Republican lawmakers took another step Monday night towards reinstating the death penalty in New Mexico.
Members of the House Finance and Appropriations Committee voted 8-6 along party lines to send the capital punishment legislation to a vote of the full 70-member House of Representatives.
House Bill 7 would allow the death penalty in cases involving the murder of a child, a police officer or a corrections officer. The bill largely mirrors a capital punishment statute legislators repealed in 2009.
As lawmakers wrangled with the bill and its potential costs on Monday, some committee members questioned the legislation’s clarity and whether it could withstand court challenges.
“It doesn’t feel like it was well thought out to me,” said Rep. Doreen Gallegos, D-Las Cruces.
The cosponsor, Rep. Monica Youngblood, R-Albuquerque, offered a dozen changes Monday night in response to criticism that the bill contained outdated language and other provisions that might be unconstitutional.
For example, the amendment replaced the term “mentally retarded,” with “intellectual disability.” But advocates for people with disabilities said Monday the legislation still might not stand up in court.
Youngblood’s bill originally said inmates would be considered “retarded” if they have an IQ below 70. But in 2014, the U.S. Supreme Court prohibited using a specific IQ number to determine whether an inmate can be executed and required an individualized evaluation instead.
“The courts have made clear you have to dig a bit deeper,” said Jim Jackson, chief executive officer of Disability Rights New Mexico.
His organization does not have a position on the death penalty but has raised concerns about how the proposed bill would be applied to people with disabilities. The group has argued, for example, that the bill does not have an adequate process to determine whether an inmate has a mental illness that might prohibit execution.
Youngblood’s amendment also allowed the state to change the drugs it uses in executions. Rather than specifying the state would use an “ultra-short-acting barbiturate in combination with a chemical paralytic agent,” the amendment would only require a “substance” in “a quantity sufficient to cause death.”
The change would allow the state to carry out an execution if the previously used drugs are no longer available. New Mexico Corrections Department procedures for execution include sodium pentothal, pancuronium bromide and potassium chloride — widely used among states with the death penalty. But some of those states have had difficulty obtaining those drugs in recent years as opponents of the death penalty have pressured manufacturers to stop selling them for use in executions.
Youngblood also proposed changing the bill to keep the identities of executioners confidential.
And in another change, Youngblood eliminated part of the process for determining whether a woman sentenced to death is pregnant. The bill Youngblood initially proposed with Rep. Andy Nuñez, R-Hatch, called for doctors accompanied by a judge to examine the woman in a court.
“It’s like we woke up in the 1950s,” said Steven Allen, director of public policy for the American Civil Liberties Union of New Mexico.
Allen and many Democrats in the state House have argued the Legislature should not try to craft and pass death penalty legislation during a short special session but at least wait to take up the issue during the regular 60-day session starting in January.
“We are discussing a bill of life or death,” Rep. Jeff Steinborn, D-Las Cruces, said during Monday’s committee hearing. “This warrants extreme, intelligent, thorough deliberation.”
But Youngblood and others supporting the bill have argued that much of the measure’s language was tried and tested before the death penalty was repealed in 2009.
“This is a statute that worked in New Mexico previously,” said Dianna Luce, district attorney of Lea, Chaves and Eddy counties. Luce said designing a totally new law would create “unknowns” in future appeals.
Typically concerned with the costs of legislation, the House Appropriations and Finance Committee spent much of its hearing grappling with differing calculations of the cost of reinstating capital punishment for a limited number of cases.
Attorneys from the Law Office of the Public Defender said death penalty cases would strain defense lawyers and prosecutors alike while sapping even more resources from the state’s courts. But prosecutors argued murder cases are already labor and resource intensive, suggesting the additional costs of death penalty cases would be insubstantial.
Legislative staffers wrote in a financial analysis that the bill would cost at least $2 million a year within the next three years. But Youngblood said the analysis inflated the costs based on a miscalculation of the number of cases in which the bill might apply. New Mexico used the death penalty sparingly when it was last in place, executing one man between 1977 and 2009.
The death penalty is one of three crime bills Republican Gov. Susana Martinez added to the agenda of a special legislative session initially intended to address the state’s budget deficit.
It could pass the Republican-controlled House on a party-line vote, but positions on the death penalty have not always been predictable. Three sitting House Republicans voted to repeal the death penalty seven years ago.
Unclear, too, is whether the state Senate will even consider the bill.
The Senate, where Democrats are the majority, adjourned Friday after passing several budget bills on the special session’s first day, effectively snubbing the governor’s tough-on-crime agenda.
Senators may have to return to Santa Fe later this week, however, to at least vote on changes to budget bills made by the House.