SB 344-FN – AS INTRODUCED

AN ACT relative to capital murder.

SPONSORS: Sen. Kenney, Dist 3; Sen. Letourneau, Dist 19; Rep. Casey, Rock 11; Rep. C. Brown, Carr 1; Rep. Crane, Hills 21

AN ACT relative to capital murder.

AN ACT relative to capital murder.

The Judicial Branch, Judicial Council, Department of Justice, and Department of Corrections state this bill may increase state and county expenditures by an indeterminable amount in FY 2009 and each year thereafter. This bill will have no fiscal impact on state, county, and local revenue, or local expenditures.

The Judicial Branch states this bill would add additional circumstances which may be prosecuted as capital murder. The Branch states in accordance with the New Hampshire Judicial Needs Assessment done by the National Center for State Courts, capital murder is classified as a complex felony. The cost to the Branch of an average complex felony case is estimated at $647.17 in FY 2009 and $661.17 in FY 2010. The Branch states capital murder cases are expensive to the justice system with additional hearings because of more issues, the need for greater security at trial, and the prospect of multiple appeals on the issues raised. The exact fiscal impact cannot be determined at this time.

The Judicial Council states this bill expands the circumstances where the death penalty may be imposed. Funds appropriated for the current pending capital murder case in New Hampshire include $134,542 in FY 2007, $393,742 in FY 2008, and $409,959 in FY 2009. These appropriations do not include the cost of mandatory appeals or any “Services Other Than Counsel” expenses such as the cost of DNA specialists, forensic psychologists, transcript requests, depositions, extensive legal research costs, data preservation, expert witnesses, travel costs and accommodations. Nationally the trend has been for capital murder cases to cost between $750,000 to several million dollars. The current New Hampshire case costs appear to fall within that range. In addition to on-going case costs, expansion of the death penalty caseload will require the Public Defender to maintain permanently a death penalty litigation support unit with appropriately trained and available attorneys. The need will exist to recruit specifically qualified and experienced death penalty attorneys. Typically a death penalty defense team consists of up to three lawyers, while state prosecution teams are usually at least as large and are often supplemented by county attorney support. The high cost of defense in a capital murder case makes it all but impossible for a defendant to hire and sustain the cost of representation by a private attorney unless they are a person of great independent wealth. The Council assumes that the individual so charged has been determined to be indigent, at which time the court will proceed to appoint an attorney to represent the individual defendant. Representation in any murder case, including a capital murder charge, may only be provided by either the Public Defender program or by an assigned counsel attorney. Due to the complexity of such a case, there was no contract attorney fixed fee rate established. Funding for representation in a capital murder case has never been included in the Public Defender budget except by specific request and appropriation. Therefore expansion of the death penalty and the need to maintain an established defense unit would require an additional appropriation. If an assigned counsel attorney must be used, due to either conflict of interest or for reasons of caseload limitation, the $60 per hour rate with a fee cap of $20,000 per co-counsel will be charged. This fee cap may be waived upon motions filed in advance and approved by the court. Most murder cases (not capital cases) have cost the state an average of $30,000 to $100,000. Private attorney representation would conceivably run in the range of $500,000 to $750,000 if there is an individual or group of attorneys capable and willing to accept such an appointment. If any “Services Other Than Counsel” are requested and approved by the court as part of an adequate defense of the cases, they would also be payable from indigent defense funds, also subject to reimbursement. The Council states requests for services will generally be approved by the judge and a significant additional appropriation would be needed to cover expenses. The Council states that any case where a defendant has been found guilty may also result in an appeal to either the Superior Court from the District Court or to the Supreme Court which will also have cost implications for indigent defense expenditures made by the state. The Public Defender and contract attorney rates for Supreme Court appeals are $2,000. The Council states it is unlikely that any appeal of a death penalty case could be handled for less than $25,000 to $100,000. The Judicial Council is unable to predict the number of cases which may result from the passage of this bill, and are unable to determine the exact fiscal impact at this time.

The Department of Justice states it is responsible for prosecuting all murder cases. This bill would substantially increase the number of capital murder cases. Since 1996, there have been 18 homicide cases involving multiple victims, an average of 1.5 cases per year, all of which could have potentially been charged as capital murder had the proposed statute been in effect. The Department has never prosecuted a capital murder case to completion, and is currently in the early stages of two capital murder prosecutions. The total cost for the prosecution of those cases is indeterminate at this point. The Department received additional appropriation authority of $420,000 through the Legislative Fiscal Committee when the first case was charged to cover the cost of that prosecution through the end of FY 2007. An additional request for funds may be necessary as both cases move forward. Due in part to the varying nature of each case, the Department cannot estimate the exact fiscal impact of the bill at this time.

The Department of Corrections states inmates who are housed for capital murder offenses require an enhanced level of security on a round-the-clock basis. This enhanced level of security requires the Department to increase the staffing of a segregated Maximum Security Unit with an additional officer per shift. Assuming wages, hazardous duty pay, benefits, overtime, and an effective date of January 1, 2009, the Department estimates these costs at $92,388 in FY 2009, and $183,475 in FY 2010 and each year thereafter. The Department states they are unable to estimate additional costs associated with capital murder including the construction of a separate “Death Row” housing unit, and the construction of an execution chamber. This bill would have no impact to the Division of Field Services. The exact fiscal impact cannot be determined at this time.