New Hampshire Death Penalty Study Commission

New Hampshire Death Penalty Study Commission - Final Report

Individual Statement of Commissioner Renny Cushing

Dec. 1, 2010

There were a number of family members of murder victims who appeared before the Commission to share their personal experiences with homicide and the criminal justice system. They expressed their opposition, as victims, to the death penalty. As I listened to their testimony, and as I do when I listen to the experiences of any family member of a murder victim, whether they support, oppose, or have no opinion on the death penalty, I felt a sense of shared experience, empathy, and solidarity. My father, Robert Cushing, Sr., was shotgunned to death in front of my mother in our family home two decades ago. For me, thinking about what should be done after a murder happens is not just an intellectual exercise; it’s part of my life. The pain that is difficult to give words to, the emptiness and trauma, are part of my personal reality that I brought to the work of the Commission.

I served on the Commission with two other family members of murder victims: Bob Charron, whose son Officer Jeremy Charron was murdered in Epsom in 1997, and Brad Whitney, whose father Eli Whitney was murdered in 2001. Although we ended up disagreeing about the death penalty, their presence on the Commission was important to me. At times when a witness or a member of the Commission would embark on an explanation of legal intricacies or the theories and arcane points about statistical analysis, I would get a sense that somehow the reality of the murder of real people was getting lost in the process. It was good to know I was not the only person in the room who felt in his gut that this was not just a theoretical discussion. I thank both Bob and Brad.

The courageous voices of family members of murder victims the Commission heard from came from diverse backgrounds, and the details of their tragedies and losses were illustrative of the complexity of murder. They shared in common a belief as co-victims/survivors that the death penalty system is not something they embraced, and recommended its repeal. They differed in their reasons for opposing capital punishment, and the process by which they came their position was unique to each person. Among the voices the Commission members heard from were:

• Bud Welch, whose daughter Julie was killed in the bombing of the Murrah Federal Building in Oklahoma City, who opposed the execution of terrorist Timothy Mc Veigh;

• Gail Rice, whose brother Bruce VanderJagt was a Denver police officer killed in the line of duty, who spoke of her experience as a law enforcement family member opposed to the death penalty;

• Nancy Filiault, whose sister Kitty, her daughter Rachel and son Kyle were murdered during a brutal home invasion;

• Arnie Alpert, whose grandfather Charlie Alpert was murdered with a claw hammer in his hardware store;

• Andrea LeBlanc, whose husband Robert Le Blanc was killed in the World Trade Center during the September 11th terrorist attack;

• Carol Stamatakis, whose father Emmanuel “Mike” Stamatakis was murdered in his store in 1997, a murder which remains unsolved;

• Sandra Place, whose mother Mildred Place was murdered in New Jersey, who shared the nightmare her family experienced as the death penalty elevated the killer in the media into a notorious prisoner;

• Laura Bonk, whose mother Laura Hardy was murdered and whose sister, who was shot at the same time as her mother, years later still struggles to recover from years of surgery she underwent as a result of the shooting;

• Ann Lyczak, whose husband Richard Lyczak was murdered, and she and her son injured when attacked while riding in their car;

• Bess Klassen- Landis, whose mother was murdered when Bess was 13, and the killer never apprehended;

• Bob Curley, whose son Jeffrey was kidnapped by pedophiles, sexually defiled and abused and murdered and then his body was tossed in a river on the Maine-NH border. Bob shared the story of how after his son’s killing he led the effort to reinstate the death penalty in Massachusetts, but now opposes capital punishment;

• Margaret Hawthorne, whose daughter Molly Hawthorne MacDougall was murdered in Henniker on April 29th of this year, who, even as she awaits the trial of the man accused of killing Molly, found a way in her pain to bear witness in her daughter’s memory to ask the Commission to recommend abolition of the death penalty.

Clearly it must be recognized and acknowledged that those witnesses, and all family members of murder victims, are stakeholders in the discussion and public policy debate about what should be done, by society and individuals, in the aftermath of murder.

The presence of those family members and their sharing of their experiences was a gift to the Commission. It was, therefore, disappointing to me that when it came time for the Commission to deliberate about what we had learned over our year of work together and what our findings and recommendations should be, we failed to discuss or explore in any depth as a group the complicated and painful experiences of people who have had family members murdered, and the individual and family journeys of survivors after lives had been shattered by a homicide.

I’d like to think that, despite the best efforts of Judge Murphy and all of us to keep on schedule, maybe we as a Commission just ran out of time for such a complicated discussion. In hindsight, perhaps it would have been more useful and appropriate for the legislature to direct the Commission to begin an examination of the death penalty by asking and answering this fundamental question:

“What are the needs of the surviving family members of murder victims?”

>From my perspective, I believe there needs to be what Victim Advocate Susan Herman has identified as a parallel system of justice for victims of crime, including co-victims of homicide. Parallel Justice seeks to identify those who have been hurt by criminal acts, asks what the harm is the victim has suffered, and strives to take actions that mitigate and repair the harm that has been done to victims. This process need not be dependent upon the actions or status of the criminal offender, but is done out of a recognition of community responsibility and solidarity.

The two general areas that have the greatest impact upon victims of crime are the impunity of criminals and reparations for victims. Impunity means “exemption from punishment or loss.” Victims’ concerns about impunity focus on the actions of criminals, stopping those who engage in murder and criminal activities from committing further crime and holding them accountable for the crimes they have committed. Reparations for victims of crime focus upon those who have been harmed by homicide and other crimes, and attempt to address the harm to mitigate and repair the damage. Prioritizing ending the impunity of murderers and providing help and support to victims are important to the healing process a survivor of a murder victim must go through.

Testimony before the Commission demonstrated that, whether one supported or opposed capital punishment in theory, the reality of the death penalty system in practice is it just doesn’t work. It doesn’t make the public or police safer, it is prone to mistakes that snare innocent people, and it is not a good use of scarce public resources. And rather than being some kind of a balm for the pain for murder victims family members, it is both a perception and a reality that the death penalty is a distraction from meeting the overall needs of survivors of homicide victims.

It is clear from a look at our past that New Hampshire dislikes the death penalty. In the 380-year history of New Hampshire there have only been 24 executions, the last one being in 1939. Two of those executions are reminders of current concerns about the death penalty: wrongful convictions and race. Ruth Blay, put to death in 1768, was the last woman executed in the state, and was, according to some historical accounts, “wrongly” executed. Thomas Powers, executed for rape in 1796, was an African-American man who is the only person ever executed in the state for a crime that did not involve the murder of another person.

Capital punishment involves only a tiny fraction of murders committed in New Hampshire, and when the state decides to seek a death penalty it is a radical departure from the norm. As a rare event, seeking a death penalty in a murder case signals that, from the perspective of the state, all victims are not of equal value. The willingness to devote a disproportionate amount of resources to prosecute a death penalty case in comparison to other murder cases, calls into question the government’s commitment to all victims. No matter what the Attorney General or the legislature or the media believe to be or attempt to designate as the most heinous homicide that demands a ritual killing of the murderer by the state, for every person who has had a family member murdered, the worst, the most painful, the most awful and heinous murder is the murder of their loved one. Whether intended or not, implicit in the decision to mobilize resources to seek a death penalty is the message to family members of murder victims where the death penalty is not sought that the life of their parent or child or sibling or spouse is somehow of less value than the life of the person for whose murder the state seeks an execution. There is a perception among many victims that this creation by government policy of a hierarchy of victims in some way damages to the memory of their murdered loved one.

The state of New Hampshire has demonstrated the willingness and resolve to spend millions of dollars from the state’s general fund on both the prosecution and defense of a single killer charged with a capital murder. As the Commission met, the state has been in the midst of a severe budget crisis that has impacted justice and public safety--- police and prison guards are being laid off, courthouses are shuttered on some days, and crime victims calling the victims assistance commission are greeted with a voice message instead of a human being. And, at the same time the state has focused limited resources in pursuit of a death penalty, the state spends no general fund money to fund compensation for victims of crime, including surviving family members of homicide victims, and no general fund money on the investigation of cold case homicides.

The Commission heard testimony of how, just days after the arrest of Michael Addison for the murder Officer Michael Briggs, the Attorney General went before the Fiscal Committee and Governor and Council to request and be granted $400,000 for the prosecution of that one homicide. This request was made under a little known provision of state law, RSA 7-12, which permits the Attorney General to obtain funds outside the regular budget process of appropriating state general fund dollars. In contrast to this, during the 2009 session of the legislature, the Attorney General’s office opposed proposed legislation that would enable the Attorney General to obtain funds under RSA 7-12 for the Victims Assistance Commission to provide financial support for crime victims.

This raises the question: Why is it more important to the legislature and Attorney General of the state of New Hampshire to fund a death penalty prosecution than it is to provide compensation and assistance for the families of murder victims and other victims of crime?

Instead of making it a priority to spend millions of dollars to pursue executing a prisoner, the legislature should prioritize policies of parallel justice for crime victims, with the funds being spent to pursue the death penalty and other resources redirected to focus on meeting the needs of murder victims’ families.

To that end I make the following suggestions for action by the legislature to help further secure justice for crime victims:

1) Remove the sunset provision from the law that set up the Cold Case Homicide Unit and, by statute, establish the unit as a permanent operation, with its own line item in the state budget. It is currently scheduled to go out of existence on June 30, 2011.

2) As part of the state’s commitment to find justice for all homicide victims, the legislature should provide an annual appropriation from the state’s general fund equivalent to $15,000 for each outstanding unsolved murder to support the work of the Cold Case Homicide Unit. Based upon the current list of approximately 115 unsolved murders, this would amount to an appropriation of $1,725,000. a year, a fraction of the cost of a single death penalty case. I note that this figure is also less than the $1,778,000. “to construct a lethal injection chamber to address the potential of future capital crime convictions” that is included Department of Corrections Comprehensive Master Plan of July 10, 2008 that was provided to the Commission.

3) Raise or eliminate the cap on the amount of money surviving family of homicide victims are eligible to receive from the Victims Assistance Fund. With a limit of $25,000 on the amount of assistance a victim can receive, New Hampshire ranks near the bottom of states in their support for victims. The state of Washington, for example, caps compensation at $100,000, while the state of New York has no cap on medical expenses.

4) End the 2-year statute of limitations on when a survivor of a homicide victim must apply for assistance from the Victims Assistance Commission. The impact of homicide is long lasting, and sometimes needs of a victim, such as counseling for PTSD, do not manifest themselves until years after a murder. There is not a statute of limitations for prosecution for murder; there should not be a statute of limitations on providing help for survivors of murder victims.

5) Establish, fund and provide sustaining support for a support group for survivors of homicide victims. At the present time there is no existing group or network in the state where those who have been harmed by homicide can find peer support and interaction. It is incredibly isolating to go through the experience of the murder of a family member, and the inevitable retraumatization that victims experience though the criminal justice system. It is axiomatic that the only person who can truly understand what that process is like is someone who has shared a similar experience.

6) Enact victims’ leave law to require employers to give unpaid leave to their employees who are survivors of homicide victims to attend trials and other legal proceedings-- similar to the way we treat jurors. It is often important to a victim’s effort to reclaim control over their life that victim gain information about the murder of their loved one and to bear witness by observing trials. Public policy should recognize this need for victims.

7) Recognize the impact of murder on families is long lasting and multi-generational and establish a fund to provide post secondary education to the children and spouses of murder victims.

8) Amend RSA 7-12 to authorize the Attorney General, when necessary to meet the needs of victims of crime, to seek and obtain funds outside the regular budget and appropriations process. As a matter of fairness and justice, it should be equally as important to ensure that crime victims receive assistance as it is to see that criminals are prosecuted.

In addition to diverting attention from the needs of victims, the death penalty system can sometimes operate ways that does some victims harm.

The death penalty can divide and damage families. Because “death is different”, and because individuals have deeply held beliefs about the morality and utility of executions, unlike any other punishment the death penalty sometimes creates irreconcilable conflict amongst the surviving family members of murder victims. At a time when mutual support to weather a shared loss is so important, disagreement over the death penalty, instead of helping bring families together, creates fissures and compounds the tragedy of murder.

The death penalty fosters a hierarchy of victims. Depending upon one’s perspective, family members of murder victims are often judged by others on their position on the death penalty, and get divided into categories of ‘good victims” and “bad victims.” Sometimes family members of murder victims who oppose the death penalty have their love for their murdered family member challenged—opposition to the death penalty is taken as sign that that they really didn’t love parent/sibling/child. Or, opposition the death penalty is taken as an implication that somehow the victim must be responsible for his or her own murder. Or, opponents of the death penalty are dismissed as either psychos or saints—crazy for not wanting to see the person who killed their loved one executed, or uncommonly holy for this earth. In some instances opposition to the death penalty results in denial of status and rights under victims rights laws. Fortunately New Hampshire recently amended it Victims Bill of Rights to guarantee equality of treatment for all victims irrespective of their position the death penalty, but subtle prejudices against some victims based upon either their support or opposition to the death penalty remain.

The death penalty puts the media spotlight on murderers and makes rock stars out of killers. Efforts to seek and carry out the death penalty draw attention to the person facing execution. In the process, the life and good work of the victim can be ignored or impugned. In the minds of the pubic, executions turn offenders into victims, and they gain celebrity in their death. Everyone knows the name of Tim McVeigh, but far fewer people know the name of Julie Welch or any of the other 167 victims of his crime.

The death penalty creates additional victims. When a prisoner is executed, that person is often someone’s parent, someone’s child. The Commission gave no consideration to the impact the death penalty has upon the family of the condemned, but when the state carries out an execution his or her surviving family member become family of a homicide victim. The faces of that family are hidden by silence and shame, but we cannot ignore the reality that the innocent children of killers put to death are impacted in ways society, as a whole, has never examined.

The death penalty is a false promise to victims. Proponents of the death penalty put forth the notion that an execution can be a solution to the pain experienced by a survivor of a murder victim. Offering up this promise of a ritual event represents a fundamental misunderstanding of a victim’s journey. Healing is a process, not an event. When public employees take a killer from a prison cell, strap him on a gurney, putting a needle in his vein and pump him full of poison to kill him, that is not, as my retentionist colleagues on the Commission assert, and act consistent with a standard of decency, it is an act of despair. Executions do not accomplish the thing that victims want above all else—they do not bring back their murdered loved one.

The hardest thing for a victim to do is accept that they cannot change the past. But what they can do, what they need to do, is make decisions about the future, about how they live their lives in the future. Sometimes victims get so fixated on how their loved one died that they almost forget how their loved one lived. Our broken death penalty system, with its years of delays and other problems, holds a victim’s focus, and society’s focus, on the killer, anticipating and expecting an event, the event, the killer’s execution. If and when an execution occurs, another coffin is filled and another family grieves a killing, but, sadly, very little changes for the victim. Their loved one is still dead. What sometimes ends up happening is the murder claims two victims: the person killed by the murderer, and the person who is the survivor of that person who was killed, whose life gets claimed by a system that is a set up for failure.

At the end of the day the death penalty is not about those who kill, it is about us. We, as a society, become what we say we abhor, killers. I don’t want the state killing in my name.

As a citizen, as member of this Commission, and as the son of murder victim Robert Cushing, I view the death penalty not as a criminal justice sanction, but as a human rights violation. I aspire to live in a society, in a world where human life is cherished and the dignity of all is respected. As a parent I choose hope and optimism for the future, for my children and the world in which they will live, and I believe that history is on the side of those of us on the Commission who support repeal of the death penalty. New Hampshire can live without the death penalty, and I know the day will come when capital punishment is abolished.

December 1, 2010
(Mr. Cushing is also a member of the New Hampshire Legislature)

Renny Cushing, Executive Director
Murder Victims' Families for Human Rights
2161 Massachusetts Avenue
Cambridge, MA 02140
617 491 9600 (O)
617 930 5196 (C)
[email protected]
www.mvfhr.org