The New York Times

Friday, May 19, 2000

A State Votes to End Its Death Penalty

New Hampshire Legislature Acts, but Governor Pledges to Veto Bill

Associated Press

State Senator Clifton C. Below of New Hampshire, a Democrat who said he once thought he could "volunteer to be executioner" after a friend was killed by a drunken driver, voted against the death penalty Thursday.

CONCORD, N.H., May 18 -- Reflecting a mounting national unease over the death penalty, New Hampshire's generally conservative Legislature today became the first in the country to approve a bill banning capital punishment since the Supreme Court allowed executions to resume nearly 24 years ago.

The Senate, evenly divided between Republicans and Democrats, voted 14 to 10, after an emotional hourlong debate, to approve a bill repealing the state's death penalty. The House passed the same bill in March.

But Gov. Jeanne Shaheen, who not only favors the death penalty but wishes to expand it, has vowed to veto the bill.

"There are some murders so heinous that the death penalty is an appropriate punishment and, accordingly, I will veto this legislation," Governor Shaheen, a Democrat, said in a statement issued after the vote.

Nevertheless, the vote here, in a state that has not executed anyone since 1939 and has no prisoners on death row, was greeted by opponents of the death penalty as a striking indication of changing public attitudes.

Over the years, polls have shown that somewhat more than half the population approves of capital punishment. And while even death penalty opponents say no other state is likely to abolish the death penalty, over the past few years more concerns have been raised about its fairness and application, even among death penalty supporters.

"I think this is a historic vote and may signal a trend by states away from the death penalty," said Richard Dieter, executive director of the Death Penalty Information Center, a group in Washington that opposes capital punishment.

"There is clearly a growing concern about the accuracy and fairness of the death penalty in many other states," Mr. Dieter said.

Perhaps the most significant change came in January, when Gov. George Ryan of Illinois, a Republican who was a longtime proponent of the death penalty, ordered a moratorium on executions after discovering that since 1987 the state had freed 13 prisoners from death row because they were found to be innocent.

That was more than the number of convicts executed in that time. Some who were ordered to be freed had been exonerated after investigations by student journalists in a workshop at Northwestern University.

Governor Shaheen's legal counsel, Judy Reardon, had tartly dismissed that example in the debate here.

"If Governor Shaheen were the governor of Illinois, she'd have imposed a moratorium on the use of the death penalty, too," Ms. Reardon said.

"We don't have those problems in New Hampshire."

But Mr. Dieter, the death penalty opponent, said the possibility of wrongful convictions and executions, as well as publicized cases of death row convicts exonerated with newly available DNA evidence, was a major factor in the changing attitudes.

"I think that the issue of innocence is what has triggered much of this concern," he said.

Death penalty opponents in the New Hampshire Legislature appear unlikely to be able to muster the two-thirds vote in both houses necessary to override the governor's veto.

Nevertheless, the votes this spring indicated a major shift. Two years ago, the House rejected a similar repeal bill by 40 votes.

This year, when the vote on repeal came up in the House in March, the speaker of the overwhelmingly Republican body, Donna Sytek, who is noted for controlling party line votes with an iron hand, decreed a "free vote" in which the representatives should vote their consciences.

The measure passed 191 to 163. While its main sponsor, James Splain, a Democrat from Portsmouth, is regarded as one of the most liberal legislators in the House, the measure was also backed by a number of conservatives.

The possibility of executions carried out in error weighed heavily in the debate. One Republican representative, a lawyer, argued that economics fundamentally skewed the system of justice, leaving high numbers of poor blacks and Hispanics awaiting execution.

"There are no millionaires on death row," the representative, Anthony DiFruscia, said.

"Can you honestly say that you're going to get equal justice under the law when, if you've got the money, you're going to get away with it."

As the measure moved to the Senate, early political soundings suggested that the 24-member body was just about evenly split.

But in the weeks leading to the vote today, three senators -- including the Democratic chairwoman of the Judiciary Committee, Debora Pignatelli -- changed their minds and voted to repeal the death penalty, providing the margin of victory.

Senator Rick Trombley, a Democrat from Boscawen, had favored the death penalty.

But Mr. Trombley became troubled by testimony before the House Judiciary Committee over the case of a man, Richard Buchanan, who was charged with the murder and rape of a 6-year-old girl but was later exonerated by DNA evidence. Even so, prosecutors still held Mr. Buchanan in jail for months after the new evidence was discovered.

"If scientific evidence today shows that we're making mistake after mistake after mistake, the Legislature ought not to allow for the possibility of that mistake being made," Mr. Trombley told The Concord Monitor in an article that detailed the anguished decisions of the three senators. "The only way to do that is to abolish the death penalty."

Mrs. Pignatelli had also favored the death penalty until the Legislature began holding hearings. In January, one witness, Paris Carriger, told lawmakers that he had spent 21 years on Arizona's death row, and once came within three hours of being executed, before being released.

"There's something unseemly about the state being in the position of executing people," Mrs. Pignatelli finally concluded.

Leo Fraser, a Republican from Pittsfield, the third senator who changed his mind, said that several factors figured in his decision, including doubts that capital punishment was a deterrent to crime, but that he was particularly struck by a letter from a woman in Guilford.

"She wrote to me that she considered me her agent," Mr. Fraser told The Monitor.

" 'And as my agent,' she said, 'I'd be devastated if I thought you'd put someone to death.' "

New Hampshire's death penalty is limited to a short list of crimes, including murder of a law enforcement or corrections officer, murder for hire and murder during rape or attempted rape.

Governor Shaheen has advocated expanding the list to include categories like killing witnesses or informers.

There are 3,600 people on death rows nationwide, and 87 death row inmates have been freed since 1973, according to the Death Penalty Information Center.