New Jersey, like most states, has a proportionality review for death sentences. Until 1999 the proportionality review and sentence review on direct appeal occurred in two separate proceedings. In 1994, the New Jersey Supreme Court upheld DiFrisco'’s death sentence by a vote of 4-3, a year later 5-2 on propotionality review. During the second vote as to proportionality, one of the justices who had originally voted to uphold DiFrisco'’s death sentence dissented. In all four justices voted to reverse his the two separate proceedings DiFrisco however remained under sentence of death.

Earlier today, despite the governmental shutdown, the DiFrisco Court ruled 4-3 in his favor that he should be taken off of death row. Background on the odd set of facts that lead to the reversal from that opinion is here.

To satisfy Gregg and ensure that a death penalty is properly imposed, our Legislature enacted the current death penalty statute. Among other protections, that statute requires this Court to conduct, upon a capital defendant’s request, a proportionality review to determine that a defendant’s death sentence is not disproportionate to other death sentences. In structuring our proportionality review procedures, we created a bifurcated capital appellate review system in which we first considered arguments for why a death sentence should be overturned other than proportionality and, if those arguments were rejected, then conducted a proportionality review in a separate proceeding. In 1999, we abandoned that bifurcated process and consolidated the two reviews. Our decision to separate the determination whether a death sentence was properly imposed into two separate proceedings has led to the unique question in this matter. In 1994, in a four- to - three decision, the Court affirmed defendant’s death sentence on direct appeal. One year later, in a separate five-to-two vote, we affirmed defendant’s sentence pursuant to our proportionality review. However, in that decision, one Justice,who had voted to affirm defendant’s sentence in the first proceeding, voted in the second to overturn the sentence, concluding that it was disproportionate. Between the two proceedings, then, four members of the Court voted to overturn defendant’s death sentence and impose a life sentence. After our decision to consolidate the two proceedings, defendant filed a petition for post-conviction relief, arguing that his death sentence should be vacated because, had the two proceedings been combined, a majority of the Court would have voted to overturn his death sentence and impose a life sentence.