Capital punishment in New Hampshire

Legal process

When the prosecution seeks the death penalty, the sentence is decided by the jury and must be unanimous.

In case of a hung jury during the penalty phase of the trial, a life sentence is issued, even if a single juror opposed death (there is no retrial).^[2]

The governor has the power of clemency with respect to death sentences, with advice of the executive council.^[3]

Capital murder

Capital murder is the only crime for which people can be executed in the state. A person is guilty of capital murder if he knowingly causes the death of:^[4]

1. A sheriff or deputy sheriff, state trooper, constable or police officer of a city or town, correctional officer, probation-parole officer, conservation officer, judge or similar person, state or local prosecutor acting in the line of duty or in retaliation for their job.
2. Another before, after, while engaged or attempting to commit a kidnapping.
3. Another after conspiring with a third to commit a contract killing.
4. Another after being sentenced to life imprisonment without parole.
5. Another before, after, while engaged or attempting to commit aggravated felonious sexual assault.
6. Another before, after, while engaged in the commission of, or while attempting to commit robbery.
7. Another before, after, while engaged or attempting to commit a drug offense.

Since the state's last execution of Howard Long on July 14, 1939, eight people have been charged with capital murder. Three were convicted, but received a mandatory life imprisonment without parole sentence. In three other cases, capital murder charges were resolved before trial, twice because the New Hampshire Supreme Court ruled the law authorizing the death penalty to be unconstitutional.

Methods

After a person has been convicted of capital murder, a separate penalty phase is carried out using the same jury. The jury weighs a variety of aggravating and mitigating circumstances. If a person has been convicted of capital murder and is not sentenced to death, the mandatory sentence is life imprisonment without possibility of parole (LWOP), the same sentence as for first-degree murder.

Executions must be carried out no sooner than one year after the sentencing. Death row for men and the execution are at the New Hampshire State Prison for Men at Concord. According to state law:

The punishment of death shall be inflicted by continuous, intravenous administration of a lethal quantity of an ultrashort-acting barbiturate in combination with a chemical paralytic agent…

It is also possible for executions to be carried out by hanging if it is found:

…to be impractical to carry out the punishment of death by administration of the required lethal substance or substances, the sentence of death may be carried out by hanging…

Public opinion

In a 2008 poll conducted for the Concord Monitor, 57 percent of likely voters supported the death penalty in police killing cases, 39 percent favored life in prison without parole, and 4 percent weren't sure.^[5]

1739–1942

• In 1739, two women were the first convicts to be executed in the state, both convicted of "feloniously concealing the death of a ... infant bastard child". Provincial laws at the time required capital punishment for murder, rape, homosexual acts, abortion, bestiality, burglary, counterfeiting and treason.
• On May 8, 1755, Eliphas Dow became the first man to be executed in New Hampshire. He was executed in Portsmouth for murder.
• In 1796, Thomas Powers, an African American, was hanged for rape. He is the only non-white to be executed in the state.
• On January 3, 1822, Daniel Davis Farmer was hanged in Amherst for the murder of Ann Ayer in Goffstown in April 1821.^[6]
• In 1868, hangings were moved to the State Prison in Concord, after a riot followed the execution of Samuel Mills on the main street of Woodsville. Prior to the 1868 execution, hangings were carried out in public.
• In 1903, the punishment for murder in the first degree was changed from death, to

death or imprisonment for life as the jury may determine... If the jury shall find the respondent guilty of murder in the first degree, the punishment shall be life imprisonment unless the jury shall add to their verdict the words, with capital punishment.

• In 1939, Howard Long was the last person to be executed by the State of New Hampshire. A storekeeper from Alton, Long was hanged at the New Hampshire State Prison in Concord on July 14, 1939, for molesting and fatally beating 10-year-old Mark Neville Jensen, from Laconia.^[7]
• In 1949, Ralph Jennings, a black man, was sentenced to be hanged for the murder of New Jersey nanny Ruth Eisenberg. The body was found by hunters on a dirt road. Jennings was not executed but committed suicide in his cell by hanging himself with bed sheets, under suspicious circumstances. Jennings was convicted after a jury trial in Carroll County. The evidence was controversial as the crime was suspected of being a sex crime although the body was very decomposed. The case became a national sensation and newspapers called Jennings a "sex fiend". Lawyers from the NAACP assisted in Jennings' defense.

Furman v. Georgia (1972)

In 1959, Frederick Martineau and Russell Nelson were convicted of murdering a businessman in a Nashua parking lot, who was scheduled to testify in a Rhode Island burglary case.

Martineau and Nelson received 13 stays of execution. They were spared the death penalty in 1972 when the United States Supreme Court ruled in Furman v. Georgia, 408 U.S. 238 (1972) that "unitary trial" procedure, in which the jury was asked to return a verdict of guilt or innocence and, simultaneously, determine whether the defendant would be punished by death or life imprisonment, was in violation of the eighth amendment to the United States Constitution.

1970–present

• In 1971, the state legislature enacted RSA 630:1 Capital Murder. In 1977, RSA 630:1 III., was amended by the legislature so that a person convicted of a capital murder "may" be punished by death, instead of "shall be" punished by death. In 1988, killing another after being sentenced to life imprisonment without parole pursuant was added to RSA 630:1. Also, probation-parole officer was added to the list of law enforcement officers contained in Paragraph II of the statute.
• In 1990, causing the death of another before, after, while engaged or attempting to commit aggravated felonious sexual assault, or an offense punishable under RSA 318-B:26, I(a) or (b) of the Controlled Drug Act was added as an aggravating element that might cause a crime to be classified as capital murder. In 1994, killing a "judicial officer" was added to the criteria for capital murder, and retaliation for a person's actions in the line of duty was added.
• In 1992, the New Hampshire State Prison dismantled its gallows.
• In 2000, Governor Jeanne Shaheen vetoed legislation to abolish the death penalty. The act had passed the House of Representatives 191-163 and the Senate 14-10. A two-thirds majority to overturn the veto was not achieved.
• In 2004, Governor Craig Benson vetoed legislation that would have raised the minimum age to execute someone from 17 to 18. Benson said:

When somebody, regardless of their age, is bold enough to take the life of a police officer, there should be no exceptions — we should make sure that they should pay the ultimate price. So I’m going to make a pledge as governor that if anyone takes the life of a police officer, I will seek the death penalty.

• In 2006, the statutory minimum age for a person punishable by death was raised from 17 to 18 years. The U.S. Supreme Court ruled in Roper v. Simmons (2005), that it is unconstitutional to impose the death penalty on people who were under age of 18 when they committed a capital crime. It noted that science has demonstrated the brains of minors are still unformed, and that it constituted "cruel and unusual punishment" to sentence them as adults.
• In 2009, Representative Stephen Linsey introduced House Bill 556, to repeal the death penalty. The bill was suggested "Inexpedient to Legislate" by the House Judicial Committee. It passed the House by a narrow margin, but failed to pass the senate, where the vote was tied 12-12.
• In 2018, the New Hampshire State Senate and House both passed Senate Bill 593, which would prospectively abolish the death penalty but not apply retroactively to those already on death row. Governor Chris Sununu vetoed the bill on June 21, 2018, and an override attempt was defeated on September 13, 2018.^[8]