April 05. 2014 12:11AM

Another View -- Stephen E. Merrill: NH's capital punishment law is limited, fair and just


IN CONSIDERING capital punishment in New Hampshire, we should ask, "What rights does our state have to deal with the worst kind of homicides?" And, "Does our state have extensive protections for defendants, usually at taxpayer expense?" Our human nature causes us to put the horrors of the attacks in Mont Vernon and increasing violence on our streets out of our minds. Law enforcement and other public servants cannot. Your safety, not their own, is paramount to them.

After hearing 70 witnesses, the New Hampshire Death Penalty Study Commission concluded in 2010 that "New Hampshire's capital murder statutes are the narrowest and provide some of the greatest protections for the defendant of any capital sentencing under similar statutes in the United States." We have the fewest categories of capital murder of any state in the United States, and our law has the fewest statutory aggravating factors of any state. In the last 30 years there have only been four capital cases brought and only two went to juries. We are careful in its application, as we should be.

The commission also concluded that "under New Hampshire law a defendant is only eligible for the death penalty if he is aware his actions will cause the death of another person and he acts purposely in some manner to cause the victim's death. Since capital murder requires at least some degree of forethought on the part of the offender, it is likely to have a deterrent effect on at least some murderers."

Michael Addison had been convicted of attempted murder, armed robbery and assault before he shot and killed Officer Michael Briggs. He killed a public servant - who was a veteran, husband and father - to make good his escape. He did not intend to go back to prison.

While research on convicted murderers may give some insight into their thought process, a more important population here are those who ultimately did not commit murder because of their fear of the death penalty. Studying the cases where deterrence failed does not effectively inform us about the cases where deterrence succeeded.

The commission report details research, published in peer-reviewed academic journals, that reinforces the existence of a deterrent effect from the existence of a death penalty. One important study concluded that there was a "significant deterrent effect" from the use of capital punishment. This study by Dezhbakhsh, Rubin and Shepard calculated that an average of 18 murders were not committed as a result of the risk of capital punishment. One life saved is enough for me.

Defendants who have killed a prison guard or fellow inmate while serving a life sentence clearly demonstrate that incarceration alone is inadequate to prevent them from killing again. Those serving life sentences do not take their own lives because of the psychological burdens of incarceration. They work their way up to general population and play in the yard. That is hardly a fate worse than death. My concern is with the victims of crime, not with feeling guilty for dealing with the worst of offenders. Our narrow state execution statute is not immoral. It would be immoral to remove a societal tool to deal with the worst of the worst and thereby endanger innocent victims.

While survey research is often cited showing public support for repeal of the death penalty, the questions used often do not reflect the narrow nature of New Hampshire's statutes or the exceptionally egregious nature of the murders that may make a defendant subject to the death penalty. Polls after the execution of Timothy McVeigh for his killing of 168 people at the Murrah Building in Oklahoma City showed that support for his execution exceeded 80 percent. And capital punishment still retains popular approval in the democracies of Europe, Japan and India, whether they employ it or not. However, poll numbers should not decide so serious an issue.

Our democracy thrives in part because, compared to many countries in the world, Americans are safe enough to actively participate in our system of self-government. The murder of a law enforcement or judicial officer who is acting in the line of duty is an attack on the rule of law. These crimes are an attack on our civil society. New Hampshire State Police Sgt. Phillip Gaiser, shot three times in the back while on duty, told the commission, 'This man was not trying to kill an individual that night, he was trying to kill a police officer.'

No alternative is sufficient to address legitimate social or penal interests for the narrow categories for capital murder in New Hampshire. That is why the commission concluded: "The killing of a public servant is not unlike an act of war on civilized society, and society, consistent with morality, asserts the right to protect itself from such attacks to preserve the rule of law." Many believe that if our state statute is repealed, Michael Addison's state sentence will be commuted by a federal court. That should not occur.

Discussions of the death penalty are healthy for a civilized society, and reasonable people can disagree. Maintaining the capital punishment statute and applying it sparingly in the most egregious cases, after extraordinary safeguards for the defendant, saves innocent lives. The life of one rape victim, burglary victim, judge, or police officer, saved because a criminal did not kill them for fear of the death penalty, justifies keeping New Hampshire's capital punishment law.

Stephen E. Merrill served as governor of New Hampshire from 1993 to 1997 and state attorney general from 1984 to1989.