New Mexico repealed the death penalty during the 2009 Legislative session, but since the lawmaking body is prohibited from enacting retroactive laws the two men currently on death row are still eligible for execution. Gov. Bill Richardson has said he would not commute the sentences of the remaining two individuals and last week the New Mexico Supreme Court declined to rule on whether it should finish what the Legislature began. In this week's Santa Fe Reporter I write about how the death penalty debate could effect the 2010 governor's race, since this decision may be up to Richardson's successors.
For historical context, here's my interview with Gov. Toney Anaya, who made human rights history in 1986 by commuting the death sentences of five men, essentially clearing death row. Anaya talks about the death penalty in election politics, the Terry Clark execution and how a governor manages such a heavy decision. Currently, Anaya currently heads up the New Mexico Office of Recovery and Reinvestment.
DM: Could you give me some historical perspective on the death penalty debate?
TA: It kind of reminds me of the old saying, the more things change the more they remain the same. It was in the gubernatorial elections of 1982 that the death penalty was a hot issue. There were four democrats, four republicans in the primary and I was the only one who was opposed to the deaht penalty.
It doesn't look like it hurt you any.
Well, I got the nomination and I subsequently won the election. During the general election campaign, it was an issue, but not just in the governor's race, it was an issue in a lot of races: legislative races, judicial races and so on. But I stood fast on my position.
What was your position?
Well, I was opposed to the death penalty and I made it very clear that I would not allow the execution of anybody while I was governor.
Could you tell me briefly why? Was it a religious thing?
I laid out the reasons pretty specifically, but there were a large number of them. Part of it was religious. I was brought up as a very strong Catholic, but it wasn't strictly just a religious issue. I was careful not to turn it into a religious issue during the campaign because I thought there were many other reasons to debate the issue. I think it's very costly. To be effective, in my opinion, a penalty has to be swift and certain. The death penalty is neither swift nor certain. At the time, we didn't know about DNA, but I long suspected that there were a lot innocent folks that were convicted of death penalty offenses, simply because they were either poor or a minority.
Do you think you swayed any people during the campaign?
I don't know. I wasn't trying to. I was open about my position and people either voted for me because of that or in spite of that. The polls in those days were very, very strongly in favor of the death penalty, so if anything it was going to hurt me,. Obviously it didn't hurt me enough too keep me from being elected. What To fast forward and then come back and fill in the details, what I found after I commuted the death sentences was that long after I left office, people who disagreed with the action told me that even though they disagreed with what I had done, they very much appreciated that I stood strong by my beliefs. Even my critics said they didn't find much honesty in government and they appreciated that I stood fast.
Take me through when your decision to commute the sentences.
While I was governor, a number of defense attorneys stopped appealing the death sentence because they knew I had pledged not to let their clients be executed, so they were preserving the death sentence appeals for after I left office. As a result, a couple of times they did not pursue the appeals. I criticized the defense attorneys for that.
So, they thought, 'We're just going to stop them right now because if it gets to that point...;
'Why waste our appeals now? Let's wait. Anaya's not going to let them die. We'll wait until he leaves office and then we'll start the appeal the process. We'll buy our clients more time.' I thought that was a very intellectually dishonest approach. If they honestly thought they had a good basis for appeal, other than just simply buying time, they should hae pursued it. The main point I wanted to make was not so much that, but that on a couple occasions I had to actually stay the executions of a couple of inmates because their appeals were not being pursued and they were subject to execution.
At what point did you decide you were goin to do the full commutations?
During the campaigns of 1986 for my successor, both the Republican and the Democratic nominees, as well as in the attorney general's race, the death penalty issue seemed to be the principle issue. In the summer of 1986, I seriously considered commuting the death sentences then just to take the issue out of the election and challenging the candidates to get back to important issues like the economy, educations and health care. I chose not to because it would have spilled over into a lot of other races. A number of judges I had appointed to vacancies and a number of legislators would have been caught up in the backlash and probably would've gotten defeated at the polls, so I chose not to.
So, you waited until after the election?
I waited to see who was going to get elected governor and even though both of them were supporters of the death penalty. The Democratic nominee, Ray Powell Sr was a little softer on the issue and I thought, if he got elected then maybe I could persuade him otherwise. After the election, I did meet with Gov-elect Garrey Carruthers. He denies having made this statement to me, but I very clearly remember him telling me, regarding the inmates on death row, that I better leave them alone, they belong to him. That just literally sent chills up my spine. He also indicated that the first piece of paper he wanted to sign upon being sworn in was a death warrant. The latter didn't disturb me much because that showed a lack of knowledge about the process because it doesn't work that fast. Chances are he would not have had the opportunity to in fact execute anybody, but I didn't want to take that chance. Even though I didn't share it with anybody at the time, even my staff or closest advisor, I had no doubt when I left that meeting what was I going to do. Then I chose Thanksgiving time as a symbolic time to do it and commute everybody on death row.
Do you still stand by that decision?
Absolutely. I feel even stronger about it now. I think a couple of things have happened with the passage of time. One, public opinion has shifted. When given an option of life imprisonment, which I'm not sure is the right solution either, and the death penalty, the majority of New Mexicans will support life imprisonment. That was not the case back in 1986. Secondly, with the advancement of DNA, there's been dozens of individuals all over the country that there were on death row that have proven to have been innocent.
How did you deal with the victims' families? I'm sure you probably got some backlash from the victims advocates groups.
Well, I got backlash from everybody. Even those who opposed the death penalty, like the religious groups--I was very crtiical then and I remain critical today of their reaction at the time. There were a coalition of religious groups that came to see me, encouraging me to do what I did and after I did it and all of the backlash--it was ugly--not a single voice stood up to defend what I did. I felt very isolated, but still felt comfortable in knowing that I had done the right thing. But yes, there was a lot of reaction.
Did you face it head on?
There's nothing you can do. There was nothing that I could have said or done that would have made any of the victims families feel any better. I felt for them, I really, really did, but the death penalty wasn't going to help them either.
Since then, there's already been one individual executed and there are two more on the row right now. Would you like to see the next governor to make the same move?
If it comes down to that. There's still appeals. On Astorga, there's still a trial. There's not a guilty verdict yet, must less a death penalty sentence. So, that one will still wind its way through. It could well be into a subsequent governor's term. It could be another five ten years before a governor has to deal with that.
But five to ten years--a two-term governor may have to deal with the two on death row right now.
It's a decision that every governor has to personally deal with--their own conscience, with their own standard of justice, with whatever it is that goes through their mind. I'm not going to be individually critical of any governor. I have throughout the years, not just in New Mexico but around the country, been asked to communicate with govenors who had individuals that were on the verge of being put to death. I've communicated with some in writing, others by telephone call. In New Mexico, I spoke to Gov. Johnson, before Terry Clark was executed.
Tell me about Terry Clark.
He had been charged and not yet convicted at the time that I had commuted the other death sentences.Hhis attorneys chose to plead him guilty to a death penalty offense at the end of my term. I cautioned them against doing that. They assumed that I would then commute his sentence. What happened after that proves that one of my criticisms of the death penalty was very much correct: The death penalty is very political. The sentencing judge at the time, who has since passed away,refused to sentence him until after I left office because he felt that if he was sentenced there was a possibility I would commute his sentence. The judge felt that he wasn't sentenced there wasn't anything I could do about. I actually had independent legal research perfomed and had concluded that there was a possibility that a governor infact had the authority to commute prior to sentencing. I just felt that given the enviroment at the time I would have probably just set off such a firestorm in the state that the state just simply could not have healed itself and gone on to take care of the rest of the business. So, I didn't do it. When he was executed, that weighed very heavily on my mind. Could I have prevented it and should I have done it?
How did you feel when you heard the Legislature had finally passed the death penalty repeal.
Ecstatic. That's the way these things go. Some legilsation is very incremental. It take years, sometimes decades, and for this kind of issue it takes decades, so I felt even more vindicated that the actions I took helped pave the way. It helped soften the approach.
It is fair to imagine if one of these two guys does come up for execution, 4 years, 8 years, 12 years from now, that the sitting governor will get a call from you?
I'm sure he'll get a visit.
Cross-posted at SFReeper.com