(CN) – 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.”
Daniels, Chavez and Maes were on the bench when Allen and Fry brought their legal challenge more than five years ago.
Allen, 55, was sentenced to death for kidnapping, attempted rape and murdering 17-year-old Sandra Phillips in 1994. Fry received the death penalty for the murder of Betty Lee in 2000.
The men will now be eligible for parole after serving 30 years under life imprisonment sentences. However, if paroled, both would immediately serve sentences for other convictions. Fry will never be eligible for release from prison, because he faces 120 years for life sentences of three murder convictions in 1996 and 1998.
Juries in New Mexico imposed a death sentence in 15 cases between 1979 and 2007. Of the 12 that were eventually vacated, seven were reversed on appeal, and five were commuted in 1986 by then-Governor Toney Anaya.