On June 28, 2019, the New Mexico Supreme Court filed its opinion in Fry v. Lopez, reversing the death penalties of the last two inmates on death row in the state.
This case is a fascinating opinion on the death penalty, which was abolished by the New Mexico legislature in 2009. In this appeal, Fry and Allen, the last two people on death row in New Mexico, filed habeas corpus actions seeking to dismiss their death sentences. When the district court denied their petitions, the inmates appealed directly to the supreme court. In a 3-2 opinion, the Court ordered the district court to sentence each defendant to life imprisonment.
Justice Barbara Vigil wrote for the three-Justice majority. Only two current Justices (Justice Barabara Vigil and Justice Nakamura) participated. Retired Justices Maes, Chavez, and Daniels sat by designation. Justices Maes had previously participated in the direct appeals of both defendants, both of which had affirmed the proportionality of the death sentences; Justice Chavez had participated in Fry’s appeal.
The death penalty is a complex and contentious issue. As Justice Vigil noted, Furman v. Georgia, one of the key U.S. Supreme Court opinions regarding arbitrary application of the death penalty, was so contentious that each of the nine justices wrote separately. Fry v. Lopez ends up being little different–an unusual 3-2 opinion with four of the five justices writing separately.
Furman, together with a subsequent case, prompted states (including New Mexico) to rewrite their capital sentencing laws to include safeguards against arbitrary use of the death penalty. As a result, New Mexico law required the New Mexico Supreme Court to automatically review every death penalty sentence for, among other things, disproportionality–whether the sentence of death is disproportionate to the penalty imposed in similar cases.
The majority opinion, despite its length, is interesting mostly for the history it provides of the death penalty. The death penalty was available in New Mexico before statehood, and survived until its repeal in 2009. Since the 1979 revisions to the law, the State sought the death penalty in 211 cases; of those, fifteen resulted in death sentences, but only one of the sentenced defendants was executed.
Substantively, the main holding of the majority opinion is to slightly modify the standard under which the Court reviews death sentences for proportionality. Somewhat unusually, the Court performs this inquiry in the first instance. It does not review the decision or record below; rather, it compares the jury’s decision to the decisions reached by other juries in other cases. As the Court notes, this analysis is complicated by the fact that (a) there have been very few cases in which the death penalty was sought, and (b) nobody has kept track of them. Since almost none of the cases have resulted in death sentences, it is unsurprising that the Court concludes that the death sentences in this case are aberrant.
However, while the legal effect of this opinion is to change the standards for evaluating proportionality, in practice the opinion appears to judicially eliminate the death penalty in many cases. The Court reasons that the “strikingly small number of similar cases in which a death sentence was imposed” renders Fry and Allen’s death sentences disproportionate. But there have been a strikingly small number of death sentences ever, for anything, in New Mexico history. Such an approach can only yield reversals of death sentences. And, indeed, the Court generalizes this result by noting that the death penalty has not been generally imposed in cases involving youthful victims or rape, reasoning that they therefore may not be imposed in this case and, by implication, they in future cases, absent something beyond merely raping and killing a young victim.
Retired Justices Chavez and Daniels write separately to concur, giving Justice Vigil the required three votes for a majority.
To me, the interesting parts of this opinion are in Justice Nakamura’s dissent (joined by retired Justice Maes), which raises a number of issues about the role of the judiciary in this process. Justice Nakamura framed the issue as the Court “intrud[ing] on the capital-sentencing jury’s rightful, constitutional authority to extend mercy or impose death.” In examining this issue, she grapples with core appellate issues such as stare decisis, finality, juries, and the Court’s discretion to address issues that were not raised by the parties.
One of Justice Nakamura’s first concerns was that the parties had not asked the Court to modify Garcia. Prior to this case, Garcia had set the standard for evaluating proportionality. The majority opinion modifying the Garcia standard; however, this was not an issue that either party had originally raised. Rather, the Court identified this issue itself and directed the parties to brief it. In Justice’s Nakamura’s view, the role of the Court is not to suggest arguments; rather, the parties raise their arguments, which the Court rules on. This is the essence of the adversarial system. This argument is somewhat diminished, however, by the fact that each side had an opportunity to brief the issue.
Justice Nakamura next turns her attention to the tension between the “requirement for individualized capital sentencing proceedings and consistent capital sentencing outcomes.” Judicial efforts to ensure consistency come at the expense of setting aside jury verdicts, which are meant to “express the conscience of the community on the ultimate question of life or death” and “maintain a link between contemporary community values and the penal system.” It is inevitable, the dissent notes, that different juries in different cases will reach different results in seemingly similar cases. But the statue requires consistency. The dissent would resolve the question by deferring to juries; the majority, by setting the jury result aside.
The conflict inherent in the statute requires a choice between these two approaches. The dissent would defer to the jury because, in its view, the inquiry is ultimately subjective. Substituting the Court’s subjective view for that of the jury breaks the link to community values that the jury is supposed to provide. It substitutes one arbitrary group of people’s subjective decision for another. The courts do not substitute their own judgement for that of the jury in civil cases, and the dissent is clearly reluctant to do so here. To do so is to “draw appellate courts into a realm they simply do not belong.”
Next, the dissent moves on to the admittedly more dry issue of stare decisis. Stare decisis is, essentially, the rule that courts must abide by decided precedent. It promotes stability of the law, fairness in assuring that like cases are treated similarly, and judicial economy. In New Mexico, it means that precedent should only be overruled when certain factors are met. The dissent notes that Garcia, decided in 1983, had been affirmed numerous times, and that under stare decisis the Court should not have overruled it. Neither the majority nor the dissent addressed the stare decisis factors head on, and neither argument seems particularly persuasive to me. Perhaps in the end the real test of stare decisis is simply whether the majority has the votes.
Finally, the dissent raises the issue of finality. Justice Nakamura is concerned that the Court, in reversing a sentence it had previously upheld on the same issue, is undermining the public policy in favor of finality. “Finality” is a concept that advances a number of policies, including protecting the parties from having to re-litigate issues, facilitating the prompt and orderly disposition of cases, and avoidance of piecemeal appeals. In this case, finality should have meant that once the Court affirmed the defendants’ death sentences (in opinions filed in 2000 and 2006), those sentences should not have been subject to further review. However, as the majority notes, the policy of finality has less force in habeas proceedings.
This case consists of an issue unlikely to ever arise again, surrounded by issues that arise all the time. Since the death penalty no longer exists and the petitioners were the final persons in New Mexico sentenced to death, the Court’s proportionality decision will not arise again unless and until New Mexico brings back the death penalty. Given the complexity of death penalty law, this might be for the best.