PHOENIX (AP) —Gov. Katie Hobbs is facing heavy pushback from a victim’s sister and a powerful county prosecutor for her plans to defy a court order to execute a prisoner next month for his conviction in a 2002 killing.
The newly elected Democratic governor vowed nearly two weeks ago that she wouldn’t carry out the Arizona Supreme Court’s order to execute Aaron Gunches on April 6, citing a review that she has ordered of death penalty protocols due to Arizona’s history of mismanaging executions.
Hobbs has said executions will not be carried out until Arizonans can be confident the state isn’t violating the law. She maintains that while the court authorized Gunches’ execution, its order doesn’t require the state to carry it out.
Over the last several days, lawyers for Karen Price, whose brother Ted Price was the victim in Gunches’ case, and Maricopa County Attorney Rachel Mitchell have told the state’s highest court that Hobbs doesn’t have the legal authority to disregard the order.
In a statement, Karen Price said the relief her family felt when the court scheduled Gunches’ execution was dashed by Hobbs’ announcement.
“Not only has our family been victimized by inmate Gunches and the emotional aftermath of Ted’s murder, we are now being victimized by the governor’s failure to recognize and uphold our constitutional rights to justice and finality,” Price said.
Nicholas Klingerman, an attorney representing Mitchell, said no constitutional violations have been found with the state’s execution protocols and that carrying out execution warrants isn’t optional for the governor.
“Nothing in the Constitution or laws of Arizona or the warrant gives the governor discretion to ignore the warrant and grant what essentially constitutes a temporary reprieve from the death penalty,” Klingerman wrote.
A legal response from Hobbs, Ryan Thornell, who is director of the Arizona Department of Corrections, Rehabilitation, and Reentry (ADCRR); and Gunches filed with the Arizona Supreme Court, says that “Governor Hobbs and Director Thornell took an oath to uphold the United States Constitution and the Constitution and laws of Arizona. It should go without saying that honoring that oath requires them to ensure that before the State exercises its most awesome and irreversible power—carrying out a death sentence—it must be certain that it can do so effectively and in compliance with all legal requirements.
“But the Governor and Director inherited a deeply broken corrections system, one that a federal court recently concluded poses ‘substantial risk of serious harm’ to people in its custody due to unconstitutional medical and mental health care and confinement conditions,” the response continued.
The document adds that, “Further, as Director Thornell’s attached declaration details: (1) ADCRR faces critical staffing shortages agency-wide, including lack of staff with the necessary institutional knowledge and expertise to conduct an
execution; (2) the Department’s current supply of compounded Pentobarbital requires updated efficacy testing; and (3) the Department has not been able to identify and contract with intravenous injection (IV) team members, responsible for inserting IV lines, ensuring the lines work, and monitoring the administration of the lethal injection drugs. While the Director continues to gather important information about the Department’s recent practices and assess its present ability to carry out an execution, one thing is clear: the State is in no position to conduct an
execution on April 6, 2023.”
Richard Dieter, executive director of the Death Penalty Information Center, said he believes Hobbs, as the state’s chief executive, has the power to put the brakes on executions if she is concerned whether they are going to be carried out humanely and in a constitutionally sound manner. He said he doesn’t believe the courts can force Hobbs to carry out the execution.
“She has the power to make sure that that’s functioning properly,” said Dieter, whose group doesn’t take a position on the death penalty but is critical of how it’s carried out.
Dale Baich, a former federal public defender who teaches death penalty law at Arizona State University, said Hobbs has “discretion for situations like this, where the governor has expressed legitimate concerns because of the problems with the (lethal injection) drugs, the qualifications of the executioners and staffing at the Department of Corrections necessary to carry out executions.”
Mel McDonald, a former U.S. Attorney for Arizona who handled two death row cases as a prosecutor, predicted the state Supreme Court would take up the appeal filed by Price’s sister, saying the dispute presents the court with novel legal issues.
“It raises a lot of questions,” McDonald said of the dispute. “I wouldn’t be surprised if they accept jurisdiction (of the case). Where it goes from there is anyone’s guess.”
Arizona, which currently has 110 prisoners on death row, carried out three executions last year after a nearly eight-year hiatus brought on by criticism that a 2014 execution was botched and because of difficulties obtaining execution drugs.
Since resuming executions, the state was criticized in May for taking too long to insert an IV for lethal injection into a condemned prisoner’s body in and for denying The Arizona Republic newspaper’s request to witness the last three executions.
Gunches was sentenced to death after pleading guilty to murder in the shooting death of Ted Price, his girlfriend’s ex-husband, near Mesa.
Gunches, who isn’t a lawyer, represented himself in November when he asked the Supreme Court to issue his execution warrant so, he said, that justice could be served and the victims could get closure. In Republican Attorney
General Mark Brnovich’s last month in office, his office asked the court for a warrant to execute Gunches.
But Gunches then withdrew his request in early January, and newly elected Democratic Attorney General Kris Mayes later asked for the execution warrant submitted during Brnovich’s tenure to be withdrawn.
The state Supreme Court rejected Mayes’ request, saying it must grant an execution warrant if certain appellate proceedings have concluded — and that those requirements were met in Gunches’ case.
In yet another reversal, Gunches said in a filing a week ago that he still wants to be executed and asked to be transferred to Texas, where he wrote “the law is still followed and inmates can still get their sentences carried out.”
Arizona’s highest court has since denied Gunches’ request to transfer to Texas.