The New Hampshire Legislature saw the light and was guided by it this spring in overriding Gov. Chris Sununu’s veto and finally repealing the state’s death penalty.
Given that the passionate arguments for and against repeal have been rehearsed countless times in the House and the Senate over the years, perhaps it would be just as well to leave it at that. But there are a couple of loose ends that need to be tidied up.
One is the assertion by opponents of repeal, such as Rep. Mark Pearson, R-Hampstead, and Sen. Sharon Carson, R-Londonderry, that New Hampshire’s death penalty law was narrowly crafted and the state’s criminal justice system could be trusted not to execute innocent people. “This is not Louisiana of the 1920s,” Carson said during the repeal debate. “We are not those people.” During the House debate, Pearson asserted, “Our death row is not filled with people. The death sentence is not used racially. We will never find that DNA testing will later indicate we’ve executed an innocent person.”
This is hubris of a high order, and precisely the stuff of which tragedy is made. New Hampshire may be exceptional, but, unlike the death penalty, the laws of human fallibility can never be repealed. According to the Innocence Project at the Cardozo School of Law, 130 people convicted of murder have been exonerated through DNA testing since 1989. Of those cases, 31% involved eyewitness misidentification and 62% involved false confessions. Thinking that it couldn’t happen here is dangerously naive.
As to narrowly crafted, we note that, indeed, New Hampshire’s death penalty did apply in only seven scenarios: the killing of an on-duty police officer or judge; murder for hire; murder during rape, certain drug offenses or home invasion; and murder by someone already serving a life sentence without parole. But if the point of the death penalty is doing justice to victims and their families, as death penalty supporters repeatedly argued, what’s the rationale for treating the loss of one person’s life differently from that of another? Is murder during a home invasion morally worse than premeditated murder that stems from, say, domestic discord?
We were also struck by Sununu’s remarks after the House barely met the two-thirds-majority requirement to override his veto. “It was great to see that the vote was close, and I think that will send a clear message to the Senate that you can’t play politics with these types of issues.” The governor was in for a disappointment when the Senate took up the issue, but focus for a moment on the phrase “you can’t play politics with these types of issues.”
As far as we can discern, representatives and senators on both sides of the issue voted their conscience, and it is beyond insulting to suggest otherwise. Republicans and Democrats could be found on both sides of the issue. In fact, the only principal actor who clearly has been playing politics with the death penalty is Sununu himself. Witness his constant refrain that he stood with “law enforcement and families of crime victims” in opposing repeal. This suggests that those groups speak with one voice, but the Legislature also heard from members of both who favored repeal. And the House and Senate both contained members who brought experience to bear in favoring repeal. Rep. Renny Cushing, D-Hampton, whose father was murdered in 1988, sponsored the repeal bill, which capped a 21-year effort on his part. House Speaker Steve Shurtleff, a former law enforcement officer, voted for repeal, as did Sen. Bob Giuda, a former FBI agent who represents the Haverhill area.
Shurtleff said he supported the death penalty for his first four terms in the House but changed his mind over time in consultation with religious leaders. “I came to the conclusion that it really is barbaric, and it’s time to repeal it,” he said.
Contrast that sincere act of wrestling with conscience to a Union Leader photo that a smirking Sununu posed for after vetoing the bill in May, displaying his veto pen and the vetoed bill against a backdrop of uniformed police officers. Any fair reading of that scene is that it was a photo-op intended to curry favor with police unions.
Among those who took exception to the Legislature’s actions was Kelly Ayotte, former U.S. senator and New Hampshire attorney general. “Very disappointed and angry that the NH senate failed to sustain the Governor’s veto of the death penalty repeal,” she tweeted. “Police killer Michael Addison is the happiest about their vote today.”
Indeed, Addison, who killed Manchester police officer Michael Briggs in 2006, is the only inmate currently on death row in New Hampshire, which hasn’t executed anyone since 1939. The repeal specifically does not apply retroactively, but death penalty supporters argued that the courts might overturn the death sentence in light of the Legislature’s actions.
Ayotte was attorney general at the time and sought the death penalty for Addison, which she subsequently parlayed into a winning, tough-on-crime U.S. Senate campaign in 2010. During that campaign, emails came to light showing her consulting with a friend and political operative soon after the death-penalty decision was made in 2006. “Have you been following the last 2 weeks,” she asked. “A police officer was killed and I announced I would seek the death penalty.” He responded, “I know, I read about it. Where does AG Ayotte stand on the death penalty? BY THE SWITCH.”
Another good reason not to have a death penalty is so cynical and ambitious prosecutors are not tempted to exploit it for their own ends.