2011 Spring, Pg. 33. Death Penalty - The Practical Realities.

AuthorBy Andrew R. Schulman

New Hampshire Bar Journal


2011 Spring, Pg. 33.

Death Penalty - The Practical Realities

New Hampshire Bar JournalVolume 52, No. 1Spring 2011Death Penalty - The Practical RealitiesBy Andrew R. SchulmanThe debate over whether New Hampshire's death penalty should be eliminated, expanded or left unchanged is primarily a debate about profound first principles. As a citizen, there is a lot I could say about what I believe those first principles dictate. But that would add nothing to what has already been said far more eloquently by others on all sides of this debate. As a lawyei; however, I can address two of the practical realities.

Death penalty cases require a significant reallocation of scarce resources. The Addison case has already consumed the better part of several years for three of the most experienced public defenders assigned full-time (and the equivalent in attorney time for a fourth), and, at various times, between three and eight of the most experienced prosecutors in the state. Had the case been brought as a first degree murder case instead of a capital case, Addison's lawyers could have instead collectively handled a dozen non-capital murder cases, scores of ordinary felonies or a thousand misdemeanors. Likewise, the Attorney General's office could have reallocated its most experienced attorneys to white collar prosecutions (think FRM) or to other work altogether (think consumer protection.)

The appeals in Addison will continue for years. To date, there have been no fewer than four New Hampshire Supreme Court opinions (two on preliminary issues and two involving appeals from non-capital convictions that were introduced at the capital trial). Between direct and collateral appeals, we can expect literally years of attorney time that could otherwise be spent on other cases.

We simply don't have this abundance of resources. While Addison was pending, the Legislature expanded the use of non-jailable Class B misdemeanors because the state could not afford the indigent defense costs. While Addison was pending, the mortgage bubble burst, exposing all manner of civil and criminal chicanery that the Attorney General's office lacks resources to prosecute. While Addison was pending, the courts eliminated one-third of all jury trials in order to save far less than a quarter of the costs of either his prosecution or his defense. While Addison winds its way through the appellate process, our legislature is in the midst of some very...

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