Death Penalty Returns to New Mexico
W. Mentor, J.D., Ph.D.
Department of Sociology and Criminology
University of North Carolina Wilmington
following was prepared for the Annual Meetings of the
Western Social Science Association, April 2002, Albuquerque,
this day forward, I no longer shall tinker with the machinery of
death. For more than 20 years I have endeavored--indeed, I have
struggled--along with a majority of this Court, to develop
procedural and substantive rules that would lend more than the
mere appearance of fairness to the death penalty endeavor.
Rather than continue to coddle the Court's delusion that the
desired level of fairness has been achieved and the need for
regulation eviscerated, I feel morally and intellectually
obligated simply to concede that the death penalty experiment
has failed. It is virtually self evident to me now that no
combination of procedural rules or substantive regulations ever
can save the death penalty from its inherent constitutional
deficiencies. - Justice Blackmun dissent,
Callins v. Collins, 510 U.S. 1141 (1994)
Clark was executed by the State of New Mexico on November 6,
2001. This was the first execution in New Mexico in over 40
years. Various legal maneuvers were used in an attempt to stop
this execution and the return of the death penalty. The
execution was accompanied by a strong grass roots effort in
opposition to the death penalty. This effort, and the public
debate that accompanied the effort, have the potential to be
effective in the effort to stop further executions. For
example, a Governor who strongly endorsed the death penalty
during his election campaign began to publicly question the
death penalty in the days preceding the execution. This paper
discusses the unique nature of the return of the death
penalty, strategies used to stop the return, and the
continuing effort to end executions in New Mexico and
throughout the United States.
Clark was executed by the State of New Mexico on November 6,
2001. This was the first execution in New Mexico in over 40
years. The public and political response to his execution
included an open debate about the merits of the death penalty.
This debate, which included the Pope, Governor, various public
interest groups, and many citizens, is an example of public
participation that is often absent from the process of policy
presentation, which includes hyperlinks as well as text,
provides an overview of this debate. We begin with a discussion
of the early history of New Mexico's experience with the death
penalty. We then move to a timeline of events that occurred
within the months prior to, and following Mr. Clark's execution.
This presentation concluded with a discussion of the role, and
the occasional effectiveness, of public debate about important
MexicoÍs experience with the death penalty is somewhat unusual.
Although death penalty statutes have been on the books for many
years, the rate of execution is well behind that of other
states. Prior to Terry Clark the last execution was the gas
chamber execution of David Cooper Nelson on August 11, 1960.
the 4 decades following Nelson's execution only 15 men have
reached death row. During the 1970's, five men were release upon
proof of innocence. As discussed below, Governor Toney Anaya
commuted the sentence of five others. One man died of natural
causes while on death row. One was executed, and the sentence of
another was recently vacated by the New Mexico Supreme Court. At
the present time only two men remain on death row.
History of the Death Penalty in New Mexico
presentation is primarily focused on the contemporary debate
surrounding the death penalty in New Mexico. As such, the
historical overview is limited. Mark
Allan, the Head of Reference, at the Angelo State
University Library, has created an excellent
web site with a full discussion of the early history of
the death penalty in New Mexico. This is the best source for an
overview of historical developments. He lists the names of the
condemned and provides information about many of their crimes.
He also discusses sometimes gory details about many of the
history has included several high points. As we know, the United
States Supreme Court invalidated all death penalty statutes in
v. Georgia). New Mexico was quick to bring back the death
penalty after the court ruled in support of a Georgia death
penalty statute in 1976 (Gregg
v. Georgia). The death penalty returned to new Mexico in
1979 the state continued to endorse the gas chamber as the
preferred method of execution, even though the death chamber had
been used just once. The state adopted lethal injection in 1980
but did not formalize the process of execution until forced to
by the scheduled execution of Terry Clark. In effect, the State
did not have an establish process for executions. In preparation
for the Clark execution the State hired several officers from
the Texas death row in Huntsville to carry out ClarkÍs
"murder-for-hire" nature of the Clark execution was just one of
the issued under debate. The issues, and the subsequent debate
and legal challenges, are discussed below.
1986, Toney Anaya was the outgoing Governor of New Mexico. He
was a vocal opponent of the death penalty. He created a
statewide controversy on his way out of office by emptying death
row. He commuting the sentences of five men on death row,
reducing the sentences to life in prison.
Clark plead guilty to murdering Dena Lynn Gore in 1986. He
reportedly believed he would receive the clemency granted to all
death row inmates that year. However, a local judge delayed
sentencing until after Anaya had left office. As a result, death
row soon had another occupant.
1994 Gary Johnson, a Republican with strong libertarian
leanings, was elected Governor of New Mexico. Johnson was a
strong proponent of the death penalty. Following the example set
by many politicians, he campaigned as a "tough on crime"
we see in the following chronology, Governor Johnson has altered
his position. As this research proceeds it will be interesting
to attempt to understand why Johnson has become less supportive
of the death penalty. For now, the chronology of events,
tracking media coverage of the New Mexico death penalty from
1996 to the present, is presented without analysis.
of these dates include discussion of House or Senate activity.
In most cases no final action was taken. However, these actions
provide evidence of the nature of the debate at the legislative
16, 1996 - Gary Johnson said that he wanted tougher penalties
for serious juvenile crime and would favor the death penalty for
children as young as 13 and 14 in some circumstances. This
statement angered many in the state.
18, 1996 - Johnson's spokespeople make damage control rounds.
They tell the media that the Governor is "a citizen and he has
opinions about stuff."
12, 1996 - Terry Clark was initially sentenced to death.
However, this sentence was overturned in September 1995. A new
sentencing hearing is now in session and prosecutors are again
arguing for execution. They are successful and Clark is again
sentenced to death.
25, 1997 - The Senate Judiciary Committee votes down Gary
Johnson's request to expand the use of the death penalty.
8, 1997 - The House approves Johnson's bill to expand the death
penalty to include child killers and multiple murders, and
15, 1997 - NM House is debating a bill that adds life in prison
without parole as a sentencing option. The bill also places
limitations on the use of the death penalty.
7, 1998 - Senate is debating a Johnson requested bill that
limits death row appeals to two years.
14, 1998 - Death penalty bills, one including the limit on
appeals, thje other asking for funding to study the impact of
the death penalty, die in committee.
10, 1998 - Governor Johnson again asks for a two-year cap on
death row appeals. He stated that be believed "when you have a
certainty of punishment being given, that acts as a deterrent."
29, 1999 - Bills to end the death penalty are introduced in
House and Senate. these bills have support from New Mexico's
three Roman Catholic Bishops. The bill, if passed, is expected
to be vetoed by Governor Johnson.
5, 1999 - Bill to limit appeals is introduced in committee.
25, 1999 - Bill to repeal death penalty clears committee and is
scheduled to be introduced to House. House leadership sends to
another committee. The bill to limit appeals was tabled.
2, 1999 - House Appropriations and Finance Committee table
9, 1999 - Senate voted 22 - 9 against repeal.
8, 1999 - State Supreme Curt affirms Terry Clarks death
14, 2000 - Governor Johnson asks for limits on death row
17, 2000 - Terry Clark changes his mind and asks that his
appeals be continued.
9, 2000 - Governor Johnson again voices his support for
the death penalty saying that "if you have committed murder, I
happen to believe that you should pay for that with your own
4, 2001 - Bill to repeal death penalty is introduced in House
and Senate. Governor Johnson's legislative liaison said the the
Governor is willing to sit down and listen to opponents. The
staffer reported that the Governor "is generally a supporter of
the death penalty, but as the legislation is debated, we owe
them the courtesy to fully understand these specific issues."
1, 2001 - Santa Fe City Councilors pass a resolution calling
upon the legislature to repeal the death penalty. Executions are
scheduled to be carried out in Santa Fe.
9, 2001 - Senate rejects repeal by 21-20 vote. February 25, 2001
- Senate committee votes to expand death penalty.
2001 - Terry Clark asks that all appeals be stopped.
26, 2002 - Santa Fe county commission voted down a measure that
would make the county an "execution-free" zone.
10, 2001 - Judge rules that Terry Clark is competent and sets
November 6 execution date. Clark's attorneys are calling his a
"death penalty volunteer."
25, 2001 - Corrections department officials outline plans to
hire two Texas-based executioners. The executioners are not
acting as representatives of the State of Texas. In effect, they
9, 2002 - Catholic Bishops repeat opposition to death penalty
and call for repeal.
12, 2001 - A Santa Fe attorney questions the legality of hiring
18, 2001 - An aid to Governor Johnson reports that a moratorium
will not be imposed. However, the aid states that the Governor
may be willing to take part in public debate on the issue of
capital punishment stating that "his eyes are open."
28, 2001 - Governor Johnson states that his mind "is not closed
on the subject." "I am of the opinion that swift and sure
punishment deters crime," Johnson wrote. "Currently, I do not
believe that New Mexico's death penalty serves as an effective
preventative measure because it is neither swift or sure." The
Governor also stated that the "time period currently allowed for
appeals is too long and yet I have come to believe that innocent
people might be put to death if these safeguards are not in
Governor wrote that "Those opposed to the death penalty point
out the disparities that exist with regard to individuals
receiving the death penalty sentence. They argue persuasively
that these disparities are a result of several factors including
prosecutorial discretion as well as racial and economic
I do not intend to declare a moratorium on executions in New
Mexico, eliminating the death penalty in the future may prove to
better public policy given the reality of the sentence today."
31, 2001 - Governor reiterates that he will not stop Clark's
execution. Johnson now states that "it's a possibility" that he
will place the death penalty on the legislative agenda.
3, 2001 - Supreme Court justices refuse to block Clark
4, 2001 - Anti-death penalty advocates attempt to halt the
execution by challenging the means through which the lethal
injection drugs were obtained.
6, 2001 - Terry Clark is executed.
7, 2001 - State medical investigator rules Clark's death a
8, 2001 - Albuquerque Journal editorial calls for death penalty
19, 2001 - Governor Johnson states that her will place the
repeal bill on the agenda if requested to do so. He also said
that he was wrong to propse limits on death row appeals. When a
reporter asked whether Johnson was ready to sign a bill
repealing the death penalty, Johnson replied "that may be the
15, 2002 - Johnson placed the repeal of the death penalty on the
legislative agenda. However, the legislative session is supposed
to be limited to budget related issues.
16, 2002 - Johnson states that he has "come to believe that the
death penalty as a public policy is flawed."
24, 2002 - Bill to repeal the death penalty is introduced in the
Senate. Many legislators suggest that the 30 day session does
not allow sufficient time for debate.
2002 - Legislative session ends without action on repeal.
12, 2002 - Supreme Court vacate death sentence in 1993 murder
case, reducing the death row population to two.
Mexico's experience with the death penalty has been very
interesting. While laws allowing the death penalty have been in
existence for much of the State's history, there has not been
strong support for its use. Neighboring states have had similar
laws and have been willing to carry out executions, in some
cases on a regular basis.
paper is descriptive in nature. As such, there is little effort
to analyze the underlying issues. Clearly, the legislature has
had a split personality on this issue. Bills that expand or
limit the death penalty have been introduced within days of each
other. Typically, these bills die in committee with little
Johnson's reversal has been particularly interesting. He has
clearly reversed his position and is likely to sign a repeal of
the death penalty if the bill crosses his desk. Thos of us that
oppose the death penalty can hope that this happens. We can also
act. The Governor has shown a willingness to consider all sides
of this issue. This is not always the case for this, or many
Johnson encouraged communication from death penalty opponents.
Statements made just prior to Clark's execution were a clear
invitation to communicate with the Governor regarding this
issue. there can be no doubt that many responded to this call.
presentation begins with a quote from the Blackmun appeal in
Callins v. Collins. Justice Blackmun eloquently wrote that he
felt "morally and intellectually obligated simply to concede
that the death penalty experiment has failed." Governor Johnson
has apparently come to the same conclusion.