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Editor’s note: Gov. Chris Sununu vetoed the bill to repeal the death penalty which passed the House and Senate with enough votes to override a veto. The New Hampshire House will consider the veto of HB 455 on Thursday, May 23. If successful, the New Hampshire Senate will take up a vote the following week.
By Walter L. Murphy, Retired Chief Justice of the New Hampshire Superior Court
I was appointed to the Superior Court of New Hampshire by Governor John Sununu, and in 2009 was asked by Governor John Lynch to chair the Death Penalty Study Commission.
The State of New Hampshire has not executed anyone for eighty years. Since that time, the death penalty has remained dormant until the verdict reached in 2008 in the case involving the October, 2006 shooting death of a Manchester police officer, Michael Briggs. At the same time the case was pending, the state sought the death penalty in a case involving a murder for hire, which resulted in the defendant’s conviction of capital murder and the jury rejecting the death penalty, resulting in the sentence of life without the possibility of parole.
While other cases of “murder for hire” and the killing of law enforcement officers have been prosecuted in NH in the days since the U.S. Supreme Court reinstated capital punishment in 1976, none went to the jury on capital murder charges, but rather for first degree murder, resulting in the minimum mandatory sentence of life without the possibility of parole.
There are strong feelings on the part of both sides of the issue as to whether the death penalty should remain “on the books.” Those who favor its retention contend that the nature of the crimes defined in the statute are so heinous that anything less than the death penalty minimizes their gravity and that it is the sole manner to communicate society’s revulsion at the enormity of the criminal offense.
Those who argue for its abolition rely upon a moral reluctance to engage in the killing of another human being, that mistakes are made for which no restitution can be made to an executed defendant and that the costs, both monetary and otherwise, outweigh its benefit to society. Both sides of the issue bring a great deal of passion to the table and it goes without saying that both its advocates and opponents debate the issue in good faith.
The current statute enumerates those crimes which are “death eligible.” Among the crimes which purport to constitute the “worst of the worst” is the murder of a law enforcement officer or judge. Opponents of the death penalty point out that it is difficult, if not impossible, for a family member of a murder victim, not a police officer, to accept the fact that, while the murderer in one case can be charged with capital murder, the murderer in his case is not. To be viable the death penalty requires that it be applied fairly and that the public perceives it to be fairly applied.
Likewise with respect to those victims who may have been murdered in the course of an armed robbery; is the life of that victim worth any less than one who is killed during the course of a drug sale, the murderer in the latter case being eligible for the death penalty, while the murderer in the former is not?
The vast majority of murder victim family members who have testified before committees in NH are in agreement: abolish the death penalty. As for the argument made by its advocates that “closure” to the family victims is unavailable absent the defendant paying the ultimate penalty for his crimes, those witnesses rejected this idea.
The very nature of a death penalty case requires a rigorous defense and, in the event of a guilty verdict, a long and arduous appellate process. Appeals are extraordinarily expensive and time-consuming, resulting in even further frustration on the part of the family of the victim. In some instances in other states which have rigorously pursued death penalties, the defendants have remained on death row for decades while they exhaust their appellate rights in both State and Federal courts.
It is a mismanagement of precious resources that the state should be willing to expend over $5 million to date for the prosecution of one criminal case. There is absolutely no justification for the claims made by some that it would save the state money to put the defendant to death rather than incarcerate him for life. It should also be noted that at present the state has no facility to conduct an execution, the projected cost of which is estimated by the corrections authorities to be over $1.8 million.
There are better uses to which the money saved could be put to good use for the benefit of those most directly affected by murder: the funding of social services for the surviving family members of victims; the funding for more extensive training for law enforcement for the prevention and detection of crime; the adequate funding of the “Cold Case Unit” to address over 120 unsolved murders in the State. How can the State justify such an expense for the prosecution of one case while leaving so many cases unsolved for lack of sufficient resources? Does not the family of a victim of an unsolved murder deserve some consideration?
There are numerous other considerations which must be taken into account as well: If one of the purposes of the death penalty is to provide for general deterrence as its advocates contend, there should be some persuasive evidence that general deterrence is its effect. Yet hundreds of studies have failed to produce persuasive evidence that the death penalty deters others from committing crimes that are currently eligible for the death penalty. Nor is there any evidence establishing that the death penalty deters any more than the sentence of life without the possibility of parole.
Additionally, it continues to be the experience in other states where the death penalty remains in effect that mistakes are made and that some defendants have been wrongfully convicted and executed. While it is undoubtedly true that New Hampshire is ”different,” it is equally true that there remains the potential for similar results for which there is no possible restitution; because we are dealing with a human institution, there is no guaranty that the process will be error-free.
Basically, there is no assurance that the death penalty does what its advocates claim is its purpose; nor is there any reason to believe it is necessary for public safety. The sentence of life without the possibility of parole offers the same protection without the attendant risks of mistakes and without the vast expense both monetary and otherwise. Nor is there any rational justification for the view expressed by some that the abolition of the death penalty insults the memory of murder victims or demonstrates a lack of respect or support for law enforcement, the judiciary, or the judicial process.
It is readily understandable that as a result of the brutal and inhumane nature of some crimes, the public becomes justifiably outraged to the extent that it demands the re-implementation of the death penalty. Those who contend the death penalty is required to bring about justice are confusing justice with retribution which the State of New Hampshire does not recognize as a legitimate purpose of sentencing. (See, New Hampshire Constitution, Part 1, Article 18).
To claim that the death penalty is consistent with evolving society standards, it is necessary to ignore, or at least trivialize, the fact that several states have repealed their death penalty laws in the last decade.
Moreover, there is virtual unanimity among church leaders in New Hampshire in opposing the death penalty for moral reasons; a vast majority of those who spoke out at our public hearings expressed strong views opposing the death penalty; those who had the responsibility of participating in actual executions from other states spoke about the devastating impact the process had on them and others involved in taking the lives of the condemned; the testimony of victims’ family members recounting the unspeakable pain of reliving the events which resulted in their relative’s death; and the public spectacle that occurs when an execution takes place.
The United States remains the only country in the Western Hemisphere to retain the death penalty and is the only industrialized country to do so with the exception of Japan. In 2018, the nations which have carried out the highest rate of executions were (in this order): China, Iran, Saudi Arabia, Vietnam, Iraq, and Egypt, with the United States coming in 7th place. Do the citizens of New Hampshire truly wish to keep such company regarding this policy?
There can be no argument that the issues surrounding the death penalty are complicated. What is clear, however, is that those who seek to, in effect, reinstitute the death penalty which has remained essentially dormant since 1939, should have the burden to establish, by means of convincing, reliable evidence, that the death penalty is fair, necessary, and effective. In my view, they have not done so.
Walter L. Murphy
Retired Chief Justice of the New Hampshire Superior Court