Arizona Is a New Death Penalty Battleground State

Posted in: Criminal Law

Arizona recently has turned into one of the key battlegrounds in American politics. Both the 2020 presidential election and last November’s midterms were hotly contested and decided by a razor-thin margin. In both instances, Democrats narrowly prevailed.

One of those Democrats was Attorney General Kris Mayes. Mayes won her race by a margin of 280 votes out of two and one half million ballots cast.

Mayes takes office at a time when Arizona’s use of the death penalty is in the national spotlight. She has a chance to put a brake on executions pending a thorough review and investigation of the state’s death penalty process and procedures. Such a review was recently completed in Tennessee and is ongoing in Alabama and Ohio.

In 2022, Arizona re-entered the death penalty business after not having put anyone to death since 2014. The pause occurred after the badly botched execution of Joseph Wood. He was injected 15 times with midazolam and hydromorphone and gasped for air for two hours before he died.

Last year, Arizona carried out three executions. None was trouble-free.

In May, correction officials tried for more than twenty-five minutes to set an IV line in Clarence Dixon’s arms. After failing in those attempts, they performed a “cutdown” procedure in order to access a vein in his groin.

After Dixon’s execution, The Daily Mail interviewed Fordham Law professor Deborah Denno who noted that executions “should take seven-to-ten minutes from the beginning of the IV insertion process until the moment the prisoner is declared dead.”

What happened during Dixon’s execution was, Denno said, “A sign of desperation [on the part of the execution team], and . . . a sign of an unqualified executioner.”

In June, Arizona again ran into problems when it executed Frank Atwood. Atwood suffered from a serious, degenerative spinal condition that made him unable to walk to the execution chamber. Correction officials brought him there in a wheelchair.

As in Dixon’s execution, they again had problems finding a vein. After the execution team secured an IV in one of Atwood’s arms, Arizona Republic reporter Jimmy Jenkins described a process during which “The execution team tried and failed to get the IV into his right arm several times. One of the execution team members shook his head in frustration.”

Things got so bad that Atwood himself suggested that they try securing an IV in his right hand. In what Jenkins labeled a “surreal” scene, correction officers relied on the advice of the person they were about to kill and finally succeeded in securing the second IV.

The process took 30 minutes.

In its coverage of the last of Arizona’s 2022 executions, the November execution of Murray Hooper, The Arizona Republic reported that “For the third time since resuming the death penalty this year, the Arizona Department of Corrections struggled to insert the intravenous needles that deliver lethal drugs during an execution. … Witnesses … reported seeing execution team members attempt and fail to insert IVs into both of Hooper’s arms before finally resorting to inserting a catheter into Hooper’s femoral vein near his groin.”

Three people put to death, three botched executions.

At the moment, there are no executions scheduled in Arizona for 2023. However, the state’s supreme court will be meeting on January 31 to decide whether to set an execution date for Aaron Gunches. Gunches was sentenced to death in 2008 for the 2002 kidnapping and murder of Ted Price. Gunches pled guilty to both crimes.

In November, he asked the state supreme court to issue a death warrant, “‘so that justice may be lawfully served and give closure to the victim’s family.’”

But last week he changed his mind. He filed a motion seeking to withdraw his request to be executed. Among his reasons, Arizona’s three botched 2022 executions.

Gunches motion to withdraw said that the previous executions were carried out “in a matter that amounts to torture,” and that he does not want to be tortured.

And here is where Arizona’s new attorney general comes in.

Last month the AG’s office, then led by ardent death penalty supporter Mark Brnovich, had filed its own motion asking the state supreme court to issue a death warrant in the Gunches case.

During her campaign, Mayes did not have much to say about the death penalty. Indeed the issue was not even mentioned on her campaign website.

And when asked about it, she expressed concerns but did not unequivocally oppose capital punishment.

In October, Mayes said the following: “The death penalty is the law of Arizona. Any attorney general takes an oath to faithfully enforce the law. Sadly, our elected politicians have been so incompetent that they’ve made a mess of this. There was a botched execution in 2014 because the Department of Corrections couldn’t figure out the correct drug dosage.”

Mayes continued, “This should be a matter of justice, not politics. Our current attorney general has turned it into a political circus. He’s even tried to get Zyklon B, the gas used in Nazi death chambers, to use here in Arizona. We need to take some time to assess how the death penalty has worked, and make sure that this is done legally and correctly.”

On another occasion during the campaign, she repeated her accusation about the politicization of capital punishment by the state’s Republican governor and attorney general.

Mayes said, “I think this is another example of what a disaster Brnovich and Gov. Ducey have been. We have both a governor and Attorney General who have attempted to politicize the death penalty to the degree that they were willing to speed up executions. They botched executions. They were willing to order lethal injection drugs or lethal drugs that had the wrong half-life.”

And Mayes promised, “The first thing I would do is I would put a pause on all executions and understand what is happening, both inside the Department of Corrections and inside the attorney general’s office, and then come to some conclusions.”

The Gunches case is a test of whether Mayes will fulfill her promise.

Last week, a spokesperson for the new AG said that “the state does not intend to oppose Mr. Gunches’ motion to withdraw.” The spokesperson said that Mayes “will weigh all options and make a decision about moving forward.”

If she decides to actually support Gunches’ motion to withdraw his request to be executed and launches a comprehensive review of Arizona’s death penalty, she will help make Arizona a death penalty battleground state. Such a review also would make it the latest state to confront the troubling issues that have plagued the death penalty across the country.

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