Key Points: 

• Attorney General seeks set execution briefing schedule to prevent drug expiration

• Defense counsel warns shorter timelines could harm capital defendants’ rights

• Arizona Supreme Court plans to review new proposal in November meeting

A 90-day expiration date on the state’s lethal injection drug of choice prompted the Attorney General’s Office to push for a shortened or streamlined briefing process ahead of executions. Expectedly, the push has prompted some concern from death row counsel on potential prejudice against capital defendants. 

Arizona Supreme Court rules governing warrants for execution are silent on how the state high court handles the briefing process, but since resuming executions in 2022, the attorney general has developed a typical practice.

In the last five executions, the attorney general has first filed a motion to set a briefing schedule, with the court then laying out a timeline for the actual motion for a warrant of execution, the response, reply, court conference date and possible final order. 

But, in a rule change petition filed at the beginning of this year, the Attorney General’s Office sought greater “predictability and judicial efficiency” in the process given the time constraints associated with preparing and testing pentobarbital, the drug used to execute inmates by lethal injection. 

A coalition of attorneys and organizations representing capital defendants claim acceleration stands to prejudice defendants and defense counsel by cutting short the time to respond to the motion and to prepare auxiliary legal challenges via the courts or clemency process. 

“It should not be easy to take a human life. It should not be frictionless. You should have off ramps,” Sam Kooistra, counsel at the Arizona Capital Representation Project, said. “The court should have the opportunity to look at that closely. The state should have the opportunity to really weigh and consider through the adversarial process if that is the decision to make.”

Prior to the pause on executions following the botched execution of Joseph Wood in 2014, the warrant of execution was issued at the conclusion of a capital defendant’s state post-conviction proceedings and stayed in effect until the federal appeals court made a final decision to uphold the death sentence. 

It followed that the order of executions stayed in line with the chronological exhaustion of death row inmates’ appeals. 

But after a near decade-long stop on the death penalty, cases piled up, now leaving just shy of two dozen death row inmates eligible for execution in the state. 

Under former Attorney General Mark Brnovich and under Attorney General Kris Mayes, the state first files a motion to set a briefing schedule, with the Arizona Supreme Court then deciding the dates and deadlines for the legal back-and-forth. 

Since 2022, the state has executed five inmates: Clarence Dixon, Frank Atwood, Murray Hooper, Aaron Gunches and most recently, Richard Djerf. 

The briefing timeline varied for each case. From the filing of the motion for a schedule to the actual motion, Dixon saw 50 days elapse, 92 days for Atwood, 17 days for Hooper, 35 days for Gunches and 43 days for Djerf. 

The state is now asking for a more consistent and specific timeline.

In an initial rule change petition submitted in January, Jason Lewis, section chief of capital litigation at the Attorney General’s Office, asked to prescribe a briefing schedule from the outset, with ten days for defendants to respond, five days for the state to reply, and a requirement that the Arizona Supreme Court take up the motion at its earliest convenience. 

Lewis claimed creating a quicker turnaround would help avoid the chance of lethal injection drugs expiring before the set execution date and help ensure the Arizona Department of Corrections, Rehabilitation and Reentry has enough time to analyze the drug in line with a settlement agreement. 

The department currently compounds its own pentobarbital, which sets a 90-day clock on the drug’s efficacy, and is then required to perform quantitative testing on the drug to be used in the execution within ten days of the state filing a motion for a warrant of execution. 

“What my proposal is seeking to do is to simplify the pre-warrant process,” Lewis told the Arizona Supreme Court’s Capital Case Oversight Committee on Nov. 5. “The process we currently use has sought to make sure the state can carry out constitutional executions, and the amendment seeks to do the same thing.” 

A group of public and nonprofit law firms representing capital defendants took issue with the shortened timeline, claiming it unduly caps the time counsel would have to both oppose the warrant and get started on all other legal filings — like a clemency application or other legal challenges to competency and execution methods. 

Lewis noted in committee yesterday that none of the tandem litigation can get off the ground until a warrant is issued, and the legal decision of issuing a warrant narrowed to whether or not an inmate has exhausted all appeals, as illustrated in Gunches’ case. 

“Time and again the court says there’s nothing to litigate outside of whether the inmate is eligible for execution,” Lewis said. 

But Kooistra, who authored the response to the initial petition, said the time is still vital to ensure a defendant receives the full scope of representation promised by law. 

Kooistra noted the need for judicial discretion, too, referencing Atwood’s execution. 

In Atwood’s case, more than 140 motions were filed across 14 warrant-related actions, regarding his initial sentence, the method of execution, his medical condition and religious accommodations. 

And on top of litigation, Atwood’s lead counsel unexpectedly passed away amid warrant litigation, leading to more delay. 

Kooistra referenced Atwood’s case in opposing a shorter briefing schedule calling it, “an object lesson in the wisdom of avoiding rules that inhibit this Court from dealing with the unexpected.” 

And, overall, defense counsel contend that contorting the schedule to accommodate the corrections department’s drug of choice is short-sighted, as the drug protocol could conceivably be changed by the agency, and as 30 of the 111 inmates on death row have the option to be executed by lethal gas. 

In August, the court attempted to create a middle ground by allowing the state to file a notice of a motion for a warrant of execution 65 days prior, but only if the state requires a specific date.

Both parties are not on board. Lewis said it essentially codified the same process in place now but still runs the risk of drug expiration with a 65-day notice, offering 35 days instead. 

Kooistra said the court’s proposal still had limited flexibility in scheduling and still poses the main problem. 

“It should not be a frictionless process with an eye towards convenience and efficiency,” Kooistra said. “The friction is a feature, not a bug, when you’re talking about using the power of the state to kill somebody in all of our names.”

The Arizona Supreme Court plans to take up its amended proposal and comments again in its November Rules Agenda meeting on Nov. 25. Justices can decide to adopt or modify the rules petition, deny it or delay consideration to a later date. The next rules agenda would be in August 2026. 

The meeting itself is closed to the public, but the court publishes its decisions after the fact.