A FEDERAL JUDGE’S sentencing order directing that New Hampshire be the site for the execution of convicted carjacker and murderer Gary Sampson has brought home the compelling and contentious issue of the death penalty.

U.S. District Court Judge Mark Wolf’s selection of New Hampshire for the implementation of the federal death penalty caught parties to the case by surprise — even for prosecutors, who had asked the execution to take place at a federal prison in Terre Haute, Indiana, where most federal executions are carried out.

New Hampshire Governor Craig Benson said the state would cooperate with federal authorities. NH Attorney General Peter W. Heed said his office is looking into updating procedures and locating a facility for conducting an execution, since it has been 65 years since one (a hanging) took place here, and the current death penalty statute —calling for lethal injection— has never been carried out. Heed acknowledged that it is not yet an urgent matter, since the course of appeals for Sampson could take five years or more. Heed also said that since the federal authorities would supervise the execution, he expects that most of the costs and legal "heavy lifting" would be borne by the federal government.

Sampson, in 2001, killed two men in Massachusetts, and then fled to New Hampshire, where he faces first-degree murder charges —life imprisonment without parole maximum sentence—for the murder of Robert "Eli" Whitney. Presumably, Sampson would face state prosecutions in the two states following the conclusion of his federal appeals, but his execution would obviously make them moot.

Richard B. McNamara, a Manchester attorney who was the last lawyer to try a death penalty case in New Hampshire (NH v. William Gagne in 1982), said the judge’s order to hold the execution here might be challenged on a number of fronts. The federal statute [18 U.S.C. 3596 (a)] gives the court the authority to relocate the execution from the state where the crime occurred if that state "does not provide for the implementation of a sentence of death."

"Does the federal statute fit?" asked McNamara, since New Hampshire’s death penalty statute would not prescribe death for the crimes Sampson had committed. Also, it might be arguable whether New Hampshire is capable of conducting an execution, given its lack of experience.

Heed, who ironically was defense attorney for another defendant in the Gagne case, asserted there is no reason why New Hampshire could not conduct an execution by relying on assistance from the federal authorities and from officials in other states that have utilized their death penalty statutes after a hiatus of many years. Heed also said it makes sense for New Hampshire to develop its capital punishment protocols, since it does indeed have a death penalty statute on the books and cases do come up where charges of capital murder are considered.

Heed said he has received many letters and phone calls on both sides of the issue in the wake of the Sampson order. It has clearly reinvigorated debate in New Hampshire on the issue. "It’s one of those subjects everybody feels strongly about," he said.

McNamara, who formerly served as an assistant attorney general with Heed, had only recently left to go into private practice when then-Superior Court Judge Joseph DiClerico appointed him to defend Billy Gagne on capital murder charges in a murder-for-hire case. McNamara said defending a man who was on trial for his life changed him forever. "I had many sleepless nights after that — it really brings up some deep feelings when you have a man in front of you facing the death penalty who tells you he is innocent." Ultimately, prosecutors downgraded the case to first-degree murder (life imprisonment was the maximum sentence) and a jury acquitted Gagne based on conflicting evidence of the possibility of his involvement.

Lawrence A. Vogelman, an Exeter attorney who has worked as a volunteer for the ACLU on death penalty cases in other states, said a Sampson execution in New Hampshire could lead state prosecutors to be more likely to use it in other cases. Vogelman said it is "entirely inappropriate" for New Hampshire to allow anyone to be executed in New Hampshire for a crime that would not merit the death penalty under New Hampshire statutes, and the use of any state funds for that purpose could open the execution to additional challenges.

Ironically, the same week that Judge Wolf issued his order in the Sampson case, US Rep. Judd Gregg announced that the federal government was planning to build a 1,000 bed medium-security prison in Berlin. Federal officials said the lower security classification means the prison would not have a death row or death chamber. But death penalty opponents such as Vogelman said that as long as a death penalty statute exists in New Hampshire, "that door will be open."

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