From ‘A Book, an Idea and a Goat,’ Andru Volinsky’s weekly newsletter on Substack is primarily devoted to writing about the national movement for fair school funding and other means of effecting social change. Here’s the link:  https://substack.com/@andruvolinsky?utm_source=profile-page

By ANDRU VOLINSKY

How many years must prisoners serve before their punishment is considered just? And, at what cost?

Apologies to Bob Dylan.

Only one crime on the books in NH has no sentencing discretion, no room for compassion or arguments in mitigation, no judicial oversight. That is the crime of murder in the first degree. Some will say this is as it should be. Commit murder in the first degree and get life. Fini! But not all murders in the first degree are the same. As well, life sentences are served over decades and science and societal mores change and there is a cost.

Most of us think of murder in the first degree as only a premeditated murder but this isn’t accurate. The NH criminal code, RSA 630:1-a, includes premeditated murder. In NH, this is called killing “purposely,” but killing purposely may also have its gradations. As a young lawyer defending murder and capital murder cases, I often heard prosecutors try to reduce the severity of proof needed to establish premeditation by arguing that premeditation can occur as quickly as the time it takes to turn over the thought of killing in your mind. Juries receive instructions to this effect, but NH has also had cases where the murderer went through extensive planning or, in one famous case, waited hours for the victim to come home. These all are premeditated murders subject to the same automatic punishment, life without possibility of parole.

In NH, as in many other states, first degree murder may also be committed “knowingly” if other circumstances are proven. Knowingly means a person is aware of the nature of his or her act but acts without premeditation. Knowingly killing someone in the course of committing other defined felonies or knowingly killing a president or a political party’s presidential nominee (but not a mere presidential candidate before nomination) is also first degree murder.

Killing a fetus more than 20 weeks after conception (or 20 weeks after in vitro implantation) outside of the context of a medical abortion also constitutes first degree murder.

All of these crimes have the same punishment, life without possibility of parole, and it doesn’t matter if the offender is 19 years of age or 80 years at the time of the crime.

Still fini?

Attitudes towards victims of domestic violence and military veterans suffering from PTSD have changed over time. Why shouldn’t our approach to punishment change?

Mental health professionals have come to better understand and broaden the definition of what constitutes PTSD since the diagnosis was first recognized in 1980 and required the existence of an external event so catastrophic that most ordinary people would be unable to cope with the resulting trauma. (Think of the Holocaust or the dropping of an atomic bomb.) It is now recognized that different people have differing abilities to deal with stress and trauma and the diagnosis is more individualized.

Similarly, society’s thinking about domestic violence has evolved in the last forty years. In 1980, no state criminalized marital rape. Since 1993, marital rape has been recognized as a crime in all 50 states.

Courts are beginning to also consider the physiology of brain development. A few courts, including the Massachusetts Supreme Judicial Court (SJC), now consider the emerging maturity of young adults who commit murder when a sentence is imposed. In Commonwealth v. Mattis, the SJC found that an automatic sentence of life without parole imposed on murderers between 18-20 years of age is unconstitutional as cruel or unusual under the Massachusetts constitution.

What role should sustained good conduct and rehabilitation in prison play? Some murderers serve decades in prison before they die and during that time come to grips with their demons, undertake academic careers, help other prisoners, and in extreme cases, save the lives of correctional officers or other prisoners.

Regardless of rehabilitation, offenders tend to simply age out of criminality with some studies showing marked decreases in the commission of violent crimes or recidivism in people age 60 or older. Maybe it’s maturity or lack of physical ability but it is clear offenders age out.

And then there is the cost. In NH, as of the end of June 2024, the cost of imprisoning an inmate in the state prison system is about $78,000 a year. Supervision on parole costs $858 a year. Add to this the fact that NH needs a new men’s prison in Concord.

NH has 82 prisoners serving sentences of life without parole for first degree murder. Of these, 31 are more than 60 years old and of these, only four have been in prison for less than two decades. (These four have been in for more than 15 years.) The cost of incarcerating 27 elderly first degree murderers is at least $2.1 million a year. I say “at least” because elderly prisoners are known to cost much more to incarcerate than younger inmates because they have more health issues and likely need better protection from younger prisoners. The NH DOC doesn’t keep cost data on elderly prisoners but increased healthcare needs can drive the cost to double or triple that of younger inmates.

Representative David Meuse (D-Portsmouth) has introduced a bill that will give elderly prisoners serving life without parole the chance to apply for parole. The bill, which doesn’t yet have a bill number, would allow prisoners to seek parole if they are over 60 and have served 18 or more years without any disciplinary problems for more than a decade. The bill doesn’t exonerate them or diminish their crimes. It doesn’t require their release. The bill just allows the parole board to take a second look. Victims’ families are permitted to participate in all parole hearings. The bill doesn’t change this right.

The bill also leaves unchanged the seldom-used right of the Governor and Executive Council to pardon a person convicted of a crime or to commute a sentence but these powers are so politicized that they are almost never used. Indeed, governors before Chris Sununu exercised a “pocket veto” by never placing commutation petitions on the Council’s docket for consideration. These petitions never saw the light of day.

Let me know your thoughts. I’ll update as the bill progresses through the House Criminal Justice Committee and on to the House and Senate. Reach me through Substack or via email if you have it.

I’ll likely be back to writing about education related matters next week. Lot’s happening on that front.