New Hampshire is one of the 30 states with the death penalty, and lawmakers there are trying to change that. Both the House and Senate have voted to repeal the death penalty, leaving the legislation in the hands of Gov. Chris Sununu. Morning Edition Host Joe Mathieu spoke with Northeastern University Law Professor and WGBH Legal Analyst Daniel Medwed about New Hampshire’s latest attempt to abolish capital punishment. The transcript below has been edited for clarity.
Joe Mathieu: This is not actually the first time lawmakers in New Hampshire tried to repeal the death penalty in recent years. But each attempt has failed, I guess, until this time. What's different now?
Daniel Medwed: Well, I think it is different, even though, as you noted, there have been at least three recent failures to abolish the death penalty. Back in 2000, a bill passed both the House and Senate, but Governor Jeanne Shaheen, a Democrat, vetoed it. Then in 2014, Maggie Hassan — her successor — was ready to essentially sign it into law, but it didn't pass the state Senate. Last year, Governor Sununu vetoed a similar bill. He's anticipated to veto this one, but it's essentially bulletproof, because there are sufficient Democratic votes to override a potential veto. So I envision it going through.
Mathieu: It'd be a major development in terms of affecting criminal justice overall in New Hampshire, with the exception of one case, Daniel.
Medwed: Well, that's right. New Hampshire hasn't executed anyone since 1939. But there is one person on death row: Michael Addison. He's been there since [his] 2008 conviction for killing a Manchester, New Hampshire police officer. And this legislation would not be retroactive, meaning it wouldn't apply to Addison. That said, it could give the courts some potential arguments for commuting his sentence through a case law. New Hampshire doesn't even have an execution chamber, it doesn't have protocols [and] it doesn't have the drugs for lethal injection. The legislature would have to allocate money for all of this. So even though he would still be on death row and subject to the death penalty, there's a good chance, I would think, that he won't be executed.
Mathieu: Understood. Let's put this into a larger national context because this gets more interesting as you look around the country. Among the states that have abolished the death penalty in recent years, is New Hampshire's path through the legislature the typical way of getting this done?
Medwed: I'd say it's not necessarily the typical way. It's a popular way to abolish the death penalty. but there are many different avenues. For instance, take California. It's had a tortured history with trying to abolish the death penalty: failed attempts in the legislature, failed referenda [and] propositions in California. So what happened? Gov. Gavin Newsom unilaterally used his executive power to issue a moratorium. So right now in California, no one's going to be executed [and there will be] no new death sentences, as long as Newsom is in the governor's mansion. Then some states, like Washington, have had their state supreme courts abolish the death penalty, finding that as a matter of state law, it doesn't pass muster, even if the U.S. Supreme Court says that as a matter of federal law capital punishment is okay. So there are lots of different avenues.
Mathieu: What are the chief factors behind what is a growing trend here to repeal state death penalty laws?
Medwed: It's a really interesting issue. I think it's multifaceted. I think you have to look at the fact that there's a growing sense of unfairness in the criminal justice system, a concern about cruelty of the process and also concerns about accuracy. So in terms of unfairness, we've already talked a lot about progressive criminal justice reform in recent years, and a growing understanding of the inequities in the system — how people of color [and] people of limited financial resources are often penalized. They are harmed by the process. So I think that larger concern about criminal justice has affected the death penalty debate.
In addition, we've heard about a number of botched executions in recent years. Clayton Lockett in Oklahoma a few years ago — observers talked about how he suffered tremendous pain [and] was in true agony as a result of the execution process. A lot of people have heard about this and been really concerned about the method of execution and whether it's cruel. And then finally, we've had 30 years of documented DNA exonerations, where DNA testing has proven that the system isn't fail safe — that innocent people are convicted [and] they're later freed through DNA. But with the death penalty, the ultimate punishment, you can't rely on DNA to necessarily correct an injustice. As one of my friends once said in research, there's no appeal from the grave. So all of these things have come together to garner support for abolition.
