Revision: Dec. 14, 2015, midnight
\t \t\tHB 1552-FN - AS INTRODUCED
2016 SESSION
\t16-2075
\t04/03
HOUSE BILL\t1552-FN
AN ACT\textending the penalty of death to acts of terrorism and civil rights offenses.
SPONSORS:\tRep. Flanagan, Hills. 26; Rep. Burt, Hills. 39
COMMITTEE:\tCriminal Justice and Public Safety
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ANALYSIS
\tThis bill adds the act of causing death by the use of a weapon of mass destruction and the act of causing the death of a person exercising certain civil acts to the capital murder statute.
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Explanation:\tMatter added to current law appears in bold italics.
\t\tMatter removed from current law appears [in brackets and struckthrough.]
\t\tMatter which is either (a) all new or (b) repealed and reenacted appears in regular type.
\t16-2075
\t04/03
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Sixteen
AN ACT\textending the penalty of death to acts of terrorism and civil rights offenses.
Be it Enacted by the Senate and House of Representatives in General Court convened:
\t1 Capital Murder; Weapons of Mass Destruction; Exercise of Civil Rights. Amend RSA 630:1, I(f)-(g) to read as follows:
\t\t\t(f) Another before, after, while engaged in the commission of, or while attempting to commit an offense punishable under RSA 318-B:26, I(a) or (b); [or]
\t\t\t(g) Another[,] who is licensed or privileged to be within an occupied structure, or separately secured or occupied section thereof, before, after, or while in the commission of, or while attempting to commit, burglary as defined in RSA 635:1;
\t\t\t(h) Another by the use of a weapon of mass destruction resulting in death to more than one person. The term "weapon of mass destruction" shall mean:
\t\t\t\t(1) Any explosive, incendiary, or poison gas bomb, grenade, rocket having a propellant charge of more than 4 ounces, missile having an explosive or incendiary charge of more than 1/4 ounce, mine, or device similar to any of the devices described in this subparagraph;
\t\t\t\t(2) Any weapon that is designed or intended to cause death or serious bodily injury through the release or dissemination of toxic or poisonous chemicals, or their precursors;
\t\t\t\t(3) Any weapon involving a biological agent, meaning any microorganism, including but not limited to, bacteria, viruses, fungi, rickettsiae, or protozoa, or infectious substance, or any naturally occurring, bioengineered, or synthesized component of any such microorganism or infectious substance, capable of causing:
\t\t\t\t\t(A) Death, disease, or other biological malfunction in a human, an animal, a plant, or another living organism;
\t\t\t\t\t(B) Deterioration of food, water, equipment, supplies, or material of any kind; or
\t\t\t\t\t(C) Deleterious alteration of the environment;
\t\t\t\t(4) Any weapon containing toxic material or product of plants, animals, microorganisms, including, but not limited to, bacteria, viruses, fungi, rickettsiae, or protozoa, or infectious substances, or a recombinant or synthesized molecule, whatever their origin and method of production, and includes:
\t\t\t\t\t(A) Any poisonous substance or biological product that may be engineered as a result of biotechnology produced by a living organism; or
\t\t\t\t\t(B) Any poisonous isomer or biological product, homolog, or derivative of such a substance;
\t\t\t\t(5) Any weapon that is designed to release radiation or radioactivity at a level dangerous to human life; or
\t\t\t(i) Another who is freely exercising or enjoying any right or privilege under the New Hampshire constitution including but not limited to:
\t\t\t\t(1) Voting or qualifying to vote, qualifying, or campaigning as a candidate for elective office, or qualifying to acting as a poll watcher, or any legally authorized election official, in any primary, special, or general election;
\t\t\t\t(2) Serving or attending upon any court in connection with a legal action, as a grand or petit juror in any superior court; or
\t\t\t\t(3) Any person because of his or her race, color, religion, gender, sexual preference, or national origin and because he or she is or has:
\t\t\t\t\t(A) Enrolled in or attended any public school or public postsecondary institution; or
\t\t\t\t\t(B) Participated in or enjoyed any benefit, service, privilege, program, facility, or activity provided or administered by the state or any political subdivision thereof.
\t2 Effective Date. This act shall take effect 60 days after its passage.
\t\t\t\t\t\t\t\t\t\t\t16-2075
\t\t\t\t\t\t\t\t\t\t\t11/25/15
HB 1552-FN- FISCAL NOTE
AN ACT\textending the penalty of death to acts of terrorism and civil rights offenses.
FISCAL IMPACT:
The Departments of Justice and Corrections, Judicial Branch and Judicial Council state this bill, as introduced, will increase state expenditures by an indeterminable amount in FY 2017 and each year thereafter. There will be no impact on state, county and local revenue or on county and local expenditures.
METHODOLOGY:
The Department of Justice states this bill would expand the death penalty, making it applicable when a person knowingly causes the death of another by the use of a weapon of mass destruction resulting in the death of more than one person, or when knowingly causing death to another while that person is freely exercising or enjoying any right or privilege under the New Hampshire Constitution. The Department of Justice prosecutes all homicides including death penalty cases. The Department states death penalty cases are more expensive to investigate and litigate than non-death penalty homicide cases. The Department indicates it has prosecuted two death penalty cases, State v. John Brooks and State v. Michael Addison. The cost of the Brooks prosecution, which did not result in a death sentence, was $2,253,586. To date, the cost of the Addison prosecution is $2,481,097, and it is anticipated the litigation will continue for several years. The Department states it would see an increase in expenditures due to expansion of the death penalty, but the extent of the increase cannot be determined.
The Judicial Branch states the proposed bill would expand the crime of capital murder to include causing death by use of a weapon of mass destruction and the act of causing the death of a person exercising certain civil acts. Currently, the maximum penalty for those homicides is first degree murder. The Branch indicates both first degree murder and capital murder are classified as complex felonies. The estimated cost to the Judicial Branch of an average complex felony case will be $868.90 in FY 2017 and $894.83 in FY 2018. The Branch states these amounts are based on the average times required to process a certain category of cases, including those that take relatively little time and those that take a lot of time, and may provide little guidance in comparing a first degree murder charge to a capital murder charge. Capital murder cases are expensive to the justice system, with more hearings, the addition of a penalty phase to the trial, the need for greater security at trial, and the possibility of multiple appeals on the issues raised. The Branch states, while the fiscal impact cannot be calculated with certainty, the fiscal impact to the Branch would be quite significant.
The Judicial Council assumes expanding application of the death penalty to a broader range of offenses would increase the possibility that one or more criminal defendants would be charged with capital murder and the Department of Justice would pursue the death penalty. The Council states, because of the enormous cost of defending against capital prosecution, all or most all criminal defendants in death penalty prosecutions are represented by court-appointed counsel. Therefore the Council assumes if someone is charged with committing a capital offense in New Hampshire, the defendant will qualify for the appointment of counsel at State expense. The Council indicates under RSA 604-A:2,I the appointing court is required to order the Public Defender Program to provide representation in the first instance. The statute permits the appointing court to provide two lawyers to represent an indigent defendant facing a capital prosecution and it is common practice in death penalty jurisdictions to provide at least two lawyers to represent a death-penalty defendant. The Council states under the present contract, the Public Defender Program budget does not include funds for representation of an indigent defendant in a capital prosecution. In the event a capital prosecution is commenced, the Council assumes it would request the Joint Fiscal Committee and the Governor and Executive Council authorize additional appropriations pursuant to RSA 604-A:1-b. The Council has limited experience in paying for death penalty representation to use as a guide in estimating potential future costs. As an example, the Council indicates the Addison case has been ongoing for nine years and the State has expended approximately $3 million for representation and non-counsel services. The Council states if the Public Defender could not provide representation, representation would be provided by at least two assigned counsel from private practice appointed by the trail court pursuant to RSA 604-A:2. Neither the law or court rules have a fee cap in capital cases. The Council assumes because of the extraordinary responsibilities, the assigned counsel would both work 45 hours per week at an hourly rate of $100 for 50 weeks per year. Ancillary service costs would also be paid for by the Council. These ancillary services consist of expert analysis and consultation necessary for the defense such as forensic experts and mitigation specialists. Ancillary costs are not predictable but can run in to hundreds of thousands of dollars. RSA 604-A:2 gives the trial court discretion to appoint counsel for an indigent defendant in post-conviction proceedings in capital cases and the Council would also be responsible for such costs. The Council assumes, due to potential conflicts of interest, the Public Defender could not provide post-conviction representation and lawyers in private practice would be appointed by the trial court. There are no fee caps in law or court rules which would limit the Judicial Council’s financial obligation for post-conviction costs. In summary, the Council is not able to predict whether the Department of Justice would be confronted with a criminal defendant who commits a death-penalty-eligible offense and against whom the Attorney General might institute capital proceedings. If such a case is brought in the future, there is no way to predict if the case will require extraordinary time and resources, or if the case would conclude with a negotiated disposition in advance of trial. The Council assumes expansion of the death penalty would increase the possibility of significant state expenditures for representation and ancillary services.
The Department of Corrections states this bill adds the act of causing death by use of a weapon of mass destruction and the act of causing the death of a person exercising certain civil acts to the capital murder statute. The Department states the fiscal impact of the bill cannot be determined, but states the average annual cost of incarcerating an individual in the general population for the fiscal year ending June 30, 2015 was $34,336. The average cost to supervise an individual by the Department’s Division of Field Services for the fiscal year ending June 30, 2015 was $520.
The New Hampshire Association of Counties states this bill would have no fiscal impact on county revenue or expenditures.