Midway through debate over whether to abolish New Hampshire’s death penalty, Sen. Sharon Carson issued a warning.
“If you think you’re passing this today and (Michael) Addison is still going to remain on death row, you are confused,” she said, referring to New Hampshire’s lone death row inmate. “Mr. Addisons’s sentence will be commuted to a life sentence.”
The Senate voted to pass the repeal measure after an impassioned campaign that supporters said had more to do with the principle than one person. Now, as the dust settles, the question of Addison’s fate persists.
Addison, convicted in the 2006 slaying of Manchester police officer Michael Briggs, is still fighting his conviction through state and federal appeals. But advocates on both sides of the debate have conceded that Thursday’s repeal could spell the end of his death sentence.
The law passed Thursday deliberately applies only to capital murder convictions from that day on. What the courts do with it, though, is far from clear. For now, many are looking to other states.
Enter Connecticut. In 2012, the Legislature repealed its capital punishment, three years after a previous effort had been vetoed by the governor. But the state still bore the scars of recent tragedy: the 2007 murders of Jennifer Hawke-Petit and her 17 and 11-year old daughters during a home invasion.
To exempt the convicted perpetrators – Steven Hayes and Joshua Komisarjevsky – from escaping execution, lawmakers explicitly limited their repeal bill to future convictions. But the courts thought otherwise. In 2015, the state supreme court invalidated the death penalty in State v. Santiago, pointing to shifting “contemporary standards of decency” after the repeal.
In a flash, Hayes, Kominsarjevsky, and nine other death row inmates had their sentences commuted to life without parole.
The Connecticut case featured heavily in New Hampshire’s repeal discussions this year and last: an example of repeal applying backward whether or not lawmakers allowed it so. Whether or not it would apply to New Hampshire’s case is a different story.
To start, there may be a difference in court philosophy. Connecticut’s 4-3 decision was driven by the concept of an evolving standard of cruel and unusual punishment, and a recognition that a death penalty repeal bill – even a non-retroactive one – heralded a societal shift.
It is not unlike the way the U.S. Constitutional equivalent of cruel and unusual punishment has been interpreted, said Miriam Gohara, a clinical associate professor of law at Yale who has spent 16 years defending death row inmates.
“It’s evolving standards of decency,” she said. “Meaning that by today’s standards, would this punishment amount to cruel and unusual punishment, or in the language of the Connecticut state constitution, would it be excessive or disproportionate punishment?”
In Connecticut, the answer was yes, if by a slim majority on the court. But New Hampshire’s highest court has historically taken a different tack.
In one of several decisions to deny Addison’s appeal and uphold his capital punishment sentencing, the New Hampshire Supreme Court rejected the idea that the death penalty was at odds with the state constitution’s “cruel or unusual punishment” prohibition.
For that, they used something of an originalist argument.
“Given that, at the time the State Constitution was adopted, capital punishment was a sanctioned penalty for specific crimes and that the plain language of the constitution anticipates its use, the framers could not have considered capital punishment to be ‘cruel or unusual,’ ” the court wrote.
Whether or not the repeal of the law in question changes that calculus is difficult to predict.
“The short answer is: It’s up to the court,” said Buzz Scherr, criminal justice professor at the University of New Hampshire School of Law. “Just because the Connecticut Supreme Court did that does not have any binding authority over the New Hampshire court.”
Scherr said the New Hampshire Supreme Court’s earlier decisions to speak directly to the constitutionality of capital punishment could give weight to the state in upholding the sentence, even despite the appeal.
“The language of the Addison opinion is different than the language in the Connecticut Santiago opinion,” he said, pointing to the “common norms of decency” argument used in that state. “New Hampshire has in the Addison cases said they think the death penalty is constitution based on common norms of decency.”
“I could see the court going either way,” Scherr added. “I don’t think it’s a clear place one way or another.”
Of course, for any of this to be tested, the argument would need to be raised in court on appeal.
Presently, Addison is appealing his conviction on habeus corpus grounds. Progress on that petition, launched in 2016, has ground to a near halt in Merrimack County Superior Court amid a flurry of mostly-sealed petitions over the years. But its existence has put a stop to a key catalyst: the one-year countdown clock between the end of Addison’s appeals and the possibility of an execution.
Neither Michael Weisman, a Philadelphia-based lawyer representing Addison in his present stage of appeals, nor Associate Attorney General Jeffrey Strelzin would comment Friday on potential arguments around the retroactive sustainability of the death penalty after repeal.
Without a motion to respond – and with progress in the courts slowed to a crawl – Strelzin said the Department of Justice has no position to take.
“We’re not contending anything at this point,” he said Friday.
But with plenty of time before the Superior Court comes to its next decision, and the ability of plaintiffs to add to their arguments, the shape of those arguments could appear in court soon. Just not too soon.