Abolish the death penalty

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.