Fry v. Lopez
This text of 447 P.3d 1086 (Fry v. Lopez) is published on Counsel Stack Legal Research, covering New Mexico Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinions
VIGIL, Justice.
I. INTRODUCTION
{1} In this case we revisit our statutory responsibility to ensure that the death penalty is reserved for the most heinous crimes. Since 1979, the New Mexico Legislature has directed this Court to ensure that "the death penalty shall not be imposed if ... the sentence of death is excessive or disproportionate to the penalty imposed in similar cases." NMSA 1978, § 31-20A-4(C)(4) (1979, repealed 2009).
{2} In 2009, the Legislature abolished the death penalty as a sentencing option for murders committed after July 1, 2009.1 Today, *1092Petitioners Robert Fry and Timothy Allen, who committed their crimes before 2009, are the last inmates who remain on death row in New Mexico. Fry and Allen filed Petitions for Writs of Habeas Corpus seeking to dismiss their death sentences in light of the prospective-only application of the repeal.
{3} In this consolidated appeal of the district court's denial of Petitioners' motions to dismiss their death sentences, we hold that Petitioners' death sentences are disproportionate and violate Section 31-20A-4(C)(4). Guided by our recognition that our Legislature intended for comparative proportionality review to protect against the arbitrary imposition of the death penalty, we conclude that there is no meaningful basis for distinguishing Fry and Allen from the many similar cases in which the death penalty was not imposed. Because Petitioners' death sentences are statutorily disproportionate to the penalties imposed in similar cases, we remand each case to the district court to impose a sentence of life imprisonment.
II. BACKGROUND AND PROCEDURAL HISTORY
{4} Prior to the 2009 statutory repeal of the death penalty, Petitioners Fry and Allen were sentenced to death. Allen was convicted of first-degree murder for the 1994 killing of a seventeen-year-old girl. State v. Allen ,
{5} In accordance with the Capital Felony Sentencing Act, Allen's sentence for murder was determined in a separate proceeding. Id. ¶¶ 1, 15 ; see NMSA 1978, § 31-20A-1(B) (1979, repealed 2009). At sentencing, Allen's jury found the aggravating circumstances of kidnapping and murder of a witness and unanimously voted to impose the death penalty. Allen ,
{6} On June 9, 2000, Fry and an accomplice kidnapped a woman who was stranded at a convenience store. State v. Fry ,
{7} On direct appeal to this Court, both Fry and Allen argued that their death sentences were disproportionate to the penalties imposed in similar cases and therefore violated Section 31-20A-4(C)(4). Fry ,
Free access — add to your briefcase to read the full text and ask questions with AI
VIGIL, Justice.
I. INTRODUCTION
{1} In this case we revisit our statutory responsibility to ensure that the death penalty is reserved for the most heinous crimes. Since 1979, the New Mexico Legislature has directed this Court to ensure that "the death penalty shall not be imposed if ... the sentence of death is excessive or disproportionate to the penalty imposed in similar cases." NMSA 1978, § 31-20A-4(C)(4) (1979, repealed 2009).
{2} In 2009, the Legislature abolished the death penalty as a sentencing option for murders committed after July 1, 2009.1 Today, *1092Petitioners Robert Fry and Timothy Allen, who committed their crimes before 2009, are the last inmates who remain on death row in New Mexico. Fry and Allen filed Petitions for Writs of Habeas Corpus seeking to dismiss their death sentences in light of the prospective-only application of the repeal.
{3} In this consolidated appeal of the district court's denial of Petitioners' motions to dismiss their death sentences, we hold that Petitioners' death sentences are disproportionate and violate Section 31-20A-4(C)(4). Guided by our recognition that our Legislature intended for comparative proportionality review to protect against the arbitrary imposition of the death penalty, we conclude that there is no meaningful basis for distinguishing Fry and Allen from the many similar cases in which the death penalty was not imposed. Because Petitioners' death sentences are statutorily disproportionate to the penalties imposed in similar cases, we remand each case to the district court to impose a sentence of life imprisonment.
II. BACKGROUND AND PROCEDURAL HISTORY
{4} Prior to the 2009 statutory repeal of the death penalty, Petitioners Fry and Allen were sentenced to death. Allen was convicted of first-degree murder for the 1994 killing of a seventeen-year-old girl. State v. Allen ,
{5} In accordance with the Capital Felony Sentencing Act, Allen's sentence for murder was determined in a separate proceeding. Id. ¶¶ 1, 15 ; see NMSA 1978, § 31-20A-1(B) (1979, repealed 2009). At sentencing, Allen's jury found the aggravating circumstances of kidnapping and murder of a witness and unanimously voted to impose the death penalty. Allen ,
{6} On June 9, 2000, Fry and an accomplice kidnapped a woman who was stranded at a convenience store. State v. Fry ,
{7} On direct appeal to this Court, both Fry and Allen argued that their death sentences were disproportionate to the penalties imposed in similar cases and therefore violated Section 31-20A-4(C)(4). Fry ,
{8} Petitioners' cases were in postconviction habeas proceedings when the Legislature repealed the death penalty effective July *10931, 2009. Following the repeal, Fry and Allen filed motions to dismiss their death sentences, arguing that the repeal rendered their death sentences unconstitutional. Fry and Allen asserted that the prospective-only application of the repeal violated state and federal prohibitions against cruel and unusual punishment, state and federal guarantees of equal protection, and the prohibition of special laws in the New Mexico Constitution. The district court denied Petitioners' motions and concluded that the death sentences were constitutional. However, it granted Petitioners' requests for an interlocutory appeal and stayed their executions pending the outcome of the interlocutory appeal.
{9} We granted Petitioners' applications for interlocutory appeal. Because "[w]e seek to avoid an interpretation of a statute that would raise constitutional concerns," this Court asked for supplemental briefing on the statutory validity of Petitioners' death sentences. See State v. Pangaea Cinema ,
III. JURISDICTION AND STANDARD OF REVIEW
{10} By statute and under Article VI, Section 2 of the New Mexico Constitution, this Court has "exclusive jurisdiction over interlocutory appeals in criminal cases where a defendant faces possible life imprisonment or execution." State v. Ameer ,
{11} Our role in reviewing a death sentence is not to question the wisdom of the repeal nor to insert our own policy judgment in place of the Legislature's. As Justice Franchini wrote, "this Court is powerless"-despite practical or philosophical opposition to the death penalty-"to change [public policy] unless the statutory law underlying the policy is declared unconstitutional." State v. Clark ,
{12} We review statutory and constitutional challenges de novo. Ameer ,
IV. DISCUSSION
{13} Because the purpose of comparative proportionality review is most clear from its history, we begin with the origin of comparative proportionality review. In the 1970s, the United States Supreme Court decided a series of landmark cases concerning the constitutionality of capital punishment, which in turn impacted whether and how states could impose the death penalty. See generally Furman v. Georgia ,
{14} The first of the landmark federal cases concerning the death penalty was Furman ,
{15} The Furman Court expressed concern with disproportionate sentencing. Justice White observed, "the death penalty is exacted with great infrequency even for the most atrocious crimes," and "there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not."
cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders ..., many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. ... [T]he Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.
{16} In the aftermath of Furman , New Mexico took the path of many other states and enacted a mandatory capital sentencing scheme, "apparently on the theory that if there was no discretion, there was no problem."2 However, the Supreme Court declared mandatory sentencing schemes to be unconstitutional in Woodson v. North Carolina ,
{17} Four years after Furman , the Supreme Court upheld a revised capital sentencing scheme in Gregg , 428 U.S. at 196-99,
*1095substantially eliminate[ ] the possibility that a person will be sentenced to die by the action of an aberrant jury. If a time comes when juries generally do not impose the death sentence in a certain kind of murder case, the appellate review procedures assure that no defendant convicted under such circumstances will suffer a sentence of death.
{18} New Mexico adopted the Capital Felony Sentencing Act, complete with procedures modeled on the Georgia scheme, in 1979. Compare NMSA 1978, §§ 31-20A-1 to -6 (1979), with Gregg , 428 U.S. at 162-63, 197-98,
A. The judgment of conviction and sentence of death shall be automatically reviewed by the supreme court of the state of New Mexico.
B. In addition to the other matters on appeal, the supreme court shall rule on the validity of the death sentence.
C. The death penalty shall not be imposed if:
(1) the evidence does not support the finding of a statutory aggravating circumstance;
(2) the evidence supports a finding that the mitigating circumstances outweigh the aggravating circumstances;
(3) the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor; or
(4) the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant .
(Emphasis added.) Section 31-20A-4(C)(4) is the basis for the comparative proportionality requirement at issue in this appeal.
{19} New Mexico also narrowed the class of offenders eligible for the death penalty to those guilty of first-degree murder where the sentencing jury unanimously finds one of seven aggravating circumstances: murder for hire; murder of a witness; murder of a police officer; murder in the commission of or attempt to commit a kidnapping, criminal sexual contact of a minor, or criminal sexual penetration; murder in an attempt to escape a penal institution; murder of an employee of the corrections department by an inmate of the corrections department; and murder of a fellow inmate or person lawfully on the premises of a penal institution. Section 31-20A-3 ; see also NMSA 1978, § 31-20A-5(A)-(G) (1981). New Mexico's revised capital sentencing scheme remained largely unchanged from 1979 until the 2009 repeal and remains in force for murders committed before 2009 pursuant to the Legislature's savings clause. H.B. 285, 49th Leg., 1st Sess., Section 6. Based on its similarities to the Georgia statute, we interpret our scheme as incorporating the principles announced in Furman and Gregg . See Garcia ,
{20} The United States Supreme Court clarified in Pulley v. Harris that comparative proportionality review is not constitutionally required.
{21} Pulley also clarified that comparative proportionality is different from traditional proportionality review, which is the "abstract evaluation of the appropriateness of a sentence for a particular crime."
{22} Prior to Pulley , this Court adopted the existing approach to comparative proportionality review. Garcia ,
We assume that the Legislature means that in similar cases, considering both the crime and defendant, a defendant convicted of first degree murder under a specific aggravated circumstance should not be put to death if another defendant or other defendants, convicted of murder under the same aggravated circumstance is given life imprisonment, unless there is some justification. Therefore, we adopt the following guidelines for review under this Section.
1. We will review this issue only when raised on appeal.
2. In our review, we will consider only New Mexico cases in which a defendant has been convicted of capital murder under the same aggravating circumstance(s) .
3. Only those New Mexico cases in which a defendant was convicted under the same aggravating circumstance(s) and then received either the death penalty or life imprisonment and whose conviction and sentence have been upheld previously by this Court[ ] will be considered appropriate for comparison.
4. We will review the record and compare the facts of the offense and all other evidence presented by way of aggravation or mitigation to determine whether the sentence is excessive or disproportionate.
Garcia ,
{23} Justice Sosa dissented from the imposition of the death penalty, foreshadowing the issues that are now before this Court. Id. ¶¶ 43, 65 (Sosa, J., specially concurring). Among his concerns, Justice Sosa noted that the majority had not acknowledged the mandatory nature of comparative proportionality review. Id. ¶¶ 59, 61. He further noted that the statute failed to specify the relevant universe of cases. Id. ¶ 59. "What does similar mean?" he asked, and
[h]ow far back in New Mexico's judicial history should comparisons be made? Should extrajudicial cases be brought into the analysis? Are cases which ended in plea bargains relevant? If a prosecutor exercises discretion in the charging process and seeks an indictment without aggravating *1097circumstances, is that case similar?
{24} In this case, Fry and Allen argue that this Court should overrule Garcia and expand the universe of cases used in determining whether a sentence is disproportionate under Section 31-20A-4(C)(4). In the alternative, Fry and Allen argue that this Court should find their sentences disproportionate under the Garcia approach to comparative proportionality review. We address their arguments in accordance with the Legislature's mandate in Section 31-20A-4(C)(4) that we conduct a comparative proportionality review in order to provide a "meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not." Furman ,
A. The Legislature's Repeal of the Death Penalty Is a Compelling Reason to Revisit the Comparative Proportionality of Petitioners' Death Sentences
{25} The State argues that we should refrain from revisiting the comparative proportionality of Petitioners' death sentences because we determined that the death sentences were not excessive or disproportionate in their direct appeals. Fry ,
{26} Because the essential purpose of habeas review is to reconsider and correct issues that were wrongly decided on direct appeal, "courts rarely apply principles of finality in habeas corpus proceedings with the same force as they do in ordinary litigation." Clark v. Tansy ,
{27} The State argues that the repeal was not technically a change in law because it left the comparative proportionality requirement undisturbed for murders committed before July 1, 2009.3 Id. ¶ 14. We disagree. The repeal represents a profound change in the legislative attitude toward the death penalty and a shift in the standards of decency. State v. Santiago ,
{28} The repeal of the death penalty is also an intervening change in fact, presenting eminently relevant information that was not considered upon our initial review of Petitioners' death sentences. In determining the proper course of action, this Court is not limited to considering the instant record but rather "may take judicial notice of legislative facts by resorting to whatever materials it may have at its disposal establishing or tending to establish those *1098facts." Kerr v. Parsons ,
{29} Fry and Allen are currently the only two inmates facing the death penalty under the 1979 capital sentencing scheme and, due to the repeal's profound shift in fact and law, they are likely to be the last two inmates to ever face the death penalty under that statutory framework. The interests of justice require us to ensure that every person facing death under the 1979 capital sentencing scheme is afforded its full statutory protections. Under that capital sentencing scheme, we have an unqualified mandate to assure that a death sentence shall not be imposed if disproportionate to the penalty imposed in similar cases. Section 31-20A-4(B), (C)(4) (providing that "the supreme court shall rule on the validity of the death sentence" and that "[t]he death penalty shall not be imposed if ... disproportionate to the penalty imposed in similar cases"); see NMSA 1978, § 12-2A-4(A) (1997) (" 'Shall' ... express[es] a duty, obligation, requirement or condition precedent."). This is a heightened, additional, and continuing responsibility, and it is a mandatory and important component of New Mexico's capital sentencing scheme. Until an execution is carried out, justice requires us to ensure that a death sentence is not disproportionate.
{30} Our reconsideration of the proportionality of Petitioners' death sentences is consistent with the highest level of scrutiny which death penalty cases demand. Gregg , 428 U.S. at 187,
{31} While there is a legitimate interest in the finality of criminal judgments, the repeal of the death penalty presents a profound change in the legal and factual framework surrounding Petitioners' death sentences such that the interests of justice require that we ensure that those sentences are not disproportionate to the penalty imposed *1099in similar cases. We therefore exercise our discretion to reconsider the comparative proportionality of Petitioners' death sentences.
B. Our Prior Application of Garcia Did Not Substantially Eliminate the Risk of an Arbitrary and Capricious Death Sentence
{32} Since it was decided over thirty years ago, Garcia has garnered criticism for failing to "answer the central question of proportionality as proposed by Justice White: whether there is a real difference between the many cases in which the death penalty is not imposed and the few cases in which it is."4 In 2004, the Final Report of the New Mexico State Bar Task Force on the Administration of the Death Penalty in New Mexico outlined numerous problems in the application of Garcia , summarized as follows:
(1) Section 31-20A-4(C)(4) mandates that this Court conduct a comparative proportionality review in every case, but " Garcia says that review will be conducted only on request. [ Section 31-20A-4(C)(4) ] imposes responsibilities on the Supreme Court [while] Garcia imposes the responsibility on the defense to raise the issue and to supply comparison cases." Final Report, 18;
(2) Garcia "set[s] an overly restricted definition of the universe of cases" because "using the jury's finding of an aggravating circumstance as the characteristic that defines what is a 'similar' case ... [yields] only a handful of 'similar' cases to be considered." Final Report, 18-19;
(3) While "th[is] Court has consistently rejected defense challenges to the Garcia standard, it has not applied the standard consistently over time." Final Report, 19;
(4) "[This] Court has held sentences to be proportionate even when there are no other cases in which the defendant was sentenced to death," indicating that "the Court is using a reasonableness approach or ... has created an unspoken presumption that a death sentence is always proportionate." Final Report, 19;
(5) "[M]any cases simply state a conclusion-that the death penalty is not excessive or disproportionate-without explaining the process that led the Court to its conclusion. This makes it difficult for lawyers or the public to understand the basis for the conclusion." Final Report, 21;
(6) "[T]here are still unresolved issues about how the Garcia standard applies to particular cases," including whether this Court will consider cases with the same aggravating circumstance or, in the absence of a similar case, "point[ ] to [factual] circumstances ... [which] distinguish [the case under review] from the case in which a life sentence was imposed." Final Report, 21.
{33} The problems identified in the Final Report were evident in Petitioners' direct appeals. In Allen ,
{34} We agree with the Final Report that we are required under Section 31-20A-4(C)(4) to conduct a comparative proportionality review of every death sentence, contrary to Garcia . See Garcia ,
{35} Although New Mexico has authorized the use of capital punishment since before statehood, the death penalty has been infrequently imposed.7 Only one person has been executed since the enactment of the pre-repeal capital sentencing scheme in 1979. Wilson, supra , at 301. That person was Terry Clark, whose execution took place on November 6, 2001. Id. at 271. Before Clark, New Mexico had not executed anyone since David Cooper Nelson in 1960. Id. Only fifteen people, including Fry and Allen, have been sentenced to death since the enactment of the pre-repeal capital sentencing scheme in 1979. Id. at 266 & n.93. With the exception of Clark, none of these death sentences resulted in an execution.
{36} Under the pre-repeal capital sentencing scheme, an offender convicted of first-degree murder could be subject to the death penalty only where the sentencing jury found one of seven aggravating circumstances. Section 31-20A-3 ; Section 31-20A-5(A)-(G). Most death-eligible cases did not reach the sentencing stage. Wilson, supra , at 271-72, 301. From July 1979 through December 2007, prosecutors sought the death penalty in only 211 cases. Id. at 266-67. Nearly half of these cases were resolved through plea bargains that removed death as a possible sentence. Id. at 268. The other half went to trial. See id. at 269. Thus, our limited universe of death penalty cases is in large part due to both plea bargaining and prosecutorial reluctance to seek the death penalty.
{37} Fifty-two cases advanced to death penalty sentencing proceedings.8 The others *1101ended in acquittal or conviction on lesser charges for which the death penalty was no longer an available sentence. Id. at 269. Of the fifty-two cases, the jury found at least one aggravating factor and unanimously agreed on a death sentence just fifteen times.9 Twelve of those fifteen death sentences were ultimately vacated: five reversed on direct appeal,10 two reversed in habeas proceedings,11 and another five commuted by Governor Toney Anaya in 1986.12 Another was abated when the inmate died in prison.13 Clark was the only one of the fifteen to be executed, and that execution proceeded only after Clark instructed counsel to abandon his appeals for postconviction relief. Id. at 271. Thus, even before the legislative repeal, capital punishment was a relative nullity in New Mexico. This rarity demonstrates a reluctance to impose the death penalty on the part of all three branches of government, which presents a significant challenge to the administration of a meaningful comparative proportionality review.
{38} Because relatively few death-eligible cases reach the death penalty sentencing phase in New Mexico, use of the same aggravating circumstance as the sole criteria for identifying similar cases has produced an impracticably small pool of comparison cases. See Final Report, 19-21. This is particularly true in Fry , which at the time of Fry's direct appeal was the only case involving kidnapping as the sole aggravator that was affirmed on appeal. See Fry ,
{39} Additionally, there is no central repository of information regarding death penalty cases, making it difficult to obtain the details and records necessary to thoroughly conduct the comparative proportionality review. As Fry and Allen note, "[t]he [L]egislature obligated [this] Court to conduct a proportionality analysis, but failed to provide any mechanism to collect the cases that could be used in the analysis." Unlike other states, New Mexico does not collect data to support comparative proportionality review. See, e.g. , Tenn. Sup. Ct. Rule 12 (1) (requiring the trial court to prepare a postconviction report for *1102"all cases ... in which the defendant is convicted of first-degree murder" with data to be used in the proportionality analysis). The underlying records in most death penalty cases in New Mexico are not electronically available, with the exception of those cases that were prosecuted shortly before the repeal. This invariably affected both the ability of defense counsel to bring meritorious challenges to the comparative proportionality of their clients' death sentences and the depth of this Court's review.
C. We Modify Our Application of Garcia in Order to Fulfill the Legislature's Intent in Adopting Section 31-20A-4(C)(4)
{40} Fry and Allen urge us to overrule Garcia , asserting that Garcia has deprived them of a meaningful comparative proportionality review and that the mechanism for conducting this review should be modified in various ways. We decline to overrule Garcia . However, we modify Garcia in order to better fulfill the purposes of Section 31-20A-4(C)(4).
{41} We first recognize that the Washington Supreme Court, faced with similar concerns regarding proportionality review, recently declared Washington's death penalty scheme unconstitutional as administered in State v. Gregory ,
{42} While the United States Supreme Court has left states free to define the framework of their comparative proportionality reviews, see Pulley ,
{43} The Garcia Court defined the universe of cases as including cases in which the death penalty was sought and which resulted in a sentence of death or life imprisonment that was affirmed on appeal. Compare Garcia ,
{44} In the second step, the reviewing court must define what constitutes a "similar case." See Final Report, 15. This produces a pool of cases to be used for comparison purposes.
{45} The third and final step in conducting a comparative proportionality review is to define the test used to establish that a sentence is disproportionate. See Final Report, 15. Three approaches courts have taken in defining disproportionality are: (1) the statistical frequency approach, (2) the precedent-seeking approach, and (3) the reasonableness approach. Id. 16. The statistical frequency approach is "a measurement of the relative frequency of death sentences in factually similar cases." Papasavvas ,
{46} Garcia is a "precedent-seeking approach," which involves comparing the case to the pool of comparison cases in much the same way that a court typically reviews a case. Clark ,
{47} "The reasonableness approach turns on generalized notions of reasonableness, which are in turn based on the particular court's values, experience and general familiarity with prior cases." Final Report, 17. Our application of Garcia has garnered criticism because we "ha[ve] held sentences to be proportionate even when there are no other cases in which the defendant was sentenced to death," indicating that we have resorted to "a reasonableness approach or ... ha[ve] created an unspoken presumption that a death sentence is always proportionate." Final Report, 19. We will continue to adhere to a precedent-seeking approach but adopt the following modifications to Garcia .
1. We decline to expand the universe of cases beyond cases in which the death penalty was sought, the jury found at least one aggravating circumstance, and which resulted in a sentence of death or life imprisonment that was affirmed on appeal
{48} Fry and Allen urge this Court to expand the universe of cases from which similar cases have been drawn to include cases that could have been prosecuted as a death penalty case, regardless of whether the death penalty was actually pursued. Fry and Allen claim that death sentences are overrepresented under Garcia because the universe of cases excludes those in which the prosecutor did not seek the death penalty or offered a plea bargain in favor of life. Expanding the universe would enable us to examine the impact of prosecutorial discretion on the selection of which defendants were selected to receive the death penalty in New Mexico.
{49} The State argues that Garcia properly limits the universe of cases to those in which the prosecution sought and the jury had the option to impose a death sentence. See Garcia ,
{50} Whether the New Mexico Legislature intended for comparative proportionality review under Section 31-20A-4(C)(4) to include reviewing the exercise of prosecutorial discretion presents a question of statutory interpretation. "We begin by looking at the language of the statute itself," while recognizing that the plain language "must yield on occasion to an intention otherwise discerned in terms of equity, legislative history, or other sources." State v. Smith ,
{51} Section 31-20A-4(C)(4) does not expressly define the universe of cases, much less address whether we should limit our review to those cases in which the prosecutor sought the death penalty. The Legislature did not provide specific guidance as to which cases should be considered substantively or procedurally similar for purposes of comparative proportionality review. However, the term "similar cases" appears within the phrase "the penalty imposed in similar cases" in Section 31-20A-4(C)(4). Other courts have construed identical language as communicating an intent for the court to consider cases in which the prosecutor sought the death penalty and which progressed to a death penalty sentencing hearing, whether it resulted in a sentence of death or life imprisonment. See, e.g. , Addison , 7 A.3d at 1247.
{52} This interpretation is consistent with the history of Section 31-20A-4(C)(4). Our Legislature adopted Section 31-20A-4(C)(4) in response to Furman and *1105Gregg which, in turn, provide insight into the appropriate parameters of the comparative proportionality review. See Addison , 7 A.3d at 1230, 1239-40. Like other courts, we conclude that our comparative proportionality review requirement was designed to incorporate the constitutional standards which existed at the time of its adoption. Id.
{53} We gather from Furman that Petitioners' death sentences are not per se disproportionate based on how rarely New Mexico prosecutors have pursued the death penalty. Although the Furman Court did not discuss comparative proportionality review, it observed that the rare imposition of the death penalty was not enough to prove that it was being imposed arbitrarily. Furman ,
{54} Gregg confirms that the Furman Court was not concerned with prosecutorial discretion. Gregg , 428 U.S. at 199,
{55} This is consistent with the approach used by the majority of states. Most states limit their comparative proportionality reviews to cases in which the prosecutor sought the death penalty. See, e.g. , State v. Ross ,
{56} By contrast, few states have opted to include in the comparative proportionality review cases in which the prosecutor did not seek the death penalty. See, e.g. , Papasavvas ,
{57} Because the Gregg Court was not concerned with prosecutorial discretion, we also conclude that the New Mexico Legislature, by modeling its review on the comparative proportionality review endorsed in Gregg , did not intend for Section 31-20A-4(C)(4) to serve as a check on the exercise of prosecutorial discretion. Under Gregg , prosecutors are free to exercise their discretion in favor of life. See 428 U.S. at 199,
{58} We also consider whether the comparative proportionality review should be modified to account for the exercise of executive clemency. This power was given to the governor by the people. N.M. Const. art. V, § 6. Like prosecutorial discretion, the governor's power to commute sentences is "outside of the effective control of legislatures" and an "inevitable component[ ] of any capital scheme." Sherod Thaxton, Disciplining Death: Assessing and Ameliorating Arbitrariness in Capital Charging ,
{59} Governor Anaya commuted the majority of death sentences imposed under the pre-repeal, 1979 capital sentencing scheme. See Exec. Orders Nos. 86-37, 86-38, 86-39, 86-40, 86-41 (Nov. 26, 1986). Under Gregg , this does not render Petitioners' death sentences disproportionate. See 428 U.S. at 199,
{60} We also limit our review to cases prosecuted under the pre-repeal, 1979 capital sentencing scheme. "To include cases decided before enactment of the present [s]tatute would require consideration of cases decided under the various constitutionally infirm statutes which predate the current one," Flamer ,
{61} The Garcia Court's definition of the universe of cases includes one more restriction: we consider only those cases which were affirmed on appeal.
{62} In sum, we hold that the universe of cases is properly limited under Garcia to those cases in which the prosecutor decided to seek the death penalty, which advanced to a death penalty sentencing hearing in which the jury found at least one aggravating circumstance, and which resulted in a sentence of death or life imprisonment which was affirmed on appeal.
2. We expand the pool of cases to include both cases involving the same aggravating circumstance and factually similar cases in which the jury had the option to impose the death penalty
{63} The second step of the comparative proportionality review requires us to identify the particular characteristics to be used to identify a " 'similar case.' " Final Report, 15. While we adhere to Garcia's definition of the universe of cases, we reconsider the pool of comparison cases and determine that the pool must be expanded from cases involving first-degree murder convictions with the same aggravating circumstances to include factually similar crimes in which the jury considered the death penalty. In reaching this conclusion, we are guided by the Gregg Court's understanding that "[i ]f a time comes when juries generally do not impose the death sentence in a certain kind of murder case , the appellate review procedures assure that no defendant convicted under such circumstances will suffer a sentence of death." 428 U.S. at 206,
{64} The Garcia Court included within the pool of comparison cases only those cases involving the same aggravating circumstances.
{65} However, given the rarity of death penalty prosecutions in New Mexico, the Garcia Court's definition of the pool of comparison cases has proven to be unworkable. Final Report, 19 (describing the Garcia approach as "logical" but noting that it yields "only a handful of 'similar' cases" for the comparative proportionality review). Only four cases have aggravating circumstances identical to Allen ,17 and the only case with aggravating circumstances identical to Fry is Fry's own conviction for an unrelated murder.18 Such a small pool of cases distorts our view of the application of the death penalty for similar crimes.
{66} We acknowledge, as Petitioners contend, that our comparative proportionality review must be applied to "fully answer the central question of ... whether there is a real difference between the many cases in *1108which the death penalty is not imposed and the few cases in which it is." Final Report, 18; see Furman ,
substantially eliminate[ ] the possibility that a person will be sentenced to die by the action of an aberrant jury. If a time comes when juries generally do not impose the death sentence in a certain kind of murder case, the appellate review procedures assure that no defendant convicted under such circumstances will suffer a sentence of death.
428 U.S. at 206,
{67} Other states include factually similar cases in the comparative proportionality review. See, e.g. , Addison , 7 A.3d at 1253 (reviewing the facts underlying the murder, the aggravating factors, and the mitigating factors because "[t]hese characteristics found by the jury establish the unique footprint of the case within which the jury considered ... the crime and the character and background of the particular defendant to decide whether to impose the death penalty"); Papasavvas ,
{68} In Tennessee, for example, the Supreme Court considers a non-exhaustive list including "the manner of death (e.g., violent, torturous, etc.)," "the victim's circumstances including age [and] physical and mental conditions," "the absence or presence of provocation ... [or] justification," and "the injury to and effects on nondecedent victims." Bland ,
{69} However, examining the universe of death penalty cases in New Mexico, we observe that juries had the option to impose the death penalty in a number of cases with factual similarities to Fry and Allen but which did not result in the same aggravating circumstances. Specifically, regardless of the aggravating circumstances alleged, many cases involved the murder of youthful, typically female victims in the commission of a sexual assault.19 These cases were excluded from consideration on direct appeal because, although Fry and Allen were both convicted of attempted criminal sexual penetration and therefore guilty of similar conduct, neither was charged with or found guilty of murder in the commission of a criminal sexual penetration as a statutory aggravating circumstance.
*1109{70} Additionally, we note that while New Mexico prosecutors maintained no written criteria for when to pursue the death penalty, they considered additional factors relevant in determining whether to seek the death penalty, including the age of the victim, whether the crime was ethnically motivated, opinions of the victim's family, the number of victims, the suffering of the victim, the generally severe or aggravated nature of the crime, and the impact of the crime on the community. Final Report, 14-15. We consider these factors relevant when determining what makes a case factually similar.
{71} In light of the limitations posed by the small universe of death penalty cases, we see no principled reason to exclude factually similar cases in which the jury considered the death penalty from the pool of comparison cases. These cases, like cases involving the same aggravating circumstance, are substantively and procedurally similar to the cases under review because the jury had the option to impose the death penalty based on similar facts. Expanding our review to consider these cases may reveal a pattern where no pattern was readily discernible among cases involving the same aggravating circumstances. This will better serve the purposes of comparative proportionality review by enabling us to determine whether Fry and Allen were sentenced to death by an aberrant jury, in accordance with Gregg , 428 U.S. at 206,
{72} We therefore expand the pool of cases to include factually similar cases in which the jury considered the death penalty. We adhere to Garcia to the extent that the Garcia approach uses the same aggravating circumstance as the starting point for identifying the pool of comparison cases. However, we will also give meaningful consideration to factually similar crimes in which the jury considered the death penalty.
3. A death sentence is disproportionate if juries do not generally impose a death sentence in similar cases and there is no justification for the death sentence to be imposed
{73} In the third step of our comparative proportionality review, we turn to the test to be used to establish that a sentence is disproportionate. Garcia states that a death sentence should not be affirmed when similar cases ended in life imprisonment, "unless there is some justification."
{74} In our initial review of Petitioners' death sentences, we did not explain why Petitioners' death sentences should be affirmed when the majority of defendants received life sentences for similarly shocking crimes. Instead, we concluded that certain facts justified their death sentences without meaningfully considering factually similar cases and whether juries generally imposed death sentences in those cases. See, e.g. , Fry ,
*1110{75} Furman and Gregg require more. Comparative proportionality review must provide "a meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not." See Furman ,
{76} At a minimum, comparative proportionality review requires that we thoroughly acknowledge and give meaningful consideration to similar cases that ended in a life sentence. State v. Timmendequas ,
{77} In practice, we have not addressed the question of whether a defendant's death sentence is an aberration and have instead conducted a traditional proportionality review. In focusing primarily on facts that could have justified the imposition of the death sentence without meaningfully considering other cases involving similar facts, we have not answered the central question of whether the defendant's death sentence is an aberration from the norm. See, e.g. , Garcia ,
{78} Other courts have clarified that
the appellate task under [comparative] proportionality review was not to determine whether the capital case before it in some way was, on a scale of moral blameworthiness, roughly equivalent to all other capital cases and, absent such rough equivalence, to reverse the sentence. Nor was that review considered to require that the capital case before the court must affirmatively be shown, on such a scale, to have been quantitatively different from all other cases in which the death penalty was not imposed and, absent such an affirmative *1111showing, to reverse the sentence. In the Supreme Court's view, rather, the appellate inquiry under proportionality review was whether the death penalty imposed in a particular case was aberrational, within the particular jurisdiction involved, with respect to similar cases.
State v. Webb ,
{79} Consistent with the constitutional principles of Furman and Gregg , we conclude that a death sentence is disproportionate if juries do not generally impose a death sentence in similar cases and there is no real justification for the death sentence.
4. Principles of stare decisis do not prevent us from modifying Garcia
{80} The State argues that stare decisis prevents us from overruling or modifying Garcia because the Legislature left Garcia undisturbed for nearly thirty years before the repeal. Because we "take care to overrule established precedent only when the circumstances require it," State v. Pieri ,
{81} This is not a case where the purpose of the statute must be inferred from silent acquiescence to a well-settled interpretation of law. See, e.g. , Patterson v. McLean Credit Union ,
{82} The State's argument would have greater force if we were overruling a functional approach to comparative proportionality review. Garcia proved to be unworkable in practice because it identified an overly restricted pool of cases. See Pieri ,
D. Imposition of Death Sentences Against Fry and Allen Is Disproportionate to the Penalties Imposed in Similar Cases
1. Cases involving the same aggravating circumstances as Fry and Allen did not generally result in death sentences
{83} To determine whether Petitioners' death sentences are statutorily proportionate to the penalty imposed in similar cases, we begin with the framework set forth in Garcia ,
{84} Fry was sentenced to death based on the aggravating circumstance of kidnapping.
*1112Fry ,
{85} Of cases advancing to a death penalty sentencing hearing, the only other case involving the sole aggravating circumstance of kidnapping which was affirmed on appeal also involved Robert Fry. See State v. Fry , S-1-SC-29025, dec. ¶¶ 1-5 (Aug. 28, 2007).20 This subsequent case against Fry involved the same accomplice and was prosecuted at roughly the same time as the case for which he received the death penalty. Id. ¶ 4. In that subsequent case, Fry received a life sentence for the kidnapping and murder of a man. Id. ¶¶ 1, 7. Fry and his accomplice offered the man a ride. Id. ¶ 7. As Fry drove the victim outside Farmington, he elbowed the victim's face and Fry's accomplice "wrapped a leather belt around [the victim's] chest or neck." Id. ¶ 7. Fry got out of the truck and fought with the victim. Id. At Fry's direction, his accomplice got a shovel out of the truck and hit the victim with it. Id. Fry then "kicked and hit [the victim], beat him with a broomstick, then, after the stick broke, used it to stab [the victim] in his face, chest, and groin." Id. Fry and his accomplice then searched the still living victim for money before kicking him over a ledge, where the victim's body was later found. Id. ¶¶ 2, 7. Fry's accomplice testified against him at trial and Fry was convicted of first-degree murder, kidnapping, attempted robbery, and tampering with evidence. Id. ¶¶ 1, 3. At the sentencing phase, the jury found the kidnapping aggravator but did not unanimously agree to the death penalty. Id. ¶¶ 5, 13; State v. Fry , D-1116-CR-2000-00542, miscellaneous entry (Sep. 4, 2003).
{86} Under a strict application of Garcia , the only case for comparison to Fry is a case involving the same defendant, the same accomplice, and very similar conduct, but which did not result in a death sentence. Similar cases involving two kidnapping aggravators also resulted in life sentences. In State v. Bedford , S-1-SC-30664, dec. ¶ 1, (June 23, 2010) (non-precedential) and Ortega ,
{87} Stanley Bedford received a life sentence for a murder in which the two victims were burned alive in the trunk of their car. Bedford , S-1-SC-30664, dec. ¶¶ 1-3. Bedford and the victims' nephew entered the victims' home. Bedford , S-1-SC-30664, dec. ¶ 2. There, Bedford attacked the victims, took their jewelry and credit cards, restrained them, forced the couple into the trunk of their car, drove them out of town, and beat the husband with a metal pipe. Id. ¶¶ 2-3. Bedford and the victims' nephew then filled *1113gas cans and Bedford watched as the victims' nephew poured the gas on the car and set it on fire with both victims most likely alive in the trunk. Id. ¶¶ 2-3, 30. Bedford was convicted of two counts of first-degree murder, two counts of kidnapping, two counts of tampering with evidence, one count of aggravated burglary, and one count of disposal of stolen property. Id. ¶ 1. The jury found two kidnapping aggravators but did not agree unanimously on the death penalty. Bedford , D-911-CR-2005-00046, court's jury instructions (June 21, 2007) and special verdict (June 28, 2007).
{88} Similar to Bedford, the jury did not impose the death penalty on Richard Michael Ortega for a brutal double murder. Ortega ,
{89} Neither Bedford nor Ortega supports the conclusion that Fry's death sentence is statutorily proportionate. Fry had one victim; Bedford and Ortega each had two. The jury in Fry found one aggravator; the juries in Bedford and Ortega each found two. Yet Fry received a death sentence and Bedford and Ortega did not. Considering Bedford , Ortega , and Fry's later conviction, we conclude that the death penalty was not generally imposed in cases involving the same aggravating circumstances as Fry .
{90} Although the statutory proportionality requirement does not require perfect symmetry in sentencing, it does require some justification for a disparity between the death sentence under review and the life sentences in similar cases. Garcia ,
{91} Before we consider the expanded pool of factually similar cases, we turn to Allen, who was sentenced to death for murdering a seventeen-year-old girl. Allen ,
{92} For Allen , the comparison cases are clearly identifiable under Garcia . The aggravating circumstances were kidnapping and murder of a witness. Allen ,
{93} In more than a half century, Clark is the only case in which the State of New Mexico carried out an execution. Wilson, supra , at 271. Terry Clark was sentenced to death for kidnapping, raping, and murdering a nine-year-old girl. Clark ,
{94} Johnny Clifford Zinn and three others kidnapped and gang-raped a woman and then shot her in the head. Zinn ,
{95} Jerry Wayne Hutchinson abducted a woman from a rest stop before sexually assaulting and killing her. Hutchinson ,
{96} Travis McGuire enlisted his stepbrother in the kidnapping, rape, and murder of an Albuquerque woman. McGuire ,
{97} Examining these four similar cases involving the same aggravating circumstances, we find no immediately discernible reason for Allen's death sentence. In three of the four cases the jury declined to impose the death sentence for crimes that were very similar to and arguably more heinous than Allen's. Only one of the comparison cases resulted in a death sentence. Clark ,
{98} We note that both Allen and Clark share the disturbing characteristic of murder of a child. To determine whether that factual similarity is sufficient justification for the sentencing disparity, we explore that similarity in further detail when we consider factually similar crimes in the next section of the opinion.
{99} In sum, neither the cases involving the same aggravating circumstances as Fry nor the cases involving the same aggravating circumstances as Allen generally resulted in death sentences. But because Garcia limits the pool of cases for comparison, we turn to consider the expanded pool of comparison including cases factually similar to Fry and Allen in which the jury had the option to impose death but which did not involve the same aggravating circumstances.
2. Cases involving facts similar to Fry and Allen did not generally result in death sentences
{100} In order to ensure that we are conducting a thorough proportionality review, we now expand upon the Garcia approach to include factually similar cases in which the death penalty was an option. In the sentencing phases, the Allen jury found the aggravating circumstances of kidnapping and murder of a witness, the Fry jury found only the kidnapping aggravator, and both received the death sentence. Juries did not generally impose the death sentence for crimes with the same aggravating circumstances as either Fry or Allen , but juries had the option to impose the death penalty based on different aggravating circumstances in many cases involving facts similar to the facts in Fry and Allen . We therefore go beyond a strict application of Garcia to compare Petitioners' death sentences to the sentences imposed in cases in which the victim was a child (as in Allen ) and in cases involving the attempt or commission of criminal sexual penetration (as in both Fry and Allen ).
{101} By examining these cases, we can see whether juries generally imposed the death penalty in cases factually similar to Fry and Allen . We conclude from our examination that, although the death penalty was an option in many cases predicated on similar facts, the death sentence was rarely imposed. Our review of these cases does not reveal a justification for Petitioners' death sentences and instead demonstrates that Fry and Allen were singled out for the death penalty.
a. The death penalty has not been generally imposed in cases involving a youthful victim
{102} We consider the age of the victim to be a salient fact in our comparative proportionality review. New Mexico prosecutors *1116considered the age of the victim in determining whether to pursue the death penalty. Final Report, 14. The only execution to be carried since the 1979 enactment of the capital sentences scheme was for the murder of a nine-year-old girl. Wilson, supra , at 271; see Clark ,
{103} Of the cases involving a child victim which reached a death penalty sentencing hearing, Clark , Ortega , and Stills ,23 Clark is the only case in which a death sentence was ultimately imposed. As we have discussed, Ortega murdered two youthful victims-one fourteen years old, and the other twenty-one-and the death penalty was not imposed. Ortega ,
{104} Other offenders did not receive a death-penalty review at sentencing because-although guilty of conduct resulting in the death of a child-they were not charged with a death-eligible offense. See, e.g. , State v. Jojola ,
{105} We also consider cases involving an elderly victim because some prosecutors reported that the age of the victim was important in deciding whether to pursue the death penalty. Final Report, 14. Robert Henderson, Jr. beat, raped, and strangled an eighty-nine-year-old *1117woman. Henderson ,
{106} Eddie Lee Adams raped and murdered an eighty-year-old Clovis woman and was convicted of kidnapping, criminal sexual penetration, aggravated burglary, robbery, tampering with evidence, and first-degree murder-where findings of the aggravating circumstances of murder of a witness, murder in the commission of a kidnapping, and murder in the commission of a criminal sexual penetration allowed the jury to consider the death penalty.24 Although a death sentence was imposed, it was commuted before Adams had the chance to appeal. Wilson, supra , at 270 n.106; see also Adams , CR-86-0064 (10th Dist. Quay County Dec. 5, 1986) (waiving the right to directly appeal the judgment and sentence of death, anticipating commutation). Because Adams did not appeal, Adams does not qualify for consideration under Garcia , and we do not consider Adams a reliable indicator of facts warranting the imposition of the death penalty. Garcia ,
{107} Of cases involving a child or elderly victim, Clark is the only case in which the defendant was ultimately sentenced to death. The majority of cases involving the murder of a child or elderly victim resulted in a life sentence. Because the death penalty was not generally imposed for cases involving a child or elderly victim, these cases suggest that the age of Allen's victim provides no rational justification for his death sentence and that it is therefore disproportionate.
b. The death penalty has not been generally imposed in cases involving criminal sexual penetration
{108} Because Fry and Allen were both convicted of attempted criminal sexual penetration, cases with that aggravator serve as a useful point of comparison for purposes of comparative proportionality review. New Mexico prosecutors also considered the commission of a criminal sexual penetration to be a relevant factor in deciding whether to seek the death penalty. See Wilson, supra , at 275 (stating that kidnapping, murder of a witness, and criminal sexual penetration "were the most commonly filed and continue to be the most common aggravators in penalty *1118phase cases"). Furthermore, cases involving a criminal sexual penetration were among the most likely to proceed to a death penalty sentencing hearing. Id. Many cases besides Fry and Allen involved the aggravating circumstance of criminal sexual penetration, including Clark , Gilbert , Guzman , Cheadle , Adams , Stills , McGuire , Henderson , Zinn , Hutchinson , Lovett , Harris , and Bryant . We compare these cases to Fry and Allen .
{109} The death penalty was imposed in five cases involving the aggravating circumstance of criminal sexual penetration: Clark , Gilbert , Guzman , Cheadle , and Adams . Except for Clark , each of these death sentences was vacated or commuted. Exec. Orders Nos. 86-37 (Gilbert), 86-39 (Guzman), 86-41 (Adams) (Nov. 26, 1986); Cheadle ,
{110} Governor Anaya also commuted the death sentence of Michael Anthony Guzman. Exec. Order No. 86-39 (Nov. 26, 1986). Guzman was sentenced to death for an attempted double murder where one victim died and one victim was injured but survived. Guzman ,
*1119Id. ¶ 1. The jury sentenced Guzman to death based on the aggravating circumstances of kidnapping, criminal sexual penetration, and murder of a witness. Id. ¶¶ 17 -18.
{111} David Leon Cheadle was sentenced to death for robbing a man and a woman at gunpoint, attempting to rape the woman, and murdering the man. Cheadle ,
{112} In the majority of cases involving similarly disturbing incidents of criminal sexual penetration the defendants were sentenced to life in prison, despite facing the possibility of death. See, e.g. , Stills ,
{113} Life sentences were also imposed in Lovett , Harris , and Bryant . Paul Wayne Lovett did not receive the death sentence for the sexual assault and murder of a young woman. Lovett ,
{114} Miles Harris was sentenced to life in prison for raping a woman and using her bra to strangle her to death. Harris , S-1-SC-23306, dec. ¶¶ 1, 3. She was found dead in her apartment, in a complex where Harris had worked as a painter. Id. ¶ 3. Harris's DNA and sperm were discovered on the victim, and he had a scratch consistent with fingernail marks. Id. ¶¶ 3, 5. Harris was convicted of first-degree willful and deliberate murder, felony murder, criminal sexual penetration, aggravated burglary, larceny, and two counts of child abuse. Id. ¶ 1. Harris had also stolen the victim's car and traded it for cocaine. Id. ¶ 4. The jury found the aggravating circumstance of criminal sexual penetration, but did not unanimously agree on the death penalty. See State v. Harris , D-202-CR-1992-01433, verdict guilty and verdict not guilty (Sept. 21, 1995).
{115} Robert Bryant was sentenced to life imprisonment for strangling a woman as he raped her. Bryant , S-1-SC-26112, dec. ¶¶ 1, 22, 27. The victim's body was discovered padlocked inside of Bryant's camper shell. Id. ¶¶ 3, 19. She was wrapped in blankets and unclothed from the waist down, with the exception of her socks and tennis shoes. Id. ¶ 27. A pendant had been pressed deeply into the victim's neck, which was heavily bruised, and her bra was sliced and pushed out of place. Id. ¶¶ 22, 27. Bryant's pubic hair was discovered on the victim and his sperm was still inside of her and intact, suggesting that she had been killed in intercourse and had not moved since then. Id. ¶ 27. Bryant "was convicted of first-degree murder, kidnapping, criminal sexual penetration, and tampering with evidence." Id. ¶ 1. The jury found the aggravators of kidnapping and criminal sexual penetration, but did not unanimously agree on the death penalty. See State v. Bryant , D-101-CR-1998-00588, miscellaneous entries (Oct. 6, 1999).
{116} While criminal sexual penetration was a commonly alleged aggravating circumstance, see Wilson, supra , at 274, the death penalty was imposed in very few of these cases. Our comparison of these cases has revealed that the death penalty was far from generally imposed in cases involving similarly disturbing incidents of criminal sexual penetration and that these cases provide no rational justification for Petitioners' death sentences. Taken together, the cases suggest that Fry and Allen were singled out for the death penalty and that Petitioners' death sentences are disproportionate.
c. Petitioners' death sentences are disproportionate
{117} Considering cases involving the same aggravating circumstances as well as other factually similar cases, we conclude that Petitioners' death sentences are statutorily disproportionate. As we have discussed, death sentences were not generally imposed in cases involving the same aggravating circumstances as either Fry or Allen . Neither the age of Allen's victim nor Fry's and Allen's attempted criminal sexual penetration provide justification for this sentencing disparity, as death sentences were not generally imposed by juries in cases involving similar facts.
{118} Out of the entire pool of reliable comparison cases for either Fry or Allen , death sentences were imposed in only three cases, Clark , Gilbert , and Guzman .27 Each of these three cases involved more aggravating circumstances than Fry and two involved more aggravating circumstances than Allen . Juries found three aggravating circumstances *1121for Gilbert and Guzman, two aggravating circumstances for Clark and Allen, and a single aggravating circumstance for Fry. Fry ,
{119} Although Section 31-20A-4(C)(4) does not require perfectly symmetrical sentencing, it does require us "to identify and invalidate the aberrant death sentence." Clark ,
V. CONCLUSION
{120} Ten years ago, the people of New Mexico, through their duly elected representatives in the Legislature, repealed the death penalty on a prospective basis. This historic shift in public and legislative response to the greatest punishment for the most heinous crimes compelled Petitioners to ask this Court to declare their death sentences unconstitutional. Consistent with our longstanding prudential obligation to "avoid deciding constitutional questions unless required to do so," Allen v. LeMaster ,
{121} Fulfilling the legislative mandate under Section 31-20A-4(C)(4), we conduct a post-verdict comparative proportionality review of Fry's and Allen's death sentences by comparing their death sentences to the sentences imposed in similar cases. Our previous examination of Fry's and Allen's death sentences under the approach to comparative proportionality review adopted in Garcia consisted more of a traditional proportionality review and did not satisfy the requirement of Section 31-20A-4(C)(4). This prior approach under Garcia has been a subject of criticism, both by a dissenting member of the enacting Court and in a comprehensive study on the issue. Given the historic repeal of the death penalty, we cannot ignore this criticism and therefore strengthen our approach under Garcia to ensure that each death sentence is thoroughly compared with similar cases in which the jury had the option to impose the death penalty.
{122} In this opinion we apply that modified Garcia approach-one which better fulfills our obligation to conduct a comparative proportionality analysis of Petitioners' death sentences. Doing so, we conclude that Petitioners' death sentences do not satisfy the comparative proportionality requirement under Section 31-20A-4(C)(4). In comparing Petitioners' cases to other equally horrendous cases in which defendants were not sentenced to death, we find no meaningful distinction which justifies imposing the death sentence upon Fry and Allen. The absence of such a distinction renders the ultimate penalty *1122of death contrary to the people's mandate that the sentence be proportionate to the penalties imposed in similar cases. We therefore hold the imposition of the death sentence upon Fry and Allen to be disproportionate under Section 31-20A-4(C)(4), hereby vacate their death sentences, and remand for sentences of life imprisonment.
{123} IT IS SO ORDERED.
WE CONCUR:
EDWARD L. CHÁVEZ, Justice, Retired, Specially Concurring, Sitting by designation
CHARLES W. DANIELS, Justice, Retired, Specially Concurring, Sitting by designation
JUDITH K. NAKAMURA, Chief Justice, Dissenting
PETRA JIMENEZ MAES, Justice, Retired, Concurring in Dissent, Sitting by designation
CHÁVEZ, Justice (specially concurring).
{124} The death penalty is the government's authority to plan and carry out the killing of a human being who is found guilty of committing a specified crime or crimes. The plan begins with legislation identifying which crimes warrant the death penalty, the procedure for finding the person guilty, the procedure for deciding whether the person should be sentenced to death, and, if sentenced to death, the method by which the person will be killed. There are limits on the government's authority.
{125} The government must plan and carry out the killing consistent with both the United States and New Mexico Constitutions. The United States Constitution dictates the minimum constitutional protections available to the person the government is planning to kill. The New Mexico Constitution can require greater protection for that person, but cannot require less protection. Legislation may also require greater protections for the person subject to the death penalty beyond what is required by either constitution.
{126} This case is not about constitutional protections. This case is about an additional protection required by the New Mexico Legislature. The protection is the requirement that the New Mexico Supreme Court automatically review a death sentence for, among other things, whether "the sentence of death is excessive or disproportionate to the penalty imposed in similar cases , considering both the crime and the defendant ."28 The Legislature did not define what it meant by "similar cases" or detail how it intended this Court to fulfill its responsibilities. To determine whether the sentence of death is excessive or disproportionate to the penalty imposed in "similar cases" we must consider the jury verdict in the cases we are comparing. Our review of the jury verdicts is not for the purpose of questioning the integrity of the jury or whether they were serious about their responsibilities. I am confident the juries in each of the cases we must review and compare took their responsibilities with the gravity and seriousness the task required, even though some juries voted to sentence the defendant to death and other juries did not impose the death penalty. The Legislature insisted that this Court consider the penalty imposed by multiple juries because it expected the Court to reverse a death penalty if the Court's review reveals that multiple juries in similar cases did not impose the death penalty and there is no justification for the disparity. Similarly, if the Court's review revealed that the death penalty has been imposed in similar cases, the Legislature would expect this Court to affirm the death penalty.
{127} By necessity we must look at the facts in the case we are reviewing and in the case or cases we are comparing. Otherwise, we would not be able to determine whether the comparison cases are "similar cases," nor would we be able to compare the defendant and the crime in the comparison cases to the defendant and the crime in the case under review.
*1123{128} It seems obvious that a "similar case" would include cases where the victim was murdered. However, a death sentence can only be imposed if the judge or jury finds that the defendant murdered the victim under at least one of the following aggravating circumstances: 1) the victim was a peace officer acting in the lawful discharge of an official duty when murdered; 2) the murder was committed with the intent to kill in the commission or attempt to commit a) kidnapping, b) criminal sexual contact of a minor, or c) criminal sexual penetration; 3) the murder was committed by a defendant attempting to escape a penal institution; 4) the defendant, while incarcerated, murdered a person who was incarcerated or who was lawfully on the premises of the penal institution; 5) the defendant, while incarcerated, murdered an employee of the penal institution; 6) the defendant was hired to murder the victim; or 7) the defendant murdered a witness to prevent the witness from testifying or in retaliation for that testimony.29 Murders occur under circumstances that would not fit within any of these seven categories. It would not be appropriate for us to consider all murder cases in our comparisons because the defendants in those cases, for policy reasons, did not risk a death sentence. Logically, we could consider other cases where the facts indicate that the defendant committed a murder that could fit within any of these seven categories but the prosecutor chose not to pursue the death penalty. Justice Vigil rejects such a broad review.
{129} Instead Justice Vigil narrows the focus by limiting our review to cases in which the jury had to decide whether to impose a death sentence in a case involving the same aggravating circumstance and in which the facts are similar to the case we are reviewing. This review eliminates the countless cases with similar facts where the prosecutor could have asked a jury to consider the death penalty under the same aggravating circumstance, but instead chose to pursue life in prison as the maximum sentence. For example, when a defendant is alleged to have killed a person during the course of attempting to or actually kidnapping or raping the victim, the prosecutor could choose to prosecute the defendant for first-degree murder but not seek the death penalty, in which case the maximum possible sentence for the murder would be life in prison. Excluding these cases from our review of "the penalty imposed in similar cases , considering both the crime and the defendant "30 could be criticized because excluding these cases arguably skews the analysis in favor of the death penalty. I agree with Justice Vigil's approach because it is tailored to consider the specific aggravating circumstance at issue in the cases yet permits this Court to look at the totality of the circumstances in the cases to determine whether there is a justification for the death penalty in one case and not another. If in the future the Legislature reimposes the death penalty it may broaden the scope of our comparative proportionality review or eliminate the requirement of a comparative review altogether. A traditional proportionality review required by the United States Constitution, which is very different from the proportionality review required by the Legislature, will still be required.
{130} I also understand that the review we undertake expands, although slightly, the analysis previously employed by this Court when performing a comparative proportionality review. I agree with the need to expand the review, particularly because Governor Richardson, when signing the repeal of the death penalty, squarely called into question whether the criminal justice system in New Mexico can be trusted to properly carry out the death penalty. Governor Richardson stated he signed the legislation because he lacked "confidence in the criminal justice system as it currently operates to be the final arbiter when it comes to who lives and who dies for their crime." See Press Release, Governor Bill Richardson Signs Repeal of the Death Penalty (Mar. 18, 2009), available at http://www.deathpenaltyinfo.org/documents/richardsonstatement.pdf. Governor Richardson also noted that in New Mexico four individuals who were sentenced to *1124death later had the charges against them dismissed. Id .
{131} The criminal justice system includes law enforcement, prosecutors, public and private defenders of an accused, penal institutions, trial courts, and appellate courts. This Court has the responsibility to assure that criminal justice stakeholders adhere strictly to 1) the United States and New Mexico Constitutions; 2) obligations imposed on the system by the Legislature; and 3) procedures required by this Court under its power of superintending control. As it specifically relates to the death penalty, this Court is the only court that has the authority and responsibility to determine whether the sentence of death is "excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." Section 31-20A-4(C)(4). I am persuaded that our prior approach has been too narrow and, therefore, agree with the detailed approach taken by Justice Vigil and the result she reaches.
{132} The result in this case means that both Allen and Fry will have their death sentences reduced to life in prison. Under the law, they will be entitled to a parole hearing after thirty years.31 Being entitled to a parole hearing does not mean that they will be released from prison. The parole board must consider the circumstances of the crime, mitigating and aggravating circumstances, and other information when deciding whether parole is in the best interests of society, Fry, and Allen, and whether they are able and willing to be law-abiding citizens. If the parole board rejects parole, Fry and Allen are only entitled to another parole hearing every two years until they are paroled. NMSA 1978, § 31-21-10(A) (1994) ; NMSA 1978, § 31-21-10(A) (1997). Once paroled from their life-in-prison sentences, Allen and Fry will immediately begin serving additional prison sentences that were ordered to run consecutive to their death sentences. NMSA 1978, § 31-21-11 (1982).
{133} Allen was thirty-four years old at the time of his trial in 1995. Allen ,
{134} Fry, who was born August 18, 1973, faces a minimum sentence of one-hundred-twenty years just for his life sentences, which run consecutively to the first sentence imposed on Fry.33 Fry will never be eligible for release from prison.
{135} For all of the foregoing reasons, I concur with the analysis and result reached by Justice Vigil.
DANIELS, Justice (specially concurring).
{136} The opinion of the Court undertakes a cautious exercise of our exclusive statutory responsibility under the Capital Felony Sentencing Act to ensure that a defendant is not *1125put to death if that sanction "is ... disproportionate to the penalty imposed in similar cases," Section 31-20A-4(C)(4) (1979, repealed 2009). In doing so, it avoids at least some of the clear inequities that resulted from the narrow strictures of the majority opinion in Garcia ,
{137} Because we resolve this case on statutory grounds, there is no need for us to reach further and decide in a precedential opinion whether the inconsistent administration of our death sentence statutes also violates state constitutional guarantees, as the Connecticut and Washington Supreme Courts recently have ruled. State v. Santiago ,
{138} As judges, of course, we should not substitute our own personal political, philosophical, or moral views about the death penalty for lawful statutory or constitutional mandates. Members of our society and polity have expressed a number of sharply differing views on the death penalty, ranging from a view that evolving standards of civilization and decency have rejected killing at the hands of the state to a view that exacting an eye for an eye and a tooth for a tooth is an appropriate justification for the state's extermination of murderers. As judges we should not presume to make those choices-either way-for the citizens of our self-governing democracy. Our focused responsibility is to make sure the law is applied according to statutory and constitutional requirements, including those that incorporate the ultimate precept of equal justice summarized in the inscription behind our bench, "Dedicated to the Administration of Equal Justice Under Law," and the similar expression, "Equal Justice Under Law," that is chiseled into the marble above the doors of the United States Supreme Court. We are also bound by the specific statutory task the New Mexico Legislature has assigned to us with regard to the imposition of the death penalty in this state, to ensure that our justice system does not arbitrarily put to death a few defendants and not the majority of equally eligible others, under either a statutory or constitutional analysis.
{139} Theory often fails to foresee reality. Any expectations of a fairly administered death penalty scheme the drafters of the Act may have entertained forty years ago proved in practice to be wrong. And whatever future the Garcia majority may have anticipated in creating a method for trying to comply with our then-new proportionality oversight responsibility, decades of real-life experience have now demonstrated that its technical limitations focused so narrowly on individual categorical exclusions from the proportionality analysis that it failed to anticipate the complete picture of the inconsistent administration of the death penalty that emerged so clearly over the subsequent years for defendants who committed their crimes between 1979 and 2009, when the Act was in effect.
{140} Our justice system, our citizens, and our public officials in all three branches of New Mexico government for decades often talked the talk of having an equitable and constitutional capital punishment policy but collectively never found themselves willing to walk the walk. Despite the commission of hundreds of brutal, cold-blooded, and deliberate first-degree murders of adult and child victims, our state has executed a total of one of those murderers over the course of decades, a unique defendant who waived both his trial and then his habeas corpus review before this Court, submitting voluntarily to becoming the only person executed by the New Mexico justice system in well over half *1126a century. See Jolene Gutierrez Krueger, Recalling the Last Execution in New Mexico , Albuquerque Journal, August 24, 2016, available at https://www.abqjournal.com/832100/remembering-the-last-killer-put-to-death-in-new-mexico.html (last visited December 20, 2018).
{141} Other than the uniquely anomalous case of Mr. Clark, even those very few defendants whose cases were deemed on direct appeal to be theoretically appropriate under the narrow Garcia limitations to be used as comparisons for proportionality, including Mr. Garcia himself, were all ultimately spared by our state from execution of the death penalty. And despite the "grandfather" clause in the death penalty repeal retaining, at least on paper, the 1979 provisions for execution of murderers who committed their crimes before the 2009 repeal, the reality is that in almost a decade since the repeal the number of first-degree murderers who have been either sentenced to death or executed has been exactly zero, including the defendant for whom the grandfather clause was primarily created. See Dave Maass, Lethal Invective: Accused Cop Killer Michael Astorga Talks Death Penalty Politics , Santa Fe Reporter, March 17, 2009, available at https://www.sfreporter.com/news/2009/03/17/lethal-invective/ (last visited December 20, 2018). Despite having been convicted of the cold-blooded and deliberate execution of a young officer making a routine traffic stop and despite being eligible for the death penalty under the 2009 prospective repeal of the 1979 Act, Michael Astorga was sentenced to life in prison because the sentencing jury did not impose the death penalty. Astorga ,
{142} The disproportionality of New Mexico's administration of the death penalty may be explained in part, but not excused, by the fact that various actors exercising authority of our entire state justice system, and not just individual jurors, have participated in creating the inconsistent application of the death penalty. There are sound policy reasons why each of those actors should have nonreversible discretion to extend mercy, whether in jury verdicts that spare a defendant from either a conviction or death sentence, or decisions of prosecutors to bargain death off the table or not to seek it at all, or the historic and constitutional authority of governors to commute death sentences that have been returned by juries and upheld by courts on appeal. But when the collective result of all the actions taken under authority of our state justice system is that one or even three cold-blooded murderers out of hundreds are executed by the state while the equally culpable majority are spared, our state cannot honestly claim it has imposed the death penalty in a proportionate manner.
{143} A killer's crimes reflect who he is. What we do to the killer reflects who we are. Can we really look anyone in the eye and say that executing these two defendants would be proportionate when compared to non-deadly punishment our state has overwhelmingly meted out in virtually all equally serious first-degree murder cases, and specifically in similar cases, since enactment of the Capital Felony Sentencing Act in 1979? I, for one, cannot honestly do so. I CONCUR in the judgment of the Court.
Related
Cite This Page — Counsel Stack
447 P.3d 1086, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fry-v-lopez-nm-2019.