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March 19, 2009

Can and will New Mexico go forward with executions even after its death penalty repeal?

I am pretty sure that New Jersey's legislative repeal of its death penalty included a provision for commuting the sentences for those Garden State defendants already sent to death row.  But, according to this local article, folks in New Mexico are talking about still carrying out previously-imposed death sentences despite the abolition of capital punishment there:

Gov. Bill Richardson may have signed into law a repeal of the death penalty, but that doesn’t mean the two men on New Mexico’s death row will see their sentences converted to life without parole.

Richardson told news reporters Wednesday during a news conference,“I will not commute their sentences.” “Those are past legal issues. In fact, they would probably get off easier with life imprisonment,” Richardson added.

The law Richardson signed goes into effect in July 1 and doesn’t apply to crimes that occurred prior to that, meaning that New Mexico still technically has a death penalty. Richardson also surprised some reporters Wednesday when, moments after signing the repeal into law, he said he remained convinced of his initial statement when Michael Paul Astorga was arrested for killing Bernalillo County Sheriff’s deputy James McCrane Jr. McCrane’s parents pleaded with Richardson to not sign the repeal. “For the record, when this crime was committed I felt that Astorga was deserving of the death penalty and I still do,” Richardson said.

For a host of reasons, I think it is unlikely that New Mexico will ultimately execute the two men on its death row given that it has now abolished the death penalty.  But perhaps it will try, and appellate courts will have to decide whether the state can go forward with executions after having taken this sentence off its books.

Another interesting legal issue could arise if New Mexico prosecutors want to still pursue death in response to a terrible murder committed over the next three months.  As noted above, the law repealing the death penalty has an effective date of July 1, 2009.  This would suggest that prosecutors still could (and arguably still should) seriously consider bringing capital charges against any and all terrible murderers who commits their crimes before the second half of this year.

March 19, 2009 at 09:44 AM | Permalink


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Tracked on Mar 19, 2009 12:14:04 PM


The DP would also apply to any offense occurring before July 1, 2009, which has not been charged. With no statute of limitations on capital offenses, any pre-7/09 unsolved or uncharged capital offense, no matter how old, would be death eligible.

Posted by: t | Mar 19, 2009 12:01:27 PM

No court will allow this. They should, but they won't.

Posted by: federalist | Mar 19, 2009 1:17:32 PM

I wonder if they have a retroactivity rule in New Mexico. We have one in Iowa that applies to sentence enhancements and reductions. When the VOTIS 85% rule was adopted it was retroactive and it drove prison crowding for a number of years.

Posted by: John Neff | Mar 19, 2009 4:01:28 PM

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