"Shall Surely be put to death." capital punishment in new hampshire, 1623-1985 bounds of the relationship between the individual and the state have By Quentin J. Blaine been further defined, the legislature has enacted increasingly stringent procedural safeguards to protect defendants from the arbitrary exercise The following is a reprint of an article originally published in the of the state’s power to impose a penalty of death. Bar Journal in Vol. 27, No. 3, Spring 1986. The introduction in the 1970s of federal standards regarding the use of the death penalty abruptly restructured the process driving the “While the State has the power to punish, the [Eighth] Amend‑ development of New Hampshire’s capital punishment statutes. The fed‑ ment stands to assure that this power be exercised within the limits eral standards resulted from United States Supreme Court decisions in of civilized standards.... [T]he words of the Amendment are not cases involving Eighth Amendment challenges to death penalty statutes precise, and ... their scope is not static. The Amendment must draw in states other than New Hampshire. The thrust of the Court’s decisions it’s meaning from the evolving standards of decency that mark was that the death penalty is not cruel and unusual punishment per se as long as there are particular procedural safeguards to guide its the progress of a maturing society.” 3 Trop v. Dulles 1 application. In response to the Court’s decisions the legislature rewrote New Hampshire’s capital punishment statutes. New Hampshire’s cur‑ rent death penalty statutes are a blend of the concepts evolved over INTRODUction New Hampshire’s long history and the requirements imposed by the The development of New Hampshire’s capital punishment statutes Federal Constitution.4 reflects the process noted by the Trop court that the scope of the state’s Merely conforming to the United States Supreme Court’s interpre‑ power to punish is defined by the “evolving standards of decency that tation of the United States Constitution does not insure that the present mark the progress of a maturing society.”2 The uniform direction of capital punishment statutes fall within New Hampshire’s “limits of that process in New Hampshire over the past 350 years has resulted civilized standards.” The New Hampshire Constitution guarantees in ever increasing restrictions on the state’s prerogative to inflict individuals strong protections against intrusions by the state.5 the penalty of death. If the evolution of capital punishment in New The New Hampshire Supreme Court has found that in certain cir‑ Hampshire continues the same course, there may come a time when cumstances the New Hampshire Constitution offers greater protections a sentence of death becomes cruel and unusual punishment because for the individual than does the Federal Constitution.6 The court has it falls outside New Hampshire’s ‘limits of civilized standards.” never decided whether capital punishment violates the New Hampshire The revisions of the state’s capital punishment statutes mirror the Constitution.7 However, the evolution of the statutes concerning capital social and political changes marking New Hampshire’s transition from punishment in New Hampshire coupled with the strong protections British colony to fledgling republic to modern state. As New Hampshire guaranteed the individual under the State Constitution may someday distanced itself from the theocratic government of Massachusetts in the terminate New Hampshire’s power to punish with the penalty of death. early eighteenth century the province eliminated capital punishment for crimes involving family relationships, religion, and superstition. caPital crimeS leGiSlation, 1623-1985 Early in the nineteenth century, after the Declaration of Independence had established the principle that life itself is an unalienable right, Until their union with the Massachusetts Bay colony, the first the New Hampshire Legislature prohibited the state from exacting a four New Hampshire towns were, to various degrees, autonomous life for crimes against property. Over the past two centuries, as the settlements. Although the four were subject to the laws of England, Spring 2011 New Hampshire Bar Journal 5 and Hampton was governed to some extent by Massachusetts, each outlook concerning the nature of society and indicate that the state town also had its own laws and its own means to enforce them. There was assuming responsibility for maintaining the peace rather than is no indication that Portsmouth, Dover, or Hampton either passed for imposing religious norms. The Assembly deleted the references to any capital laws or meted out any capital sentences before joining biblical passages supporting the state’s power to punish certain actions Massachusetts Bay in 1641. Exeter passed a town ordinance in 1640 and either eliminated the strictly “Puritan” capital crimes or reduced making treason a capital offense.8 However, the Exeter court imposed them to noncapital offenses. The capital offenses added by the Assembly no death sentences before the law was voided when the town joined generally addressed crimes against the person and against property Massachusetts in 1643. The first comprehensive body of statutory law rather than crimes against religious principles. made applicable to the four New Hampshire towns was the Body of The New Hampshire Assembly’s first code deleted adultery from Liberties promulgated by the Massachusetts General Court in 1641. the list of capital offenses and moved kidnapping from category two The Liberties enumerated 12 capital offenses and more could be added to category one.l9 Juries were to consider mitigating circumstances by statute. In addition, the General Court could hear cases and impose at trials for murder, sodomy, and cursing or hitting one’s parents.20 capital punishment for offenses involving violations of the laws of God Allowances for mitigating factors became statutory considerations in not covered by the Liberties.9 sentencing for convictions of public rebellion, sodomy, kidnapping, There appear to have been two categories of capital crimes under being a rebellious son, rape, arson and burglary.21 the Liberties. The first category provided that the offender “shall be put All laws passed by New Hampshire’s provincial government to death” for crimes including idolatry, witchcraft, blasphemy, will‑ required approval by the Privy Council in London.22 The Council ful murder, impassioned murder, murder by poisoning, false witness imposed a few of its own changes on the 1679 code. Being a rebellious causing another’s death, public rebellion, and treason.10 The sentence son was included in the New Hampshire, but not the English, copy of for category two crimes was that the offender “shall surely be put to the law.23 That omission probably meant the law was not valid. The death!’ Category two offenses included bestiality, sodomy, adultery, and Assembly did not include it in later New Hampshire codes. In addition, kidnapping.11 The statutes were straightforward statements with no the Privy Council set aside the code’s provisions concerning idolatry, mention of leniency or mitigating circumstances. However, the refusal blasphemy, treason and public rebellion.24 The first two might not have of grand juries to indict for certain crimes ameliorated the harshness been consistent with English law. The Council set aside the second two of the statutory language.12 because they were already provided for under English law.25 One of the purposes for settling Exeter and the Massachusetts Bay In 1682 the Assembly passed a law making second, rather than Colony was to establish societies based upon religious principles. The third, offense burglary a capital crime.26 In 1701, the Assembly made laws of each colony evidenced the theocratic nature of their govern‑ polygamy a capital crime and reduced false witness (perjury) to a ments. Both the Exeter treason law of 1640 and the Liberties used noncapital offense.27 Concealing the death of a bastard child became biblical passages to support the right of the state to punish certain a capital offense in 1714.28 The law presumed that a mother who behavior.13 In addition; the Massachusetts General Court declared the concealed the death of a bastard child was guilty of murder.29 Raising religious crimes of idolatry, blasphemy and witchcraft to be capital a defense that the child was born dead required at least one corroborat‑ offenses.14 ing witness.30 Also in 1714 the Assembly reinstated treason as a capital The 1658 version of the Liberties included two more peculiarly offense. 31 Puritan capital crimes. In one, the courts could impose capital punish‑ A new capital crimes statute enacted in 1718 eliminated the lan‑ ment on children over 16 who cursed or hit their parents.15 The law did guage that certain offenders shall surely be put to death.32 The same law not allow the death penalty if the parents had been “un‑Christianly also reduced blasphemy to a noncapital offense and dropped cursing or negligent” in the child’s education or if the parents had been so harsh hitting one’s parents from the criminal code.33 In addition, the 1718 law in their discipline that the child had reacted in self defense.16 The changed the penalties for more secular crimes by dropping kidnapping, second law allowed parents to bring their stubborn or rebellious son to impassioned murder, and murder by poison from the criminal code court on the capital charge of failing to mind his parents and living a and increasing the penalty for burglary by permitting capital punish‑ life of sundry and notorious crimes.17 The General Court also addressed ment upon conviction of a first offense.34 The Assembly reduced the some other social problems in its 1658 revision of the Liberties. New crimes of being a stubborn child and public rebellion to noncapital provisions made forced rape punishable either by death or “some other offenses in 1718 and 1721 respectively.35 The law prohibiting idolatry grievous punishment” and added carnal knowledge of a female child was never reenacted after having been set aside by the Privy Council in under ten years of age and a third conviction for burglary to the list of 1679.