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Panel favors state's death penalty



Last modified: Tuesday, November 30, 2010
Members of a commission tasked with studying the death penalty yesterday voted in favor of keeping the practice in New Hampshire, though by a narrow majority.

Of the commission's 22 members, 12 voted to retain the death penalty and 10 to abolish it, said Deputy Attorney General Bud Fitch. Reports from the majority and minority outlining their arguments and findings will be made public tomorrow.

The commission, which was created by the Legislature last year, includes legislators, lawyers, police officers and family members of victims, appointed by different organizations and branches of government.

They were asked to consider seven questions, including whether the death penalty rationally serves a public interest and whether it is consistent with evolving societal standards.

Given the complexity of the subject, consensus among the members was unrealistic, several people said yesterday. But between the positions outlined in the majority and minority reports and the evidence assembled by the commission over a year's worth of meetings, 'there really is a good body of information' for legislators to draw on, said Michael Iacopino, a criminal defense lawyer who sat on the commission.

Iacopino voted in favor of abolishing the death penalty, and he said he was disappointed to be in the minority. But he said he was satisfied with the process the commission used to reach its conclusions.

'Any legislator who reads the majority report, reads the minority report, takes the time to listen to the evidence the committee considered - I think a fair-minded legislator is going to have to say the arguments for the death penalty really aren't all that good,' Iacopino said yesterday.

Iacopino said he thinks the death penalty is bad policy. Political pressures weigh on the decision to prosecute a death penalty case, which can lead to mistakes and undermine confidence in the system, he said.

He also said studies haven't proved a deterrent effect. 'If we can't demonstrate deterrence, what's the sense of it?' he said.

But several commission members who were in favor of keeping the death penalty cited a deterrent effect among their primary reasons for supporting the practice.

They also said they believed that the state's law, which allows prosecutors to seek the death penalty only in certain cases, was appropriately reserved for the most egregious crimes, among them killing a police officer in the line of duty.

That shows 'a balancing of the demands of society for just punishment with respect for the sanctity of life,' said John Kissinger, a civil defense lawyer who was previously a homicide prosecutor in the state attorney general's office. He called the limited nature of the statute 'the most important single factor' he considered in voting to keep the death penalty.

James Reams, the Rockingham County attorney, also cited the limitations of the law as a reason for retaining it, describing New Hampshire's statutes as 'much more protective' than those in other states that have the death penalty.

Reams also believes the death penalty has a deterrent effect. He referred to a story told to the commission by Peter Heed, the Cheshire County attorney. According to Reams, Heed testified that when he was a criminal defense lawyer, he had a client who said he didn't kill a police officer because he knew he could face the death penalty.

'There's a police officer probably alive today who doesn't even know he was saved by the fact that we had a death penalty,' Reams said.

If the death penalty deters even one murder, then it can be morally justified, said Charles Putnam, the co-director of Justiceworks, a research institute at the University of New Hampshire.

'My impression is most people assume that all of the moral arguments cut against keeping the death penalty,' said Putnam, who said he joined the commission 'mildly in favor' of keeping the state's law the way it is.

Putnam said he isn't sure anyone can prove whether the death penalty has a deterrent effect, since 'it's very difficult to measure what doesn't happen.' But assuming it does, he said, 'at least to me, that creates a very strong moral argument - this isn't just mean people doing mean things to criminal defendants.'

A moral argument can also be made, however, for not spending the state's money prosecuting costly death penalty cases, said Sherry Young, who runs the environmental practice group for Rath, Young & Pignatelli and served as Judd Gregg's legislative counsel when he was governor.

Young, who voted in favor of abolishing the death penalty, said she was struck by testimony from the families of murder victims, contrasting the costs involved in seeking the death penalty with what's spent to support the families of victims - and what's spent on cracking unsolved murder cases.

And the costs aren't just economic, Young said. Of the victims' families who testified before the commission, 'almost to a person, they noted that bringing forward a death penalty case against a murderer extends and prolongs the trauma they feel, for years and years,' Young said.

Young said she didn't have a strong opinion on the death penalty before joining the commission, but she said the testimony and evidence heard by the commission was 'overwhelmingly opposed to the death penalty.'

But some of the testimony came from out-of-state advocates, sent to New Hampshire by groups that oppose the death penalty, said Dan St. Hilaire, a criminal defense lawyer and former Merrimack County attorney.

St. Hilaire, who voted in favor of keeping the death penalty, said he didn't find that testimony helpful.

'You could see whatever group had the money and resources to pay for somebody to come in, that's who you heard from,' he said. 'That's what made it disappointing in a sense. It wasn't as much fact-finding as it was political.'

Still, St. Hilaire said the commission's work was worthwhile. Going forward, any legislator who wants to change the state's death penalty law will have a 'blueprint,' he said - 'documenting to point to for the facts.'

(Maddie Hanna can be reached at 369-3321 or mhanna@cmonitor.com.)