Joseph P. Nadeau, who served on New Hampshire​’s Supreme Court for six years and as a judge for 37 years, recent­ly tes­ti­fied before the state’s death penal­ty com­mis­sion about his oppo­si­tion to the prac­tice. In an op-ed, Judge Nadeau sum­ma­rized the moral and prac­ti­cal rea­sons why he believes cap­i­tal pun­ish­ment should be repealed. ​“Our think­ing evolves, as peo­ple, tech­nol­o­gy, and soci­eties progress,” he said. ​“And what is accept­able at one time in our his­to­ry may become unwel­come at anoth­er. So we are encour­aged to re-exam­ine our core prin­ci­ples and to con­sid­er whether death con­tin­ues to be an accept­able pun­ish­ment in New Hampshire.” He dis­missed the notion that the death penal­ty is need­ed to hon­or law enforce­ment offi­cers: ​“Its abo­li­tion does not dis­hon­or those who serve in law enforce­ment because hon­or comes from per­son­al pride and earned respect, not from the abil­i­ty of the state to exe­cute a human being.”

Judge Nadeau con­tin­ued, ​“No legal sys­tem is per­fect. Human beings make mis­takes. That is one rea­son we accept the notion that occa­sion­al­ly the guilty will go free and the inno­cent will be con­vict­ed. But I do not believe any­one accepts the notion that it is all right for a per­son to be wrong­ful­ly exe­cut­ed. So with the most respect­ed judi­cial sys­tem in the world, how can we will­ing­ly embrace a sen­tence which can­not be reversed after it is imposed; and how can we con­tin­ue to believe that it is moral­ly accept­able for the state to take a human life?” Read full op-ed below.

On New Hampshire’s death penal­ty
Tuesday, June 22, 2010

It has been my good for­tune to serve as a judge in New Hampshire for 37 years. For 13 of those years I was pre­sid­ing jus­tice of the Durham District Court. I served as a jus­tice of the Superior Court for 18 years, nine of which I spent as chief jus­tice. And I sat on the Supreme Court for six years before retir­ing in December of 2005.

Last week, I appeared before the New Hampshire Commission to Study the Death Penalty, not to talk about facts and sta­tis­tics or tri­als and cas­es but to address the moral issue of death as punishment.

The way we have been deal­ing with the death penal­ty for years is to talk about enact­ing laws, adopt­ing pro­ce­dures, estab­lish­ing prac­tices and pro­vid­ing mech­a­nisms, as if by cre­at­ing an elab­o­rate process we could some­how san­i­tize the death penal­ty and there­by ignore the moral issues that cap­i­tal pun­ish­ment presents. We cannot.

I appeared before the Commission to answer one straight­for­ward but com­plex ques­tion: Do I believe the sys­tem­at­ic killing of anoth­er human being by the state, in my name, is justified?

My answer to that ques­tion is, No.

Why do we con­tin­ue to strug­gle with the accept­abil­i­ty of death as pun­ish­ment? I believe one rea­son we engage in this process is that no mat­ter what some peo­ple say pub­licly about cap­i­tal pun­ish­ment, deep inside many are not as cer­tain as they proclaim.

I believe anoth­er rea­son is that our think­ing evolves, as peo­ple, tech­nol­o­gy, and soci­eties progress. And what is accept­able at one time in our his­to­ry may become unwel­come at anoth­er. So we are encour­aged to re-exam­ine our core prin­ci­ples and to con­sid­er whether death con­tin­ues to be an accept­able pun­ish­ment in New Hampshire.

There is no ques­tion that peo­ple who com­mit mur­der must be pun­ished and should be removed from soci­ety. Life in prison with­out parole does both. It is inter­est­ing to note that two states, New Hampshire, which has not employed the death penal­ty since before Pearl Harbor, and North Dakota which does not con­done cap­i­tal pun­ish­ment, did not need death to achieve the low­est mur­der rates in the nation every year of this century.

No legal sys­tem is per­fect. Human beings make mis­takes. That is one rea­son we accept the notion that occa­sion­al­ly the guilty will go free and the inno­cent will be con­vict­ed. But I do not believe any­one accepts the notion that it is all right for a per­son to be wrong­ful­ly exe­cut­ed. So with the most respect­ed judi­cial sys­tem in the world, how can we will­ing­ly embrace a sen­tence which can­not be reversed after it is imposed; and how can we con­tin­ue to believe that it is moral­ly accept­able for the state to take a human life?

My answer is, we cannot.

As most of us, I have nev­er expe­ri­enced the emo­tions felt by a mur­der vic­tim’s loved ones, and I may nev­er know for sure that I could not be per­suad­ed by the desire for per­son­al revenge to seek the death penal­ty for a per­son I knew killed some­one I love. But for me, nei­ther of these defi­cien­cies makes oppo­si­tion to the death penal­ty any less compelling.

So after thir­ty-sev­en years on the bench; after pre­sid­ing over hun­dreds of jury tri­als; after sit­ting on numer­ous crim­i­nal cas­es; after lis­ten­ing to wit­ness­es in scores of sen­tenc­ing hear­ings; after con­sid­er­ing infor­ma­tion in thou­sands of pro­ba­tion reports; after impos­ing sen­tences upon count­less con­vict­ed defen­dants; after enter­tain­ing the argu­ments of lawyers at every lev­el of skill; after talk­ing with a host of judges and cor­rec­tions offi­cials; and after con­tin­ued per­son­al reflec­tion; this is what I believe about capital punishment:

— The threat of its use is not a deter­rent to the com­mis­sion of a homi­cide, because those who kill do not con­sid­er the sen­tence before they act or do not expect to be caught, or both.
 — The threat of its use is not nec­es­sary to pro­tect the peo­ple of New Hampshire for the same rea­son.
 — Its abo­li­tion does not dis­hon­or those who serve in law enforce­ment because hon­or comes from per­son­al pride and earned respect, not from the abil­i­ty of the state to exe­cute a human being.
 — Its abo­li­tion does not dimin­ish the voice of mur­der vic­tims because the right of all vic­tims to be heard is intend­ed to come at the time defen­dants are sen­tenced not at the time they are charged.
 — It pro­vides no more jus­tice than life in prison with­out parole because jus­tice is not mea­sured by the sen­tences we impose.
 — To seek and car­ry out the death penal­ty costs the state much more in time and tax­es than to pros­e­cute and con­fine a per­son to prison for life.
 — To seek and car­ry out the death penal­ty con­sumes inor­di­nate resources of courts, pros­e­cu­tion, defense and law enforce­ment.
 — The deci­sion whether to seek the death penal­ty is too eas­i­ly swayed by pub­lic opin­ion, polit­i­cal pres­sure and media atten­tion.
 — Its poten­tial as a pros­e­cu­to­r­i­al tool is out­weighed by its capac­i­ty for mis­use.
 — It is too eas­i­ly sub­ject to selec­tive pros­e­cu­tion.
 — It is too like­ly to be imposed upon minori­ties and the poor.
 — It is too like­ly to depend upon the per­sua­sive­ness of lawyers.
 — Its impo­si­tion is too read­i­ly sub­ject to the emo­tions of indi­vid­ual jurors.
 — Its impo­si­tion is too clear­ly depen­dent upon the com­po­si­tion of the par­tic­u­lar jury empan­elled for each case.
 — It inevitably leads to dis­parate sen­tences.
 — It cre­ates the unac­cept­able risk that a per­son may be wrong­ful­ly exe­cut­ed.
 — It exalts rage over rea­son.
 — It dimin­ish­es our char­ac­ter as a peo­ple.
 — And in the end, I believe it serves just one pur­pose: vengeance.

It is for these rea­sons, and from a per­son­al abhor­rence of the pre­med­i­tat­ed exe­cu­tion of a human being by the state, that I appeared before the Commission to speak in favor of the abo­li­tion of the death penal­ty in New Hampshire.

(J. Nadeau, ​“On New Hampshire’s death penal­ty,” Foster’s Daily Democrat, June 22, 2010). See also New Voices and Recent Legislation.

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