AuthorBy Andru H. Volinsky

New Hampshire Bar Journal


2011 Spring, Pg. 30.


New Hampshire Bar JournalVolume 52, No. 1Spring 2011CONSIDER OTHER STATES' EXPERIENCE WITH DEATH PENALTYBy Andru H. VolinskyAs New Hampshire is poised to plunge ever deeper in its embrace of the death penalty, it may be worth considering the experience of other states so that we may learn from their efforts. New Hampshire will likely find that the death penalty is more complicated and involves more unintended consequences than we could have imagined.

For example, consider the mechanics of lethal injections. One of the three drugs in the lethal cocktail used to perform executions in the vast majority of America's death penalty states is no longer manufactured in this country and the import of the drug is barred by the European Union's prohibitions against the death penalty. States that relied on the drug are scrambling to find a suitable replacement and many will be required to prove in court proceedings the efficacy of the replacement drug without being able to first test it for its intended purpose.

Many death penalty states suffer from budgetary shortfalls that are exacerbated by the high cost of death penalty prosecutions. Complex capital trials cost as much as six times more than non-capital murder trials. States are reducing law enforcement funding and paroling prisoners to conserve monies so that they may be used to fund capital prosecutions.

The Innocence Project has exonerated more than 260 condemned prisoners who had served an average of 13 years in isolation cells on various death rows before winning their freedom. About 70 percent of those exonerated by DNA testing are members of minority groups. DNA is not available in all capital murder prosecutions and questionable eyewitness identifications and tainted confessions cannot be challenged through DNA testing, leaving one to wonder about mistakes made in these prosecutions.

The American Law Institute (ALI), a body of over 3000 leading judges, lawyers and law professors, has provided the only intellectually respected underpinning for our capital sentencing procedures. In the fall of 2009, it abandoned its support of these Model Penal Code procedures, procedures that it developed in the early 1960s and promoted ever since. All of our modern era, post-Furman, death penalty jurisprudence is based on these procedures. The ALI walked away from its model procedures finding...

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