I spent my first year out of law school as a law clerk for Paul C. Reardon, a justice on the Massachusetts Supreme Judicial Court. We had many interesting cases, and I helped Judge Reardon draft opinions in the cases that assigned to him.
One such case was Commonwealth v. Ladetto, a murder case in which Peter Ladetto was convicted of killing a police officer while attempting to commit a robbery. Under Massachusetts law at that time, first degree murder carried an automatic death sentence unless the jury, as part of its verdict, recommended life imprisonment.
I had read “Reflections on the Guillotine,” a 1957 essay by the French writer Albert Camus, which convinced me that the death penalty was a bad idea, a view I have held ever since. I probably approached my work in the case — reviewing the record, researching the law, drafting an opinion — with the hope of finding a basis on which Ladetto might avoid execution.
And I found one, or at least thought I did. I wrote a memorandum arguing that the statute was unconstitutional because it allowed a single holdout juror to send a person convicted of murder to the electric chair. Judge Reardon showed my memo to “the Chief,” but that’s as far as it went. The court upheld Ladetto’s conviction and death sentence. That was in 1965.
Some years later the Supreme Judicial Court declared the death penalty unconstitutional under the Massachusetts state constitution, and Ladetto managed to live out his life in prison, where he died a few years ago, more than 50 years after killing Officer Callahan.
Meanwhile, American law has repeatedly confronted the issue of the death penalty, with a hodgepodge of rulings that have created little clarity and widespread uncertainty. In 1972, the Supreme Court decided in Furman v. Georgia that the death penalty laws of several states were so arbitrary and discriminatory that they violated the Eighth Amendment protection against inflicting cruel and unusual punishment. The result was a national death penalty moratorium, which only lasted for a few years.
In 1976 the court held, in Gregg v. Georgia, that the death penalty was constitutional so long as state law included objective criteria for the jury to consider, for example a history of felonies, a particularly vicious crime, or killing a police officer, and so long as the jury considered the defendant’s background, meaning mitigating or aggravating factors. The latter is what produced the current system of a separate sentencing hearing after a guilty finding.
The death penalty question goes back to debates over the bill of rights in 1789. New Hampshire’s Samuel Livermore argued during the First Congress that “it is sometimes necessary to hang a man,” even if doing so was “cruel.”
Twenty-one years earlier, New Hampshire had executed a woman named Ruth Blay. That was some 250 years ago. Over the course of time, the state has carried out the death penalty a total of 22 times, most recently in 1939. It is now generally agreed that Blay was innocent.
In 2008, Michael Addison was convicted of murdering a Manchester police officer and sentenced to death. He has been on death row ever since, and the state has spent over $5 million on his case. Meanwhile, in 2018 the legislature voted to repeal the death penalty, but Gov. Chris Sununu successfully vetoed the bill.
This year was different. Once more, the Legislature voted to repeal the death penalty for any conviction “on or after” passage of the new law. The governor again exercised his veto power, but this time both the House and the Senate narrowly mustered the required two-thirds vote and overrode the veto on a bipartisan basis.
Nationally, the picture is quite different. While the Supreme Court has chipped away at capital punishment in certain types of cases, for example in cases of rape, or if the defendant is insane, mentally retarded, or under age 18, or if the method of execution inflicts excessive pain, today’s court seems eager to impose strict rules of enforcement and expedite the death penalty. Just recently Justice Breyer was left writing an anguished dissent at 3 o’clock in the morning, requesting a brief delay so that the Justices could discuss the case later that morning. He lost by a vote of 5 to 4, suggesting that on this issue at least, the court is badly split and anything but collegial.
I suppose Camus was wrong in at least one respect. The death penalty does work in the sense that it kills people convicted of murder. But the price is too high. Keeping Addison in prison for life would cost less than the state has already spent. And Ruth Blay isn’t the only wrongfully executed person. According to one report, fifteen innocent people have been executed in the United States since 1976. And, thanks to improvements in DNA science, over 150 death row inmates have been exonerated.
So in the larger sense, it doesn’t work, for the simple reason that the justice system is not sufficiently reliable to allow the government to put someone to death. I, for one, am grateful to the Legislature for doing away with the death penalty in New Hampshire, putting us in company with most civilized countries, if not our own.
The repeal does not apply to Michael Addison. Will he follow in Ladetto’s footsteps and live out his life in prison? Or will he be our 23rd execution? His fate remains unknown.