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April 11, 2018

Can and will New Mexico carry out two executions even after its repeal of the death penalty?

The question in the title of this post is prompted by this local report on oral arguments before the New Mexico Supreme Court yesterday.  Here are some details:

Even before abolishing the death penalty, New Mexico had executed only one inmate in nearly 50 years. And that person, child-killer Terry Clark, had waived his right to further appeals, clearing the way for his death by lethal injection in 2001.

The rarity of the death penalty in New Mexico emerged as a key point in oral arguments Tuesday as the state Supreme Court wrestled with whether to allow the execution of the state’s only two inmates remaining on death row. Their crimes came before the 2009 repeal, making them still eligible for execution.

Much of Tuesday’s debate was technical, focusing on “proportionality” — whether death for these two inmates would be out of line with the sentences for similar defendants who’d committed similar crimes.

Justice Charles Daniels zeroed in on the question this way: New Mexico, he said, executed 27 people in the first 47 years of statehood, and then only one in a 57-year period after that. And there were certainly people who committed “horrible murders” but escaped the death penalty, he said.

That raises a question, he suggested, about whether the state was “evenhanded” in deciding which people to execute. “Can we really look in the mirror and say we’ve walked the talk and imposed the death penalty consistently in New Mexico?” Daniels asked at one point.

Hanging in the balance are the lives of Robert Fry and Timothy Allen — both convicted of murder, in separate cases. Allen faces a death sentence for strangling a 17-year-old girl, Sandra Phillips, in 1994. He also was convicted of kidnapping and attempted rape. Fry was sentenced to die for the killing of Betty Lee, a mother of five, in 2000. She was hit with a sledgehammer and stabbed.

Their attorneys asked the state Supreme Court on Tuesday to revisit how New Mexico handled death cases from that era, in light of the 2009 repeal.

A 1983 decision by the court outlined how the judiciary should go about determining whether an inmate’s death sentence is disproportionate to the penalties imposed on similar defendants. The justices that year established a narrow view of which cases are similar — requiring that the defendants being compared had been convicted under the same aggravating circumstances.

But the attorneys for Fry and Allen argued for a broader pool of cases for comparison, in which defendants receive life sentences. You could argue that the “universe of cases” ought to include any case where the death penalty could have been sought, but wasn’t, they argued. Furthermore, they said, New Mexico hasn’t properly tracked the handling and circumstances of cases to provide a meaningful way to search for comparable crimes, making the 1983 decision impractical to carry out....

Assistant Attorney General Victoria Wilson urged the Supreme Court to stick with its 1983 decision on comparable cases. State law doesn’t require the kind of data collection the inmates’ attorneys say is necessary, she said. The question before the court, Wilson said, was simply whether the death sentence had been imposed arbitrarily.

April 11, 2018 at 11:57 AM | Permalink

Comments

Unbelievable.

Posted by: Claudio Giusti | Apr 11, 2018 2:29:57 PM

the state requires his pound of flesh

Posted by: Claudio Giusti | Apr 11, 2018 3:21:57 PM

Pretty abysmal that the state would seek to carry these out. But NM would be following CT's lead in this regard. It was only the CT SCt that stopped them.

Posted by: John | Apr 11, 2018 5:26:18 PM

Can NM execute? Yes. Will it? Very unlikely. The NM Supreme Court is filled with a bunch of neoliberals. There is only one Republican on it. Difficult for me to imagine that they will not find a way to spare these criminals.

Posted by: Daniel | Apr 11, 2018 5:56:48 PM

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