Capital Beat: Repeal aside, New Hampshire not ready for executions

  • The State House dome as seen on March 5, 2016. (ELIZABETH FRANTZ / Monitor staff) ELIZABETH FRANTZ

Monitor staff
Published: 4/28/2018 11:39:07 PM

The vote was decisive, but Gov. Chris Sununu held his ground. Facing a 223-116 House vote to repeal the state’s death penalty, the governor maintained his previous stance: no.

But even as death penalty supporters cheered the promised veto and opponents vowed to change the governor’s mind, all sides face an inconvenient reality. New Hampshire’s death penalty is, for now, functionally nonexistent.

There are no drugs on hand to fulfill a lethal injection, according to Jeff Lyons, spokesman for the Department of Corrections. There are no protocols for how to obtain those drugs, where to obtain them or how to administer them. There isn’t even an existing chamber in which to carry an execution out.

And as New Hampshire’s only death row inmate proceeds through the court system, the state is holding off on making any major decisions on to move forward. That inmate, Michael Addison, was convicted for the 2006 killing of a Manchester police officer, Michael Briggs; his conviction is presently being appealed in federal court.

A spokesman for Sununu, Ben Vihstadt, declined to answer a series of questions Friday about the governor’s proposals for state-run executions. But Deputy Attorney General Ann Rice said there isn’t much to reveal.

“I don’t think there’s a specific plan at this point,” she said.

It isn’t that New Hampshire’s death penalty law is absent from the statute book. Under RSA 630:1, “a person convicted of a capital murder may be punished by death,” a provision encompassing murder of a police officer or judge; murder during a sexual assault; or murder in the course of a burglary. In RSA 650:5, a detailed process is laid out as to how the punishment be sought in court, including how and when the state must inform the defendant, how a guilty person must be sentenced, and what factors the jury may or may not consider in making its decision.

But as far as the execution itself, the law is far less clear. The punishment must be carried out by lethal injection, via the administration of two drugs: an “ultra-short acting barbiturate” and a “chemical paralytic agent,” according to the statute. But it delegates to the Commissioner of the Department of Corrections which specific drugs are used and how they are obtained.

It specifies that the procedure must be carried out by intravenous injection, by a licensed physician, “according to accepted standards of medical practice.” But it again leaves the details on set up and procedure to the commissioner, presently Helen Hanks.

Suffice it to say, that procedure is not in place yet. “At this time the New Hampshire Department of Corrections does not have a policy that outlines the step-by-step process for carrying out an execution,” Lyons said Friday.

Meanwhile, the facility itself is an open question. The law is silent on where the executions must take place.

In 2008, an outside architectural firm, Crabtree, Rohrbauch and Associaties, designed a master plan for the Department that included a $1.77 million lethal injection chamber, replete with viewing areas, a holding cell and a break room. But the idea was never set in motion by the Legislature. And in 2015, then-Commissioner William Wrenn proposed a more frugal staging ground: the men’s state prison gymnasium.

On Friday, Lyons said Hanks and the department do not have a position on where to carry out future executions. Asked whether Sununu would support the 2008 chamber proposal, Vihstadt declined to comment.

For many, the considerations are important. Throughout the debate over death penalty repeal, representatives pointed to the potential costs incurred by housing death row inmates, court appeals and isolated housing. Without a clear plan over execution infrastructure, those costs are difficult to nail down.

Obtaining the drugs could prove its own quagmire. States have struggled recently to obtain the necessary chemical compounds to carry out their executions, as international pressure campaigns have led pharmaceutical companies to bar the use of their products for lethal injection, and in some cases stop producing them. Some states have been buying drugs internationally, stockpiling certain brands, and swapping out the chemical cocktail for other drugs when supplies run low.

Neither Lyons nor Rice would speculate on which drugs it would seek for New Hampshire – or how the state would obtain them. Under New Hampshire statute, if the drugs are unavailable, death by hanging is an option; Vihstadt said that Sununu would oppose the practice.

And some legal observers say designing a legally-sound injection procedure can become another landmine. Protocols that were designed poorly or improperly have opened some states up to constitutional challenges upon implementation, according to Elisabeth Semel, director of the Death Penalty Clinic at UC Berkeley in California – tying them up in even more legal delays. And those are the states that actually implement the procedures.

“It sounds like New Hampshire has a lot of work to do,” Semel said Friday.

Rice says the state does have a general game plan. Officials are monitoring the ongoing appeals of Addison, which could stretch years, and plan to take action if it is likely his appeals are close to exhaustion. That action will likely involve the Department of Corrections approaching the Attorney General’s Office for legal advice in crafting a process, and moving from there.

In the meantime, Rice said, anything said is speculation. “We’re talking in a vacuum,” she said.

Some observers see New Hampshire’s lack of preparation for its death penalty as evidence of the emptiness of the rhetoric behind those in the state supporting it.

“What’s going on here a status competition,” said Frank Zimring, a UC Berkeley law professor and author of The Contradictions of American Capital Punishment, speaking on New Hampshire’s repeal efforts. “What’s going on here is the symbolic dance which has absolutely nothing to do with pushing the state close to actual execution.”

On Friday, a day after the House vote, repeal advocates attempted to mobilize their supporters to persuade the governor to change his mind before the bill reaches his desk. But Sununu – like Gov. Jeanne Shaheen before him – is standing behind his intended veto.

Barring an improbable reversal of two senators and 37 representatives to override a veto, New Hampshire will stay among the 31 states whose capital punishment law remains on the books.

What that means in practice remains to be seen.

(Ethan DeWitt can be reached at, or on Twitter at @edewittNH.)

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