Barring any last minute delays, the New Hampshire Senate looks set to take up a veto override vote and repeal New Hampshire’s death penalty Thursday morning.

And with 17 of 24 senators previously voting in favor of the repeal bill – which Gov. Chris Sununu vetoed early this month – the chamber looks to have enough support to pull the override off.

New Hampshire has never been a prolific state when it comes to capital punishment sentences. But with one person on death row today, the penalty and the vote to repeal it have taken on emotional heft. Here’s a primer ahead of the decision.

How did New Hampshire’s capital punishment develop?

Some form of a death penalty has existed in New Hampshire since at least the 1640s, when four Seacoast towns, – Portsmouth, Dover, Hampton and Exeter – came under the scope of the “Body of Liberties” passed by the Massachusetts General Court. But over the centuries, its scope has dramatically ebbed and flowed.

Under the Body of Liberties, capital punishment was expansive, covering a range of crimes including three types of murder, adultery, blasphemy and even witchcraft, according to a 1986 article in the Bar Journal by Quentin Blaine. At one point during the Puritan era, the penalty was amended to cover children over 16 who “cursed or hit their parents,” Blaine wrote.

That all changed when New Hampshire broke away from Massachusetts in 1679, and the state’s Assembly began stripping away explicitly religious crimes and increasing exemptions. In centuries since, the crimes it’s covered have been modified, sometimes in response to current events. In 1937, murder during a kidnapping was added five years after the Charles Lindburgh case for example; in 2011, lawmakers included home invasions after the brutal murder of Kimberly Cates in Mont Vernon.

As the law developed, it was put to sporadic use; from 1739 to 1939, 22 people were hanged in total.

But then it stopped. In 1939, Howard Long was the last to die by hanging in the state, a drop-off prompted by a decades-long “anti-gallows” movement that picked up influence in the late 19th century.

And in 1972, a Supreme Court decision derailed the whole penalty – briefly. Furman v. Georgia, a 5-4 decision, invalidated all death penalty statutes across the country; a second decision in 1976, Gregg v. Georgia, lifted the ban but advised states to adopt stronger review criteria.

In New Hampshire, the decisions made their mark. By 1977, the Legislature amended the death penalty to be optional for capital crimes, not mandatory.

Since then, the state has not successfully secured a death row conviction – with one current exception.

What does the state’s current death penalty include?

Under present statute, New Hampshire’s death penalty covers capital murder, which means any time someone “knowingly causes the death of another” in a set of specific scenarios.

Those scenarios entail murders during drug crimes, sexual assaults, kidnappings, burglaries, home invasions and contract killings, as well as the murders of state and local law enforcement and judicial officers.

A conviction must come from the unanimous verdict of a 12-person jury, and New Hampshire statute sets out numerous aggravating factors that can be considered, like the age of the victim, the use of torture by the perpetrator.

The execution “shall be inflicted by continuous, intravenous administration of a lethal quantity of an ultrashort acting barbiturate in combination with a chemical paralytic agent” and be carried out under supervision of a “licensed physician according to accepted standards of medical practice,” according to the statute.

One problem: The state doesn’t right now have the facilities to carry that out, nor the drugs to make it possible.

Where does N.H. stand compared to other states?

New Hampshire is one of 30 states with the death penalty currently on the books.

But among those 30 states, New Hampshire has one of the more limited penalties. Texas, for example, includes the murder of prison employees, children under 10 and murder during arson.

That might explain why New Hampshire has sought the penalty in so few cases over the decades. But to advocates on both sides of the repeal debate, there may be other factors at work.

John-Michael Dumais, executive director of the New Hampshire Coalition to Abolish the Death Penalty, said the precise reason why so many cases eligible for capital punishment have not been pursued is hard to pinpoint. But for some it might come down to the state’s culture.

“I think you’d have to get into the modus operandi of various attorney generals,” he said, but added: “People are not necessarily clamoring for it. And when they have clamored for it, it hasn’t always been something that could be applied.”

Pat Sullivan, executive director of the New Hampshire Association of Chiefs of Police, which strongly opposes repeal, attributed the scarcity in death row cases to the strength of the judicial process.

“It’s not just the high-speed lane or the expressway to the death penalty,” he said. “It’s something we take very seriously in New Hampshire. We look at all the facts relevant to the case, and then it’s proceeded in that way.”

How does House Bill 455 repeal the penalty?

The bill up for debate Thursday, House Bill 455, would strike the words “may be punished by death” and replace them with “shall be sentenced to imprisonment for life without the possibility of parole.”

That means the capital crimes still exist, but sentences would automatically become life without parole if decided by a 12-member jury. The proposed repeal is prospective, applying only to convictions after its passage, which would be May 30 should the repeal pass.

What about Michael Addison?

A major emotional driver for opponents of repeal – and hang-up for supporters – has been the case of Michael Addison, New Hampshire’s sole death row inmate. Addison is still awaiting the outcome of federal appeals relating to his conviction for the murder of Manchester police Officer Michael Briggs in 2006.

And while the proposed repeal bill is prospective, advocates on both sides have mused that a vote to eliminate the penalty could open the door for the state Supreme Court to commute his sentence down the line.

“That’s been discussed on many occasions,” Dumais said. “The likelihood is that once this happens, that Addison’s pubic defenders will look at this and say if this is not something New Hampshire wants to do for hte future, perhaps there’s a case to be made.”

Sullivan agreed with the possibility of a commutation by court decree, saying there was “no question” it would happen.

“Michael Addison had nothing to lose,” Sullivan said, referring to Addison’s conviction for life without parole. “He was already going to go life in prison, and if this passes he will go to life in prison and receive basically no penalty for the killing of Officer Briggs.”

But crafters of the legislation say the non-retroactivity clause is there for a reason. 

Where does Thursday’s vote stand?

According to the state constitution, two-thirds of New Hampshire’s 24-member Senate must vote in favor of overriding a veto to pass: 16 total. Last week, the House cleared that hurdle with no votes to spare: 247-123.

In a vote taken in April, 17 members voted in favor of repeal. That list includes Democratic Sens. Shannon Chandley, Jeanne Dietsch, Dan Feltes, Martha Fuller Clark, Martha Hennessey, Jay Kahn, Melanie Levesque, Jon Morgan, Cindy Rosenwald, Tom Sherman, Donna Soucy and David Watters.

Sens. Lou D’Allesandro and Kevin Cavanaugh, representatives of the city of Officer Briggs, oppose repeal.

For Thursdays override measure to fail, two will need to peel off and change their vote. Sununu and his coalition proved adept at that in the House, flipping 35 Republicans to get within a hair of stopping the override then and there. The Senate offers a narrower path: Of the four Republican senators who voted to repeal in April – Sens. Harold French, Bob Giuda, David Starr and Ruth Ward – many appear to be set in their decisions. 

Pulling off a reversal under those conditions is a tall order for Sununu and repeal opponents. But in this Legislature, what’s expected is never what’s certain.

(Ethan DeWitt can be reached at edewitt@cmonitor.com, at (603) 369-3307, or on Twitter at @edewittNH.)

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