Arizona pauses executions
By Howard Fischer
Capitol Media Services
PHOENIX -- Arizona is pausing putting people to death.
Attorney General Kris Mayes on Friday withdrew the state's legal request for the Arizona Supreme Court to issue a warrant allowing the execution of Aaron Gunches, convicted in the 2002 death of Ted Price, his girlfriend's ex-husband. More to the point, Mayes told the justices she won't be seeking any new execution warrants until she gets the findings from a new Death Penalty Independent Review Commissioner being named by Gov. Katie Hobbs.
That commissioner is tasked with conducting a full review of the process, ranging from how and where the state gets its execution chemicals to transparency and media access and the procedures and protocols used by the Department of Corrections, Rehabilitation and Reentry used to put condemned inmates to death, including the training of those prison officials involved.
Arizona resumed executions last year after an eight-year pause following the botched procedure when Joseph Wood was given 15 doses of a two-drug combination over two hours. Three inmates were put to death in 2022.
Hobbs said the process has remained plagued by questions.
"Recent executions have been embroiled in controversy,'' she said. There were reports that prison employees had repeated problems in placing the intravenous line into the veins of the condemned men.
"The death penalty is a controversial issue to begin with,'' the governor continued. "We just want to make sure the practices are sound and that we don't end up with botched executions like we've seen recently.''
Hobbs made it clear none of this means the state will never resume executions of the 107 men and three women on "death row.'' A total of 21 have exhausted their appeals.
"That is not up to me,'' she said. "It is up to the attorney general.''
But Mayes, in legal filings Friday with the Supreme Court, said there will be none for the time being.
"There is a heightened need to ensure any capital sentence is carried out constitutionally, legally, humanely, and with transparency,'' the court papers state. "To that end, no further warrants of execution will be sought at this time.''
In fact, the governor has no role at all in deciding who does or does not get executed.
It is solely up to the attorney general to ask the Arizona Supreme Court for the necessary warrant to execute someone once all appeals have been exhausted. And unlike some states, the governor here cannot unilaterally pardon someone or commute a sentence without first getting a recommendation to do so from the Arizona Board of Executive Clemency.
In seeking a review, Hobbs acknowledged she is examining only a portion of the process, covering the time from when a person is sentenced to death to when the penalty is carried out.
Not part of the study is the larger question of whether the death penalty is imposed fairly. That includes differences in sentences depending on things like the race of the defendant and the financial ability to hire the best available counsel.
Of the 110 inmates who have been sentenced to death, 62 are classified as Caucasian, 22 Mexican Americans, 17 Black inmates, with four who are Native American, three Asians and two who are simply listed as "other.''
"That's certainly a conversation worth having,'' Hobbs said, saying it goes beyond the scope of the order she issued Friday.
But the governor said she is "certainly would be willing to entertain further action on the broader issue of the whole process.''
And she repeatedly refused to divulge her own beliefs on the death penalty, saying they are not relevant.
"We just want to review the practices and make sure that if we are conducting executions that they're done as humanely and transparently and as consistently with the law as possible,'' Hobbs said.
Mayes, in the legal papers she filed Friday with the Supreme Court, expressed similar sentiments.
"A system of capital punishment must be underpinned by faithful adherence to the law and public confidence in the system,'' her office wrote in the request to withdraw the request for an execution warrant for Gunches. "Transparency helps accomplish those dual goals.''
One of the issues Hobbs wants examined is how the state has been acquiring the drugs it has been using to carry out the death penalty by lethal injection.
Corrections officials have been less than transparent -- and at least once in violation of federal regulations -- in their practices.
In 2015, Arizona ordered 1,000 vials of sodium thiopental, a muscle relaxant used in the execution process, from a supplier in India. That came after a domestic manufacturer refused to sell it for executions.
That decision to order the drugs came despite warning from the federal Food and Drug Administration that buying the drug from India-based Harris Pharma would be illegal. That followed a 2012 decision by a federal judge, ruling in a lawsuit brought by inmates, requiring the federal agency to block importation of the drug as unapproved.
It ended up with Customs and Border Protection seizing the drugs at Sky Harbor International Airport. And in 2017 the FDA refused a request by Arizona to release them.
Capitol Media Services subsequently obtained a heavily redacted document showing the state spent $1.5 million in 2020 to buy 1,000 vials of pentobarbital sodium salt and have it shipped to the Department of Corrections, Rehabilitation and Reentry in "unmarked jars and boxes.''
State officials have repeatedly declined to identify where they have attempted to purchase supplies of lethal chemicals. And the 9th Circuit Court of Appeals has ruled that Arizonans have no right to know where the state obtains its drugs to execute its inmates.
Hobbs said that the commissioner she is hiring will not only find out exactly how the state is getting the drugs it needs but also make that information publicly available.
Corrections officials have argued in the past that companies will not sell drugs to the state that have other useful purposes, like as an anesthetic or sedative, if their products are publicly linked to putting people to death. Hobbs said none of that is an excuse for hiding the information from taxpayers.
"If the state of Arizona is executing people in the name of Arizonans, Arizonans deserve transparency around that process,'' she said.
The new inquiry goes beyond the lethal injections.
Arizona voters abolished the use of lethal gas in 1992. That followed gruesome reports of the execution of Don Harding, who took 11 minutes to die.
But that constitutional amendment, approved by a ratio of more than 3-to-1, preserved that right for those already on death row to choose either option. State prison officials put the number eligible to make that choice at 30.
The review Hobbs is ordering also seeks review of how the state obtains the chemicals used in the gas chamber, the cost to the state and the composition of those chemicals.
Beyond that, the governor wants to review the procedures used for executing inmates by either process, as well as staff training and background in administering executions.
Last year the Jewish Community Relations Council of Phoenix challenged the state's use of cyanide gas, called Zyklon B, the same gas that Nazis used to kill millions of Jews. They argued it is barbaric, cruel and unusual -- and a painful reminder of the Holocaust for survivors who live here.
Maricopa County Superior Court Judge Joan Sinclair threw out the case, pointing out the organization and its members were not contesting the constitutionality of the death penalty. And she said that as long as the Arizona Constitution permits the use of lethal gas it is not for her to decide which is appropriate.
The case of Gunches is unusual.
He had asked the Supreme Court last November to issue a death warrant "so that justice may be lawfully served and give closure to the victim's family.'' But Gunches withdrew his request earlier this month after he saw Mayes being quoted as saying the state needs to "take some time to assess how the death penalty has worked, and make sure that this is done legally and correctly.''
Gunches, in his new filing, also referred to news reports of the three executions conducted in 2022, saying prison officials had trouble placing the line for the chemicals into the femoral vein, saying that process "amounts to torture.''
The governor said Wednesday she has no one in particular in mind to conduct the review. But Hobbs said that person will be chosen by her, in conjunction with Mayes, and not someone named by the corrections department or by Ryan Thornell, whom she tapped earlier this week to head the agency.