The death penalty was abolished in 2019 in NH thanks to decades of work led by the late Rep. Renny Cushing, Barbara Keshen and many others. A few radical state Republicans want to bring it back. Legislative hearings have been ongoing. The next one is scheduled for 10 a.m. Friday, January 23rd, in Room 159 of the temporary legislative offices at Granite Place.
Let me ask a question.
Have the proponents of the death penalty ever sat with a condemned person hours before their scheduled execution?
I took a week off from my campaign for governor in 2020 to be with a client on Georgia’s death row who I had represented for almost 30 years. Our client was scheduled for execution and we had one last chance to save his life, a petition for commutation.
We sat together a few hours before his execution, a couple of other lawyers, his mother and his auntie. The client’s brother and one of his two children had already spent time saying goodbye.
Surprisingly, our client was at peace and in good spirits. I think it was the first time he had hugged his mother in almost 30 years. I still think of him as a skinny young man even though in 2020 he was chubby and in his late fifties. We began our life together thirty years prior. In my mind, he’s still frozen at that age.
The visiting area where we were together was the ordinary visiting area used by the Georgia Classification and Diagnostic Center in Jackson, Georgia. We were just on the same side of the Plexiglas for a change. The visiting area was still a cage.
Our client was looking forward to his last meal. He’d ordered steak and French fries, pie and ice cream. He hadn’t eaten well in a long time. His living situation was also dire. Think of a 4 x 8 sheet of plywood and imagine spending your whole life on it, except for solitary yard time. The client did the thing with a mirror through the bars to see his neighbor. Jackson, in Butts County, is an hour south of Atlanta. Death row is in a cinderblock wing that is hot in the summer. The guards put a fan on the catwalk across from the cells. Well behaved inmates get ice to dip a rag in for extra relief. As hot as the cells were in the summer, they were cold in the winter, too.
For almost 30 years, our client went without programming. Although he was intellectually challenged, he enjoyed some books and Sudoku. For a while, he was allowed to make doilies in his cell. On Thanksgiving, our dinner table is graced with a couple of doilies that this client tatted.
Why was our client so badly mistreated in Georgia? He wasn’t a disciplinary problem. The answer: you can’t execute someone who you acknowledge as a human being. You have to dehumanize him first.
You also have to acknowledge that the decision to execute a human being is political.
Politics
We conducted a habeas trial early in our representation. It was a weeklong hearing in a one room courthouse with creaky wooden floors and trees covered in Spanish moss. We proved that the trial judge ignored questions about our client’s competence, that his lawyer barely showed up for him and that the prosecution withheld exculpatory evidence.
The habeas judge failed to issue a ruling on our habeas challenge for months. The months became years. Every anniversary the assistant attorney general would dutifully inquire about the status of our case and every year the judge would ignore her. Finally, as the judge neared the end of his elected term in office, he issued his order reversing the client’s conviction and sentence of death and ordered a new trial.
By this point, we figured out the judge was keeping the client alive by delaying his order. The judge knew the very political Georgia Supreme Court would not allow his order for a new trial to stand, and they didn’t. Neither did the US District Court or the Court of Appeals for the 11th Circuit. The US Supreme Court rejected our petitions for certiorari review without comment.
Death penalty jurisprudence is one of the areas where the US Supreme Court’s decisions are historically the most criticized. In 1972, the Court found the death penalty was unconstitutional 5-4. It was a one page, unsigned decision without much rationale or fight to defend the justice principles behind the decision. The case was Furman v. Georgia (1972). Justice Potter Stewart wrote separately that the imposition of the death penalty was “cruel and unusual in the same way that being struck by lightning is cruel and unusual.” In other words, it was arbitrary. Four years later, after southern states “re-vamped” their sentencing statutes, the Court found the death penalty non-arbitrary and constitutional again in Gregg v. Georgia (1976).
The whipsaw was not the worst of it. One of the most criticized cases in US Supreme Court history is the death penalty case of McClesky v. Kemp (1987) in which the Supreme Court concluded that evidence that the death penalty is racially biased was not material or relevant for the Court. The race of the defendant and the race of the victim both infect the decision of whether a defendant is sentenced to death. Justice Lewis Powell Jr. wrote the decision and provided the fifth vote to uphold Mr. McClesky’s sentence of death concluding that race is a matter for legislatures, not courts.
Powell lamented this decision after he retired; telling his biographer, Prof. John C. Jeffries, in 1994 that he had “come to think that capital punishment should be abolished.” Lot of good that did Walter McClesky who was executed in 1991.
Professor David Baldus conducted the exhaustive study that formed the basis for McClesky’s appeal. That study, and others like it, conclude the race of the victim, the race of the defendant and the race of the prosecutor who chose to pursue the death penalty all affect who lives and who dies. Baldus’ book, Equal Justice and the Death Penalty, a Legal and Empirical Analysis (1990), remains the seminal work on the subject. The Death Penalty Information Center is also a good source of information.
NH’s Politics
NH’s governors have politicized the death penalty, and criminal sentencing in general. Governor Jeanne Shaheen publicly demanded the death penalty when a little girl was kidnapped and murdered in quiet Hopkinton, NH. The problem was she hadn’t consulted her attorney general who had released the man Shaheen sought to execute. The police had arrested the wrong guy.
Under Governor John Lynch, current Governor Kelly Ayotte prosecuted Michael Addison for the killing of Manchester Police Officer Michael Briggs. Ayotte was assisted by a phalanx of police officers who lined the sidewalk outside the courthouse when Addison’s case was being tried and by a judge who was herself a former murder prosecutor who refused a change in venue. Addison got the death penalty even though the jury concluded he did not specifically intend to kill Officer Briggs; a fact that made little difference to the officer but which should have meant a lot in the context of sentencing.
On a hot August night, later in my 2020 campaign, I debated my opponent on WMUR, the local NH station that leans towards the rich and powerful. The moderator asked me if I would commute Addison’s sentence if I were elected governor. He’s the only person on NH’s death row. It was intended as a gotcha. I explained in light of the racism inherent in the death penalty and my moral objection to the state killing people, that I would commute. My opponent agreed and we went on. After my opponent won the primary by a few points, the Democratic Manchester Mafia convinced my opponent to switch his position. “Poor Dan” reversed course and proclaimed he’d see Addison executed. Poor Dan then lost the election by more than 30 points.
The Georgia Board of Pardons and Parole
The last procedural hurdle before execution in Georgia is a stop at the Board of Pardons and Parole to plead for a commutation. In the 44 years after the Gregg case reinstated Georgia’s death penalty, only nine commutations were issued. 75 people were executed. Our legal team all agreed that I had the wrong (i.e., Yankee) accent to argue before this board of political appointees. Mike Amirand from the Southern Center for Human Rights argued our case on a Tuesday and we waited for a day and a half. The last of our wait was in that damned cage as the clock ticked towards 7 p.m.
Just after 2 p.m. on Thursday afternoon the lawyer we had left in Atlanta to grab the ruling was let into the cage holding a paper in his hand. We became the tenth commutation. Our client would not die and would be transferred to a “regular” prison. We cried and laughed and hugged and cried some more. Someone was looking out for us. For more, go here.
The Last Bake Sale Book
My next talk about The Last Bake Sale and the state of public schools in NH will be at the Concord Public Library on January 31st at 1 p.m. As this is my hometown, I am discounting the cost of the book at this talk from $24.95 to $20.00. So, bring a crisp twenty and get your signed copy.
You can read Andru Volinsky’s Substack here: https://open.substack.com/pub/andruvolinsky/p/the-death-penalty-is-not-just-a-sentence?utm_campaign=post-expanded-share&utm_medium=web