New Mexico

New Mexico sets aside executions for final 2 inmates on death row

State repealed capital punishment in 2009

SANTA FE, New Mexico - The New Mexico Supreme Court on Friday set aside the death penalty for the final two inmates awaiting execution after the state's 2009 repeal of capital punishment.

In a split decision, the state's highest court concluded that the death sentences issued to Timothy Allen and Robert Fry were disproportionate in comparison with comparable murder cases.

The cases were returned to a district court to impose life sentences to prison. Allen and Fry, ages 56 and 45 respectively, will be eligible for parole after serving 30 years, but would immediately begin serving additional sentences of at least 25 years. Fry will not be eligible for release, the court said.

New Mexico repealed the death penalty in 2009. Allen and Fry remained on death row because of prior convictions and their death sentences.

Allen was found guilty of kidnapping, attempted rape and the murder of 17-year-old Sandra Phillips in 1994.

Fry was sentenced to death in 2000 for fatally stabbing and bludgeoning Betty Lee, a mother of five.

In separate cases, Fry was sentenced to life in prison for three murders in 1996 and 1998 in San Juan County.

New Mexico's dormant capital punishment statute prohibits death sentences that are excessive and disproportionate.

Justice Barbara Vigil, in the lead majority opinion, said there was little to differentiate between the inmates' crimes and equally horrendous cases in which defendants were not sentenced to death.

"We find no meaningful distinction which justifies imposing the death penalty upon Fry and Allen," she said.

In the dissenting opinion, Chief Justice Judith Nakamura said the decision overrides the Legislature's intention to preserve the death penalty for prior sentences.

"The majority misstates the governing law and has done what our Legislature would not: repeal the death penalty in its entirety," she said.

The Supreme Court previously affirmed the death sentence convictions issued before the state's repeal of the death penalty as constitutionally allowable.

It agreed in 2013 to consider new appeals by Fry and Allen, and wavered for years on ground rules for deciding whether the death penalty still fits the crimes when considering other cases.

Defense attorneys urged the court to cast a wide net for sentencing in comparable cases with more appalling murders involving defenseless children and the elderly.

New Mexico's last execution in 2001 put to death child-killer Terry Clark after he dropped all appeals.

He was the first person executed by the state since 1960.

Under New Mexico's 1979 death penalty statute, juries imposed death sentences in 15 cases. State court officials say seven of those sentences were reversed, five were commuted in 1986 by former Gov. Toney Anaya, a Democrat, and one inmate died on death row.

In recent years, former Republican Gov. Susana Martinez sought unsuccessfully to reinstate the death penalty in limited circumstances. She termed out of office last year.

The court's 3-2 decision included three justices who remained on the complex case involving Allen and Fry after retirement.

In a concurring opinion with the majority, retired Justice Charles Daniels said he could not "honestly look anyone in the eye and say that executing these two defendants would be proportionate when compared to non-deadly punishment our state has meted out in virtually all equally serious first-degree murder cases."

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