Death Penalty Challenges Still Haunt N.M. Courts

That's the title of Leslie Linthicum UpFront column in today's Albuquerque Journal.

Three years ago and again last year, the attorney for Michael Astorga argued that because we wiped the death penalty from the state’s lawbooks before Astorga was tried for murder it would amount to cruel and unusual punishment if it were still applied to him.

The first time that argument was made was before Astorga had been convicted. The second time was before he had been sentenced.

The New Mexico Supreme Court passed off the hot potato both times by deciding not to decide and left unsettled one of the legal wrinkles left in the wake of the Legislature’s 2009 death penalty repeal.

Astorga eventually received a life sentence, making the argument moot for him, but the court will get other chances to rule on this life-and-death issue.

Robert Fry and Timothy Allen, both sentenced to death years ago, remain on New Mexico’s figurative “death row.” Fry is in Santa Fe and Allen in Los Lunas, and they are both at various stages in the drawn-out appeals process that follows every death sentence.

And:

Meanwhile, attorneys for both men will pursue the argument that the death penalty, once repealed in a state, violates the constitutional protection against cruel and unusual punishment.

It’s an interesting argument that involves all of us, not just the two men facing the death penalty. That’s because one line of the argument is that when a society — in this case us, through our lawmakers — has agreed to no longer punish by execution, carrying out a death sentence violates our collective standards of decency, which amounts to cruel and unusual punishment.

You could certainly make the case that capital punishment is unusual when you’re one of two guys among a population of 2 million that can be executed by a state that has carried out exactly one execution in more than half a century.

Juries here have rarely handed down the penalty, it has rarely been upheld on appeal and it has been very rarely carried out.

Earlier coverage from New Mexico begins at the link.