Pinal County Attorney Lando Voyles wants to add human smugglers who kill to the categories that qualify someone for death row.
He also wants to add people who the state can prove will likely kill again.
Voyles is pushing the proposal as public support for the death penalty is the lowest in decades and states repeal their statutes. Experts also warn that adding to Arizona’s death penalty law puts it at risk of being found unconstitutional because it already contains a rash of “aggravating circumstances.”
In Arizona, in order to impose a death sentence a jury has to convict a person of first-degree murder and find at least one aggravating circumstance associated with the crime. Arizona has 14 aggravating circumstances, such as killing a police officer, killing a child, or killing someone in an “especially heinous, cruel, or depraved manner.”
“An argument can be made that Arizona has expanded its eligibility requirements for the death penalty, which is inconsistent with Supreme Court precedent requiring narrow application,” said Dale Baich, who leads the federal public defender’s unit that represents death-row prisoners.
Being convicted of a previous serious offense is also an aggravating circumstance, and there are 13 serious offenses listed in the death-penalty statute, such as sexual assault, arson of an occupied structure, and robbery.
Voyles proposes adding the crimes of human smuggling and participating or assisting a human smuggling organization to the list of serious offenses. He also proposes to add the concept of “continuing threat” or “future dangerousness” as an aggravating circumstance, under which the state would have to prove the person will probably commit murder or other acts of violence in the future.
Rep. Justin Pierce, a Mesa Republican, said he will sponsor the legislation, and he doesn’t think the additions make Arizona’s application of the death penalty too broad.
“If you have other aggravators and you throw in the fact that this was done in the course of smuggling activity, then I believe that certainly is something that aggravates a murder and should be considered when imposing a penalty,” Pierce said.
Most deadly sector
Voyles, who was elected in 2012 running on a Republican ticket with immigration hawk Sheriff Paul Babeu, said the human smuggling measure is necessary in his county, which is a major human and drug smuggling corridor.
“We have the biggest problem on the US-Mexico border out of anybody in the United States,” Voyles said. “We have the busiest and most deadly sector in the entire U.S. These individuals are subjected to either lack of food, water, exposure to excessive heat. A lot of these don’t just come across as the smugglers, but sometimes they are the smugglees, as we refer to them, or the victims of the smugglers.”
Still, the proposal is being made as support for the death penalty declines across the nation. The results of a Gallup Poll published in October show that while support for the death penalty is at 60 percent, it is the lowest in 40 years. It peaked in 1994 at 80 percent before falling steadily.
Richard Dieter, executive director of the Death Penalty Information Center, a research group opposed to capital punishment, said support drops below 50 percent when pollsters give respondents the choice of death or life without the chance for parole, a trend that juries tend to follow, which is why he thinks the number of death sentences has been dropping.
“Juries are skeptical of the death penalty even though they only get on the jury if they are willing to impose it,” Dieter said.
Six states since 2007 have also repealed their statutes, although all are blue, including New Mexico, the only Western state.
The U.S. Supreme Court found in 1972 that Georgia’s death penalty law resulted in capricious and arbitrary sentencing, effectively wiping out the statutes of 40 states. The court upheld the newly written state laws in 1976.
“When the Supreme Court upheld specific state death penalty statutes, it did so as long as the states narrowed the class of individuals eligible for the death penalty,” said Baich.
He said the idea is to reserve the death penalty for the worst of the worst.
Still, Dieter said the trend has been for states to keep adding aggravating circumstances.
“If you start with the murder of a police officer, why not the murder of a firefighter or a hospital worker or a teacher or an older person or a younger person?” Dieter said. “There is a natural tendency to say these are all bad crimes.”
He said it could be argued that in California, which has 17 “special circumstances,” as they are called there, almost any murder is eligible for the death penalty.
Tragedy in a U-Haul
Voyles declined to provide examples of first-degree murder cases in which the proposal could be applied, but he said there are some to be found in news releases on the Pinal County Attorney website.
The website contains a news release announcing first-degree murder charges for three people who allegedly tried to smuggle a group of people in the rear of a U-Haul truck in July.
When the truck stopped at a gas station, people stumbled out of the back in distress, and one man ultimately died.
Voyles, whose county contains several state and private prisons, said the continuing threat aggravator could be applied to murders committed by prison gang members.
He said many of the gangs require prospects to kill in order to join, and they can only leave by dying.
He said a case could be made that gang leaders and gang hit men will kill in the future because that is their job. Arizona currently allows the state to use a continuing threat argument only as a rebuttal when a defendant claims there is nothing to fear from him in the future.
Six of the 32 states with the death penalty have the continuing threat aggravator in statute and 14 other states have it in case law.
Dieter said the problem with the aggravator is it tries to predict the future, but Voyles said the state has to meet a high standard.
“This is not just a person who we want to point a finger at and say they look like a bad person,” Voyles said. “This not a person we want to throw the book at just because we have an assumption. This is something we have articulable facts for. This is something we have evidence on that can be proven beyond a reasonable doubt the person is a continuing threat to the community.”
Death penalty facts
Juries must find at least one of the following aggravating circumstances to impose the death penalty:
• A previous conviction in the U.S. that under Arizona law would have a sentence of life in prison or death.
• A previous conviction for a serious offense (serious offense definition includes 13 listed crimes).
• Created a grave risk of death to another person besides the murder victim during the commission of the crime.
• Paid someone to commit the murder.
• Got paid to commit the crime.
• Committed the crime in an especially heinous, cruel or depraved manner.
• Committed the murder while in prison, on parole or probation.
• Convicted of more than one murder committed during the crime.
• An adult who killed a child younger than 15, an unborn child in the womb, or someone 70 years or older.
• Killed a police officer in the line of duty.
• A gang murder.
• Witness elimination.
• Killed in a cold, calculated manner without pretense of moral or legal justification.
• Used a stun gun during the commission of the murder.