Sunday, June 27, 2010

Judge: Death Penalty Not Morally Acceptable

This article was written by New Hampshire Judge Joseph P. Nadeau. The article was published in today's edition of the Nashua Telegram. Judge Nadeau sets forth an intellectually honest personal appraisal of the death penalty and why he believes the penalty should be abolished. In the modern era, death penalty opponents rarely invoke morality. The debate is about age, mental capacity, lethal injection, cost, delay and race to name a few. It is refreshing to hear someone in the criminal justice system argue that the death penalty should be abolished because it is simply morally unacceptable.

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.


dudleysharp said...

Rebuttal to Judge Joseph Nadeau - the death penalty
Dudley Sharp, contact info below.

In his anti death penalty op/eds "On New Hampshire's death penalty", as well as in his 6/18/10 presentation to the New Hampshire Commission to Study the Death Penalty, Judge Nadeau was in error on both the facts and reason.

1) The risk to innocents

We must look at not only the risk of executing an innocent, but the larger risk as well, which is the risk to innocents if we do not have the death penalty. The death penalty has enhanced due process, enhanced incapacitation and enhanced deterrence over lesser sanctions. Therefore, the death penalty provides greater protection for innocents.

See Innocence, below.

2) Deterrence

All prospects of a negative outcome deter some. It is an uncontested truism.

About 99.9% of all those not deterred from committing murder tell us that they fear death more than life, that is why they attempt to plea down (not up) and do everything possible to avoid the death penalty and execution, at pre trial, trial and on appeals.

Virtually all criminals do everything they can to avoid detection and to avoid sanction. Why? Fear of sanction.

It is expected that more reasoned folks, those who choose not to murder, also fear death more than life and prefer life over death, just as most of us do.

Deterrence is based upon both rational decisions as well as instinctive ones.

We know that potential murderers do think about being caught, just as actual murderers do. Criminals avoid police stations while committing crimes and use stealth in committing their crimes and in withdrawing from them. Virtual all criminals and potential criminals do consider sanction. Astounding that the judge is unaware of that.

See Deterrence, below.

3. Justice.

Judge Nadeau writes "justice is not measured by the sentences we impose."

Incredible. This by a long time judge.

The entire system of criminal justice is based upon the principle that we provide a just and appropriate sanction for the crime committed. Justice.

It dishonors both justice and crime victims if we fail to provide a sanction which is proportional to the harm.

About 80% of US citizens, as well as a majority of those in New Hampshire, find that a the death penalty is just in true capital murder cases.

See Justice, below.

4. Cost

A responsible protocol, such as that in Virginia, will result in a death penalty which is less expensive than a life sentence. Just because a state is irresponsible with their citizens resources, it doesn't mean that they cannot change their ways. In addition, virtually all states are looking at releasing lifers early, because of the very high costs of geriatric care.

See Costs, below.

5. Other of the Judge's alleged reason to get rid of the death penalty.

Judge, are you unaware that all criminal sanctions have the "potential" to be swayed by public opinion, political pressure and media attention . . . that there is the potential for misuse and selective prosecution . . . may be too likely imposed upon minorities and the poor. . . that sanction may depend upon the persuasiveness of lawyers. . . may be subject to the emotions of individual jurors or the composition of the particular jury empanelled for each case . . that we may have disparate sentences. . . .that a person may be wrongfully incarcerated and die in jail . . . that all sanctions may exalt rage over reason or may diminishes our character as a people or may be the result of vengeance?

Judge, those are "potential" problems with all sentencing. By your reasoning, we should abandon of all sanctions.


dudleysharp said...





"The Death Penalty: More Protection for Innocents"

"A Death Penalty Red Herring: The Inanity and Hypocrisy of Perfection", Lester Jackson Ph.D.,

"The Innocent Executed: Deception & Death Penalty Opponents"

The 130 (now 139) death row "innocents" scam

"Cameron Todd Willingham: Another Media Meltdown", A Collection of Articles

Sister Helen Prejean & the death penalty: A Critical Review"

"At the Death House Door" Can Rev. Carroll Pickett be trusted?"


25 recent studies finding for deterrence, Criminal Justice Legal Foundation,

"Deterrence and the Death Penalty: A Reply to Radelet and Lacock"

"Death Penalty, Deterrence & Murder Rates: Let's be clear"

"The Death Penalty: More Protection for Innocents"


"Death Penalty Support: Religious and Secular Scholars"

"Death Penalty Support Remains Very High: USA & The World"


"Death Penalty Cost Studies: Saving Costs over LWOP"

"Duke (North Carolina) Death Penalty Cost Study: Let's be honest"
(NOTE: There is a newer study out, by one of these authors, that finds NC MIGHT save $11 million by ending the death penalty, or 1 penny every three days/person. I have not read it, yet.)

Cost Savings: The Death Penalty

What is the cost of not having the death penalty? Less justice and more innocent lives sacrificed.

Sincerely, Dudley Sharp
e-mail, 713-622-5491,
Houston, Texas

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