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State of New Hampshire ______GENERAL COURT ______CONCORD State of New Hampshire ________________ GENERAL COURT ______________ CONCORD MEMORANDUM DATE: December 1, 2010 TO: Honorable John H. Lynch, Governor Speaker of the House President of the Senate House Clerk Senate Clerk Michael York, State Librarian FROM: Hon. Walter L. Murphy, Chair SUBJECT: Final Report on HB 520, Chapter 284, Laws of 2009 Pursuant to HB 520, Chapter 284, Laws of 2009, please find attached the Final Report of the Commission to Study the Death Penalty in New Hampshire. 2 Contents Message from the Chair 5 Introduction 7 Majority Report 9 Minority Report 49 Individual Commission Member Statements 91 Walter Murphy 93 Philip Gaiser 99 James MacKay 101 Sherilyn Young 105 John Kissinger 111 John Jaskolka 113 Randy Hawkes 115 Amanda Merrill 119 James Reams & Charles Putnam 121 Theodore Smith 133 Philip McLaughlin 135 Bradley Whitney 141 Robert Cushing 145 Appendix 153 New Hampshire Capital Murder Statutes 155 Commission Biographies 161 Witness List 171 Legislative History Memo 175 3 4 MESSAGE FROM THE CHAIR There are few issues which have aroused as much controversy and as much spirited and impassioned debate as the Death Penalty. Many well-intentioned and principled citizens support it while others, equally well-intentioned and principled, urge its abolition. The legislature, in 2009, had a number of bills relative to the Death Penalty under consideration as a result of which this Commission was created to conduct a study of its practical implications and to make recommendations to the legislature based upon our conclusions. In accordance with the legislative mandate, the Commission, since its inception in October, 2009, has conducted meetings on a more or less monthly basis at which over 70 witnesses have appeared to give their views, both pro and con. The Commission has also held a series of public meetings at various sites in the State at which members of the general public appeared and expressed their opinions, again, both in favor of, and opposed to, the Death Penalty. The Commission members have also toured the New Hampshire State Prison, thanks to the cooperation of officials of the Department of Corrections. We also received a voluminous amount of materials from other jurisdictions and from outside sources, including scholarly treatises on both sides of the issue. Just as it appears to be with the general public, the members of the Commission, as reflected in this report, are more or less equally divided on the issue. We recognize that the content of our report is complicated—but so, too, is the issue—more complicated the more intensely the question is considered. As H. L. Mencken once observed: “For every complicated question, there is an answer that is short, simple, and WRONG!” In this case, the correct solution is elusive, but not because the members of the Commission failed to take their responsibilities seriously and conscientiously. It has been a great privilege to work with the outstanding men and women on the Commission, and I am personally grateful for all those who have participated in the process as witnesses and otherwise. A special mention is due to James Cianci, Esquire, a member of the House staff assigned to assist the Commission and whose thoughtful insight and wise counsel are greatly appreciated. Each member has been given the opportunity to express his or her views on the subject and has done so in a respectful way toward those with an opposing opinion. While the discussion has been lively, it should be noted that it was always a civil discourse, for which we are all grateful, as should be the citizens of the State of New Hampshire. Respectfully, Walter L. Murphy, Chair December 1, 2010 5 6 Introduction The Commission to Study the Death Penalty in New Hampshire was established by HB 520, Chapter 284, Laws of 2009. Pursuant to the bill, the commission’s duties were to study the following issues: • Whether the death penalty in New Hampshire rationally serves a legitimate public interest such as general deterrence, specific deterrence, punishment, or instilling confidence in the criminal justice system. • Whether the death penalty in New Hampshire is consistent with evolving societal standards of decency. • 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. • 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. • Whether alternatives to the death penalty exist that would sufficiently ensure public safety and address other legitimate social and penal interests, and the interests of families of victims of crime. • Whether, in New Hampshire, there is a significant difference in the cost of prosecution and incarceration of a first degree murder case where the penalty is life without parole as compared with the cost of a death penalty case from prosecution to execution. • Any other issues relevant to the death penalty in New Hampshire. For the text of New Hampshire’s death penalty statute, RSA 630:1 and RSA 630:5, please see the Appendix to this report. The commission was composed of 22 members appointed as follows: Hon. Walter Murphy, Chair Speaker of the House Rep. Stephen Shurtleff, Vice-Chair Speaker of the House Rep. Robert “Renny” Cushing Speaker of the House Sen. Amanda Merrill, Vice-Chair President of the Senate Philip McLaughlin, Esq. President of the Senate Charles Putnam, Esq. President of the Senate Robert Charron Governor John Jaskolka Governor 7 John Kissinger, Esq. Governor Daniel St. Hilaire, Esq. Governor Hon. Jackie Weatherspoon Governor Bradley Whitney Governor Sherry Young, Esq. Governor Randy Hawkes, Esq. NH Public Defender Larry Vogelman, Esq. NH Bar Association James Reams, Esq. NH Association of Counties Michael Iacopino, Esq. NH Association of Criminal Defense Lawyers Ted Smith NH Association of Chiefs of Police Orville “Bud” Fitch II, Esq. Attorney General Hon. Jim MacKay NH Mental Health Council Stephen Arnold NH Police Association Phillip Gaiser NH Trooper’s Association The commission members appointed by the House, Senate and Governor were specifically appointed to represent “families of murder victims and associations or organizations with concerns and goals related to the death penalty,” see HB 520, Chapter 284:2, Laws of 2009. For individual biographies of the members of the commission, please see the Appendix to this report. The commission met on 19 occasions beginning in October of 2009. In addition to the commission’s regular schedule of meetings, the commission held a total of 4 public hearings in Concord, Plymouth, Keene and Durham where members of the public were invited to voice their views concerning the death penalty; members of the public were also permitted to speak at the commission’s regular work sessions. The commission initially reviewed the history of the death penalty in New Hampshire ( see Appendix) and heard from representatives of state government and other organizations with specific knowledge of New Hampshire’s capital murder statute, including the Attorney General’s Office, the Department of Corrections, the Judicial Council and the New Hampshire Public Defender’s Office. The commission also conducted an overview of capital punishment in the United States and received expert testimony from many national authorities representing both sides of the death penalty debate. The commission heard from legal experts, corrections authorities, representatives of law enforcement, religious leaders of various denominations and faiths, families of murder victims, victim’s rights advocates and former death row inmates whose sentences had been overturned and released from prison. For a complete list of witnesses who appeared before the commission, please see the Appendix to this report. The commission also reviewed the reports from other state commissions which have examined the death penalty and numerous studies representing every aspect of the death penalty. Members of the commission also participated in a tour of the New Hampshire State Prison in Concord. A record of the commission’s work, including transcripts and audio recordings of the commission’s meetings, may be accessed at the commission’s website: http://gencourt.state.nh.us/statstudcomm/committees/2009/ 8 Majority Report Stephen Arnold Robert Charron Orville “Bud” Fitch Philip Gaiser John Jaskolka John Kissinger Charles Putnam Stephen Shurtleff Theodore Smith Daniel St. Hilaire James Reams Bradley Whitney 9 10 Majority Report of the Commission to Study the Death Penalty in New Hampshire Executive Summary: New Hampshire Should Retain The Death Penalty On July 29, 2009, HB 520 was enacted into law creating a commission to study the death penalty in New Hampshire. The Commission was composed of 22 members from a broad range of backgrounds and experiences. HB 520 broadly required the Commission to study the death penalty and issue a report and recommendation by December 1, 2010. HB 520 also outlined seven specific topics that the Commission was obligated to consider in the course of its analysis of the death penalty. This report represents the collective findings and conclusions of the undersigned members. Individual members who have signed this report may also have filed separate opinions elaborating on their individual views on different aspects of capital punishment or the issues outlined in HB 520. In summary, the undersigned members recommend to the General Court and the Governor that New Hampshire retain the death penalty. • Capital punishment serves several important and legitimate social interests, including instilling confidence in the criminal justice system and acting as a deterrent.
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