Michael Addison, the sole man on death row in the state after being convicted of the 2006 lethal shooting of Manchester police officer Michael Briggs, is one step closer to being executed. The New Hampshire Supreme Court ruled to uphold his sentence last month, concluding it was neither excessive nor disproportionate, as his defense argued.
But a national shortage in the drugs required for lethal injection may mean the state will have to turn to an alternative method of execution. Such an alternative is already written in state law, according to Senior Assistant Attorney General Jeffrey Strelzin.
“The statute does provide for [hanging] as an alternative,” Strelzin said.
Using this method on Addison may be a growing likelihood as the chemical shortage continues and efforts to repeal the state’s capital punishment statute gain more ground, excluding the possibility of the law’s expansion for using other methods.
The chemical shortage
Current New Hampshire law states “The punishment of death shall be inflicted by continuous, intravenous administration of a lethal quantity of ultrashort-acting barbiturate in combination with a chemical paralytic agent until death is pronounced...” but the preferred, short-acting barbiturates — either sodium thiopental or pentobarbital — are nearly impossible for states to get these days.
The reason? Since 2011, major pharmaceutical manufacturers in Europe and smaller producers around the globe have stopped selling them to governments that use the drugs as part of the deadly cocktail used for executions, mostly because companies have joined or felt pressured by an activist movement seeking to abolish the death penalty.
In response to the shortage, a number of states have begun experimenting with other drugs such as midazolam. For New Hampshire to be able to use such a drug, the law would need to change first, since midazolam is not a barbiturate. It’s in the benzodiazepine class of drugs.
And a law change in the state may be moot as the U.S. Supreme Court may soon rule to outlaw its use. The same week the state’s highest court reached a decision on Addison’s case the nation’s highest court heard arguments in the Glossip v. Gross case that suggested using midazolam constitutes “cruel unusual punishment.”
This follows a number of recent executions involving the drug in states like Oklahoma, Ohio and Arizona that have made headlines when inmates were seen conscious, complaining, writhing and gasping for air. An execution in Arizona last summer lasted for nearly two hours.
Many states have put their pending executions on hold while they await the Supreme Court’s decision. Last month, Oklahoma’s legislature took the step of legalizing the use of nitrogen gas as a sedative during lethal injection, an untested method.
And earlier this month, the Associated Press reported a Chicago area drugmaker, Akorn, sent letters to at least 13 states in March requesting drugs produced by the company — namely midazolam and hydromorphone — be returned. In the letter, Akorn said it strongly objects to the drugs being used to carry out capital punishment.
In the meantime, Jeff Lyons at the New Hampshire Department of Corrections said the department doesn’t have the logistical resources in place or even a guiding policy set up to carry out an execution.
“We don’t have any of the chemicals in stock,” Lyons said. “We don’t even have vendors for the chemicals.”
If the time comes for the state to end Addison’s life and no solution to the chemical shortage has been found, the New Hampshire commissioner of corrections can choose to hang him if the commissioner “finds it to be impractical to carry out the punishment of death by administration of the required lethal substance or substances,” according to the law.
A history of hanging
The last man executed in New Hampshire, Howard Long, was a pedophile shop owner from Alton who sexually assaulted and killed a 10-year-old boy in 1939. He was dropped through a trapdoor in an area of the Concord state prison that is now used as a commissary. Long was declared dead seven minutes later.
In those days, the prison had a death row with four cells. Lyons said it’s since been converted into the Family Connection Center, where inmates learn parenting skills.
Even 75 years ago, capital punishment was rare in New Hampshire. Long had been one of just three men executed in the 20th century, and it had been more than two decades since the last execution.
Lethal injection became popular in the late 1970s and is widely believed to be a more humane means of killing.
But with the shortage of chemicals, states are turning back the clock by allowing more old-fashioned methods. Last year, Tennessee approved the electric chair as a backup, and in March, Utah legalized death by firing squad if lethal chemicals are unavailable. It had banned it 11 years ago.
According to the Death Penalty Information Center, hanging and firing squads have been the rarest forms of execution in the U.S. Since 1976, there were three hangings and three deaths by firing squad in the whole country. During that time, there were 1,232 uses of lethal injection. New Hampshire is one of only three states, including Delaware and Washington, that still allows hanging.
UNH law professor Buzz Scherr said hanging is unpopular but has historically been the most common method in the state.
“That was the method of execution in New Hampshire for a long time,” Scherr said.
Lyons said all of the last 12 executions that took place at the Concord prison since 1869 were hangings. Scherr said if the state considers hanging Addison, it may fuel an already growing anti-death penalty sentiment.
“People who are on the fence about the death penalty say, ‘Yeah, we should have it in certain cases’ — when they hear it’s death by hanging, I don’t think it helps them be supportive of the death penalty,” Scherr said.
The road to repeal
Capital punishment is at a turning point in the state. The Death Penalty Information Center reports nationwide executions are at a 20-year low. All other New England states have already abolished the death penalty.
In New Hampshire, the movement to abolish the death penalty has come close to succeeding. Where previous governors vetoed bills to ban capital punishment, Maggie Hassan is openly in favor of repealing the law.
Last year, a repeal bill passed the House but died in the Senate by one vote. That bill would have prevented only future executions, excluding Michael Addison.
A similar bill could return in the next session. If it’s signed into law, Scherr said, the state will be in an awkward position.
“It’s gonna be a little odd for the state of New Hampshire to execute somebody when the statute has been repealed, even though, technically, it will be legal...,” Scherr said.
Scherr said it will likely be more than another five years before an execution takes place as Addison’s defense continues to appeal.