Based on statutory proportionality review, split New Mexico Supreme Court dismiss death sentences for two murderers left on state's death row a decade after legislative abolition

As well reported in this Courthouse News Service piece, headlined "New Mexico Supreme Court Vacates Two Remaining Death Sentences," the final anti-death penalty shoe finally dropped in New Mexico a full decade after the state's legislature repealed its death penalty.  Here ere are the basics:

A divided New Mexico Supreme Court Friday set aside the death sentences of the last two men awaiting execution in the state, ruling that the penalties were disproportionate in comparison to sentences in similar murder cases.  The death penalty was abolished in New Mexico in 2009, but the death sentences of Timothy Allen and Robert Fry remained in place, because they were convicted and sentenced years before the change.

Allen and Fry were sentenced under a New Mexico law that requires the state’s highest court to review “comparative proportionality” in capital punishment cases.  State lawmakers adopted the 1976 law to ensure that the death penalty was not being imposed in ways that would violate inmates’ constitutional protections against cruel and unusual punishment.

Writing for the majority Friday, New Mexico Supreme Court Justice Barbara J. Vigil said justices found “no meaningful distinction” between the circumstances of Allen and Fry’s cases and those of similar murder cases.  “The absence of such a distinction renders the ultimate penalty of death contrary to the people’s mandate that the sentence be proportionate to the penalties imposed in similar cases,” Vigil said in the 147-page opinion.

Retired Justices Edward L. Chávez and Charles W. Daniels joined the majority decision, which did not address concerns over potential violations to Allen and Fry’s constitutional rights. Daniels wrote in a concurring opinion that “equally culpable” defendants in murder cases escaped the death penalty, adding that New Mexico has not imposed the death penalty in a “proportionate” way.  “A killer’s crimes reflect who he is,” Daniels said.  “What we do to the killer reflects who we are.”

Chief Justice Judith K. Nakamura wrote in the dissenting opinion that the majority misinterpreted the law.  “The Majority misstates the governing law and has done what our Legislature would not: repeal the death penalty in its entirety for all defendants in New Mexico,” said Nakamura, who was joined in dissent by retired Justice Petra Jimenez Maes.  “They perceive in the language authority to conclude that, because so few offenders in New Mexico have ever been sentenced to die, no offenders shall ever again be sentenced to die in New Mexico.”

The full 147-page ruling is available at this link, and here is how the Court's opinion gets started:

In this case we revisit our statutory responsibility to ensure that the death penalty is reserved for the most heinous crimes.  Since 1979, the New Mexico Legislature has directed this Court to ensure that “the death penalty shall not be imposed if . . . the sentence of death is excessive or disproportionate to the penalty imposed in similar cases.” NMSA 1978, § 31-20A-4(C)(4) (1979, repealed 2009).

In 2009, the Legislature abolished the death penalty as a sentencing option for murders committed after July 1, 2009.  Today, Petitioners Robert Fry and Timothy Allen, who committed their crimes before 2009, are the last inmates who remain on death row in New Mexico.  Fry and Allen filed Petitions for Writs of Habeas Corpus seeking to dismiss their death sentences in light of the prospective-only application of the repeal.

In this consolidated appeal of the district court’s denial of Petitioners’ motions to dismiss their death sentences, we hold that Petitioners’ death sentences are disproportionate and violate Section 31-20A-4(C)(4).  Guided by our recognition that our Legislature intended for comparative proportionality review to protect against the arbitrary imposition of the death penalty, we conclude that there is no meaningful basisfor distinguishing Fry and Allen from the many similar casesin which the death penalty was not imposed.  Because Petitioners’ death sentences are statutorily disproportionate to the penalties imposed in similar cases, we remand each case to the district court to impose a sentence of life imprisonment.

Though taking longer in New Mexico than elsewhere, this ruling continues the well-established trend of state courts finding one way or another to give retroactive effect to the statutory repeal of the death penalty even when a legislature has sought to explicitly provide for the carrying out of prior lawful death sentence.