New Mexico Supreme Court Ruling Removes Final Prisoners from State’s Death Row

The New Mexico Supreme Court has cleared the state’s death row, vacat­ing the death sen­tences imposed on the state’s final two death-row pris­on­ers, and direct­ing that they be resen­tenced to life in prison. The rul­ings, issued by a divid­ed court on June 28, 2019 in the cas­es of Timothy Allen (pic­tured, left) and Robert Fry (pic­tured, right), came almost ten years to the day after New Mexico’s death-penal­ty abo­li­tion, signed into law by Governor Bill Richardson, took effect. However, the 2009 leg­is­la­tion applied only to future cas­es, leav­ing intact the sen­tences imposed on Allen and Fry. 

By a 3 – 2 vote, a major­i­ty of the sit­ting jus­tices found that the death sen­tences vio­lat­ed the pro­por­tion­al­i­ty require­ments of New Mexico’s death-penal­ty statute, which directs that ​“the death penal­ty shall not be imposed if … the sen­tence of death is exces­sive or dis­pro­por­tion­ate to the penal­ty imposed in sim­i­lar cas­es.” Writing for a major­i­ty that includ­ed retired Justices Edward L. Chávez and Charles W. Daniels, Justice Barbara J. Vigil wrote: ​“In com­par­ing Petitioners’ cas­es to oth­er equal­ly hor­ren­dous cas­es in which defen­dants were not sen­tenced to death, we find no mean­ing­ful dis­tinc­tion which jus­ti­fies impos­ing the death sen­tence upon Fry and Allen. 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.” 

In reach­ing its deci­sion, the court major­i­ty said that the legislature’s repeal of the death penal­ty had changed the legal land­scape for address­ing the valid­i­ty of the cap­i­tal sanc­tions imposed upon Fry and Allen. ​“While there is a legit­i­mate inter­est in the final­i­ty of crim­i­nal judg­ments,” the court wrote, ​“the repeal of the death penal­ty presents a pro­found change in the legal and fac­tu­al frame­work sur­round­ing Petitioners’ death sen­tences such that the inter­ests of jus­tice require that we ensure that those sen­tences are not dis­pro­por­tion­ate to the penal­ty imposed in sim­i­lar cas­es.” In exam­in­ing those cas­es, the court con­clud­ed that, ​“although the death penal­ty was an option in many cas­es pred­i­cat­ed on sim­i­lar facts, the death sen­tence was rarely imposed. Our review of these cas­es does not reveal a jus­ti­fi­ca­tion for Petitioners’ death sen­tences and instead demon­strates that Fry and Allen were sin­gled out for the death penal­ty,” the deci­sion states. In a con­cur­ring opin­ion, Justice Daniels wrote, ​“A killer’s crimes reflect who he is. What we do to the killer reflects who we are. Can we real­ly look any­one in the eye and say that exe­cut­ing these two defen­dants would be pro­por­tion­ate when com­pared to non-dead­ly pun­ish­ment our state has over­whelm­ing­ly met­ed out in vir­tu­al­ly all equal­ly seri­ous first-degree mur­der cas­es, and specif­i­cal­ly in sim­i­lar cas­es, since enact­ment of the Capital Felony Sentencing Act in 1979? I, for one, can­not hon­est­ly do so.”

Chief Justice Judith K. Nakamura and retired Justice Petra Jiminez Maes dis­sent­ed, call­ing the majority’s deci­sion an ​“intru[sion] upon the cap­i­tal-sen­tenc­ing jury’s right­ful, con­sti­tu­tion­al author­i­ty to extend mer­cy or impose death” that was incon­sis­tent with the legislature’s spe­cif­ic intent to leave the death sen­tences in place for Fry and Allen. The three retired jus­tices were on the bench when Allen and Fry filed their appeals in the state supreme court and when the cas­es were argued before the court. They retired last year but remained on the case by special designation.

New Mexico was the first of three states in which leg­is­la­tures prospec­tive­ly abol­ished the death penal­ty, leav­ing pris­on­ers on death row. After Connecticut abol­ished its death penal­ty in 2012, the Connecticut Supreme Court ruled that exe­cut­ing the remain­ing 11 pris­on­ers on the state’s death row would vio­late the state con­sti­tu­tion. The pris­on­ers have since been resen­tenced to life with­out parole. One pris­on­er remains on death row in New Hampshire fol­low­ing the state’s repeal of cap­i­tal pun­ish­ment on May 30, 2019. Prior to repeal, New Mexico had imposed 15 death sen­tences in the mod­ern era. The one per­son the state had exe­cut­ed, Terry Clark, had waved his appeals.