Process makes an execution common place, normal and every day. The act of taking a life is simplified and made “peaceful” and “dignified”, common place, unremarkable, acceptable, justified and in the last analysis, no big deal. But of course, it is!

I witnessed an execution the other day in a Monmouth County Municipal Court. Nobody was taken outside to face a firing squad. There were no gallows, injections of questionable drugs, no gas chambers, no grotesque be headings. There was instead, the beginning of the end of a military career, for one of the finest young men in the United States Army, who reached the rank of Captain before his thirtieth birthday, served honorably in combat in Iraq and graduated with distinction from the United States Military Academy at West Point.

Of course, there was plenty of process before that event, discovery with officer’s reports, mobile video recordings, drinking driving reports and the like. There were conferences, expert reports, suppression motions, pretrial hearings, trial with cross examination and oral argument. Process, lots of process, but, in the end, it was just another execution, unremarkable, commonplace and in the last analysis, no big deal. But of course, it was!

His father served our country a generation ago, also after graduating West Point. His brother also served after graduating a year later from the same honorable institution. In high school he excelled in the class room, in varsity athletics and student activities. At West Point, he again excelled in academics and sports, was President of the Catholic Choir and an outstanding Cadet.

During his years at West Point, he was thought of highly within the Academy. Obviously, others shared this opinion. When applying for admission into West Point, his appointment came from no less than the President of the United States. In his subsequent years of military service, he was quickly promoted to his present rank. He excelled through every step of his military career. Surely, at a young age he had demonstrated his character, integrity and devotion in service to his country.

The upward arc of this career however, came to a sudden end on a Tuesday morning in July because of an event occurring years earlier, leading to his conviction for violating our DWI statute. The event occurred on leave after the end of classes at West Point and before his graduation ceremony. Perhaps it was the exhilaration of accomplishment, the anticipation of a military career or the sudden release from the firm grip of discipline within which he lived for years as a Cadet. The reasons for his actions, though, were of no moment, just as the perfect driving record, the young life well spent, the military career of service to our country. They amounted to an explanation, nothing more.

Moreover, it did not matter that he was only stopped because of an expired registration and that obviously deficient breath test results could not be considered by the court. The court chose to find an “observation” case and subsequently entered a judgment of guilt for violation of NJSA 39:4-50. That finding, combined with the Reduction in Forces, in which the United States military is being downsized, meant that conviction would set in motion events which would end the military career of an otherwise exemplary young man.

What’s missing from this story is the right ending. I understand the senseless tragedy that results from diminished driving ability after excessive consumption of alcohol or other substances. I suffered property damage and witnessed personal injury to one of my daughters, at different times within the last few months, at the hands of drunken drivers. But I also understand from both prosecuting and defending countless drivers over the past forty years, that all DWI offenses are not the same. I understand that there are circumstances involved in all violations, which aggravate and mitigate those violations.

Admission into a diversionary program with the opportunity to restore one’s reputation after successful completion of a program of probation solves this problem. The Probation Before Judgment program, in effect in Maryland for some time and the Accelerated Rehabilitation Disposition program in effect in Pennsylvania for many years provides examples of programs, where in the right case, diversion would be appropriate. Be selective and choose the right people. Look at the mitigating and aggravating circumstances. Require extensive evaluation, counselling and education for possible substance issues. Make sure that no other offenses occur during the period of diversion. Require community service and Interlock Devices for a period of time.

The concept of diversions is not foreign to our law. Pre-Trial Intervention is a fundamental part of our criminal justice system. A similar program is made available in Municipal Courts for many types of violations. Prosecutors routinely dismiss or remand complaints in their discretion. The Governor has also spoken out as to the need to provide assistance were substance issues exist as opposed to criminal sanctions.

Executions came to an end in New Jersey a while ago. In the case of DWI prosecutions, this is not yet the case. I witnessed an execution the other day.

Reprinted with permission from the Aug 2015 issue of the New Jersey Law Journal© 2015 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.