To: New Mexico Governor Bill Richardson, State Legislature and

          media throughout New Mexico


RE:   Rebuttal of death penalty comments by

           1)  Senator Michael Sanchez, a defense attorney  and

           2)  Melissa Hill, Legislative Chair, NM Criminal Defense Lawyers Association


From: Dudley Sharp, contact info below


1)  Senate Majority Leader Michael Sanchez, a criminal defense attorney, said


“(that) he didn’t agree with supporters of the death penalty that ‘If you get it right 90 percent of the time, that’s good enough. That is not good enough.’  ” (1)

Rebuttal:  I have never heard a pro death penalty person say that nor can I imagine why they would.


Even the absurdly false claims of anti death penalty folks don’t exaggerate that much – they only claim that 130 death row inmates were exonerated by innocence and released, since 1973. That’s only 1.6% of the 8000 sentenced to death, or a 98.4% accuracy rate in convicting the actually guilty.  None of those were executed. 


The reality is that the system, on convicting the actually guilty,  is about 99.7% accurate.


There is no proof that the US has executed an actual innocent since 1900.


So, Senator, what are you talking about?


2) Ms. Melissa Hill,    Legislative Chair, NM Criminal Defense Lawyers Association


I have responded within Ms. Hill’s letter below.


Her comments are “HILL”.  Mine are “REBUTTAL”.


From: Melissa Hill, Attorney at Law, Legislative Chair, NMCDLA
March 11, 2009
            Re:  House Bill 285: Death Penalty Repeal
Dear Senator:


HILL:  Deterrence:  Some legislators say they are convinced that the death penalty deters murder, or at least murders involving police and prison guards.  Unfortunately, statistics do not confirm this.  When Terry Clark was executed in 2001, the number of murders in New Mexico rose from 99 to 152. 


REBUTTAL:  There is a constant within all jurisdictions — negative consequences will always deter some – a truism.  Whether a jurisdiction has high murder rates or low ones, rather rising or lowering rates, the presence of the death penalty will produce fewer net murders, the absence of the death penalty will produce more net murders. An analogy. Consider smoking. Whether a jurisdiction has high smoking rates or low ones, or rising or lowering rates, the knowledge of medical problems from smoking will produce fewer net smokers, the absence of any medical problems from smoking would produce more net smokers.


HILL: This so-called “brutalization effect” has been observed in other places, too, including California. Furthermore, more prison guards and police are murdered in the south than anywhere else in the country; yet the southern states use the death penalty the most.


REBUTTAL:  Brutalization


In the last study I reviewed, police murders dropped as executions increased.
See Figure 14 page 20,

Anti death penalty folks, Like Ms. Hill, make a common error on deterrence, whereby they only look at murder rates and homicide rates. What deterrence says is that there will be less net murders with the death penalty and more net murders than without it.


Many anti death penalty folks want us to believe in the brutalization effect, which is that potential murderers will become murderers because the state example of execution leads them to murder.
To accept the brutalization effect, you have to accept that potential murderers are deep philosophical thinkers who decide that because of the actions of the state, in correctly executing guilty murderers, that such will be an example for potential murderers to unjustly murder innocents, because of the brutalization effect on the murderer, who is so influenced by the state. 


It makes one wonder why criminals don’t kidnap more, because states incarcerate much more often or why criminals don’t become philanthropists, as the states provide welfare.
Anti death folks constantly tell us that criminals don’t think before they act, so there can be no deterrent effect of the death penalty. Yet, those very same anti death penalty folks, now, tell us that criminals are much more likely to be affected by the deep philosophical reasoning of brutalization.


Why wouldn’t criminals be much more likely deterred by the quite simple “you murder, we execute you”?
The studies finding for deterrence overwhelm the studies finding for brutalization.


Secondly, there is the problem of reason.The brutalization effect says that a prospect for a negative outcome will actually increase the actions that create the negative outcome – by executing murderers, we are creating more murderers.


That must be why armed robbers rob so many police stations.
The deterrent effect says that a prospect of a negative outcome will deter the behavior of some – by executing murderers we will deter some potential murderers. All prospects of a negative outcome deter some. It is a truism.
Furthermore, individual deterrence exists. Individual deterrence is that circumstance whereby a potential murderer says I didn’t commit murder because I didn’t want to be executed. Many of those cases exist. Individual deterrence cannot exist without the presence of the general deterrent effect. Therefore, general deterrence exists.
Not surprisingly, 16 recent studies, inclusive of their defenses, find for the general deterrent effect of the death penalty.
One recent study finds for brutalization. It says that if you execute less than one murderer every 27 months that you will see a net rise in murderers.
Although I discount the brutalization effect, based upon reason, alone, this one study supports one factor many death penalty advocates have been saying for years – increase executions and you will save more innocent lives, via deterrence. This brutalization study confirms THAT reasoning.
In addition, some of the deterrence studies found that increasing the number and frequency of executions will increase the deterrent effect.
Put another way, slowing or stopping executions will spare murderers at the cost of more innocent lives taken.

HILL: Let’s face it,  there is no deterrent value to having a death penalty and not using it because of the lack of adequate funding for defense lawyers.


REBUTTAL: Actually, just having the death penalty in statute has been shown to be a deterrent. Read the recent 16 studies finding for deterrence.


HILL: New Mexico currently violates American Bar Association standards for death penalty cases by paying contract death penalty lawyers low flat fees (about $25,000 for the entire case, which amounts to roughly $12.50 per hour) to represent defendant’s in death penalty cases, rather than reasonable hourly pay.  In a recent case in which the State sought the death penalty in a case involving the murder of a prison guard, the New Mexico Supreme Court ordered the State to come up with funding to pay the lawyers a mere $75 per hour.  The State could not come up with the money and the death penalty had to be dismissed. 


REBUTTAL: Very sad. Prisoners serving life will now know that they can murder guards and not be punished for it. Shame on New Mexico.

HILL: Costs of life without parole: Some legislators believe that costs don’t matter.  Some believe that life without parole cases will end up costing as much as death penalty cases.  Costs do matter – as evidenced by the dismissal of the death penalty in the prison guard murder case mentioned above.  In addition, comparative statistics are available that show that life without parole is cheaper overall than the death penalty.  California has both life without parole and death sentencing.  A 2008 study by the California Commission on the Fair Administration of Justice concluded that trials in death penalty cases cost the state 4 times as much as trials in cases in which life without parole was sought.  The Commission also concluded that post-conviction costs in death penalty cases were about 18 times as expensive as post-conviction costs for life without parole cases.  This is not surprising given all the extra state and federal procedural protections that are granted in death penalty cases, but not in life imprisonment cases. 


REBUTTAL: Ms. Hill uses the worst possible example.  Why not use the best?


Virginia executes in 5-7 years. 65% of those sentenced to death have been executed. Only 15% of their death penalty cases are overturned. The national averages are 11 years,  14% and 36%, respectively.

With the high costs of long term imprisonment, a true life sentence will be more expensive than such a death penalty protocol.


That way, New Mexico could give the death penalty to those who murder guards and can carry out the sentence.


HILL: DNA:  I have heard legislators say that fewer wrongful convictions will occur because of the availability of DNA.  DNA evidence is only available in a very small percentage of cases. I personally have two clients serving life sentences in California whose guilt of murder I seriously question.  These men were both convicted based eyewitness identification evidence alone. There is no DNA evidence to test.  Thank heavens these men are not under sentences of death. If the real murderer ever comes forward – as Clinton Bloomfield as in the Yi killing cases – at least these men will still be alive.  (See, Albuquerque Journal, March 11, 2009, Yi Killing Charges To Be Dropped.)


REBUTTAL:   Of all the government programs in the world, that put innocents at risk, is there one with a safer record and with greater protections than the US death penalty?


Possibly we have sentenced 25 actually innocent people to death since 1973, or 0.3% of those so sentenced. Those have all been released upon post conviction review. The anti death penalty claims, that the numbers are significantly higher, are a fraud, easily discoverable by fact checking.


There is no proof of an innocent executed in the US, at least since 1900.


In addition,  because of enhanced due process, enhanced incapacitation and enhanced deterrence, the death penalty protects innocents to a higher degree than lesser sanctions.


HILL: Closure for murder victims’ families:  Some prosecutors say they need to retain the death penalty for the benefit of murder victims’ family members.  When family members press for the death penalty, I hope the prosecutors tell them the truth about the death penalty in New Mexico. First, only one man has been executed in New Mexico in the last 48 years, and that man asked to die. Historically, in New Mexico, a majority of death judgments are reversed on direct appeal. When a death sentence is affirmed on appeal, the death penalty is re-examined in state and federal habeas corpus proceedings which usually take decades to complete.  
            The two men currently on death row are exemplary of the problem.& nbsp; Tim Allen’s victim died in February 1994, and his post-conviction review is still ongoing.  The victim’s father died years ago without ever seeing the promised execution. Robert Fry was sentenced to die for a 1998 murder. His post-conviction habeas corpus proceedings are far from over. 


REBUTTAL:  What hypocrisy. When was the last time that Ms. Hill and her group made an effort to speed up appeals to spare the survivors the irresponsibly long appellate process?


There is most definitely closure.


The execution is closure to the legal process, whereby execution is the most just sanction available for the crime and the family is relieved that the murderer is dead  and can no longer harm another innocent – a very big deal.

 The confusion with “closure” is when some imply that execution can bring psychological or emotional closure to the devastation suffered by the murder victim’s loved ones.
I know of no victim survivor who believes that execution could bring that type of closure. How could it?
No punishment can, nor is that the intention.

The concept of emotional “closure” via execution is, often, a fantasy perpetrated by anti death penalty folks, just so they can denounce it with a talking point, as in: “Those supporting capital punishment claim that closure is a major reason to support the death penalty – but there is no closure.”
 Do you know of any murder victim survivor who says that their emotional or psychological pain was closed once the murderer was executed or otherwise punished? Me neither.




Ms. Hill, thank you for the opportunity to show why the death penalty should remain for murderers in New Mexico and why that will better protect innocents.


Sincerely, Dudley Sharp

Dudley Sharp, Justice Matters
e-mail,  713-622-5491,
Houston, Texas
Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C-SPAN, FOX, NBC, NPR, PBS , VOA and many other TV and radio networks, on such programs as Nightline, The News Hour with Jim Lehrer, The O’Reilly Factor, etc., has been quoted in newspapers throughout the world and is a published author.
A former opponent of capital punishment, he has written and granted interviews about, testified on and debated the subject of the death penalty, extensively and internationally




            I hope you w ill support the repeal of the death penalty in New Mexico.  At the very least, I hope you will give this bill your careful consideration and make your decision based on the facts.


                                                                                    Yours truly, Melissa Hill
                                                                                    Legislative Chair, NMCDLA
                                      & nbsp;                                             (505) 898-2977


Melissa Hill
Attorney at Law
PO Box 2758
Corrales, NM 87048
Phone: (505) 898-2977
FAX: (505) 898-5085


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