Defense attorney says it's too early to reinstate the death penalty

A prominent defense attorney, who has represented several murder clients facing the death penalty, including convicted sheriff killer Michael Paul Astorga, doesn’t want to see a repeal of New Mexico’s 2009 death penalty repeal.

Gary Mitchell told me this afternoon it’s too early to consider reversing course.

“We haven’t given it time to work,” Mitchell said. “We have a new governor, who never sought the death penalty when she was as a prosecutor, and now she wants to repeal the repeal. I don’t agree with that.”

But Roswell Republican Rep. Dennis Kintigh, isn't persuaded and today he proposed a ballot initiative measure which will put the issue in the public's hands.

Just last week, Gov. Susana Martinez called on the legislature to reinstate the death penalty, stating that “some crimes deserve the ultimate punishment."

Mitchell claims Martinez’ request is politically motivated and that she's “obligated to certain conservative right-wing groups who helped her get elected.”

Martinez made restoring the death penalty a prominent campaign issue last year, and on Tuesday she reiterated her pledge when she told legislators she believed juries should have the option to impose death.

“When a monster rapes and murders a child or a criminal kills a police officer, the death penalty should be an option for the jury,” Martinez said.

Rep. Dennis Kintigh
Before introducing today's legislation, Rep. Dennis Kintigh, R-Roswell told KOB TV he favors letting voters decide the issue and plans to sponsor a constitutional amendment.

"There's a lot of good people on both sides of the issue," Kintigh told the television station. "It's a fundamental issue of how we deal with this in society and I believe the best way to deal with these kinds of issues is to let the voters decide, give it to the voters."

Larry Larranaga

But other lawmakers don’t believe this is the year to consider the issue.

"We have very pressing issues during this legislative session," Rep. Larry Larranaga, R-Albuquerque said. "There's the budget, education reform, we've got job creation, we have the economy to look at."

The state only has two men currently on death row, and only executed one man since 1960. In 2001 Terry Clark received a legal injection after being convicted of raping and murdering a child.

When lawmakers dropped the death penalty two years ago they decided to replace it with life in prison without the possibility of parole, but allowed some then death qualified cases like Astoraga’s to continue. He was convicted last year, but the death sentence hearing has delayed while the state’s supreme court reviews petitions by Mitchell.

States Face Shortage of Key Lethal Injection Drug

While it may not become an issue in New Mexico, some states are running out of sodium thiopental, which is used to put prisoners to sleep before other drugs stop breathing and shut down the heart.

That’s because the drug’s manufacturer, Hospira Inc., decided to stop making the drug at its plant in Italy after that country decide to prohibit its export to countries who use it for capitol punishment.

Mitchell said case law would allow the state to change it’s form of executions without additional hearings, but the constitutionality of executions is still the priority.

He said some of the drugs currently used in lethal injections have caused inmates to suffer from painful deaths.

“It’s the main reason executions are not public nor video taped,” Mitchell said. “The gruesome nature of executions offend our human decency.”

Sodium Thiopental is used by 34 of the 35 states that use lethal injection to carry out the death penalty. The scarcity of sodium thiopental has led to execution delays in in at least two states, California and Oklahoma.

Michelle Lyons, a spokesperson for the Texas Department of Criminal Justice told the New York Times they have enough for two scheduled executions in Texas. Texas' supply is expected to expire in March.

“There currently are four executions scheduled in Texas — two in February, one in May and one in July,” said Michelle Lyons, director of public information at the Texas Department of Criminal Justice. At this time, we have enough sodium thiopental on hand to carry out the two executions scheduled in February.”

Last week's story in the NY Times reported an average of 55 executions have taken place annually over the last 10 years, with 46 last year and 52 in 2009, virtually all of them by lethal injection.