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Fry v. Lopez

Supreme Court of New Mexico

June 28, 2019

ROBERT FRY, Petitioner-Appellant,
v.
JAMES LOPEZ, Warden, PENITENTIARY OF NEW MEXICO, Respondent-Appellee, and TIMOTHY C. ALLEN, Petitioner-Appellant,
v.
TIM LEMASTER, Warden, Respondent-Appellee.

          INTERLOCUTORY APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY Karen L. Townsend, District Judge

          McGarry Law Office Kathleen McGarry Glorieta, NM Jacquelyn Robins Albuquerque, NM for Appellant Robert Fry

          Melissa Hill Corrales, NM Ray Twohig Albuquerque, NM for Appellant Timothy C. Allen

          Hector H. Balderas, Attorney General M. Victoria Wilson, Assistant Attorney General Santa Fe, NM for Appellees James Lopez and Tim LeMaster

          UNM School of Law George L. Bach, Jr. Albuquerque, NM for Amicus Curiae Professors at University of New Mexico School of Law

          The Law Office of Jamison Barkley, LLC Jamison Barkley Santa Fe, NM The Law Office of John Day, LLC

          John W. Day Santa Fe, NM UNM School of Law Barbara E. Bergman Albuquerque, NM Jones, Snead, Wertheim & Clifford, P.A. Jerry Todd Wertheim Santa Fe, NM for Amicus Curiae New Mexico Criminal Defense Lawyers Association

          OPINION

          BARBARA J. VIGIL, JUSTICE

         INTRODUCTION

         {1} In this case we revisit our statutory responsibility to ensure that the death penalty is reserved for the most heinous crimes. Since 1979, the New Mexico Legislature has directed this Court to ensure that "the death penalty shall not be imposed if . . . the sentence of death is excessive or disproportionate to the penalty imposed in similar cases." NMSA 1978, § 31-20A-4(C)(4) (1979, repealed 2009).

         {2} In 2009, the Legislature abolished the death penalty as a sentencing option for murders committed after July 1, 2009.[1] Today, Petitioners Robert Fry and Timothy Allen, who committed their crimes before 2009, are the last inmates who remain on death row in New Mexico. Fry and Allen filed Petitions for Writs of Habeas Corpus seeking to dismiss their death sentences in light of the prospective-only application of the repeal.

         {¶3} In this consolidated appeal of the district court's denial of Petitioners' motions to dismiss their death sentences, we hold that Petitioners' death sentences are disproportionate and violate Section 31-20A-4(C)(4). Guided by our recognition that our Legislature intended for comparative proportionality review to protect against the arbitrary imposition of the death penalty, we conclude that there is no meaningful basis for distinguishing Fry and Allen from the many similar cases in which the death penalty was not imposed. Because Petitioners' death sentences are statutorily disproportionate to the penalties imposed in similar cases, we remand each case to the district court to impose a sentence of life imprisonment.

         II. BACKGROUND AND PROCEDURAL HISTORY

         {4} Prior to the 2009 statutory repeal of the death penalty, Petitioners Fry and Allen were sentenced to death. Allen was convicted of first-degree murder for the 1994 killing of a seventeen-year-old girl. State v. Allen, 2000-NMSC-002, ¶¶ 2, 15, 128 N.M. 482, 994 P.2d 728. Her body was found roughly three miles north of Flora Vista, partially undressed with a rope wrapped tightly around her neck. Id. ¶¶ 3-4, 6. Investigators testified that the condition of her clothing was consistent with sexual assault and that the cause of death was ligature strangulation. Id. ¶¶ 5-6. Allen was also convicted of the noncapital offenses of kidnapping and attempted criminal sexual penetration, for which he was sentenced to imprisonment. Id. ¶ 15.

         {¶5} In accordance with the Capital Felony Sentencing Act, Allen's sentence for murder was determined in a separate proceeding. Id. ¶¶ 1, 15; see NMSA 1978, § 31-20A-1(B) (1979, repealed 2009). At sentencing, Allen's jury found the aggravating circumstances of kidnapping and murder of a witness and unanimously voted to impose the death penalty. Allen, 2000-NMSC-002, ¶ 15; see NMSA 1978, § 31-20A-3 (1979, repealed 2009). Allen appealed his convictions and sentence which were affirmed by this Court. Allen, 2000-NMSC-002, ¶ 118. He appeals now to this Court from his ongoing pursuit of state habeas corpus claims in district court.

         {6} On June 9, 2000, Fry and an accomplice kidnapped a woman who was stranded at a convenience store. State v. Fry, 2006-NMSC-001, ¶¶ 3-4, 138 N.M. 700, 126 P.3d 516. In the course of an attempted sexual assault, Fry stabbed the woman in the chest, penetrating her breastbone, but not piercing her heart. Id. ¶ 4. She tried to run away, but Fry caught her and hit her in the back of the head with a sledgehammer, killing her. Id. Fry's accomplice testified against Fry after pleading guilty to first-degree murder and kidnapping. Id. ¶ 6. Fry was convicted of first-degree murder, kidnapping, attempted criminal sexual penetration, and tampering with evidence. Id. ¶ 1. Fry's jury found the aggravating circumstance of kidnapping and sentenced him to death. Id. ¶ 6. Fry appealed his conviction and sentence and was denied relief. Id. ¶¶ 1, 64. Like Allen, Fry now appeals to this Court from his ongoing litigation of state habeas corpus claims in district court.

         {¶7} On direct appeal to this Court, both Fry and Allen argued that their death sentences were disproportionate to the penalties imposed in similar cases and therefore violated Section 31-20A-4(C)(4). Fry, 2006-NMSC-001, ¶¶ 42-45; Allen, 2000-NMSC-002, ¶¶ 111-12. We rejected their arguments and affirmed the proportionality of both sentences. Fry, 2006-NMSC-001, ¶ 44; Allen, 2000-NMSC-002, ¶ 111. In doing so, we relied on the proportionality test adopted by a divided Court in State v. Garcia, 1983-NMSC-008, ¶ 34, 99 N.M. 771, 664 P.2d 969.

         {¶8} Petitioners' cases were in postconviction habeas proceedings when the Legislature repealed the death penalty effective July 1, 2009. Following the repeal, Fry and Allen filed motions to dismiss their death sentences, arguing that the repeal rendered their death sentences unconstitutional. Fry and Allen asserted that the prospective-only application of the repeal violated state and federal prohibitions against cruel and unusual punishment, state and federal guarantees of equal protection, and the prohibition of special laws in the New Mexico Constitution. The district court denied Petitioners' motions and concluded that the death sentences were constitutional. However, it granted Petitioners' requests for an interlocutory appeal and stayed their executions pending the outcome of the interlocutory appeal.

         {9} We granted Petitioners' applications for interlocutory appeal. Because "[w]e seek to avoid an interpretation of a statute that would raise constitutional concerns," this Court asked for supplemental briefing on the statutory validity of Petitioners' death sentences. See State v. Pangaea Cinema, 2013-NMSC-044, ¶ 18, 310 P.3d 604 (internal quotation marks and citation omitted). Specifically, this Court asked whether it should reconsider its approach to assessing the comparative proportionality of a death sentence under Section 31-20A-4(C)(4).

         III. JURISDICTION AND STANDARD OF REVIEW

         {10} By statute and under Article VI, Section 2 of the New Mexico Constitution, this Court has "exclusive jurisdiction over interlocutory appeals in criminal cases where a defendant faces possible life imprisonment or execution." State v. Ameer, 2018-NMSC-030, ¶ 8, ___ P.3d ___; see also NMSA 1978, § 39-3-3(A)(3) (1972). In addition, we have the exclusive statutory responsibility to ensure that a death sentence is not disproportionate to the penalty imposed in similar cases. See § 31-20A-4(C)(4); State v. Wyrostek, 1994-NMSC-042, ¶ 10, 117 N.M. 514, 873 P.2d 260.

         {¶11} Our role in reviewing a death sentence is not to question the wisdom of the repeal nor to insert our own policy judgment in place of the Legislature's. As Justice Franchini wrote, "this Court is powerless"-despite practical or philosophical opposition to the death penalty-"to change [public policy] unless the statutory law underlying the policy is declared unconstitutional." State v. Clark, 1999-NMSC-035, ¶ 94, 128 N.M. 119, 990 P.2d 793 (Franchini, J., specially concurring). We are obligated "to interpret and apply the law to the facts of a case free of any personal or philosophical leanings." Id. ¶ 96.

         {¶12} We review statutory and constitutional challenges de novo. Ameer, 2018-NMSC-030, ¶ 9. Our review of Petitioners' death sentences is guided by the promises of the United States Constitution and New Mexico Legislature. We recognize that each Petitioner "is guilty of shocking crimes that well may merit forfeiture of his life." Clark v. Tansy, 1994-NMSC-098, ¶ 3, 118 N.M. 486, 882 P.2d 527. Nonetheless, "[l]aw triumphs when the natural impulses aroused by a shocking crime yield to the safeguards which our civilization has evolved for an administration of criminal justice at once rational and effective." Id. (alteration in original) (internal quotation marks and citation omitted).

         IV. DISCUSSION

         {13} Because the purpose of comparative proportionality review is most clear from its history, we begin with the origin of comparative proportionality review. In the 1970s, the United States Supreme Court decided a series of landmark cases concerning the constitutionality of capital punishment, which in turn impacted whether and how states could impose the death penalty. See generally Furman v. Georgia, 408 U.S. 238 (1972) (per curiam) (holding capital sentencing schemes unconstitutional as applied due to lack of procedures guarding against the arbitrary imposition of the death penalty); Gregg v. Georgia, 428 U.S. 153 (1976) (upholding a revised capital punishment scheme because it contained procedures to guard against the arbitrary and capricious imposition of the death penalty, including comparative proportionality review). It was against this constitutional backdrop that the New Mexico Legislature adopted the comparative proportionality requirement. Section 31-20A-4(C)(4).

         {¶14} The first of the landmark federal cases concerning the death penalty was Furman, 408 U.S. 238 In Furman, the Supreme Court held that the Eighth and Fourteenth Amendments prohibited capital sentencing schemes that gave unfettered discretion to judges and juries in deciding whether to impose a death sentence See generally id. Although each of the nine justices wrote separately, the five concurring justices were united in their concern that capital punishment was being dealt out arbitrarily See, eg, Id. at 295 (Brennan, J, concurring) ("The probability of arbitrariness is sufficiently substantial that it can be relied upon, in combination with the other principles, in reaching a judgment on the constitutionality of this punishment."). Furman put a temporary moratorium on the imposition of the death penalty, although it did not hold the death penalty to be under all circumstances cruel and unusual punishment. New Mexico, like every other state, was precluded from imposing the death penalty until a revised capital sentencing scheme could be passed by our Legislature.

         {15} The Furman Court expressed concern with disproportionate sentencing. Justice White observed, "the 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." Id. at 313 (White, J., concurring). "No one has yet suggested a rational basis that could differentiate in those terms the few who die from the many who go to prison. . . . [O]ur procedures are not constructed to guard against the totally capricious selection of criminals for the punishment of death." Id. at 294-95 (Brennan, J., concurring). In the view of the Furman Court, the rare imposition of the death penalty, combined with the lack of procedural safeguards governing the selection of who should face death, rendered the death penalty

cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders . . ., many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. . . . [T]he Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.

Id. at 309-10 (Stewart, J., concurring) (footnote omitted). In other words, the existing capital sentencing schemes provided no assurance that the death penalty was being consistently imposed on the worst offenders. See id. at 293-95 (Brennan, J., concurring).

         {16} In the aftermath of Furman, New Mexico took the path of many other states and enacted a mandatory capital sentencing scheme, "apparently on the theory that if there was no discretion, there was no problem."[2] However, the Supreme Court declared mandatory sentencing schemes to be unconstitutional in Woodson v. North Carolina, 428 U.S. 280 (1976); see State v. Rondeau, 1976-NMSC-044, ¶¶ 9, 50, 89 N.M. 408, 553 P.2d 688.

         {¶17} Four years after Furman, the Supreme Court upheld a revised capital sentencing scheme in Gregg, 428 U.S. at 196-99. Georgia's revised capital sentencing scheme included procedures intended to guard against the arbitrary imposition of the death penalty, including mandatory appellate review and statutorily-defined aggravating circumstances narrowing the class of offenders eligible for the death penalty. Id. at 166-67, 197-98. Significantly, Georgia directed its state supreme court to conduct an automatic comparative proportionality review of every death sentence. Id. at 166-67, 204-05. The Gregg Court described the purpose of this review as to

substantially eliminate[] the possibility that a person will be sentenced to die by the action of an aberrant jury. If a time comes when juries generally do not impose the death sentence in a certain kind of murder case, the appellate review procedures assure that no defendant convicted under such circumstances will suffer a sentence of death.

Id. at 206. The Gregg Court held that these procedures together alleviated the concerns expressed in Furman, enabling states to proceed with the death penalty provided they adopted similar procedural protections. Gregg, 428 U.S. at 166-67, 169.

         {18} New Mexico adopted the Capital Felony Sentencing Act, complete with procedures modeled on the Georgia scheme, in 1979. Compare NMSA 1978, §§ 31-20A-1 to -6 (1979), with Gregg, 428 U.S. at 162-63, 197-98 (describing the Georgia statute); see also Wilson, supra, at 257. Like Georgia, New Mexico provided for automatic appellate review of all death sentences and mandatory comparative proportionality review. Compare Gregg, 428 U.S. at 197-98, with Section 31-20A-4. Under Section 31-20A-4,

A. The judgment of conviction and sentence of death shall be automatically reviewed by the supreme court of the state of New Mexico.
B. In addition to the other matters on appeal, the supreme court shall rule on the validity of the death sentence.
C. The death penalty shall not be imposed if:
(1) the evidence does not support the finding of a statutory aggravating circumstance;
(2) the evidence supports a finding that the mitigating circumstances outweigh the aggravating circumstances;
(3) the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor; or
(4) the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

(Emphasis added.) Section 31-20A-4(C)(4) is the basis for the comparative proportionality requirement at issue in this appeal.

         {19} New Mexico also narrowed the class of offenders eligible for the death penalty to those guilty of first-degree murder where the sentencing jury unanimously finds one of seven aggravating circumstances: murder for hire; murder of a witness; murder of a police officer; murder in the commission of or attempt to commit a kidnapping, criminal sexual contact of a minor, or criminal sexual penetration; murder in an attempt to escape a penal institution; murder of an employee of the corrections department by an inmate of the corrections department; and murder of a fellow inmate or person lawfully on the premises of a penal institution. Section 31-20A-3; see also NMSA 1978, § 31-20A-5(A)-(G) (1981). New Mexico's revised capital sentencing scheme remained largely unchanged from 1979 until the 2009 repeal and remains in force for murders committed before 2009 pursuant to the Legislature's savings clause. H.B. 285, 49th Leg., 1st Sess., Section 6. Based on its similarities to the Georgia statute, we interpret our scheme as incorporating the principles announced in Furman and Gregg. See Garcia, 1983-NMSC-008, ¶¶ 23-25 (citing Furman and Gregg and comparing the New Mexico capital sentencing statutes to the Georgia code); see also State v. Addison, 7 A.3d 1225');">737 A.3d 1225, 1239 (N.H. 2010) (concluding that a similar comparative proportionality review requirement was "intended to incorporate the then-existing jurisprudential background of the United States Supreme Court").

         {20} The United States Supreme Court clarified in Pulley v. Harris that comparative proportionality review is not constitutionally required. 465 U.S. 37, 45 (1984). However, it did not undermine the importance of comparative proportionality review for those states that chose to incorporate comparative proportionality review as a mandatory component of the capital sentencing scheme. Id. at 44-45. Pulley describes comparative proportionality review as a post-sentence inquiry into whether a death sentence is "disproportionate to the punishment imposed on others convicted of the same crime." Id. at 43. Accordingly, this Court must determine whether a defendant is being arbitrarily "singled out" for the death penalty when compared to factually similar crimes. State v. Papasavvas, 790 A.2d 798, 800 (N.J. 2002) (per curiam).

         {21} Pulley also clarified that comparative proportionality is different from traditional proportionality review, which is the "abstract evaluation of the appropriateness of a sentence for a particular crime." 465 U.S. at 42-43. Traditional proportionality review is meant to ensure that a punishment fits the crime. Id. at 43 ("Looking to the gravity of the offense and the severity of the penalty, [and] to sentences imposed for other crimes, . . . this Court has occasionally struck down punishments as inherently disproportionate, and therefore cruel and unusual, when imposed for a particular crime or category of crime." (emphasis added)). By contrast, for comparative proportionality review, the presumption is that the death penalty "is not disproportionate to the crime in the traditional sense." Id.; see also Gregg, 428 U.S. at 187 ("[W]hen a life has been taken deliberately by the offender, we cannot say that the punishment is invariably disproportionate to the crime. It is an extreme sanction, suitable to the most extreme of crimes." (footnote omitted)). Instead, the question is "whether the penalty is nonetheless unacceptable . . . because [it is] disproportionate to the punishment imposed on others convicted of the same crime." Pulley, 465 U.S. at 43.

         {22} Prior to Pulley, this Court adopted the existing approach to comparative proportionality review. Garcia, 1983-NMSC-008, ¶ 34. Interpreting Section 31-20A-4(C)(4), the majority stated:

We assume that the Legislature means that in similar cases, considering both the crime and defendant, a defendant convicted of first degree murder under a specific aggravated circumstance should not be put to death if another defendant or other defendants, convicted of murder under the same aggravated circumstance is given life imprisonment, unless there is some justification. Therefore, we adopt the following guidelines for review under this Section.
1.We will review this issue only when raised on appeal.
2.In our review, we will consider only New Mexico cases in which a defendant has been convicted of capital murder under the same aggravating circumstance(s).
3. Only those New Mexico cases in which a defendant was convicted under the same aggravating circumstance(s) and then received either the death penalty or life imprisonment and whose conviction and sentence have been upheld previously by this Court[] will be considered appropriate for comparison.
4.We will review the record and compare the facts of the offense and all other evidence presented by way of aggravation or mitigation to determine whether the sentence is excessive or disproportionate.

Garcia, 1983-NMSC-008, ¶ 34 (footnote omitted). Under the Garcia approach to comparative proportionality review, we compare a death sentence to cases involving the same aggravating circumstance, where a defendant received a sentence of either life or death, and which were affirmed on appeal. Id. The Garcia majority also professed that "[i]n our duty to review the determination by the jury, we will not retry the case for what may be a better result." Id. ¶ 40 (emphasis omitted).

         {¶23} Justice Sosa dissented from the imposition of the death penalty, foreshadowing the issues that are now before this Court. Id. ¶¶ 43, 65 (Sosa, J., specially concurring). Among his concerns, Justice Sosa noted that the majority had not acknowledged the mandatory nature of comparative proportionality review. Id. ¶¶ 59, 61. He further noted that the statute failed to specify the relevant universe of cases. Id. ¶ 59. "What does similar mean?" he asked, and

[h]ow far back in New Mexico's judicial history should comparisons be made? Should extrajudicial cases be brought into the analysis? Are cases which ended in plea bargains relevant? If a prosecutor exercises discretion in the charging process and seeks an indictment without aggravating circumstances, is that case similar?

Id. In the view of Justice Sosa, these failures prevented this Court from conducting a meaningful review of whether a death sentence was arbitrary and rendered New Mexico's capital sentencing scheme unconstitutional. Id. ¶¶ 63-65.

         {24} In this case, Fry and Allen argue that this Court should overrule Garcia and expand the universe of cases used in determining whether a sentence is disproportionate under Section 31-20A-4(C)(4). In the alternative, Fry and Allen argue that this Court should find their sentences disproportionate under the Garcia approach to comparative proportionality review. We address their arguments in accordance with the Legislature's mandate in Section 31-20A-4(C)(4) that we conduct a comparative proportionality review in order to provide a "meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not." Furman, 408 U.S. at 313 (White, J., concurring). We also address the State's assertion that principles of finality and stare decisis counsel against overruling Garcia.

         A. The Legislature's Repeal of the Death Penalty Is a Compelling Reason to Revisit the Comparative Proportionality of Petitioners' Death Sentences

         {25} The State argues that we should refrain from revisiting the comparative proportionality of Petitioners' death sentences because we determined that the death sentences were not excessive or disproportionate in their direct appeals. Fry, 2006-NMSC-001, ¶¶ 42-45; Allen, 2000-NMSC-002, ¶ 111. We exercise our discretion to reconsider the proportionality of Petitioners' death sentences in light of the extraordinary circumstances created by the death penalty repeal.

         {¶26} Because the essential purpose of habeas review is to reconsider and correct issues that were wrongly decided on direct appeal, "courts rarely apply principles of finality in habeas corpus proceedings with the same force as they do in ordinary litigation." Clark v. Tansy, 1994-NMSC-098, ¶¶ 12, 14. "Historically the writ of habeas corpus has been used to protect individual rights from erroneous deprivation." Id. ¶ 12. This Court has the discretion to reconsider issues disposed of on direct appeal in cases (1) involving an intervening change in law, (2) involving an intervening change in fact, or (3) where "the ends of justice would otherwise be served." Id. ¶ 14. Here, all three are satisfied.

         {¶27} The State argues that the repeal was not technically a change in law because it left the comparative proportionality requirement undisturbed for murders committed before July 1, 2009.[3] Id. ¶ 14. We disagree. The repeal represents a profound change in the legislative attitude toward the death penalty and a shift in the standards of decency. State v. Santiago, 122 A.3d 1, 62 (Conn. 2015) ("The prospective abolition of the death penalty . . . provides strong support for the conclusion that capital punishment no longer comports with contemporary standards of decency.").

         {¶28} The repeal of the death penalty is also an intervening change in fact, presenting eminently relevant information that was not considered upon our initial review of Petitioners' death sentences. In determining the proper course of action, this Court is not limited to considering the instant record but rather "may take judicial notice of legislative facts by resorting to whatever materials it may have at its disposal establishing or tending to establish those facts." Kerr v. Parsons, 2016-NMSC-028, ¶ 6, 378 P.3d 1 (internal quotation marks and citation omitted); see also Lee v. Martinez, 2004-NMSC-027, ¶ 13, 136 N.M. 166, 96 P.3d 291 ("Legislative facts are those which help the tribunal to determine the content of law and policy and to exercise its judgment or discretion in determining what course of action to take." (internal quotation marks and citation omitted)). While we have long known that the death penalty was imposed with great infrequency, we now know that only one person was executed in New Mexico under the 1979 capital sentencing scheme. See Wilson, supra, at 266. The repeal effectively sealed the universe of cases for proportionality review, enabling us to conduct a more meaningful comparison of Petitioners' death sentences to the sentences imposed in similar cases. "[C]ourts should not impede postconviction litigation that will provide necessary fuller or fairer procedural opportunities to examine alleged constitutional defects when consideration of an issue on direct appeal is based upon facts which could not, or customarily would not, be developed at trial." Duncan v. Kerby, 1993-NMSC-011, ¶ 6, 115 N.M. 344, 851 P.2d 466.

         {¶29} Fry and Allen are currently the only two inmates facing the death penalty under the 1979 capital sentencing scheme and, due to the repeal's profound shift in fact and law, they are likely to be the last two inmates to ever face the death penalty under that statutory framework. The interests of justice require us to ensure that every person facing death under the 1979 capital sentencing scheme is afforded its full statutory protections. Under that capital sentencing scheme, we have an unqualified mandate to assure that a death sentence shall not be imposed if disproportionate to the penalty imposed in similar cases. Section 31-20A-4(B), (C)(4) (providing that "the supreme court shall rule on the validity of the death sentence" and that "[t]he death penalty shall not be imposed if . . . disproportionate to the penalty imposed in similar cases"); see NMSA 1978, § 12-2A-4(A) (1997) (" 'Shall' . . . express[es] a duty, obligation, requirement or condition precedent."). This is a heightened, additional, and continuing responsibility, and it is a mandatory and important component of New Mexico's capital sentencing scheme. Until an execution is carried out, justice requires us to ensure that a death sentence is not disproportionate.

         {¶30} Our reconsideration of the proportionality of Petitioners' death sentences is consistent with the highest level of scrutiny which death penalty cases demand. Gregg, 428 U.S. at 187 ("When a defendant's life is as stake, the Court has been particularly sensitive to insure that every safeguard is observed."); State v. Chadwick-McNally, 2018-NMSC-018, ¶ 2, 414 P.3d 326 ("The extraordinary penalty of death demands heightened scrutiny of its imposition." (quoting State v. Frank Martinez, 2002-NMSC-008, ¶ 8, 132 N.M. 32, 43 P.3d 1042)); Clark v. Tansy, 1994-NMSC-098, ¶ 9 ("[T]his Court believes that death indeed is different from other sanctions and thus requires greater scrutiny."); Woo Dak San v. State, 1931-NMSC-056, ¶ 2, 36 N.M. 53, 7 P.2d 940 ("[T]he alien and friendless condition of the condemned man, the devoted services of his counsel, serving by appointment, the importance of the case and of the questions involved . . . call for the most deliberate judgment and considerate procedure at all stages."). This is due to the "gravity and irrevocability of the death sentence" as well as the extraordinary risk of an erroneous execution. Frank Martinez, 2002-NMSC-008, ¶¶ 8, 10 ("Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two." (internal quotation marks and citation omitted)). Because of the "grave injustice" presented by an erroneous execution, id. ¶ 10, additional safeguards are required to prevent the arbitrary imposition of a death sentence. Gregg, 428 U.S. at 187.

         {¶31} While there is a legitimate interest in the finality of criminal judgments, the repeal of the death penalty presents a profound change in the legal and factual framework surrounding Petitioners' death sentences such that the interests of justice require that we ensure that those sentences are not disproportionate to the penalty imposed in similar cases. We therefore exercise our discretion to reconsider the comparative proportionality of Petitioners' death sentences.

         B. Our Prior Application of Garcia Did Not Substantially Eliminate the Risk of an Arbitrary and Capricious Death Sentence

         {32} Since it was decided over thirty years ago, Garcia has garnered criticism for failing to "answer the central question of proportionality as proposed by Justice White: whether there is a real difference between the many cases in which the death penalty is not imposed and the few cases in which it is."[4] In 2004, the Final Report of the New Mexico State Bar Task Force on the Administration of the Death Penalty in New Mexico outlined numerous problems in the application of Garcia, summarized as follows:

(1) Section 31-20A-4(C)(4) mandates that this Court conduct a comparative proportionality review in every case, but "Garcia says that review will be conducted only on request. [Section 31-20A-4(C)(4)] imposes responsibilities on the Supreme Court [while] Garcia imposes the responsibility on the defense to raise the issue and to supply comparison cases." Final Report, 18;
(2) Garcia "set[s] an overly restricted definition of the universe of cases" because "using the jury's finding of an aggravating circumstance as the characteristic that defines what is a 'similar' case . . . [yields] only a handful of 'similar' cases to be considered." Final Report, 18-19;
(3) While "th[is] Court has consistently rejected defense challenges to the Garcia standard, it has not applied the standard consistently over time." Final Report, 19;
(4) "[This] Court has held sentences to be proportionate even when there are no other cases in which the defendant was sentenced to death," indicating that "the Court is using a reasonableness approach or . . . has created an unspoken presumption that a death sentence is always proportionate." Final Report, 19;
(5) "[M]any cases simply state a conclusion-that the death penalty is not excessive or disproportionate-without explaining the process that led the Court to its conclusion. This makes it difficult for lawyers or the public to understand the basis for the conclusion." Final Report, 21;
(6) "[T]here are still unresolved issues about how the Garcia standard applies to particular cases," including whether this Court will consider cases with the same aggravating circumstance or, in the absence of a similar case, "point[] to [factual] circumstances . . . [which] distinguish [the case under review] from the case in which a life sentence was imposed." Final Report, 21.

         {¶33} The problems identified in the Final Report were evident in Petitioners' direct appeals. In Allen, 2000-NMSC-002, ¶¶ 111-12, we did not expressly compare the case with similar cases but rather observed that the comparison cases were sufficiently outlined in Clark, 1999-NMSC-035, ¶¶ 78-83.[5] These included two cases in which a death sentence was imposed and two cases resulting in a life sentence. Clark disregarded a third case where the death sentence was imposed as unreliable "because the sentence was later overturned." Id. ¶ 79 (discussing State v. Cheadle, 1983-NMSC-093, 101 N.M. 282, 681 P.2d 708, overruled on other grounds by State v. Belanger, 2009-NMSC-025, ¶ 36, 146 N.M. 282, 681 P.3d 783). In Fry, our comparative proportionality review addressed six cases, four in which a death sentence was imposed, two in which a life sentence was imposed. 2006-NMSC-001, ¶ 43.[6] All of these six cases involved the aggravating circumstance of kidnapping, as in Fry, as well as an additional aggravating circumstance. See id. We did not explain the effect of the additional aggravating circumstance or the fact that two of the four death sentences were commuted. See id. ¶¶ 43-44; Exec. Orders No. 86-37 (Gilbert), 86-39 (Guzman) (Nov. 26, 1986). We noted that Fry "killed the victim in a particularly brutal fashion" but did not expand the pool of comparison cases to review factually similar crimes. Id. ¶ 44. We find it significant that, as in Fry and Allen, this Court has never found a death sentence to be statutorily disproportionate when applying Garcia.

         {¶34} We agree with the Final Report that we are required under Section 31-20A-4(C)(4) to conduct a comparative proportionality review of every death sentence, contrary to Garcia. See Garcia, 1983-NMSC-008, ¶ 34. We further agree that our application of Garcia has been thus far insufficient to eliminate the possibility of an arbitrary and capricious sentence, contrary to Furman, 408 U.S. at 294-95, and Gregg, 428 U.S. at 206. However, practical barriers pose a significant challenge to conducting a meaningful proportionality review.

         {¶35} Although New Mexico has authorized the use of capital punishment since before statehood, the death penalty has been infrequently imposed.[7] Only one person has been executed since the enactment of the pre-repeal capital sentencing scheme in 1979. Wilson, supra, at 301. That person was Terry Clark, whose execution took place on November 6, 2001. Id. at 271. Before Clark, New Mexico had not executed anyone since David Cooper Nelson in 1960. Id. Only fifteen people, including Fry and Allen, have been sentenced to death since the enactment of the pre-repeal capital sentencing scheme in 1979. Id. at 266 & n.93. With the exception of Clark, none of these death sentences resulted in an execution.

         {¶36} Under the pre-repeal capital sentencing scheme, an offender convicted of first- degree murder could be subject to the death penalty only where the sentencing jury found one of seven aggravating circumstances. Section 31-20A-3; Section 31-20A-5(A)-(G). Most death-eligible cases did not reach the sentencing stage. Wilson, supra, at 271-72, 301. From July 1979 through December 2007, prosecutors sought the death penalty in only 211 cases. Id. at 266-67. Nearly half of these cases were resolved through plea bargains that removed death as a possible sentence. Id. at 268. The other half went to trial. See id. at 269. Thus, our limited universe of death penalty cases is in large part due to both plea bargaining and prosecutorial reluctance to seek the death penalty.

         {¶37} Fifty-two cases advanced to death penalty sentencing proceedings.[8] The others ended in acquittal or conviction on lesser charges for which the death penalty was no longer an available sentence. Id. at 269. Of the fifty-two cases, the jury found at least one aggravating factor and unanimously agreed on a death sentence just fifteen times.[9] Twelve of those fifteen death sentences were ultimately vacated: five reversed on direct appeal, [10] two reversed in habeas proceedings, [11] and another five commuted by Governor Toney Anaya in 1986.[12] Another was abated when the inmate died in prison.[13] Clark was the only one of the fifteen to be executed, and that execution proceeded only after Clark instructed counsel to abandon his appeals for postconviction relief. Id. at 271. Thus, even before the legislative repeal, capital punishment was a relative nullity in New Mexico. This rarity demonstrates a reluctance to impose the death penalty on the part of all three branches of government, which presents a significant challenge to the administration of a meaningful comparative proportionality review.

         {¶38} Because relatively few death-eligible cases reach the death penalty sentencing phase in New Mexico, use of the same aggravating circumstance as the sole criteria for identifying similar cases has produced an impracticably small pool of comparison cases. See Final Report, 19-21. This is particularly true in Fry, which at the time of Fry's direct appeal was the only case involving kidnapping as the sole aggravator that was affirmed on appeal. See Fry, 2006-NMSC-001, ¶ 43; Wilson, supra, at 274 (explaining that kidnapping was usually alleged in combination with other aggravators). For this reason, we have resorted to using cases involving different aggravating circumstances in the comparative proportionality review, without explaining whether this is a departure from or modification of Garcia. Final Report, 19-20 (discussing the application of Garcia over time).

         {¶39} Additionally, there is no central repository of information regarding death penalty cases, making it difficult to obtain the details and records necessary to thoroughly conduct the comparative proportionality review. As Fry and Allen note, "[t]he [L]egislature obligated [this] Court to conduct a proportionality analysis, but failed to provide any mechanism to collect the cases that could be used in the analysis." Unlike other states, New Mexico does not collect data to support comparative proportionality review. See, e.g., Tenn. Sup. Ct. Rule 12 (1) (requiring the trial court to prepare a postconviction report for "all cases . . . in which the defendant is convicted of first-degree murder" with data to be used in the proportionality analysis). The underlying records in most death penalty cases in New Mexico are not electronically available, with the exception of those cases that were prosecuted shortly before the repeal. This invariably affected both the ability of defense counsel to bring meritorious challenges to the comparative proportionality of their clients' death sentences and the depth of this Court's review.

         C. We Modify Our Application of Garcia in Order to Fulfill the Legislature's

         Intent in Adopting Section 31-20A-4(C)(4)

         {¶40} Fry and Allen urge us to overrule Garcia, asserting that Garcia has deprived them of a meaningful comparative proportionality review and that the mechanism for conducting this review should be modified in various ways. We decline to overrule Garcia. However, we modify Garcia in order to better fulfill the purposes of Section 31-20A-4(C)(4).

         {¶41} We first recognize that the Washington Supreme Court, faced with similar concerns regarding proportionality review, recently declared Washington's death penalty scheme unconstitutional as administered in State v. Gregory, 427 P.3d 621, 629, 642 (Wash. 2018). Presented with a study demonstrating that in Washington "black defendants were four and a half times more likely to be sentenced to death than similarly situated white defendants," the court concluded "that Washington's death penalty is administered in an arbitrary and racially biased manner" and therefore violates the state constitution. Id. at 630, 633, 635-36; see Wash. Const. Art. I, § 14 (prohibiting the infliction of "cruel punishment"). The court additionally concluded that, due to this arbitrary and racially biased administration, the death penalty scheme in Washington "fails to serve any legitimate penological goals." Gregory, 427 P.3d at 636, 642. Although the Washington Supreme Court has a statutory duty to review the comparative proportionality of a death sentence very similar to our own, [14] the court concluded that this mandatory review could not address the constitutional infirmities the court had identified. Id. at 637. While we share the Washington Supreme Court's concern that a death penalty scheme must provide a "meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not," id. at 636 (alteration in original) (quoting Furman, 408 U.S. at 313 (White, J., concurring)), in order to address this concern we need not determine whether our 1979 capital sentencing scheme is unconstitutional as administered because we instead modify our approach to comparative proportionality review. See Pangaea Cinema, 2013-NMSC-044, ¶ 23 (prescribing avoidance of a conclusion of, or an allusion to, unconstitutionality in the construction of statutes).

         {¶42} While the United States Supreme Court has left states free to define the framework of their comparative proportionality reviews, see Pulley, 465 U.S. at 45, there are three steps implicit in any approach.[15] In the first step, the reviewing court defines a universe of cases from which similar cases are to be drawn. Final Report, 15-16. The broadest universe would include all death-eligible cases, whether or not the prosecutor elected to pursue the death penalty. Id. This allows a reviewing court to determine if a death sentence is disproportionate compared to cases prosecuted in districts with different characteristics and sentencing practices. A narrower universe might include only those cases in which the prosecutor sought the death penalty; all cases that progressed to a capital sentencing hearing; all cases in which the jury unanimously agreed on at least one aggravating factor and imposed either a life or death sentence; or-the narrowest possible option-cases in which the death penalty was imposed. Id.

         {¶43} The Garcia Court defined the universe of cases as including cases in which the death penalty was sought and which resulted in a sentence of death or life imprisonment that was affirmed on appeal. Compare Garcia, 1983-NMSC-008, ¶ 34 (stating that "[o]nly those New Mexico cases in which a defendant . . . received either the death penalty or life imprisonment and whose conviction and sentence have been upheld . . . will be considered appropriate for comparison"), with State v. Bland, 958 S.W.2d 651, 666-67 (Tenn. 1997) (defining "the universe from which we choose the pool of 'similar cases' for comparison [as] 'all cases in which the defendant was convicted of first-degree murder' ").

         {¶44} In the second step, the reviewing court must define what constitutes a "similar case." See Final Report, 15. This produces a pool of cases to be used for comparison purposes. Id. Some states use the approach embraced in Garcia, under which the pool is limited to cases involving the same aggravating circumstance as the death sentence under review. 1983-NMSC-008, ¶ 34. Many states include factually similar cases in the pool of comparison cases. See, e.g., Bland, 958 S.W.2d at 667 (stating that "we are not limited to . . . cases in which exactly the same aggravating circumstances have been found" and considering for additional comparison a non-exhaustive list of salient facts including the manner of death and any justifications for the killing). Under Garcia, we select cases for comparison based on statutorily defined aggravating circumstances and have on occasion considered factual similarities in deciding to affirm a death sentence. See, e.g., Allen, 2000-NMSC-002, ¶ 111 (noting that, as in Clark, "[the] victim was a child"); see also Clark, 1999-NMSC-035, ¶ 82 (noting that the victim was a child).

         {¶45} The third and final step in conducting a comparative proportionality review is to define the test used to establish that a sentence is disproportionate. See Final Report, 15. Three approaches courts have taken in defining disproportionality are: (1) the statistical frequency approach, (2) the precedent-seeking approach, and (3) the reasonableness approach. Id. 16. The statistical frequency approach is "a measurement of the relative frequency of death sentences in factually similar cases." Papasavvas, 790 A.2d at 805. Before the repeal of the death penalty in 2007, [16] the New Jersey Supreme Court applied both statistical frequency and precedent-seeking approaches to assure that the death penalty had been imposed in similar cases. Id. at 804-05. For its statistical frequency analysis, New Jersey utilized the assistance of a special master and their administrative office of the courts. State v. DiFrisco, 662 A.2d 442, 450 (N.J. 1995). Allen urges that, like New Jersey, we should incorporate a frequency analysis into our comparative proportionality review in addition to a precedent-seeking approach. However, both Fry and Allen implicitly recognize that we lack the records and resources necessary to undertake a statistical review.

         {¶46} Garcia is a "precedent-seeking approach," which involves comparing the case to the pool of comparison cases in much the same way that a court typically reviews a case. Clark, 1999-NMSC-035, ¶ 74; Final Report, 17. The ultimate test is that "a defendant . . . should not be put to death if another defendant or other defendants, convicted of murder under the same aggravat[ing] circumstance is given life imprisonment, unless there is some justification." Garcia, 1983-NMSC-008, ¶ 34. This is similar to the Tennessee approach, in which a death sentence is disproportionate only "[i]f the case, taken as a whole, is plainly lacking in circumstances consistent with those in similar cases in which the death penalty has been imposed," and "[a] death sentence is not disproportionate where the Court can discern some basis for the lesser sentence" received in another case with similar circumstances. Bland, 958 S.W.2d at 665.

         {¶47} "The reasonableness approach turns on generalized notions of reasonableness, which are in turn based on the particular court's values, experience and general familiarity with prior cases." Final Report, 17. Our application of Garcia has garnered criticism because we "ha[ve] held sentences to be proportionate even when there are no other cases in which the defendant was sentenced to death," indicating that we have resorted to "a reasonableness approach or . . . ha[ve] created an unspoken presumption that a death sentence is always proportionate." Final Report, 19. We will continue to adhere to a precedent-seeking approach but adopt the following modifications to Garcia.

         1. We decline to expand the universe of cases beyond cases in which the death penalty was sought, the jury found at least one aggravating circumstance, and which resulted in a sentence of death or life imprisonment that was affirmed on appeal

         {¶48} Fry and Allen urge this Court to expand the universe of cases from which similar cases have been drawn to include cases that could have been prosecuted as a death penalty case, regardless of whether the death penalty was actually pursued. Fry and Allen claim that death sentences are overrepresented under Garcia because the universe of cases excludes those in which the prosecutor did not seek the death penalty or offered a plea bargain in favor of life. Expanding the universe would enable us to examine the impact of prosecutorial discretion on the selection of which defendants were selected to receive the death penalty in New Mexico.

         {¶49} The State argues that Garcia properly limits the universe of cases to those in which the prosecution sought and the jury had the option to impose a death sentence. See Garcia, 1983-NMSC-008, ¶ 34 ("In our review, we will consider only New Mexico cases in which a defendant has been convicted of capital murder under the same aggravating circumstance(s)."). We agree with the State on this point. The exercise of prosecutorial discretion is not enough to render death sentences constitutionally arbitrary. See Gregg, 428 U.S. at 199. We have determined that the Furman Court's concerns about "discretionary sentencing" did not extend to "the areas of charging, plea bargaining, jury verdicts and pardons merely because a possibility of selectivity exists." State ex rel. Serna v. Hodges, 1976-NMSC-033, ¶¶ 29-36, 89 N.M. 351, 552 P.2d 787, overruled on other grounds by Rondeau, 1976-NMSC-044, ¶ 9.

         {¶50} Whether the New Mexico Legislature intended for comparative proportionality review under Section 31-20A-4(C)(4) to include reviewing the exercise of prosecutorial discretion presents a question of statutory interpretation. "We begin by looking at the language of the statute itself," while recognizing that the plain language "must yield on occasion to an intention otherwise discerned in terms of equity, legislative history, or other sources." State v. Smith, 2004-NMSC-032, ¶ 9, 136 N.M. 372, 98 P.3d 1022 (internal quotation marks and citation omitted).

         {¶51} Section 31-20A-4(C)(4) does not expressly define the universe of cases, much less address whether we should limit our review to those cases in which the prosecutor sought the death penalty. The Legislature did not provide specific guidance as to which cases should be considered substantively or procedurally similar for purposes of comparative proportionality review. However, the term "similar cases" appears within the phrase "the penalty imposed in similar cases" in Section 31-20A-4(C)(4). Other courts have construed identical language as communicating an intent for the court to consider cases in which the prosecutor sought the death penalty and which progressed to a death penalty sentencing hearing, whether it resulted in a sentence of death or life imprisonment. See, e.g., Addison, 7 A.3d at 1247.

         {¶52} This interpretation is consistent with the history of Section 31-20A-4(C)(4). Our Legislature adopted Section 31-20A-4(C)(4) in response to Furman and Gregg which, in turn, provide insight into the appropriate parameters of the comparative proportionality review. See Addison, 7 A.3d at 1230, 1239-40. Like other courts, we conclude that our comparative proportionality review requirement was designed to incorporate the constitutional standards which existed at the time of its adoption. Id.

         {¶53} We gather from Furman that Petitioners' death sentences are not per se disproportionate based on how rarely New Mexico prosecutors have pursued the death penalty. Although the Furman Court did not discuss comparative proportionality review, it observed that the rare imposition of the death penalty was not enough to prove that it was being imposed arbitrarily. Furman, 408 U.S. at 293 (Brennan, J., concurring) ("[T]housands of murders . . . are committed annually in States where death is an authorized punishment for those crimes," and "death is inflicted in only a minute fraction of these cases."). On the contrary, the rarity of the death penalty could indicate that it was being imposed carefully and selectively. Id. at 294 ("Informed selectivity . . . is a value not to be denigrated."). Based on this reasoning, we agree with the State that it would be "illogical to conclude that the Legislature included proportionality review in the [1979 capital sentencing scheme] as a poisoned pill designed to lead to de facto repeal of the death penalty by virtue of the fact that, as it should be, the death penalty is infrequently imposed."

         {¶54} Gregg confirms that the Furman Court was not concerned with prosecutorial discretion. Gregg, 428 U.S. at 199. In Gregg, the petitioner argued that Georgia's revised capital sentencing scheme remained unconstitutional because it continued to allow unfettered discretion in "the opportunities for discretionary action that are inherent in the processing of any murder case." Id. at 198-99. In addition to the prosecutorial discretion to decline pursuit of the death penalty and offer plea bargains in favor of life, these opportunities include the jury's discretion to exercise mercy and the governor's authority to commute a death sentence. Id. at 199. The Gregg Court addressed each of these and determined that a capital sentencing scheme was not constitutionally infirm simply because it gave these actors the legitimate discretion to spare a defendant from the death penalty. Id. This signals that the comparative proportionality review endorsed in Gregg was not intended to include review of the exercise of prosecutorial discretion.

         {¶55} This is consistent with the approach used by the majority of states. Most states limit their comparative proportionality reviews to cases in which the prosecutor sought the death penalty. See, e.g., State v. Ross, 624 A.2d 886, 886 (Conn. 1993) (per curiam) (considering "cases in which the conviction of a capital felony after trial was followed by a hearing to consider the imposition of the death penalty"); Flamer v. State, 490 A.2d 104, 138-39 (Del. 1983) ("[W]e think it inherently fair, logical and necessary to prevent disproportionate sentencing that this Court compare the sentence below to the facts and circumstances of cases in which a capital sentencing proceeding was actually conducted, whether the murders have been sentenced to life imprisonment or death."); State v. Whitfield, 837 S.W.2d 503, 515 (Mo. 1992) (en banc) ("[T]his Court does not compare death-penalty cases to cases where the death penalty was not sought-such as where the death penalty was waived or the offense of conviction was less than first degree murder."); State v. Kills on Top, 793 P.2d 1273, 1308 (Mont. 1990) (comparing to cases involving the aggravating circumstance of kidnapping); Petrocelli v. State, 692 P.2d 503, 511 (Nev. 1985) (considering cases where the jury found some of the same aggravating circumstances), superseded by statute on other grounds as stated in Thomas v. State, 83 P.3d 818, 823 (Nev. 2004); State v. McHone, 435 S.E.2d 296, 307 ( N.C. 1993) (including "all cases arising since the effective date of our capital punishment statute, 1 June 1977, which have been tried as capital cases and reviewed on direct appeal by this Court and in which the jury recommended death or life imprisonment" (internal quotation marks and citation omitted)); Lewis v. Commonwealth, 593 S.E.2d 220, 226 (Va. 2004) ("In conducting this review, this Court considers the records of all capital murder cases reviewed by this Court, including cases in which the defendant received a life sentence.").

         {¶56} By contrast, few states have opted to include in the comparative proportionality review cases in which the prosecutor did not seek the death penalty. See, e.g., Papasavvas, 790 A.2d at 804 ("We will . . . consider all death-eligible cases, whether or not they were capitally prosecuted, because the State's decision not to prosecute the defendant capitally does not necessarily reflect on [the] defendant's lack of deathworthiness." (alteration and omission in original) (citation omitted)); Commonwealth v. DeHart, 516 A.2d 656, 671 (Pa. 1986) (including "all cases of murder of the first degree convictions which were prosecuted or could have been prosecuted under the death penalty statute"); Bland, 958 S.W.2d at 666 (defining "the universe from which we choose the pool of 'similar cases' for comparison [as] 'all cases in which the defendant was convicted of first-degree murder'" (citation omitted)).

         {¶57} Because the Gregg Court was not concerned with prosecutorial discretion, we also conclude that the New Mexico Legislature, by modeling its review on the comparative proportionality review endorsed in Gregg, did not intend for Section 31-20A-4(C)(4) to serve as a check on the exercise of prosecutorial discretion. Under Gregg, prosecutors are free to exercise their discretion in favor of life. See 428 U.S. at 199. We decline to adopt a construction of Section 31-20A-4(C)(4) that would encourage prosecutors to seek the death penalty in order to maintain a robust universe of cases. We therefore reject Petitioners' argument that we should expand the universe of cases to all cases in which the death penalty could have been pursued.

         {¶58} We also consider whether the comparative proportionality review should be modified to account for the exercise of executive clemency. This power was given to the governor by the people. N.M. Const. art. V, § 6. Like prosecutorial discretion, the governor's power to commute sentences is "outside of the effective control of legislatures" and an "inevitable component[] of any capital scheme." Sherod Thaxton, Disciplining Death: Assessing and Ameliorating Arbitrariness in Capital Charging, 49 Ariz. St. L.J. 137, 195 (2017). Because comparative proportionality review was intended to review "caprice in the decision to inflict the death penalty," a governor's isolated decision to afford mercy does not render an otherwise valid death sentence unconstitutional. See Gregg, 428 U.S. at 199, 203.

         {¶59} Governor Anaya commuted the majority of death sentences imposed under the pre-repeal, 1979 capital sentencing scheme. See Exec. Orders Nos. 86-37, 86-38, 86-39, 86-40, 86-41 (Nov. 26, 1986). Under Gregg, this does not render Petitioners' death sentences disproportionate. See 428 U.S. at 199. Because the constitutional jurisprudence gives us no reason to review this exercise of power, we will continue to consider these cases as death penalty cases for purposes of the comparative proportionality review.

         {¶60} We also limit our review to cases prosecuted under the pre-repeal, 1979 capital sentencing scheme. "To include cases decided before enactment of the present [s]tatute would require consideration of cases decided under the various constitutionally infirm statutes which predate the current one," Flamer, 490 A.2d at 139, and to include cases prosecuted under the post-repeal scheme would ensure a de facto repeal of the death penalty. This would contradict the Legislature's intent in enacting a savings clause for murders committed before July 1, 2009.

         {¶61} The Garcia Court's definition of the universe of cases includes one more restriction: we consider only those cases which were affirmed on appeal. 1983-NMSC-008, ¶ 34. This is a reasonable restriction because cases in which the defendant did not appeal cannot be considered a reliable indicator of facts warranting a given sentence. Moreover, because defendants facing either death or life imprisonment almost uniformly appealed, this restriction does not result in the exclusion of a great number of viable comparison cases. But see, e.g., Adams, CR-86-0064 (10th Dist. Quay County Dec. 5, 1986) (waiving the right to directly appeal the judgment and sentence of death, anticipating commutation).

         {¶62} In sum, we hold that the universe of cases is properly limited under Garcia to those cases in which the prosecutor decided to seek the death penalty, which advanced to a death penalty sentencing hearing in which the jury found at least one aggravating circumstance, and which resulted in a sentence of death or life imprisonment which was affirmed on appeal. 1983-NMSC-008, ¶ 34.

         2. We expand the pool of cases to include both cases involving the same aggravating circumstance and factually similar cases in which the jury had the option to impose the death penalty

         {¶63} The second step of the comparative proportionality review requires us to identify the particular characteristics to be used to identify a" 'similar case.'" Final Report, 15. While we adhere to Garcia's definition of the universe of cases, we reconsider the pool of comparison cases and determine that the pool must be expanded from cases involving first-degree murder convictions with the same aggravating circumstances to include factually similar crimes in which the jury considered the death penalty. In reaching this conclusion, we are guided by the Gregg Court's understanding that "[i]f a time comes when juries generally do not impose thedeath sentence in a certain kind of ...


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