N.M. Stat. § 31-20A-2 (2026)

If a jury finds, beyond a reasonable doubt, that one or more aggravating
circumstances exist, as enumerated in Section 31-20A-5 NMSA 1978, the defendant
shall be sentenced to life imprisonment without possibility of release or parole. If the jury
does not make the finding that one or more aggravating circumstances exist, the
defendant shall be sentenced to life imprisonment.

History: Laws 1979, ch. 150, § 3.; 2009, ch. 11, § 3.

                                     ANNOTATIONS

The 2009 amendment, effective July 1, 2009, deleted former Subsections A and B,
which provided for capital sentencing deliberations, and added the sentence of life
imprisonment without possibility of release or parole upon a finding of aggravating
circumstances.
Applicability clause. — Laws 2009, ch. 11, § 6 provided that the provisions of this
section apply to crimes committed on or after July 1, 2009.

Admission of evidence. — In the penalty phase of a capital felony case, evidence of
the defendant’s prior convictions may be admitted only if the state first establishes the
relevance of the prior convictions to the jury’s selection of the sentence and the district
court must facilitate the weighing by the jury of aggravating and mitigating
circumstances, on a case-by-case basis, according to the evidentiary rules of relevance
and reliability and the Capital Felony Sentencing Act’s [repealed] statutory directives.
State v. Sanchez, 2008-NMSC-066, 145 N.M. 31, 198 P.3d 337.

Constitutionality. — This section, directing the jury to weigh aggravating and mitigating
circumstances, consider the defendant and the crime, and then determine the sentence,
is not vague and indefinite, and thus does not violate a defendant's due process and
equal protection rights. State v. Clark, 1999-NMSC-035, 128 N.M. 119, 990 P.2d 793.

Aggravating circumstances need not be beyond reasonable doubt. — There is no
requirement that the aggravating circumstances outweigh the mitigating circumstances
beyond a reasonable doubt. State v. Finnell, 1984-NMSC-064, 101 N.M. 732, 688 P.2d
769, cert. denied, 469 U.S. 918, 105 S. Ct. 297, 83 L. Ed. 2d 232 (1984).

The jury is not required to find that the aggravating circumstances outweigh the
mitigating circumstances beyond a reasonable doubt in order to specify a sentence of
death. State v. Fry, 2006-NMSC-001, 138 N.M. 700, 126 P.3d 516.

Victim impact testimony. — Victim impact testimony is consistent with the Capital
Felony Sentencing Act [repealed] because it constitutes additional evidence as to the
circumstances of the crime under Section 31-20A-1C NMSA 1978 [repealed] and
Subsection B of this section. State v. Clark, 1999-NMSC-035, 128 N.M. 119, 990 P.2d
793.

The effective date of the victim's rights laws did not affect the admission of victim impact
evidence in a death penalty case. States are free to admit this type of evidence
following the United States supreme court's ruling in Payne v. Tennessee, 501 U.S. 808
(1991), and Section 31-20A-1C NMSA 1978 [repealed] and Subsection B of this section
already provide authority for the admission of this type of evidence. State v. Allen, 2000-
NMSC-002, 128 N.M. 482, 994 P.2d 728, cert. denied, 530 U.S. 1218, 120 S. Ct. 2225,
147 L. Ed. 2d 256 (2000).

The Rules of Evidence requiring relevance and the balancing of unfair prejudice also
apply to testimony and exhibits that are introduced in a capital felony sentencing
proceeding for the purpose of showing victim impact. State v. Allen, 2000-NMSC-002,
128 N.M. 482, 994 P.2d 728, cert. denied, 530 U.S. 1218, 120 S. Ct. 2225, 147 L. Ed.
2d 256 (2000).
Defendant was not unfairly prejudiced by impact evidence that included a videotaped
depiction of the victim prior to her death in addition to the testimony of two witnesses.
State v. Allen, 2000-NMSC-002, 128 N.M. 482, 994 P.2d 728, cert. denied, 530 U.S.
1218, 120 S. Ct. 2225, 147 L. Ed. 2d 256 (2000).

Lack of mitigating circumstances. — Defendant's failure to show any mitigating
circumstances, in and of itself, is not an aggravating circumstance. State v. Allen, 2000-
NMSC-002, 128 N.M. 482, 994 P.2d 728, cert. denied, 530 U.S. 1218, 120 S. Ct. 2225,
147 L. Ed. 2d 256 (2000).

Sentencing scheme is silent with regard to bifurcated proceedings. — In an
interlocutory appeal, where defendant was charged with first-degree murder, a capital
felony, and with one count each of first-degree kidnapping, robbery, and conspiracy to
commit robbery, and where defendant argued that due to her possible sentence of life
without the possibility of parole, she must be afforded heightened procedural protections
that apply when the state seeks the death penalty, the New Mexico supreme court held
that the Capital Felony Sentencing Act neither requires nor prohibits bifurcated guilt and
sentencing proceedings, and whether bifurcated proceedings are appropriate must be
determined on a case-by-case basis, after the issue has been properly raised and
argued under the rules of criminal procedure for the district courts. State v. Chadwick-
Mcnally, 2018-NMSC-018.

Evidence of mitigating circumstances prohibited. — In an interlocutory appeal,
where defendant was charged with first-degree murder, a capital felony, and with one
count each of first-degree kidnapping, robbery, and conspiracy to commit robbery, and
where defendant argued that the sentencing scheme under the Capital Felony
Sentencing Act (Act) does not prohibit the presentation of mitigating circumstances, the
district court did not err in concluding that defendant is precluded under the Act from
presenting evidence of mitigating circumstances for sentencing purposes, because
under the statute’s plain language, the determinative factors are the jury’s findings of
guilt and of one or more aggravating circumstances. When both findings are present, a
sentence of life without parole is mandatory and cannot be mitigated. State v.
Chadwick-Mcnally, 2018-NMSC-018.

Comparative proportionality review under former statute. — A comparative
proportionality review is a post-sentence inquiry into whether a death sentence is
disproportionate to the punishment imposed on others convicted of the same crime. Fry
v. Lopez and Allen v. LeMaster, 2019-NMSC-013.

Modified approach to comparative proportionality review of a death sentence
under former statute. — In New Mexico's modified approach to comparative
proportionality review, the reviewing court defines a universe of cases from which
similar cases are to be drawn, defines what constitutes a similar case, which produces a
pool of cases to be used for comparison purposes, and defines the test used to
establish that a sentence is disproportionate. The universe of cases is properly limited
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, which resulted in a sentence of death or life imprisonment
and which was affirmed on appeal, the pool of cases is expanded 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, and New Mexico adheres to a
precedent-seeking approach, which involves comparing the case to the pool of
comparison cases. Fry v. Lopez and Allen v. LeMaster, 2019-NMSC-013.

Disproportionate death sentence under former statute construed. — A death
sentence is disproportionate if juries do not generally impose a death sentence in
similar cases and there is no real justification for the death sentence. Fry v. Lopez and
Allen v. LeMaster, 2019-NMSC-013.

Death penalties under former statute vacated where petitioners' death sentences
were statutorily disproportionate to the penalties imposed in similar cases. —
Where petitioners were sentenced to death for their respective convictions for first-
degree murder and after a finding by their respective juries of certain aggravating
circumstances, petitioners' death sentences were statutorily disproportionate, because
cases involving the same aggravating circumstances as well as other factually similar
cases as in Fry and Allen did not generally result in death sentences, and there was no
real justification for affirming the death sentences. Fry v. Lopez and Allen v. LeMaster,
2019-NMSC-013.

Law reviews. — For article, "Constitutionality of the New Mexico Capital Punishment
Statute," see 11 N.M.L. Rev. 269 (1981).

For comment, "State v. Jacobs: A Comment on One State's Choice to Restrict Victim
Impact Evidence at Death Penalty Sentencing," see 31 N.M.L. Rev. 539 (2001).