State moving closer to repealing death penalty

By Steve Terrell: The New Mexican

New Mexico for centuries has been reluctant to execute criminals, even though the state has had some form of capital punishment law on its books for virtually all of its history since the Spanish colonial era.

Even during the blazing days of the Wild West, judges routinely requested Territorial governors commute death sentences. And governors frequently complied. Some governors even spoke out against the death penalty.

Why the reluctance? Some speculate it’s the influence of the Catholic Church. At least one historian says it might have roots in a series of executions in 1847 by the U.S. government of native New Mexicans who rebelled against the American occupation of New Mexico.

History might be in the making. The state Senate appears to be closer to codifying that reluctance by repealing the death penalty than it has been in decades, and Gov. Bill Richardson, who in the past has supported the death penalty, recently has dropped hints that he could sign the abolition. At a news conference this week, Richardson stressed he had not made up his mind on the issue and would be talking to advocates on both sides if House Bill 285 is passed by the Senate.

The bill, which passed in the Senate Judiciary Committee this week — a hurdle that identical bills have failed to clear in recent years — is expected to go to the Senate floor for a vote as early as today.

The bill, sponsored by Rep. Gail Chasey, D-Albuquerque — who has been carrying capital punishment repeal bills for the past decade — would eliminate the sentence of lethal injection, replacing it with life in prison without possibility of parole. Currently a life sentence means the convict isn’t eligible for parole for at least 30 years.

Here is a look at the history of the death penalty in New Mexico.

A tradition of reluctance: In this year’s capital punishment debate in the Legislature, both sides have referred to the fact that in the past 49 years only one person — child rapist and killer Terry Clark — has been executed. And Clark, who was lethally injected in November 2001, voluntarily ended his appeals process, which had gone on for 15 years.

Death penalty opponents use this to illustrate that the death penalty is not a useful law-enforcement tool and that keeping the law on the books only wastes money on lengthy appeals.

Supporters say the fact there are so few executions only proves that the state has been properly cautious in applying capital punishment.

But it’s not just in recent years that New Mexico has appeared reluctant to impose the ultimate sentence.

Former State Historian Robert J. Torrez, author of a 2008 book called Myth of the Hanging Tree: Stories of Crime and Punishment in Territorial New Mexico, said in an interview this week that New Mexico juries, an sometimes even judges, never have been anxious to sentence criminals to death.

“There were only two capital cases in the Spanish colonial period,” Torrez said. Each of those cases involved two defendants, which means there were only four executions during that time, Torrez said. One case was in 1779, the other in 1809.

It’s likely the influence of the Catholic Church had something to do with those low numbers. Allan Sanchez, executive director of the New Mexico Conference of Catholic Bishops, said that after the Inquisition in the mid-1500s, the Church “pulled back and looked at its theology.” In the 1700s and 1800s, the church doctrine was that if a criminal could be rendered harmless to society, he shouldn’t be executed, Sanchez said.

During the period when New Mexico was under the Mexican government, 1821-1846, there are no records of any executions being carried out, Torrez said. He agreed it’s possible that some records from those years have been lost.

During New Mexico’s Territorial period, 1846-1913, there were a total of 51 legal executions by state and local authorities, all by hanging. According to Torrez’s book, there were about 100 convictions in state courts during that time for first-degree murder, which at the time carried an automatic death sentence. Some died in prison and a few escaped. But nearly half who weren’t executed were pardoned or had their sentences commuted by the territorial governor.

In many cases, Torrez points out, territorial judges themselves — who had no say in the sentence because of the automatic death penalty — requested clemency from the governor because of some extenuating circumstance.

Torrez’s execution figures in the Territorial days do not include the 20 New Mexicans who were hung after being convicted by military courts for an insurrection, sometimes called “The Taos Rebellion.” This revolt against the American occupation took place in 1847.

These executions, which Torrez calls “the harsh introduction of American jurisprudence,” might explain why juries and even judges were not so gung-ho on capital punishment, the historian said. He notes that the counties that bore the brunt of the retaliation by American forces — Taos, Rio Arriba and Mora — had some of the lowest rates of convictions in capital cases during Territorial days.

Some territorial governors spoke out against the death penalty, Torrez wrote. Although he signed the death warrant for the last man hanged during the Territorial period, Gov. George Curry told lawmakers that capital punishment was not a deterrent to crime and that an execution “involves an element of revenge repugnant to civilization.” And in 1851, Gov. James Calhoun told the Legislature, “Humanity shudders at the thought of capital punishment.”

Electric chairs, gas chambers: In the early years of statehood, from 1913 to 1923, there were 20 legal executions. Twelve of those hanged were Mexican nationals.

In 1929, the Legislature passed a law making it the state’s responsibility, rather than individual county sheriffs, to carry out executions. The method of execution was changed from hanging to electrocution.

The state’s electric chair was first used in 1933. It would be used a total of seven times between that year and 1956. Reporter and author Tony Hillerman, who died last year, covered the 1956 execution of James Larry Upton for The New Mexican.

“I did a sidebar for the paper on the kind of Roman holiday they made out of this execution,” Hillerman said in a 1999 interview with The New Mexican. “They had it in a big room, in the old penitentiary near downtown. They had about 110 drunk sheriff’s posse types in there celebrating. It was really a grisly kind of thing. The politicos controlled the tickets. It was kind of like getting tickets to a Lobos-Utah game.”

Upton had been composed and ready to die, Hillerman recalled. “Then he sees this great mob of drunken louts gaping at him like a circus.” The grim spectacle of the execution apparently prompted the Legislature to passed a law limiting witnesses for executions.

By 1960, the method of execution changed again. Gas chambers were now in vogue around the country. But only one person would be executed that way in this state, David Nelson Cooper, who was executed in January 1960.

Ten years later, the Legislature passed a law eliminating the death penalty for any crime except the murder of a law enforcement officer. Gov. David Cargo commuted the sentences of the inmates on death row. Cargo said in a 1998 interview with The New Mexican that there were “two or three” inmates whose sentences were commuted.

In 1972, the U.S. Supreme Court struck down death penalty laws, saying capital punishment was administered unevenly by the various states and thus was cruel and unusual punishment.

The next year, New Mexico’s Legislature overwhelmingly passed a law similar to the old Territorial law, making execution automatic for anyone convicted of first-degree murder.

Although nobody was executed in New Mexico under that law before it was struck down as unconstitutional by the state Supreme Court, four members of a California motorcycle gang during that period were sentenced to death for the murder of a man in Albuquerque. The four eventually were exonerated and released after the chief witness admitted she lied on the witness stand and the true killer confessed and led authorities to the murder weapon.

Capital punishment today: In 1979, the Legislature passed the current law. Only those convicted of first-degree murder with aggravating circumstances are eligible for execution.

Those circumstances include: killing a law-enforcement officer or a prison guard, killing a fellow inmate, killing while trying to escape from incarceration, murder for hire, murdering to prevent a witness of a crime from testifying and murder while trying to commit rape, kidnapping or child molestation.

Death row began to fill up again. The last time a Santa Fe jury imposed a death sentence was in 1983, when Ricky Garcia, a prison inmate, was sentenced to die for killing a guard.

But in November 1986, outgoing Gov. Toney Anaya surprised the nation by commuting the sentences of Garcia and the other four killers awaiting execution. Although he was blasted by many in the state, Anaya on Wednesday said he feels good about the fact the current repeal bill should at least come close to passing.

“Sometimes a good idea takes a long time,” he said.

In 1999, Clark, who was sentenced to death shortly after Anaya left office, first said he wanted to drop his appeals. He changed his mind several months later, but by 2001 he made the request again and this time a judge agreed with his wishes.

On Nov. 6, 2001, hired executioners from the Texas Corrections Department injected Clark with lethal doses of drugs purchased through the state Health Department.

Contact Steve Terrell at 986-3037 or sterrell@sfnewmexican.com. Read his political blog at roundhouseroundup.com.