The appeal claims that their sentences were arbitrary because worse crimes did not draw a death sentence.
New Mexico repealed capital punishment in 2009, but death sentences were not commuted for Robert Fry and Timothy Allen, The Associated Press (AP) reported.
Gov. Bill Richardson signed the repeal without commuting their sentences. The state Supreme Court did agree to consider appeals of death sentences of Allen and Fry in 2013.
The court heard arguments for two hours in April. There was no order to stay the executions, and these men could be executed before a decision is handed down, the AP noted.
Assistant Attorney General Victoria Wilson said, “We still find that this sentence is proportionate because the ultimate question is: was the sentence imposed arbitrarily?”
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Fry was the last person sentenced to death in New Mexico. He was convicted of killing Betty Lee, the mother of five who was bludgeoned with a sledgehammer and stabbed. Fry was also sentenced to life in prison for three other murders.
Allen was sentenced for kidnapping, attempted rape and strangling 17-year-old Sandra Phillips in 1994.
Attorneys defending Allen and Fry urged the court to consider more appalling murders that did not receive a death sentence.
Attorney Kathleen McGarry stated “What we’re looking at are cases that are far worse than Mr. Fry’s case, and yet those persons are not going to be … sentenced to death.”
McGarry said, “How does that make Mr. Fry’s death sentence be the poster child of what we’re going to do here in New Mexico?”
Lawyers for Fry and Allen have alleged that the death sentences violate state, federal and constitutional provisions against cruel and unusual punishment and equal protection guarantees.
Wilson states the sentence is proportionate because it was not imposed arbitrarily.
A decision can result in lighter sentences or the execution of two men.