New Mexico Supreme Court Hears Argument on Whether State May Execute Last Two Men on Its Death Row

Nine years after New Mexico prospec­tive­ly abol­ished cap­i­tal pun­ish­ment, lawyers for the state’s two remain­ing death-row pris­on­ers argued to the New Mexico Supreme Court that the death penal­ty was uncon­sti­tu­tion­al­ly dis­pro­por­tion­ate pun­ish­ment as applied to Timothy Allen (pic­tured, left) and Robert Fry (pic­tured, right), and that they should not be executed. 

The lengthy oral argu­ment on April 10, 2018 turned on how the court should go about deter­min­ing whether a death sen­tence is arbi­trary and disproportionate.

State pros­e­cu­tors urged the court to fol­low a 1983 deci­sion that would lim­it the court’s review to cas­es involv­ing the same aggra­vat­ing fac­tors that were present in the pris­on­ers’ crimes. “[T]he ulti­mate ques­tion,” said Assistant Attorney General Victoria Wilson, ​“is: ​‘Was this sen­tence imposed arbi­trar­i­ly?’” On the oth­er hand, the pris­on­ers’ lawyers argued that exe­cut­ing the men would be dis­pro­por­tion­ate pun­ish­ment and uncon­sti­tu­tion­al­ly arbi­trary when com­pared to all the cas­es in which New Mexico could have imposed the death penalty. 

Between 1979 and 2009, when New Mexico autho­rized cap­i­tal pun­ish­ment, pros­e­cu­tors sought the death penal­ty more than 200 times. The sen­tence was imposed in only 15 cas­es, lead­ing to a sin­gle exe­cu­tion in 2001, when Terry Clark waived his appeals. 

During the argu­ment, Justice Charles Daniels ques­tioned whether New Mexico had applied the death penal­ty in an ​“even­hand­ed” man­ner. ​“In the first 47 years of our exis­tence as a state, we exe­cut­ed 27 peo­ple with fair­ly reg­u­lar fre­quen­cy,” Daniels said. ​“In the next 57 years, we exe­cut­ed one — at a time when there were hor­ri­ble mur­ders and over 200 where the death penal­ty was sought.” Given that his­to­ry, he asked, “[c]an we real­ly look in the mir­ror and say we’ve walked the talk and imposed the death penal­ty con­sis­tent­ly in New Mexico?” 

Allen, who suf­fers from schiz­o­phre­nia and audi­to­ry hal­lu­ci­na­tions, was sen­tenced to death in con­nec­tion with the kid­nap­ping, attempt­ed rape, and mur­der of a 17-year-old girl in 1994. His lawyer had nev­er tried a cap­i­tal case, con­duct­ed no men­tal health inves­ti­ga­tion, and pre­sent­ed no wit­ness­es in the penal­ty phase of Allen’s trial. 

Fry was sen­tenced to death for stab­bing and blud­geon­ing a moth­er of five to death in 2000. Fry’s lawyer, Kathleen McGarry, argued: ​“What we’re look­ing at are cas­es that are far worse than Mr. Fry’s case and yet those per­sons are not going to be … sen­tenced to death. How does that make Mr. Fry’s death sen­tence be the poster child of what we’re going to do here in New Mexico?”