Kenneth W. Mentor, J.D., Ph.D.

The Death Penalty Returns to New Mexico

Kenneth W. Mentor, J.D., Ph.D.
Department of Sociology and Criminology
University of North Carolina Wilmington

The following was prepared for the Annual Meetings of the
Western Social Science Association, April 2002, Albuquerque, NM

From 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)

ABSTRACT

Terry 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.

Terry 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 formulation.

This 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 public policies.

New 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.

During 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

This 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 executions.

Recent history has included several high points. As we know, the United States Supreme Court invalidated all death penalty statutes in 1972  (Furman 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.

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 execution.

The "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.

The Contemporary Debate

In 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.

Terry 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.

In 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" candidate.

As 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.

Many 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 level.

Chronology of Events

January 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.

January 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."

March 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.

February 25, 1997 - The Senate Judiciary Committee votes down Gary Johnson's request to expand the use of the death penalty.

March 8, 1997 - The House approves Johnson's bill to expand the death penalty to include child killers and multiple murders, and drive-by killings.

March 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.

February 7, 1998 - Senate is debating a Johnson requested bill that limits death row appeals to two years.

March 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.

December 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."

January 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.

February 5, 1999 - Bill to limit appeals is introduced in committee.

February 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.

March 2, 1999 - House Appropriations and Finance Committee table repeal bill.

March 9, 1999 - Senate voted 22 - 9 against repeal.

July 8, 1999 - State Supreme Curt affirms Terry Clarks death sentence.

January 14, 2000 - Governor Johnson asks for limits on death row appeals.

February 17, 2000 - Terry Clark changes his mind and asks that his appeals be continued.

December 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 life."

January 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."

February 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.

February 9, 2001 - Senate rejects repeal by 21-20 vote. February 25, 2001 - Senate committee votes to expand death penalty.

March, 2001 - Terry Clark asks that all appeals be stopped.

June 26, 2002 - Santa Fe county commission voted down a measure that would make the county an "execution-free" zone.

August 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."

September 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 are "moonlighting."

October 9, 2002 - Catholic Bishops repeat opposition to death penalty and call for repeal.

October 12, 2001 - A Santa Fe attorney questions the legality of hiring private executioners.

October 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."

October 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 place."

The 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 discrimination."

"Although 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."

October 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.

November 3, 2001 - Supreme Court justices refuse to block Clark execution.

November 4, 2001 - Anti-death penalty advocates attempt to halt the execution by challenging the means through which the lethal injection drugs were obtained.

November 6, 2001 - Terry Clark is executed.

November 7, 2001 - State medical investigator rules Clark's death a "homicide."

November 8, 2001 - Albuquerque Journal editorial calls for death penalty debate.

December 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 case."

January 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.

January 16, 2002 - Johnson states that he has "come to believe that the death penalty as a public policy is flawed."

January 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.

February 2002 - Legislative session ends without action on repeal.

March 12, 2002 - Supreme Court vacate death sentence in 1993 murder case, reducing the death row population to two.

Conclusion

New 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.

This 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 discussion.

Governor 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 other, politicians.

Governor 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.

This 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.