SANTA FE — 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.
“The question is, What is a similar case?” said Kathleen McGarry, an attorney for Fry.
She noted that Fry’s co-defendant — who testified against him — wasn’t sentenced to die, even though the co-defendant’s case would have been similar.
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.
The justices aren’t expected to decide for months.
Debate over the death penalty, meanwhile, continues at the Roundhouse.
Gov. Susana Martinez, a Republican and former prosecutor, has repeatedly pushed to reinstate the death penalty — efforts rejected by the Legislature, where Democrats control both chambers. Just this year, a House committee blocked a proposal to impose the death penalty for cases involving the killing of police officers, corrections workers or children.
The 2009 repeal, sponsored by Rep. Gail Chasey, D-Albuquerque, replaced the death penalty with life in prison without the possibility of parole.
Then-Gov. Bill Richardson, a Democrat, signed the bill but called it the toughest decision he’d ever made.
Fry and Allen, meanwhile, are New Mexico’s only two inmates on death row.