Following the release of the report from the New Hampshire Commission to Study the Death Penalty, New Hampshire​’s Concord Monitor called for an end to cap­i­tal pun­ish­ment in the state. The Commission con­clud­ed a year of pub­lic hear­ings and care­ful study and chose by a 12 – 10 vote to rec­om­mend nei­ther expand­ing nor abol­ish­ing the death penal­ty. However, the Monitor point­ed out that the evi­dence pre­sent­ed to the com­mis­sion was pri­mar­i­ly in favor of repeal­ing the death penal­ty. One of the many argu­ments against the death penal­ty con­sid­ered by the Commission was its arbi­trary nature. Outcomes of cap­i­tal cas­es depend on the make­up of cap­i­tal juries, the resources avail­able to the defen­dant, and the poten­tial­ly unequal skills of pros­e­cu­tors and defense lawyers. The edi­to­r­i­al not­ed that for­mer attor­ney gen­er­al Phillip McLaughlin recalled a case in which he charged the wrong man with mur­der and anoth­er in which an inves­ti­ga­tor failed to share evi­dence that might have proved that some­one else com­mit­ted the crime. He vot­ed to repeal the law. The edi­to­r­i­al con­clud­ed: ​“States are not infal­li­ble. A life wrong­ly tak­en by the state can­not be returned. But an inno­cent per­son serv­ing life with­out parole can be freed. New Hampshire should join the states and the many nations that have pro­gressed beyond cap­i­tal pun­ish­ment.” Read the full editorial below.

Abolish the Death Penalty

Concord Monitor Editorial – Dec. 9, 2010

Last week, after a year of tes­ti­mo­ny, pub­lic hear­ings and care­ful study, the state’s 22-mem­ber Commission to Study the Death Penalty issued its report. By a 12 – 10 vote, the com­mis­sion rec­om­mend­ed nei­ther to abol­ish the death penal­ty nor to act on pleas to expand it, but to leave things just as they are.

After 19 meet­ings and many hours of tes­ti­mo­ny, few if any of the com­mis­sion­ers appear to have changed their minds about cap­i­tal pun­ish­ment. Perhaps that’s not sur­pris­ing, giv­en the emo­tion­al nature of the death penal­ty and the legal and moral com­plex­i­ties involved. So despite all the com­mis­sion’s work, not much was learned. In fact, recent evi­dence in one Texas mur­der case sheds more light about the wis­dom of the death penal­ty than the commission’s report.

One of the many argu­ments against the death penal­ty is its arbi­trary nature. The out­come of a cap­i­tal case can depend on the make­up of a grand jury and its will­ing­ness to indict; the abil­i­ty of a pros­e­cu­tor to exclude jurors opposed to cap­i­tal pun­ish­ment or even queasy about it; the resources avail­able to the defen­dant; and the poten­tial­ly unequal skills of pros­e­cu­tors and defense lawyers.

Similarly, the out­come of a study com­mis­sion can be heav­i­ly influ­enced by its make­up. The death penal­ty com­mis­sion’s con­clu­sion was like­ly fore­or­dained by the expe­ri­ences and pre­dis­po­si­tions of those cho­sen to serve.

Of the 12 mem­bers who vot­ed to retain the death penal­ty, five are cur­rent or for­mer police offi­cers, one was the father of a slain police offi­cer, five are cur­rent or for­mer pros­e­cu­tors, and one was the rel­a­tive of a murder victim.

The 10 votes for abol­ish­ing the death penal­ty came from a retired judge, three crim­i­nal defense lawyers, an envi­ron­men­tal lawyer, a mur­der vic­tim’s son, a psy­chother­a­pist, a civ­il rights activist, a non­prof­it orga­ni­za­tion exec­u­tive, and a for­mer attorney general.

The argu­ments of those in favor of cap­i­tal pun­ish­ment leaned heav­i­ly on ​“com­mon sense” and unsub­stan­ti­at­ed con­tentions. Among them were the unfound­ed belief that cap­i­tal pun­ish­ment serves as a deter­rent; undue faith in the state’s abil­i­ty to impose the penal­ty fair­ly; and a belief, shared by soci­ety to a less­er degree every year, that tak­ing a life is the only suf­fi­cient pun­ish­ment allow­able for some crimes.

The evi­dence pre­sent­ed to the com­mis­sion weighed heav­i­ly in favor of abol­ish­ing the death penal­ty. Advocates cit­ed the poten­tial for error and the irrev­o­ca­ble nature of the punishment.

Former attor­ney gen­er­al Philip McLaughlin, for instance, described two cas­es that shook his faith in cap­i­tal pun­ish­ment. In one, he charged the wrong man with the rape and mur­der of a 4‑year-old girl. In the oth­er, involv­ing the killing of a police offi­cer, he agreed to a plea bar­gain because a detec­tive had not shared evi­dence that might have proved that some­one else pulled the trigger.

Though more than a score of death-row inmates have been found inno­cent in recent years, death penal­ty oppo­nents have been hard-pressed to pro­vide defin­i­tive proof that an inno­cent con­vict was exe­cut­ed. That no longer appears to be the case.

In Texas, a man accused of killing a liquor store clerk dur­ing a rob­bery was con­vict­ed based on the tes­ti­mo­ny of an accom­plice and a hair sam­ple col­lect­ed at the scene. Four years after the exe­cu­tion of Claude Howard Jones, how­ev­er, the accom­plice said he lied. And last month, DNA analy­sis of the key hair sam­ple proved that it did not come from Jones.

States are not infal­li­ble. A life wrong­ly tak­en by the state can­not be returned. But an inno­cent per­son serv­ing life with­out parole can be freed. New Hampshire should join the states and the many nations that have pro­gressed beyond capital punishment.

(“Abolish the death penal­ty,” Concord Monitor (edi­to­r­i­al), December 9, 2010). See Studies and Editorials.

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