By Maddie Hanna
The Concord Monitor
CONCORD, N.H. — A report from the commission tasked with studying the death penalty in New Hampshire favors keeping the practice but doesn’t recommend expanding it.
“We got into the broad question as to whether or not it should be retained at all, and so it was kind of secondary as to whether or not it should be expanded,” said commission Chairman Walter Murphy, former chief justice of the state’s superior courts. “Because, as you know, a fairly significant number of people wanted to eliminate it all together.”
The 22-member commission voted 12-10 Monday to recommend the state keep the death penalty after spending more than a year studying the issue. Its final report to the Legislature was due yesterday but hadn’t yet been made available on the commission’s website.
But draft reports from the commission describe the state’s statutes — which allow prosecutors to seek the death penalty only for select types of murder and require that juries reach four unanimous decisions before sentencing someone to death — as appropriately limited, reflecting the severity of the crime committed and minimizing the risk of error in the judicial process.
While people were sharply divided on whether to repeal or retain the death penalty, during a year’s worth of meetings the commission heard “little or no disagreement that the state has been well served by its tradition of defining capital murder narrowly,” according to the draft report from the majority that favored retaining the practice.
The report also describes a “mission creep” in states that have expanded their laws to make more kinds of murder eligible for the death penalty and cautions that New Hampshire — which restricts the death penalty to certain cases, including the murder of a police officer and murder for hire — “might find itself challenged to effectively investigate, prosecute, defend and adjudicate much larger numbers of capital murder cases.”
The commission, which includes lawyers, law enforcement officers and the families of murder victims, was created by the Legislature last year after the House voted to repeal the death penalty. Instead of voting on that bill, the Senate voted to have a commission study the death penalty.
Since then, members of both the House and Senate have tried to introduce bills that would expand the death penalty to include murders committed during home invasions — efforts made following the murder of Kimberly Cates in Mont Vernon.
But House representatives decided that the bill — which was sponsored by the just-elected speaker of the House, Republican Bill O’Brien — was introduced too late to be considered, and the Senate held off considering the bill while the death penalty commission completed its report.
Murphy said the report is meant to serve as a guide to the Legislature when it pursues changes to the death penalty statutes. It’s the first time a serious study has been undertaken of New Hampshire’s statutes, he said, and until now, legislators have proposed changes based largely on “what was happening in the state at the time.”
“A very heinous crime would be committed, there would be an uproar, and everybody would be running to get legislation passed,” Murphy said. “What they didn’t consider, in my opinion, was all the ramifications of what they would be doing.”
Among those ramifications: higher costs. The commission’s members reached near-unanimous agreement that the cost of prosecuting a capital murder case is “significantly higher” than prosecuting a first-degree murder case and imprisoning a murderer for the rest of his life.
As an example, the state has spent more than $1.7 million prosecuting the case against Michael Addison, who was sentenced to death in 2008 for killing Manchester police Officer Michael Briggs. The public defender program spent more than $1.1 million through theof 2009 on Addison’s defense and — as the appeal process continues — expects that figure will near $2 million by theof next year.
Housing someone in the state prison, however, costs an average of $33,100 a year, and most inmates serving life without parole spend 16.4 years in prison, according to the commission’s report.
But the commission members who voted in favor of retaining the death penalty described the higher costs as necessary to “maintain confidence in the system” and said they didn’t outweigh other policy considerations, including a public interest in deterring particularly heinous crimes.
The commission members in favor of retaining the death penalty acknowledged in the draft report that studies are mixed on the deterrent effect but cited “common sense and experience” to support their belief that the effect exists.
And they said the narrow nature of New Hampshire’s statutes only reinforces that effect: “The Commission members feel that because the death penalty is applied only for a select group of the worst crimes and the worst criminals, the deterrent effect is heightened.”
But the commission members who oppose the death penalty described the deterrent effect as illogical and said no reliable evidence proves it exists. Death penalty study commissions in Illinois, Kansas, New Jersey and Maryland reached similar conclusions, according to the draft report from the commission members favoring repeal.
The members favoring repeal said they couldn’t address whether the death penalty is morally right or wrong and pointed to the commission’s split vote as reflective of society’s views on the practice.
But they said they were sure real-world limitations made it “impossible to seek and dispense the death penalty in an evenhanded, nonselective and nonarbitrary manner.”
The report from the minority drew upon the Addison case on several occasions, contrasting the death sentence given to Addison, a poor black man, with the life-without-parole sentence given to John “Jay” Brooks, a white millionaire convicted of capital murder in the same year as Addison.
While there’s no evidence that racial discrimination played a role in the state’s decision to seek the death penalty for Addison, according to the report, “we cannot ignore the fact that the verdicts in the (Brooks) and Addison cases reflect the historic pattern experienced throughout the United States.”
And the decisions to charge both Brooks and Addison with capital murder show the arbitrary nature of the death penalty, according to the report. The decisions weren’t based on necessity — life without parole was an alternative — or the intrinsic nature of the crimes, since New Hampshire prosecutors haven’t sought the death penalty in other death-eligible cases in recent decades, including cases involving murder for hire, murder during kidnapping and murder during sexual assault.
But the commission members in favor of keeping the death penalty said prosecutors’ use of discretion doesn’t make the death penalty arbitrary.
Neither does a jury’s discretion, they said, since jurors are to evaluate each case rather than give all defendants accused of the same crime the same sentence.
While the members in favor of keeping the death penalty didn’t discuss the Addison case in the context of discrimination, they noted in the report they found “no evidence, either anecdotal or quantitative, that New Hampshire juries regularly return racially discriminatory verdicts in other kinds of cases.”
Because of that, they said, it would be “extremely unjust” to repeal the state’s death penalty “based on an assumption that New Hampshire jurors are racist and do not follow the facts and the law in capital murder cases.”
Copyright 2010 Concord Monitor/Sunday Monitor