Cook On Concord: Officer’s tragic killing renews focus on death penalty

The tragic death of Manchester Police Officer Michael Briggs, allegedly murdered by a serial criminal who was captured after a tense search in Manchester and, ultimately, an arrest in Dorchester, Mass., raises the issue of capital punishment in New Hampshire.

New Hampshire’s capital murder statute has limited crimes for which the death penalty can be imposed. One of those is the killing of a police officer during the commission of a crime, the circumstances in which Briggs was killed early one October morning at the corner of Lincoln Street and Lake Avenue in Manchester.

Attorney General Kelly Ayotte announced her intention to seek to have the accused killer charged under the capital murder statute.

New Hampshire has not imposed the death penalty in 67 years, the last time by hanging. The means of punishment has changed, it now calls for lethal injection, but the rare application of the charge and penalty have made recent discussions at the Legislature concerning repeal of the death penalty more academic than real. A promised prosecution and possible imposition of the death penalty, should the defendant be found guilty, changes that.

Adding to the outrageous circumstances of Briggs’ death the specter of terror in America after September 11th and other fears, death penalty opponents — were they anticipating another try at repeal — have a steep hill to climb if they believe the repeal will happen in New Hampshire.

A coalition of opponents, ranging from the Roman Catholic church and other religious organizations to family groups, have attempted repeal in the past, despite repeated opposition by governors and attorneys general. Recent events will bring this into focus again.

Meanwhile, a fine young officer leaves a wife and two children in a senseless killing — and no penalty, capital or otherwise, can bring him back.

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One interesting development during the campaign for governor this year has been the charge by the New Hampshire Union Leader that both candidates were putting off any proposed solution to the Claremont lawsuit and school-funding matters to next year.

While this may be true, both candidates having suggested that a constitutional amendment of some kind might be appropriate after school funding has been solved, there has been an undercurrent of discussion among a broad range of people that, in fact, a constitutional amendment may be necessary in finding a way to escape the school-funding dilemma.

The argument gaining traction goes something like this: 48 of the 50 states allow some kind of “targeted aid” from the state to needy school districts. Of the other two states, Hawaii is one large school district, and New Hampshire has the Claremont decisions, which have indicated that the funding of an “adequate education” must be from state funds and equally applied after a definition of “adequate education” is determined.

The most recent decision by the Supreme Court in the Londonderry School District case set a time limit of June 2007 for the Legislature to solve the problem.

Governor Lynch joined his predecessors, Governors Benson, Shaheen and others in proposing a targeted aid formula. Critics say it fails the court’s test.

The constitutional amendment argument is that, in order to pass a targeted aid plan, the law has to change. The Supreme Court determines what the law is, and the justices have determined that targeted aid is not constitutional under the New Hampshire Constitution. While much vindictive rhetoric is aimed at the court, in our system the court says what the law is.

Therefore, those who want to use targeted aid as other states do to augment local property tax revenue in support for schools need to craft a constitutional amendment that will allow targeted aid as a legal component.

What will be needed if a constitutional amendment is part of the process, in many observers’ estimation, is that several former governors will have to join with Governor Lynch to support targeted aid, draft and push a consensus amendment, strip the acrimonious anti-court rhetoric from the process and merely say that what is needed is an amendment that will add one more “tool to the tool box.”

Whether such a consensus will be possible, given the lobbying efforts of various interests groups and the anti-court attitude of some conservatives, is difficult to predict.

However, what is not hard to predict any longer is that people from various sides of the school-funding debate believe that the court needs to be gotten off the hook, and the Legislature and governor need to come up with a solution that a solid majority can salute. This will take bipartisan leadership and the ability to compromise.

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Every New Hampshire citizen, regardless of party or opinion, should remember the state election on November 7, and be sure to vote. The September primary turnout of 12 percent or so was embarrassing. We must do better! nhbr

Brad Cook is a partner in the Manchester law firm of Sheehan Phinney Bass + Green and heads its government relations and estate planning groups.

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