2011 Spring, Pg. 21. Legislative study commission examines death penalty in New Hampshire.

• Author: By Danielle Richey Santuccio

New Hampshire Bar Journal

2011.

2011 Spring, Pg. 21.

Legislative study commission examines death penalty in New Hampshire

New Hampshire Bar JournalVolume 52, No. 1Spring 2011Legislative study commission examines death penalty in New HampshireBy Danielle Richey SantuccioEditor's note: The Commission to Study the Death Penalty in New Hampshire met almost monthly through 2010 and issued its report in the fall of 2010. The Commission's overall fnding was that the state's death penalty should be preserved but not expanded (see accompanying statement), but a minority report, advocating abolition of the death penalty was also presented. Several commission members issued their own personal commentaries based on their views as shaped by their experiences and the testimony they heard while serving on the commission, some of which are excerpted in the following pages. This article provides an overview of the work of the Commission, with particular attention to several issues that the author felt deserving of greater attention. For the Commission's report itself, visitwww.nh.gov, click on Legislative Branch and choose Statutory and Study Committees to fnd the Commission to Study the Death Penalty in New Hampshire, 2010 Final Report (Actual link is a 180-page PDF at: http://www. gencourt.state.nh.us/statstudcomm/reports/2009.pdf).

Postscript: At deadline time for this issue, the New Hampshire House of Representatives has passed HB147 which expands eligibility of the death penalty to include persons who commit murder "while in another's residence, while attempting to enter another's residence, or as a consequence of having been in another's residence, without invitation or right." The Senate has not yet acted on the bill.

Introduction

This article provides the reader with the relevant history of the death penalty statute in New Hampshire; its application and evolution, as well as a synopsis of both the majority and minority reports. Lastly it provides the reader with further detail on issues not expanded upon in the reports.

In 2009, New Hampshire House Bill 520(fn1) established a Commission to Study the Death Penalty in New Hampshire. The bill was, in part, a reaction to current events in New Hampshire, namely two recent capital murder trials, and the frst death sentence imposed on a New Hampshire defendant in decades. The commission was tasked with addressing the death penalty and its place in the New Hampshire criminal sentencing structure and to issue a report on the following:

1. Whether the death penalty in New Hampshire rationally serves a legitimate public interest such as general deterrence, specifc deterrence, punishment, or instilling confdence in the criminal justice system.

2. Whether the death penalty in New Hampshire is consistent with evolving societal standards of decency 3. Whether the decision to seek the death penalty through the penalty phase of trial for defendants who are eligible to receive the death penalty in New Hampshire is arbitrary, unfair, or discriminatory. 4. Whether the current capital murder statute in New Hampshire properly encompasses the types of murder which should be eligible for the death penalty or whether the scope of the current capital murder statute should be expanded, narrowed, or otherwise altered, including an analysis of the types of murder covered by the current capital murder statute and any aggravating and mitigating circumstances listed in the statute. 5. Whether alternatives to the death penalty exist that would suffciently ensure public safety and address other legitimate social and penal interests, and the interests of families of victims of crime. 6. Whether, in New Hampshire, there is a signifcant difference in the cost of prosecution and incarceration of a frst degree murder case where the penalty is life without parole as compared with the cost of a death penalty case from prosecution to execution. 7. Any other issues relevant to the death penalty in New Hampshire.(fn2)

Commission Begins Its Work

The Commission's frst meeting, at which scheduling and elections were discussed, was held October 21, 2009, presided over by former Superior Court Chief Justice Walter J. Murphy Early on, Commission members were briefed on New Hampshire's death penalty law, which limits the availability of the death penalty to very specifc types of homicide cases.(fn3) One can only be put to death in New Hampshire when he or she knowingly causes the death of another:

1. When said person is a law enforcement or judicial offcer acting in the line of duty or in retaliation for actions made in the line of duty;

2. While engaged in or attempting a kidnapping;

3. By soliciting a person to cause the death of another or being so solicited;

4. While already being sentenced to life without parole;

5. While committing or attempting to commit aggravated felonious sexual assault;

6. While committing an offense punishable under NH RSA 318- B:26, i.e. the sale and/or traffcking of large quantities of narcotics.

   The procedure for seeking and imposing the death penalty in New Hampshire is likewise lengthy and specifc, from the grand jury to mandatory automatic review by the New Hampshire Supreme Court.(fn4)The Court may then affrm the sentence or set aside the sentence and remand for resentencing. Further, on appeal, the Court is required to determine if the sentence of death was imposed (not sought) under the infuence of passion, prejudice or other arbitrary factors.

   New Hampshire's Death Penalty Statute Has Evolved Over Time.

   New Hampshire has had twenty-four executions since 1739(fn5). In the eighteenth century, the offenses that were punishable by death included murder, rape, homosexuality, abortion, burglary, bestiality, counterfeiting, and treason.New Hampshire's method of execution was hanging, and until 1868 all hangings were public events.(fn6)

   In 1977, NH RSA 630:1, the death penalty statute, was amended by changing the language "shall be punished by death" to "may be punished by death."(fn7) For the frst time, the statute also included provisions for jury consideration of aggravating and mitigating factors. The presentation of aggravating and mitigating factors creates a sort of "mini-trial" in its own right whereby the prosecution introduces aggravating factors to the jury that support a sentence of death, and the defense introduces mitigating factors to the jury that support a lesser sentence. The burden of establishing the existence of any aggravating factor is on the state, and must be established beyond a reasonable doubt. The burden of establishing the existence of any mitigating factors is on the defendant and must be established by a preponderance of the evidence. If the jury unanimously concludes that the aggravating factors outweigh the mitigating factors, it may recommend the death penalty. The jury, regardless of its fndings, is never required to impose a death sentence and the jury shall be so instructed.(fn8)

   New Hampshire changed the method of execution from hanging to lethal injection in 1986(fn9). In 1990(fn10), the Legislature added two offenses to the list of death-eligible crimes: murder committed during an aggravated felonious sexual assault, and murder committed while engaged in a drug transaction. In 1994 language was added to the law enforcement provision stating "when death is caused as a consequence of or in retaliation for such person's actions in the line of duty."(fn11) In 2000, both the House and Senate voted to repeal the death penalty, however the bill was vetoed by then -Governor Jeanne Shaheen.(fn12) In 2009, a bill to repeal the death penalty passed the House but was tabled in the Senate.(fn13) Finally in 2010, a bill to expand the list of death-eligible crimes to include murders committed during a home invasion was introduced late in the session and sent to interim study by the Senate.(fn14) The bill was fled in response to a horrifc home invasion homicide that took place in the town of Mont Vernon.(fn15)

   Majority Report Recommends Retention of The Death Penalty

   Much of the Majority Report, signed by 12 of the 22 Commission members, focused on the death penalty as a deterrent and on the public's interest in providing the ultimate punishment to those who commit the most heinous of crimes. The report maintained that the existence of the death penalty in New Hampshire instills confdence in the criminal justice system, and shows strong support for the law enforcement community. In fact, the overwhelming...