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Sunday, June 27, 2010

Retired judge takes the stand to testify against death penalty

It has been my good fortune to serve as a judge in New Hampshire for 37 years. For 13 of those years I was presiding justice of the Durham District Court.

I served as a justice of the Superior Court for 18 years, nine of which I spent as chief justice. And I sat on the Supreme Court for six years before retiring in December of 2005.

I am proud of our judicial system and the effort of judges in all our courts to treat people fairly and equally, and to protect their individual rights.

While serving as a judge, I rarely expressed my opinion on capital punishment privately, and until now I never expressed my opinion publicly. Nor did I let my personal opinions influence my judicial decisions.

In fact, in 1998 I presided over the capital murder case of Gordon Perry, and on every motion filed on his behalf challenging New Hampshire’s capital punishment statute, I ruled he had not established that the law violated our constitution.

Last week, I appeared before the New Hampshire Commission to Study the Death Penalty, whose members I commend for their willingness to undertake the important and challenging task assigned to them by the legislature.

My purpose in speaking to the commission was not to talk about facts and statistics or trials and cases but to address the moral issue of death as punishment.

The way we have been dealing with the death penalty for years is to talk about enacting laws, adopting procedures, establishing practices and providing mechanisms, as if by creating an elaborate process we could somehow sanitize the death penalty and thereby ignore the moral issues that capital punishment presents. We cannot.

I appeared before the commission to answer one straightforward but complex question: Do I believe the systematic killing of another human being by the state, in my name, is justified?

My answer to that question is: No.

During my tenure as a judge, I met many people with strong opinions about capital punishment. Through most of that period, over two-thirds of those polled in the United States regularly supported the death penalty. Some people I respect still do. So you would think that anyone looking for answers based upon public opinion or strongly held views should have an easy task.

What is the problem, then? In the face of these odds, why do we continue to struggle with the acceptability of death as punishment? I believe one reason we engage in this process is that no matter what some people say publicly about capital punishment, deep inside many are not as certain as they proclaim.

I believe another reason is that our thinking evolves, as people, technology, and societies progress. And what is acceptable at one time in our history may become unwelcome at another. If that is true then, we are encouraged to re-examine our core principles and to consider whether death continues to be an acceptable punishment in New Hampshire.

I have great respect for the offices of the Attorney General and the Public Defender and for the integrity and competence with which the attorneys in those offices handle homicide cases. The primary source of my continuing concern about the death penalty, however, is not New Hampshire’s limited capital murder experience but my own professional exposure to criminal justice issues.

There is no question that people who commit murder must be punished and should be removed from society. Life in prison without parole does both. It is interesting to note that two states, New Hampshire, which has not employed the death penalty since before Pearl Harbor, and North Dakota, which does not condone capital punishment, did not need death to achieve the lowest murder rates in the nation every year of this century.

No legal system is perfect. Human beings make mistakes. That is one reason we accept the notion that occasionally the guilty will go free and the innocent will be convicted. But I do not believe anyone accepts the notion that it is alright for a person to be wrongfully executed.

So with the most respected judicial system in the world, how can we willingly embrace a sentence which cannot be reversed after it is imposed; and how can we continue to believe that it is morally acceptable for the state to take a human life?

My answer is, we cannot.

As most of us, I have never experienced the emotions felt by a murder victim’s loved ones, and I may never know for sure that I could not be persuaded by the desire for personal revenge to seek the death penalty for a person I knew killed someone I love. But for me, neither of these deficiencies makes opposition to the death penalty any less compelling.

I am not a death penalty expert.

I am not a spokesperson for the judiciary.

I am one New Hampshire citizen; one person, who believes it is not necessary to kill to show that killing is wrong.

So after 37 years on the bench; after presiding over hundreds of jury trials; after sitting on numerous criminal cases; after listening to witnesses in scores of sentencing hearings; after considering information in thousands of probation reports; after imposing sentences upon countless convicted defendants; after entertaining the arguments of lawyers at every level of skill; after talking with a host of judges and corrections officials; and after continued personal reflection; this is what I believe about capital punishment:

The threat of its use is not a deterrent to the commission of a homicide, because those who kill do not consider the sentence before they act or do not expect to be caught, or both.

The threat of its use is not necessary to protect the people of New Hampshire for the same reason.

Its abolition does not dishonor those who serve in law enforcement because honor comes from personal pride and earned respect, not from the ability of the state to execute a human being.

Its abolition does not diminish the voice of murder victims because the right of all victims to be heard is intended to come at the time defendants are sentenced not at the time they are charged.

It provides no more justice than life in prison without parole because justice is not measured by the sentences we impose.

To seek and carry out the death penalty costs the state much more in time and taxes than to prosecute and confine a person to prison for life.

To seek and carry out the death penalty consumes inordinate resources of courts, prosecution, defense and law enforcement.

The decision whether to seek the death penalty is too easily swayed by public opinion, political pressure and media attention.

Its potential as a prosecutorial tool is outweighed by its capacity for misuse.

It is too easily subject to selective prosecution.

It is too likely to be imposed upon minorities and the poor.

It is too likely to depend upon the persuasiveness of lawyers.

Its imposition is too readily subject to the emotions of individual jurors.

Its imposition is too clearly dependent upon the composition of the particular jury empanelled for each case.

It inevitably leads to disparate sentences.

It creates the unacceptable risk that a person may be wrongfully executed.

It exalts rage over reason.

It diminishes our character as a people.

And in the end, I believe it serves just one purpose: vengeance.

It is for these reasons, and from a personal abhorrence of the premeditated execution of a human being by the state, that I appeared before the commission to speak in favor of the abolition of the death penalty in New Hampshire.