On January 20, newly installed Arizona Governor Katie Hobbs took such a step when she issued an executive order directing an independent commissioner to review certain aspects of the death penalty process in her state. She joined the governors of Alabama, Ohio, and Tennessee, each of whom has ordered similar reviews in their states.
Attorney General Kris Mayes, another of the state’s newly elected Democrats, quickly followed up on the governor’s action. First, she withdrew a pending request that had been filed by her predecessor for the state supreme court to set an execution date in the case of Aaron Gunches.
Mayes also announced that she would not seek new death warrants while the death penalty review was being conducted.
Gov. Hobbs’s executive order is narrowly tailored. It did not launch a stem-to-stern inquiry into the issues of racism, unreliability, or the costliness of the death penalty. And neither Hobbs nor Mayes has said anything suggesting a principled objection to state killing.
In fact, the governor told the press that her own views about the death penalty had nothing to do with her decision to launch an investigation. She simply wanted to ensure “if we are conducting executions, that they are done as humanely and transparently and as consistently with the law as possible.”
Yet the significance of what has just happened in Arizona for the movement to end capital punishment should not be underestimated.
The investigation that Hobbs launched is important because it will examine aspects of the execution protocols and procedures that happen behind closed doors: the death penalty thrives in secrecy. It tends to wither when the cruelty of any part of its day-to-day operations is brought to light.
As for Mayes’s decision to pause executions, once they are halted, it may be very hard to restart them. People get used to living without them, and they see that the death penalty does nothing to make them safer.
The statements made in Hobbs’s executive order and the way abolitionists reacted to it also tell us important things about where we are on the road to abolition.
First, the governor publicly acknowledged that her state “has a history of executions that have resulted in serious questions about… (its) execution protocols and lack of transparency.”
The most notorious occurred in 2014 when Arizona put Joseph Wood to death. His execution became a gruesome spectacle. Wood was injected 15 times with the drugs midazolam and hydromorphone, many more times than what should have been necessary. He gasped for air for two hours before he finally died.
The governor’s acknowledgment of her state’s history of botched executions is a welcome contrast with what state officials generally say when things go wrong in the death chamber.
Typical is the statement of Arizona’s Corrections Director Charles Ryan said after the Woods fiasco. “Media reports, some of which were made prior to any information officially being released on the day of the execution,” he said, “reached the premature and erroneous conclusion that the execution was ‘botched.’”
“This is pure conjecture,” Ryan continued, “because there is no medical or forensic evidence to date that supports that conclusion. In fact, the evidence gathered thus far supports the opposite.”
Hobbs’s executive order makes clear that far more than conjecture supports that the Woods execution was botched.
It also highlighted the failures of Arizona’s Department of Corrections Rehabilitation and Reentry (ADCRR), which is responsible for carrying out executions. That department, she said, needs “better oversight, accountability, and transparency” and to follow what she labeled “clear and legal procedures.”
Hobbs said that the review she was launching would examine “the ADCRR’s lethal injection drug and gas chamber chemical procurement process, execution protocols, and staffing considerations including training and experience.”
She charged the review commissioner to report on “the State’s procurement of lethal injection drugs, including but not limited to the source of the drugs, the cost to the State, and any considerations about the drugs such as composition and expiration.”
Because Arizona authorizes the gas chamber as an alternative method of execution, Hobbs said that the review should also include “The State’s procurement of gas chamber chemicals, including but not limited to the source of the chemicals, the cost to the State, and the composition of the chemicals.”
Finally, the governor singled out for study “ADCRR procedures and protocols for conducting an execution by gas chamber and by lethal injection, including but not limited to setting lines for a lethal injection, transparency, and media access, access to legal counsel for the inmate, and contingency planning; and Staffing considerations, including but not limited to training, staffing plans to conduct executions, and staff background and experience for administering an execution.”
The governor’s announcement drew mixed reviews, even among people who oppose the death penalty. Some welcomed it as a stark departure from her predecessors’ indifference to the death penalty’s problems. But others worried that the charge to the investigation did not go far enough.
Dale Baich, who once served as chief of the Arizona federal defender’s capital habeas unit, told the Associated Press, “These problems go back more than a decade. The department of corrections, the governor and the attorney general (in past administrations) ignored the issues and refused to take a careful look at the problems. Gov. Hobbs and Attorney General Mayes should be commended for taking this matter seriously.”
Laura Conover, a death penalty abolitionist who is now the district attorney in Arizona’s second-largest county, also applauded the governor and attorney general, but said that the investigation and review should be more comprehensive.
Arizona’s Daily Independent quotes her as saying that “The flaws in the death penalty are at the get-go.”
Conover was disappointed that the governor’s study did not go beyond what is causing botched executions. She argued that urgent attention needs to be paid to other issues, in particular to “how decisions are made about which cases prosecutors seek the death penalty and whether there are biases in both that decision and the ability of all defendants to get equal treatment, including by the juries who make the ultimate decision of life or death.”
Governor Hobbs responded to Conover’s concerns by saying, “That’s certainly a conversation worth having.” She promised that, in the future, she “certainly would be willing to entertain further action on the broader issue of the whole process.”
Given the well-documented problems of arbitrariness and discrimination in the administration of capital punishment in Arizona and elsewhere, further action is certainly warranted.
Meantime, we should recognize that every step toward transparency, even a narrowly tailored investigation of the kind Hobbs ordered, is a step on the road to abolition.
What Supreme Court Justice Thurgood Marshall said more than fifty years ago is still true today. The more the American people know about “the facts…regarding capital punishment,” Marshall explained, the more likely they are to “find it shocking to… (the) conscience and sense of justice.”
Source: verdict.justia.com, Austin Sarat, January 27, 2023. Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. Views expressed do not represent Amherst College.
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
but by the punishments that the good have inflicted." -- Oscar Wilde