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Wednesday, October 25, 2006

New Hampshire Attorney General Seeks Death Penalty for Cop Killer

New Hampshire Attorney General Kelly Ayotte has announced her intention to seek the death penalty against Michael Addison, accused of killing Manchester polics officer, Michael Briggs, in the line of duty. The community's sense of outrage is certainly understandable and one can make a case that capital punishment is justified in this case. This would, however, be the first death sentence in New Hampshire in 67 years.

My problem lies not with the idea of the death penalty for the premeditated murder of a police officer, but rather the system that is in place to decide whether the death penalty is warranted in a particular instance.

When the Supreme Court of the United States imposed a moratorium on capital punishment in the 1972 landmark case of Furman v. Georgia, the rationale set forth by the Court's swing voters (Stewart and White) was NOT that too many defendants were being sentenced to death. The problem, as they saw it, was that there was no rational, predictable way to figure out who would get the death penalty and who wouldn't. The death penalty was too much like a bolt of lightening that would strike rarely and randomly.

Subsequent empirical research demonstrated that the only factor that reliably increased the likelihood of receiving the death penalty was having murdered a white person instead of a black one. Being a black defendant convicted of killing a white victim was the proverbial kiss of death. While much progress has been made in eqalizing treatment of all defendants in the system, recent reports out of Oklahoma, Pennsylvania, New Jersey and Texas continue to show a disparity in capital sentencing by race-of-victim.

So, let's return to the case of Mr. Addison. If guilty, his seems to be a very bad act indeed. But the question is whether this is the single worst murder in New Hampshire in 67 years!!!! Can we truly rely on a jury of ordinary people, presented the case by lawyers who will be as manipulative as possible, to determine whether this is the most reprehensible murder in the state over the better part of a century. If Mr. Addison is given the death penalty, the minimum seven levels of appeal will surely focus on what the Supreme Court refers to as a "proportionality analysis." The Supreme Court has ruled that the Constitution all but requires courts to determine whether a capital sentence is commiserate with past sentencing practices in the state. So, even should a jury want to sentence Mr. Addison to death, it's wishes will be thwarted unless the New Hampshire Supreme Court can somehow distinguish this case from all the ones in which a lesser sentence was imposed.

Frankly, after 67 years of disuse, I do not believe that a capital sentence can Constitutionally be employed in New Hampshire. That is, I think such a sentence fails proportionality analysis by default. New Hampshire seems to have maintained a rather low murder rate without any executions for the last 2/3 of a century. Capital cases are incredibly expensive to undertake, as the state will have to pay for both the prosecution and defense (as well as numerous appeals).

It just seems a wiser, fairer and more prudent course of action to lock away Mr. Briggs' murderer for life.

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