- Associated Press - Monday, October 27, 2014

SANTA FE, N.M. (AP) - New Mexico’s only inmates facing possible execution asked the state’s highest court on Monday to declare their death sentences unconstitutional because capital punishment was abolished after their convictions.

The five justices didn’t make an immediate ruling after hearing arguments from lawyers and it could be months before a decision is issued.

A similar legal challenge is pending in Connecticut involving death-row inmates sentenced before that state abolished capital punishment in 2012.

New Mexico repealed the death penalty in 2009 for future murders, but left it in place for Timothy Allen and Robert Fry, who were sentenced to die years before the Legislature and then-Gov. Bill Richardson agreed to end capital punishment.

Lawyers for the inmates contend that the death sentences violate constitutional provisions against cruel and unusual punishment and equal-protection guarantees in light of the repeal, which applied to murders that happened on or after July 1, 2009. They’re asking for sentences of life in prison.

“What can be more arbitrary and capricious than to decide whether someone should live or die based on a date,” said Fry’s lawyer, Kathleen McGarry.

But Assistant Attorney General M. Victoria Wilson told the court that the inmates’ death sentences should remain in place because the state has a constitutional provision that calls for punishing criminals according to the law in place at the time of their crimes.

Richardson didn’t commute the death sentences of Fry and Allen when he signed the repeal legislation. Governors of Illinois and New Jersey did that, however, for death-row inmates after their states ended capital punishment.

No execution has been scheduled for either Fry or Allen. Their death sentence challenge grew out of pending habeas corpus post-conviction appeals in state district court.

Fry was the last person sentenced to death in New Mexico, and was convicted of killing Betty Lee in 2000. The mother of five was stabbed and bludgeoned with a sledgehammer in a remote area of San Juan County. Fry also has been sentenced to life in prison for three other murders in 1996 and 1998.

Allen was sentenced to die for strangling 17-year-old Sandra Phillips in northwestern New Mexico in 1994. He also was convicted of kidnapping and attempted rape.

Darlene Phillips of Farmington, the teenager’s mother, watched the court hearing and said afterward that justice wouldn’t be served if the court spared Allen from the death penalty.

She said she was “sick and tired” of appeals that delay Allen’s execution.

“Timothy Allen has been on death row longer than my daughter got to live her life,” Phillips said.

New Mexico’s last execution was in 2001. Child-killer Terry Clark’s execution was the first in the state in 41 years.

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