New Hampshire Ponders New Death Chamber
ALEX CHADWICK, host:
This is DAY TO DAY. I'm Alex Chadwick.
MADELEINE BRAND, host:
I'm Madeleine Brand. New Hampshire hasn't executed a prisoner in nearly 70 years. Now the state has one convicted murderer who has been sentenced to death, and prosecutors are working two other capital cases.
CHADWICK: Now, here's the problem. The New Hampshire Department of Corrections does not have a place to put people to death. It doesn't even have a death row.
New Hampshire Public Radio's Dan Gorenstein reports.
DAN GORENSTEIN: When it comes to capital punishment, this state doesn't seem to have a lot of institutional knowledge, or infrastructure, for that matter. A few weeks ago, Corrections Department spokesperson Jeff Lyons showed me where they may have housed and executed prisoners at the men's prison in Concord. May have, because no one seems to know for sure. It was decades ago.
He leads me past the prison canteen onto a hallway 30 feet long with six old cells lining the right wall.
Mr. JEFF LYONS (New Hampshire Corrections Department): Cement on the floors, wood on the doors here. You can see the remains of what used to be hinges right along the edges of the door, up and down, I think two of them. Obviously there was some kind of a door there at one time. It's large enough maybe for one person. There's no ventilation, no windows.
GORENSTEIN: I'm trying to image Howard Long, the last person the state executed in 1939, living in one of these tight, dark cells.
Mr. LYONS: Currently they're used for storage for our canteen.
GORENSTEIN: Right. Cases and cases of Sierra Mist.
Mr. LYONS: In this particular one, yes. But if we go to other ones you'll see other types of items.
GORENSTEIN: As we walk along I see a makeshift sign taped to one of the wood frames. Number six, archive boxes, ice cream spoons, and fireballs. It's walled off now, but if you could walk another 50 yards down this corridor you'd get to something a little weird.
Mr. LYONS: We're looking at a wooden floor and a big square piece of plywood in the middle of the floor that's nailed down or something. This is what tradition suggests there may have been - the executions may have actually been carried out, dropped through the trapdoor.
GORENSTEIN: Lyons says below the bolted trapdoor it's a good 10, 15 foot drop. Just as prison officials don't know where they last executed an inmate, they don't know where they'd execute someone now.
Mr. LYONS: That's something that's still to be figured out. You know, we're very - in the very preliminary stages of that whole process.
GORENSTEIN: Four years ago, a federal judge ordered New Hampshire to execute convicted murderer Gary Sampson. With years of appeals left it's understandable the state is only now looking into the matter.
But where do states turn for advice on lethal injection and execution facilities? I assumed there'd be a nationally known engineering firm that designs execution chambers, maybe some best practices. Certainly there are companies out there that build jails and prisons.
Professor DEBORAH DENNO (Fordham University): There's not an industry or a company that specializes in lethal injection or execution methods. And Johnson & Johnson's not going to get into the execution construction business.
GORENSTEIN: That's Fordham Law Professor Deborah Denno. She's conducted two national surveys on states' executions procedures. Denno says states consult states, often copying lethal injection protocols and chamber layouts from each other.
So I figured my search would take me to various corrections officials around the country, but that wasn't as simple as it sounded. The Connecticut Department of Correction, which recently built a chamber, didn't return calls. The Virginia Department of Corrections, which some consider a model, didn't respond. The Federal Bureau of Prisons, which apparently held some kind of training seminar for states last spring, would not speak for this story.
To be fair, officials may have declined comment because right now the Supreme Court is considering the issue of lethal injections. But U.S. District Judge Jeremy Fogel of the Northern District of California says historically states just don't talk about this.
Judge JEREMY FOGEL (Northern District of California): There has not been a lot of sunlight on these things. They're considered to be in large part confidential or secret procedures.
GORENSTEIN: Fogel is presiding over a case that challenges California's execution chamber and protocols.
Judge FOGEL: Only the recent litigation has brought some of that to light. So there is something of a shroud of secrecy in terms of what the various states actually do.
GORENSTEIN: It turns out New Hampshire has reached out to a number of other states, but lawyers for the Corrections Department wouldn't discuss the policies they're considering. Judge Fogel says he's got a theory about why there's so much secrecy.
Judge FOGEL: I think there may be just a fear that if you share all of your - essentially your trade secrets, the way that you do things at a minute level - that lawyers or courts are just going to pick it apart and interfere. I'm not being critical as much as I'm just trying to make an observation.
GORENSTEIN: It's true. States have been taken to court over their execution methods, and because most states apparently have similar systems in place, they have similar problems. So New Hampshire needs to be careful who it consults. Some observers suggest this state read Judge Fogel's 2006 order to the California Department of Corrections and Rehabilitation.
Berkley-based lawyer Elizabeth Semel(ph) says it's a guide of what not to do.
Ms. ELIZABETH SEMEL (Berkley): Judge Fogel identified at least four and perhaps five crucial deficiencies in the implementation of the state's lethal injection protocol.
GORENSTEIN: Those include unreliable screening and training of execution team members, poor recordkeeping, and infrastructure problems.
Ms. SEMIL: Inadequate lighting, overcrowding, poorly designed conditions in which members of the team were physically unable to assess whether the inmate was adequately anesthetized throughout the process.
GORENSTEIN: The California Department of Corrections and Rehabilitation has used this order and visits to other state and federal institutions to make improvements. Eight hundred and fifty thousand dollars later, California has built the newest execution chamber in the country at San Quentin Prison. California Corrections spokesperson Seth Unger says he believes the department has addressed all of the judge's concerns.
Mr. SETH UNGER (California Department of Corrections): In the end, we designed a facility in California that went from 600 square feet to one that was closer to 2,500 square feet.
GORENSTEIN: California might become New Hampshire's model. New Hampshire department officials say they have contacted California. But Judge Fogel has not determined whether the new chamber and protocols satisfy his order.
Over the course of my interviews, lawyers told me it all comes down to two basic principles. First, demand that top officials discuss and scrutinize the process no matter how unpleasant. Second, don't develop an execution system that creates an unacceptable degree of risk that the inmate will suffer.
Judge Fogel says New Hampshire's getting into this just as the ground rules are changing.
Judge FOGEL: The process of how we carry out executions has never been examined as closely as it's being examined now. Whatever the situation has been historically - that these things have taken place out of the public eye and out of the public consciousness - that's not the case anymore.
GORENSTEIN: Fogel says society is starting to demand the process of executing someone must reflect the gravity of the act. That almost certainly means it's not okay to lose track of where the executions took place, and it means that there must be a higher degree of transparency going forward.
The New Hampshire Department of Corrections says whatever it does, it won't do it until the Supreme Court rules on the constitutionality of lethal injections later this year.
For NPR News, I'm Dan Gorenstein in Concord, New Hampshire.