A GOP bill with unanimous support would remove three reasons for justifying an execution and combine two others, marking the first time since 1973 – if passed – the Legislature has diminished the death penalty law.
The bill’s sponsor, Sen. Eddie Farnsworth, R-Gilbert, said the Maricopa County Attorney’s Office is behind the proposal to get rid of some of the “aggravating factors,” or circumstances that make a murder more heinous, listed in Arizona’s death penalty law.
“The courts have expressed concerns about constitutionality for all aggravators that exist in death penalty sentencing,” Farnsworth said. “The county attorney said they would look at some of the aggravating factors … and take some of them away that haven’t been used for some time.”
Rebecca Baker, a lobbyist with the Maricopa County Attorney’s Office, told the Senate Judiciary Committee on February 7 “the death penalties [Arizona has] in place are constitutionally sound,” but in response to ongoing litigation over the death penalty, she said the factors used and how the statute can best be enhanced to ensure they are sustainable for the future was discussed internally.
Baker said the county attorney wants to remove the factors they deem are not the most persuasive or the strongest in death penalty cases.
Arizona has 14 aggravating circumstances to the death penalty and in order for it to be imposed when a defendant is found guilty of first degree murder, the aggravating circumstance must be proved beyond a reasonable doubt.
The Legislature has more than doubled the number of aggravators since 1973, a year after the United States Supreme Court ruled death penalty laws in 32 states, including Arizona, were unconstitutional.
Criminal defense attorneys have argued for years there are too many aggravating factors, and in a 2017 Arizona case in which the U.S. Supreme Court denied certiorari, a minority of the court issued a statement raising that same concern.
Justice Stephen Breyer, writing for the minority, said the Arizona case asks an important question about the Eighth Amendment.
“Whether Arizona’s capital sentencing scheme, which includes so many aggravating circumstances that virtually every defendant convicted of first-degree murder is eligible for death, violates the Eighth Amendment,” the statement read.
Farnsworth’s SB 1314 would eliminate three of those circumstances: If the defendant created a grave risk of death to another person in addition to the person murdered; if the offense was committed in a cold, calculated manner without pretense of moral or legal justification; and if the defendant used a remote stun gun in the commission of the offense as defined in statute.
Dale Baich, who heads the capital habeas unit of the Federal Public Defender’s Office in Arizona, said the latter two aggravators are used very infrequently, which is why the bill would eliminate them; the first is used more often.
The bill, which has already passed through both the Senate Judiciary Committee and the full Senate unanimously and now awaits assignment to a House committee, also combines aggravators related to murder-for-hire.
Ellie Hoecker, also with the Federal Public Defender’s Office, said combining those two aggravators “would apply to both people in a murder-for-hire situation – the person who solicits someone to kill someone else, and the actual killer.”
Baich said this bill is “a good start, but there is more that can be done to further narrow the statute.”
He said the aggravator that involves an offense committed in a heinous, cruel or depraved manner used to be determined by a judge, someone who knows when to use it, but as of 2002 is now determined by a jury, which could lead to the aggravator being used more often.
The last time Arizona executed somebody was in 2014 in what became a national story. Joseph Wood murdered his estranged girlfriend and her father in 1989, and was sentenced to death by lethal injection two years later.
His execution took nearly two hours to complete and people in attendance reported hearing Wood gasp several times throughout. Wood was injected with an experimental drug mixture 15 times, even though only one dose should have been sufficient to kill him. Prior to his execution, that specific mixture of drugs was only used one other time.
Baich said that in 2014, there was also an attempt to add an aggravator to Arizona’s capital punishment, which then-Gov. Jan Brewer vetoed after it passed through both chambers of the Legislature.
HB 2313 would have included a substantial likelihood that the defendant would commit criminal acts of violence that constitute a continuing threat to society; it would also expand the list of serious offenses. Brewer vetoed the bill saying in a written statement the changes would potentially make the death penalty unconstitutional.
If Farnsworth’s bill gets approved, the death penalty would decrease from 14 to 10 aggravators, but there’s no telling if Arizona would ever repeal capital punishment entirely.
Arizona Supreme Court Chief Justice Scott Bales said he thinks that is possible given that the number of executions nationally have declined over the past decade. Bales said he thinks there’s at least a growing sense for it to be limited.
“People can reasonably question whether the death penalty in the United States serves its goals,” he said.
Bales also mentioned how Arizona at one time did suspend capital punishment, but after a notorious murder the abolition was repealed.
“Looking at what the trends are around the [country], I think it’s possible in Arizona [to repeal the death penalty,]” Bales said.
Editor’s note: This story has been updated to eliminate an inaccuracy that was edited into it that stated there have been 20 cases before the Arizona Supreme Court in which someone was paid for murder.