New Hampshire Bar Journal
2011 Spring, Pg. 5.
"SHALL SURELY BE PUT TO DEATH." Capital Punishment in New Hampshire, 1623-1985
New Hampshire Bar JournalVolume 52, No. 1Spring 2011"SHALL SURELY BE PUT TO DEATH." Capital Punishment in New Hampshire, 1623-1985By Quentin J. BlaineThe following is a reprint of an article originally published in the BarJournal in Vol. 27, No. 3, Spring 1986.
"While the State has the power to punish, the [Eighth] Amendment stands to assure that this power be exercised within the limits of civilized standards.... [T]he words of the Amendment are not precise, and ... their scope is not static. The Amendment must draw it's meaning from the evolving standards of decency that mark the progress of a maturing society."
Trop v. Dulles (fn1)
The development of New Hampshire's capital punishment statutes reflects the process noted by the Trop court that the scope of the state's power to punish is defined by the "evolving standards of decency that mark the progress of a maturing society."(fn2) The uniform direction of that process in New Hampshire over the past 350 years has resulted in ever increasing restrictions on the state's prerogative to inflict the penalty of death. If the evolution of capital punishment in New Hampshire continues the same course, there may come a time when a sentence of death becomes cruel and unusual punishment because it falls outside New Hampshire's 'limits of civilized standards."
The revisions of the state's capital punishment statutes mirror the social and political changes marking New Hampshire's transition from British colony to fledgling republic to modern state. As New Hampshire distanced itself from the theocratic government of Massachusetts in the early eighteenth century the province eliminated capital punishment for crimes involving family relationships, religion, and superstition. Early in the nineteenth century, after the Declaration of Independence had established the principle that life itself is an unalienable right, the New Hampshire Legislature prohibited the state from exacting a life for crimes against property. Over the past two centuries, as the bounds of the relationship between the individual and the state have been further defined, the legislature has enacted increasingly stringent procedural safeguards to protect defendants from the arbitrary exercise of the state's power to impose a penalty of death.
The introduction in the 1970s of federal standards regarding the use of the death penalty abruptly restructured the process driving the development of New Hampshire's capital punishment statutes. The federal standards resulted from United States Supreme Court decisions in cases involving Eighth Amendment challenges to death penalty statutes in states other than New Hampshire. The thrust of the Court's decisions was that the death penalty is not cruel and unusual punishment per se as long as there are particular procedural safeguards to guide its application.(fn3) In response to the Court's decisions the legislature rewrote New Hampshire's capital punishment statutes. New Hampshire's current death penalty statutes are a blend of the concepts evolved over New Hampshire's long history and the requirements imposed by the Federal Constitution.(fn4)
Merely conforming to the United States Supreme Court's interpretation of the United States Constitution does not insure that the present capital punishment statutes fall within New Hampshire's "limits of civilized standards." The New Hampshire Constitution guarantees individuals strong protections against intrusions by the state.(fn5)
The New Hampshire Supreme Court has found that in certain circumstances the New Hampshire Constitution offers greater protections for the individual than does the Federal Constitution.(fn6) The court has never decided whether capital punishment violates the New Hampshire Constitution.(fn7) However, the evolution of the statutes concerning capital punishment in New Hampshire coupled with the strong protections guaranteed the individual under the State Constitution may someday terminate New Hampshire's power to punish with the penalty of death.
CAPITAL CRIMES LEGISLATION, 1623-1985
Until their union with the Massachusetts Bay colony, the first four New Hampshire towns were, to various degrees, autonomous settlements. Although the four were subject to the laws of England, and Hampton was governed to some extent by Massachusetts, each town also had its own laws and its own means to enforce them. There is no indication that Portsmouth, Dover, or Hampton either passed any capital laws or meted out any capital sentences before joining Massachusetts Bay in 1641. Exeter passed a town ordinance in 1640 making treason a capital offense.(fn8) However, the Exeter court imposed no death sentences before the law was voided when the town joined Massachusetts in 1643. The first comprehensive body of statutory law made applicable to the four New Hampshire towns was the Body of Liberties promulgated by the Massachusetts General Court in 1641. The Liberties enumerated 12 capital offenses and more could be added by statute. In addition, the General Court could hear cases and impose capital punishment for offenses involving violations of the laws of God not covered by the Liberties.(fn9)
There appear to have been two categories of capital crimes under the Liberties. The first category provided that the offender "shall be put to death" for crimes including idolatry, witchcraft, blasphemy, willful murder, impassioned murder, murder by poisoning, false witness causing another's death, public rebellion, and treason.(fn10) The sentence for category two crimes was that the offender "shall surely be put to death!' Category two offenses included bestiality, sodomy, adultery, and kidnapping.(fn11) The statutes were straightforward statements with no mention of leniency or mitigating circumstances. However, the refusal of grand juries to indict for certain crimes ameliorated the harshness of the statutory language.(fn12)
One of the purposes for settling Exeter and the Massachusetts Bay Colony was to establish societies based upon religious principles. The laws of each colony evidenced the theocratic nature of their governments. Both the Exeter treason law of 1640 and the Liberties used biblical passages to support the right of the state to punish certain behavior.(fn13) In addition; the Massachusetts General Court declared the religious crimes of idolatry, blasphemy and witchcraft to be capital offenses.(fn14)
The 1658 version of the Liberties included two more peculiarly Puritan capital crimes. In one, the courts could impose capital punishment on children over 16 who cursed or hit their parents.(fn15) The law did not allow the death penalty if the parents had been "un-Christianly negligent" in the child's education or if the parents had been so harsh in their discipline that the child had reacted in self defense.(fn16) The second law allowed parents to bring their stubborn or rebellious son to court on the capital charge of failing to mind his parents and living a life of sundry and notorious crimes.(fn17) The General Court also addressed some other social problems in its 1658 revision of the Liberties. New provisions made forced rape punishable either by death or "some other grievous punishment" and added carnal knowledge of a female child under ten years of age and a third conviction for burglary to the list of capital crimes.(fn18)
The Liberties served as the foundation for the first New Hampshire code of laws after the colony broke away from Massachusetts in 1679. The New Hampshire Assembly made a few changes in the capital crimes laws at the time of separation and instituted considerable changes over the next 40 years. The reforms evidence a very different outlook concerning the nature of society and indicate that the state was assuming responsibility for maintaining the peace rather than for imposing religious norms. The Assembly deleted the references to biblical passages supporting the state's power to punish certain actions and either eliminated the strictly "Puritan" capital crimes or reduced them to noncapital offenses. The capital offenses added by the Assembly generally addressed crimes against the person and against property rather than crimes against religious principles.
The New Hampshire Assembly's first code deleted adultery from the list of capital offenses and moved kidnapping from category two to category one.(fn19) Juries were to consider mitigating circumstances at trials for murder, sodomy, and cursing or hitting one's parents.(fn20) Allowances for mitigating factors became statutory considerations in sentencing for convictions of public rebellion, sodomy, kidnapping, being a rebellious son, rape, arson and burglary.(fn21)
All laws passed by New Hampshire's provincial government required approval by the Privy Council in London.(fn22) The Council imposed a few of its own changes on the 1679 code. Being a rebellious son was included in the New Hampshire, but not the English, copy of the law.(fn23) That omission probably meant the law was not valid. The Assembly did not include it in later New Hampshire codes. In addition, the Privy Council set aside the code's provisions concerning idolatry, blasphemy, treason and public rebellion.(fn24) The first two might not have been consistent with English law. The Council set aside the second two because they were already provided for under English law.(fn25)
In 1682 the Assembly passed a law making second, rather than third, offense burglary a capital crime.(fn26) In 1701, the Assembly made polygamy a capital crime and reduced false witness (perjury) to a noncapital offense.(fn27) Concealing the death of a bastard child became a capital offense in 1714.(fn28) The law presumed that a mother who concealed the death of a bastard child was guilty of murder.(fn29) Raising a defense that the child...