New Mexico death penalty repeal set to take effect

Although New Mexico officially abolished the death penalty, that doesn't mean there won't be another execution in the state.

There are still 2 men on death row, their sentences untouched by the repeal and the governor unwilling to commute them. 2 other potential death cases are in the legal pipeline, awaiting trial. Conceivably, the state could end up putting someone to death a decade or 2 after capital punishment was outlawed, given the drawn-out appeals typical in such cases.

"Nonsensical," sums up Jeff Buckels, head of the capital crimes unit of the New Mexico Public Defender Department.

"It makes no sense to be seeking the death penalty in a state which has abolished the death penalty," he said.

After a decade of effort, capital punishment opponents managed to persuade the Legislature in March to replace lethal injection with a sentence of life in prison without the possibility of parole.

The new law applies to certain murders committed as of July 1 and made New Mexico just the 2nd state , after New Jersey, to ban executions since the U.S. Supreme Court reinstated the death penalty 33 years ago.

Unlike New Jersey Gov. Jon Corzine, who commuted the sentences of eight men when he signed the death penalty repeal in 2007, New Mexico Gov. Bill Richardson declined to commute the sentences of Robert Fry of Farmington and Timothy Allen of Bloomfield.

The Legislature clearly intended the new law to go into effect on July 1 and the governor respects that decision, Richardson spokesman Gilbert Gallegos said.

"He has no intention of commuting the sentence of anyone facing the death penalty before that effective date," Gallegos said this week.

Fry and Allen are still in the midst of their appeals processes, with no execution dates in sight. New Mexico has executed only one person since 1960: child killer Terry Clark in 2001.

The state Supreme Court is being asked, meanwhile, to rule out the possibility of death sentences in 2 pending murder cases. Michael Astorga is charged in the shooting of a Bernalillo County sheriff's deputy and Billy Joe Watson is accused of hiring another man to kill a Roosevelt
County rancher.

Among other arguments, their lawyers contend it would be unconstitutional to pursue death sentences now that New Mexico has decided it is no longer an acceptable punishment.

"It's over with, and the repeal applies to everybody," said Ruidoso lawyer Gary Mitchell, who represents Watson.

The attorney general's office disagrees, saying the repeal was specific and clear in its effective date and that defendants in pre-July 1 cases don't benefit from the new law.

"We certainly think the community is really expecting us to do everything we can to pursue justice and keep the community safe," said Pat Davis, a spokesman for Bernalillo County District Attorney Kari Brandenburg, who is prosecuting Astorga in the high-profile case.

Defense lawyers argue the state shouldn't continue to pour money into death-eligible cases, which require a heightened level of scrutiny and are more expensive than others.

"They are sucking up resources that could be better used to promote public safety," said defense lawyer Mark Donatelli, a longtime lobbyist for repeal.

Viki Elkey, executive director of the New Mexico Coalition to Repeal the Death Penalty, said her group was advised that a death penalty repeal could not be written to apply retroactively or to affect pending cases.

The new law might have been crafted to effectively preclude any further executions , for example, by eliminating the procedures for lethal injection, Donatelli said. But doing that could well have made it harder to get the repeal through the Legislature, he said.

Death penalty opponents are hopeful that court decisions, or commutations by a future governor , Richardson leaves office next year , or some combination of the 2 will rule out any further executions.

Such an execution "would be an appalling spectacle," Donatelli said.

Source: Associated Press, June 27, 2009