Key Points:

• 23 death row inmates have exhausted their appeals

• Attorney general will determine who is next

• Families of victims wait decades for final justice

Nearly two dozen inmates on Arizona’s death row have exhausted their appeals, leaving a pool for the attorney general to choose from for the state’s next execution.

Attorney General Kris Mayes oversaw the first execution of her tenure in March — announcing in the aftermath the return of capital punishment in the state and leaving the question: Who’s next? 

In past administrations, the decision was fairly straightforward. A warrant for an execution typically followed the conclusion of federal habeas corpus proceedings or, in some cases, waivers of appeal, creating a chronological order of sorts. 

But a pause in the death penalty gave way to a backlog, leaving more discretion to the previous and current attorneys general in deciding who to execute next. 

According to the Attorney General’s Office, 23 inmates have reached the end of the legal process. Though Maricopa County Attorney Rachel Mitchell offered one potential name, a spokesperson for the attorney general declined to comment on how the office is assessing the next warrant for execution and who they are considering. 

Dale Baich, a former public defender, said that, historically, an attorney general would ask the Arizona Supreme Court to set an execution date after capital cases ended in the courts. 

Beginning in 2000, the death penalty and death penalty legal proceedings were put on pause as the U.S. Supreme Court considered and eventually ruled on a case challenging the constitutionality of Arizona’s capital sentencing system, and separately considered national questions on lethal injection protocol.

Between 2000 and 2010, Robert Comer was the only man to be executed in Arizona, which occurred after he waived all his appeals and pushed for his own execution. 

Then, from 2011 to 2014, at the end of a legal challenge to the state’s method-of-execution protocol, the state executed 13 people. 

Kent Cattani served as both chief counsel of the capital litigation section of the Attorney General’s Office and later as the solicitor general from 2002 to 2013. He said during his time, the office did not have a backlog and proceeded based on the order in which the appeals were resolved. 

“It was just whichever ones made their way through the system first,” Cattani said.  

In 2014, following the botched execution of Joe Wood, the state again put any effort to seek warrants of execution on pause. By the time executions came back around again in 2022, more habeas corpus cases had come to an end, leaving a backlog of about 20 inmates with exhausted appeals sitting on death row.

According to an analysis of prior mandates and execution dates by attorneys for the Arizona Capital Representation Project, most executions before 2000 took place within a year of the mandate from the 9th Circuit Court of Appeals. 

After the resumption of executions in 2010, most executions occurred within a year of the mandate and again proceeded in line with the resolution of appeal.

That changed with Attorney General Mark Brnovich. Brnovich oversaw three executions in the last year of his administration and during his campaign for the U.S. Senate. The three inmates he picked marked divergence from the order as determined by the conclusion of appeals by a final mandate from the 9th Circuit. 

He started by asking to set briefing schedules for both Clarence Dixon and Frank Atwood in January 2022, and later asked to set an execution for Murray Hooper in August. 

Another analysis from the Arizona Capital Representation Project, as presented in response to the motion to set a briefing schedule for Atwood’s execution, showed if Brnovich proceeded in order of final mandate, Atwood would be 13th, Dixon would be 20th. Hooper would fall farther down the list given the conclusion of his appeals in 2021. 

Brnovich did not respond to a request for comment on how his office assessed which inmates to seek warrants for.

Before Brnovich left office, one last inmate, Aaron Gunches, moved for his own execution, which was delayed by legal briefing and an internal and cut-short external review of death penalty procedures, leaving his sentence to be carried out under Mayes’ administration. 

The state executed Gunches in March. Mayes faces another choice in a motion to set a briefing schedule for the next warrant for execution. 

Though Mayes’ office declined to say anything, Maricopa County Attorney Rachel Mitchell floated one idea, and she ultimately deferred to the attorney general. 

In a press conference on April 23, Mitchell named Richard Djerf as her pick and detailed the facts of his crime. Djerf was convicted for the 1993 murder of four members of the Luna family, Albert Luna, Sr., 47, Patricia Luna, 42, Rochelle Luna, 18 and Damien Luna, 5. He exhausted his appeals in 2020. 

“I remain committed to doing what’s necessary to make sure that victim’s families get the closure that they deserve,” Mitchell said. “I am confident that the attorney general will continue to seek death warrants on inmates who have exhausted their appeals.” 

Colleen Clase, chief counsel and chief executive officer for Arizona Voice for Crime Victims, said the order of executions poses a tough question.

“When you have like 20, some whose appellate remedies have been exhausted, I don’t know the best method,” Clase said. “Because you also have all of these families who have been waiting.”

She said a key consideration should continue to be victims’ right to a  “prompt and final conclusion of the case after the conviction and sentence,” as penned in the Victims’ Bill of Rights in the state Constitution.

“When you have cases that have gone on for 30 some and 40 years, that’s hardly upholding the victim’s rights,” Clase said. “It just goes on for the victims for too long, unconstitutionally long.”