The Application of the Death Penalty in New Mexico, July 1979 through December 2007: An Empirical Analysis
![handle is hein.journals/nmlr38 and id is 263 raw text is: THE APPLICATION OF THE DEATH PENALTY IN NEW
MEXICO, JULY 1979 THROUGH DECEMBER 2007:
AN EMPIRICAL ANALYSIS
MARCIA J. WILSON*
I. INTRODUCTION
A. The Modem Era of Capital Punishment
In the 1970s, the law concerning capital punishment changed dramatically. The
revolution began with Furman v. Georgia,' which, in essence, held that capital
punishment laws violated the Eighth and Fourteenth Amendments to the United
States Constitution if they gave juries and judges unlimited discretion to decide who
would live and who would die. There was no majority opinion in Furman; instead,
each of the five Justices who concurred in the judgment filed an opinion stating his
reasons for his vote. One of the themes developed by the five Justices was the
arbitrariness of the death sentences imposed. As Justice White put it:
[T]he 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.2
Justice Stewart expressed it more vividly: These death sentences are cruel and
unusual in the same way that being struck by lightning is cruel and unusual.3
Justice Douglas expressed his concern that '[t]he death sentence is dispro-
portionately imposed and carried out on the poor, the Negro, and the members of
unpopular groups.4 Justice Marshall pointed out that Negroes were executed far
more often than whites in proportion to their percentage of the population and that
this was due at least in part to racial discrimination.5
New Mexico responded to Furman by making death the mandatory sentence for
first-degree murder,6 apparently on the theory that if there was no discretion, there
was no problem. Three days after the New Mexico Supreme Court held that this
satisfied the dictates of Furman,7 the United States Supreme Court handed down
* J.D. Boalt Hall, University of California at Berkeley, 1973; B.A. Lawrence University, Appleton,
Wisconsin, 1969; admitted to the New Mexico Bar 1973; member, State Bar Task Force on the Administration of
the Death Penalty, 2001--04; granted inactive status 2004. Ms. Wilson practiced civil law for fourteen years before
going to work for the New Mexico Court of Appeals as a staff attorney in 1987, where she stayed until her
retirement in 2003. The author is deeply grateful to Eda Gordon, Kathleen MacRae, and Jeff Buckels for their long-
term interest in and support of this project. She would also like to thank Susan Gibbs, Dick Winterbottom, and
Spencer Wilson for their comments and insights on a previous draft.
1. 408 U.S. 238 (1972) (per curiam).
2. Id. at 313 (White, J., concurring).
3. Id. at 309 (Stewart, J., concurring).
4. Id. at 249-50 (Douglas, J., concurring) (quoting from THE PRESIDENT'S COMMISSION ON LAw
ENFORCEMENT AND ADMINISTRATION, THE CHALLENGE OF CRIME IN A FREE SOcIETY 143 (1967)). Douglas also
pointed out that all three petitioners in the consolidated cases before the Court were black. Id. at 252-53.
5. Id. at 364 (Marshall, J., concurring).
6. Act ofMarch 20, 1973, ch. 109, § 2,1973 N.M. Laws 342 (codified as NMSA 1953, § 40A-29-2 (Supp.
1975)).
7. State ex rel. Sema v. Hodges, 89 N.M. 351, 552 P.2d 787 (1976), (filed June 29, 1976), overruled by
State v. Rondeau, 89 N.M. 408, 553 P.2d 688 (1976).](ViewImageLocal?handle=hein.journals/nmlr38&div=16&collection=&method=preview&ext=.png&size=3)
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The Application of the Death Penalty in New Mexico, July 1979 through December 2007: An Empirical Analysis
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