death row | Arizona Capitol Times

Death row thinning in Arizona, nationally – reasons vary

The death row population in Arizona has largely been on the decline since 2010, following a nationwide trend observed over the past 15 years. Meanwhile, experts are at odds about the forces at play.

According to the Bureau of Justice Statistics’ most recent data – accounting for prisoners under sentence of death as of December 31, 2015 – Arizona did see its first uptick in death row inmates in five years with the addition of two inmates in 2015. But that runs counter to the slow yet steady decline of the state’s death row.

Ron Reinstein, a retired Maricopa County Superior Court judge who now chairs the state’s Capital Case Oversight Committee, attributed the trend to ongoing challenges in obtaining the drugs states like Arizona need to perform lethal injections, the high costs of capital cases and, particularly, stronger defense performances.

Those factors resonate with an analysis of the data done by the Death Penalty Information Center.

Death rows are shrinking faster than new death sentences are imposed, the information center concluded. The data shows 28 inmates nationwide were executed in 2015 compared to 82 removed by other means – 49 new inmates were admitted that year. That means exonerations, reversals of death sentences or convictions and death by other causes – including natural death while in wait – have occurred at a higher rate than the executions sought by prosecutors.

Maricopa County Attorney Bill Montgomery (Cronkite News Service Photo by Christina Silvestri)

Maricopa County Attorney Bill Montgomery had other thoughts on what might explain the trend.

He said fewer death sentences have coincided with a decline in the sort of crimes that might lead prosecutors to seek the death penalty. With fewer murders committed – 2015 saw the lowest homicide rate since 1960, he said – a decline in death penalty cases is expected.

Reinstein questioned that suggestion.

“As far as Arizona goes, there’s Maricopa and then there’s the rest of the state,” he said.

He said Montgomery’s office “seems to be filing the same type of cases they always had, and that number – somewhere between 65 and 70 – has pretty much held true ever since the drop off” following former County Attorney Andrew Thomas’ administration, under which death penalty cases exceeded 140.

“If what Bill’s saying is true, then I think you’d see that number go down more… We haven’t seen any kind of reduction in that 65 to 70 range.”

And since roughly September 2015, according to Reinstein, only one of the nine capital cases that went to trial in Maricopa County ended with a death sentence.

That could simply be a result of the types of cases presented to jurors, he said, and could easily change if the county saw a spurt of murders involving torture or contract killings.

Prosecutors in Yuma County, for example, successfully argued for the death penalty in a case involving six victims. Reinstein said that was the first death sentence imposed outside of Maricopa or Pima counties in nearly a decade.

And that, in Reinstein’s view, seems to reflect the difficulty of convincing 12 jurors to unanimously find death is warranted.

According to the Death Penalty Information Center, most Americans prefer life without parole, an option in Arizona, to the death penalty. Public opinion may act as a deterrent to the costly battle over a death sentence or even public office.

Montgomery disagreed with that assertion.

In terms of public opinion–which still polled favorably in 2015 – he said that does not figure into whether his office seeks a death sentence.

“It’s not like we’ve got this huge data set of jury verdicts that would allow us to extrapolate a general or any kind of specific sense among the electorate,” he said.

And as for his own personal politics: “I’ve never made the death penalty a key component of any campaign or re-election as the county attorney, nor have I seen – I can’t recollect any county attorney in Arizona making that a significant issue,” he said. “I think that’s low-hanging fruit for some people to try to justify why the number of capital cases goes up or down.”

Death-row suit settlement limits DOC director in executions

An agreement struck between death-row prisoners and the Arizona Department of Corrections in federal court vastly limits the discretion in executions once afforded to Director Charles Ryan.

The agreement, which followed changes to the DOC’s execution policy that met the plaintiffs’ demands, has to be approved by the prisoners before it can go forward. Plaintiffs’ attorney Josh Anderson said he does not anticipate that will be an issue.

DOC published an updated version of its policy June 13, including all agreed upon changes.

During a June 12 hearing in Federal District Court, Anderson laid out a set of provisions that resolved the two remaining claims in the case, which focused on alleged violations of the Eighth and 14th Amendment rights of the prisoners. A previous claim regarding the use of the sedative midazolam in a three-drug mixture for lethal injection was resolved last year.

A set of provisions curtail Ryan’s discretion in three key areas that have raised concerns in the past.

The director’s discretion to change the quantities and types of drugs used in an execution are limited to those named in the current execution policy. The new guidelines allow for the use of a single drug, either pentobarbital or sodium pentothal, both of which are barbiturates and in short-supply nationwide. If he does choose to change the quantity or type of execution drug being used, Ryan must now notify inmates and their counsel, withdraw the existing execution warrant and apply for a new warrant.

And the director may no longer change the chosen execution drug at the last minute. That restriction regarding last-minute changes also applies to press access to the procedure and consciousness checks, though it is not limited to those items.

Under former execution guidelines that left much to Ryan’s inclination, the execution team was accused of violating its own protocol when Joseph Wood was injected with 15 doses of a combination of midazolam and hydromorphone, a pain killer, in July 2014. The department’s policy at the time allowed for a second dose three minutes after the first only if the inmate remained conscious.

Wood gasped and snorted for nearly two hours before he died as executioners continued to inject him with the drugs.

The state’s attorney, Jeff Sparks of the Arizona Attorney General’s Office, said the DOC does not currently possess any execution drugs and does not have any intent to seek a warrant for execution in the immediate future.

Federal Judge Neil Wake issued a stay on executions until final judgement has been given on the case, but a disagreement remains regarding whether that stay would be in place during an appeal. If the state has no plans to carry out an execution, the question may never become an issue.

Despite the settlement, the litigation isn’t entirely done.

Anderson said the plaintiffs will appeal Wake’s decision last year to dismiss three First Amendment violation claims, which sought more information about the drugs being used, namely their source and how they were created.

Wake determined the First Amendment does not give the prisoners the right to that information, but Anderson said the 9th Circuit Court of Appeals set precedent on the matter.

On June 8, in a lawsuit filed by the American Civil Liberties Union of Arizona, the Court of Appeals did find that the DOC’s failure to release a box with a drug’s expiration date may have violated state public records laws.

However, the court sided with DOC in ruling that a corporation is a person for the purposes of a statute protecting the identities of execution team members. The decision effectively means the DOC may keep information that may lead to the discovery of a corporation supplying execution drugs confidential under state law.

Executions for 2 inmates draw nearer

The Arizona Supreme Court on Tuesday set deadlines for the state attorney general to file his motions for warrants of execution for two death row inmates.

Those inmates, Frank Atwood and Clarence Dixon, are two of 21 people on Arizona’s death row who the state says have exhausted their appeals.

The last execution in the state was nearly seven years ago, when in 2014 Joseph Wood took nearly two hours to die as he was given 15 doses of the sedative Midazolam and hydromorphone, a painkiller.

The deadlines come after Arizona Attorney General Mark Brnovich made the unusual request for firm briefing schedules from the state’s high court in April. He said adhering to a set schedule would ensure the Arizona Department of Corrections, Rehabilitation and Reentry is able to comply with lethal drug testing and disclosure obligations.

The court’s deadline for the motion for the warrant of execution for Atwood is 5 p.m. July 21. Atwood’s counsel will have until Aug. 4 to respond.

For Dixon, Brnovich has until 5 p.m. Aug. 12 to file his motion for the execution warrant, and Dixon’s counsel has until Aug. 26 to respond.

“An extension will not be granted absent highly extraordinary circumstances,” according to both orders.

The court also denied a habeas corpus petition that Dixon submitted on his own behalf, saying his claims were “factually unsupported, meritless, and precluded.”

Atwood’s attorneys say that the state is “leapfrogging” Atwood to the front of the line of death row inmates who’ve exhausted their appeals, noting that 12 concluded their appeals before Atwood. His attorney Joseph Perkovich said in a statement today that there are “persisting serious unanswered questions” about Atwood’s conviction and sentence and that the state should not seek an execution warrant.

Perkovich also raised questions about the drugs the state plans to use in its executions and questioned the court’s level of scrutiny of the state’s execution plans.

“The State of Arizona’s abysmal track record requires meaningful scrutiny of its plan but, so far, the state judiciary has shown no regard for the gravity of the power that the Attorney General intends to exercise,” Perkovich said in a statement.

ADCRR paid $1.5 million for 1,000 vials of pentobarbital sodium salt in October 2020, according to a heavily redacted document obtained by The Guardian last month. That’s the same drug that was used in federal executions last year. An attempt to import sodium thiopental from India in 2015 ended with Customs and Border Protection seizing the drugs at Sky Harbor International Airport.

New corrections policy, no drugs bring Arizona executions to a halt

June marked the end of a three-year long legal battle to tighten up Arizona’s execution laws, but even after the state reached an agreement, the fate of those on death row is still uncertain.

Dale Baich (Photo by Gary Grado/Arizona Capitol Times)

Dale Baich, an assistant federal public defender and supervising attorney in the Capital Habeas Unit in the Office of the Federal Public Defender said the settlement was completely unprecedented.

Seven death row prisoners sued the state following Arizona’s last execution in 2014, when it took nearly two hours and 15 “lethal doses” of midazolam, a sedative, and hydromorphone, a painkiller, to kill convicted murderer, Joseph Wood.

A large portion of the litigation surrounded regulating the medication used to execute prisoners. The state traditionally used a drug cocktail of a sort, which usually consisted of two or three different drugs, and often a paralytic. The new protocol does not allow for “cocktails” to be used in executions anymore.

The new protocol prohibits the state from using a paralytic drug during an execution. Now, the protocol also requires that the state execute prisoners with one of two drugs: pentobarbital or sodium thiopental.

Baich recognized the new protocol, effective June 13, as a success for the prisoners.

“The death row prisoners were concerned about the drugs the Arizona Department of Corrections were using to carry out executions,” Baich wrote in an email. “By agreeing to never again use midazolam as one of the drugs and removing the paralytic from the protocol, the prisoners have more confidence that they will not be harmed or tortured if they are executed.”

The settlement also expanded the list of witnesses for executions, and allows witnesses to see more of the execution process than previously allowed. It also took steps to reduce the discretion of prison employees during the execution process.

However, the Arizona Department of Corrections is now faced with a new problem.

There are presently 119 prisoners on death row in Arizona, and as of now, the state has no means of obtaining the drugs to execute them. Sodium thiopental is not manufactured in the United States and is also illegal to import. And while pentobarbital is manufactured in the U.S., its manufacturers are adamant that their drug not be used for executions.

So for now, Baich said both the state and the prisoners have no choice but to wait.

However, Baich said for many prisoners, more time on death row is not a bad thing. For those prisoners, Baich said, more time alive is more time for new facts in their cases to surface and for death penalty laws to change.

According to the Arizona Department of Correction’s website, since 1937 the average death row prisoner has spent 12 years there. But records show that some prisoners received their death sentences more than 30 years ago, like convicted murderer Hooper Murray who has been on death row since 1983.

In many situations, lengthy stays on death row are the result of slow-moving legal processes. But during their time on death row, prisoners live alone in an 86.4 square-foot, concrete cell for 23 hours per day. They have three opportunities for recreational activities and showers each week. They are allowed visitation, but all visits are non-contact.

Baich called the living conditions of death row prisoners “harsh.” According to the Department of Corrections website, prisoners are allowed “limited” reading and writing material while they are confined, but have unlimited access to legal materials.

“This would be a good time to have an open and honest public debate about the utility of the death penalty and whether it is a fiscally responsible public policy,” Baich wrote in an email. “There is an equally effective alternative; life without parole or release.”

The Arizona Department of Corrections declined to comment on the settlement.

Prisoner objects to change in execution briefings

A death row prisoner who could be among the first in Arizona to be executed in almost seven years is opposing a move that would reduce the amount of time he would have to respond to the state’s request for his execution warrant.

Prosecutors asked the Arizona Supreme Court two weeks ago to modify the briefing schedule in their bid to get an execution warrant for Clarence Dixon after they revealed the shelf life of the state’s lethal injection drug was half as long than they previously thought.

The changes are being sought to accommodate for the drug’s shorter shelf life and keep the projected October 19 execution date on track.

In a filing July 6, Dixon’s lawyer Cary Sandman said the state’s new scheduling proposal would give her only four days to respond to the execution warrant request, whereas she had 10 days under the current schedule.

“The present dilemma was created by the state by prematurely seeking a briefing schedule to support issuance of a warrant for Mr. Dixon’s execution, without first obtaining reliable data essential to carrying out a lawful execution,” Sandman wrote. “The solution to the state’s unpreparedness is not to violate Mr. Dixon’s rights by suspending the operation of this court’s rules, or to compromise the time the court has to deliberate.”

Attorney General Mark Brnovich’s office didn’t return a call seeking comment.

Dixon’s projected October 19 execution date was based around a belief by a compounding pharmacist that the drug pentobarbital had a shelf life of 90 days. The state now says until specialized testing on a sample batch of the drug is done, the shelf life of the pentobarbital to be compounded for Dixon’s execution would be 45 days.

Dixon and Frank Atwood are the first death row prisoners in Arizona to be considered for execution since the 2014 death of Joseph Wood, who was given 15 doses of a two-drug combination over two hours. His attorney said the execution was botched.

States including Arizona have struggled to buy execution drugs in recent years after U.S. and European pharmaceutical companies began blocking the use of their products in lethal injections. Arizona corrections officials revealed earlier this year that they had finally obtained a lethal injection drug and were ready to resume executions.

Arizona has 115 inmates on death row.

Dixon was convicted and sentenced to death for the 1978 killing of Deana Bowdoin, a 21-year-old Arizona State University student.

Atwood was convicted in Pima County and sentenced to death for killing 8-year-old Vicki Lynn Hoskinson in 1984. Authorities say Atwood kidnapped the girl, whose body was found in the desert northwest of Tucson.

SCOTUS to hear AZ death row inmate appeal

Visitors walk outside the Supreme Court building on Capitol Hill in Washington, Monday, Feb. 21, 2022. (AP Photo/Patrick Semansky)

WASHINGTON – The U.S. Supreme Court on March 28 agreed to hear an Arizona death-row inmate’s claim that he was wrongly denied the chance to tell jurors he would be ineligible for parole if they sentenced him to life instead of death.

John Montenegro Cruz killed a Tucson police officer in 2003 and has been on death row since 2005 – more than a decade after the Supreme Court said defendants have a due process right to tell jurors they would spend the rest of their lives behind bars if sentenced to life.

Arizona courts did not allow that right until 2016, when the U.S. Supreme Court directly ordered the state to do so. Cruz asked for a resentencing, citing the 2016 ruling, and his attorneys said it “should have been an easy case” for the Arizona Supreme Court to order the new hearing.

John Montenegro Cruz was sentenced to death for the 2003 killing of a Tucson police officer, but he says he was wrongly denied the chance to tell jurors he would have been ineligible for parole had they sentenced him to life. (Photo courtesy Arizona Department of Corrections, Rehabilitation and Reentry)

Instead, the state court in June said Cruz should not get another sentencing hearing because the high court’s 2016 ruling was not a “significant change in the law” that would merit a new hearing.

“The Arizona Supreme Court’s refusal to follow the same approach here creates a square conflict on an important issue of federal law in a case with life-or-death stakes,” Cruz said in his petition to the U.S. Supreme Court.

That petition said the decision in Cruz’s case could affect more than two dozen other defendants in Arizona who have sought review under the 1994 ruling that established the due process right – Simmons v. South Carolina – or the 2016 ruling, Lynch v. Arizona, that enforced it in the state.

Calls seeking comment from Attorney General Mark Brnovich’s office were not immediately returned March 28. But an attorney for Cruz welcomed the high court’s decision to hear the case.

“We are gratified that the U.S. Supreme Court has decided to hear the case and look forward to the Court’s hearing later this year,” Neal Katyal said in an emailed statement.

The case began in 2003, when Cruz was being questioned by Tucson Police Officer Patrick Hardesty as part of hit-and-run investigation. Cruz started to run, according to court documents, and Hardesty chased him. At some point Cruz opened fire and hit Hardesty five times, with four of the shots fired from less than a foot away, killing the officer on the spot.

Cruz was charged with one count of first-degree murder, convicted and sentenced to death in 2005. Among the factors contributing to the death sentence was the fact that the victim was a police officer.

Under Arizona law, defendants in capital cases are not eligible for parole if sentenced to life, and Cruz’s trial attorney tried to call a witness from the state’s Board of Clemency to testify to that fact. But the request was denied.

The jury foreperson said after the sentencing that jurors wanted to find a reason to be lenient, but they did not think they had “an option to vote for life in prison without possibility of parole,” so they voted for the death sentence, according to Cruz’s petition.

When Cruz filed for post-conviction relief, citing the 2016 Lynch ruling, the Arizona Supreme Court said that Lynch was not a change in the law but merely a “significant change in the application of the law,” which did not merit a new hearing.

“Thus, Cruz could not obtain the benefit of Simmons now because it had been clearly established when he was sentenced to death, even though Cruz had been denied the benefit of Simmons when he was sentenced to death because the Arizona Supreme Court misapplied it,” Cruz’s lawyers wrote.

In its response, the state said that Cruz also failed to ask the trial judge to inform jurors that state law “did not allow parole for defendants, like Cruz, who committed felonies after 1993,” ignoring his claim that he was denied the chance to call a witness who would have said that.

Robert Dunham, the executive director of the Death Penalty Information Center, noted that the Supreme Court has narrowed the scope of the question in the case to whether the Arizona Supreme Court’s grounds for ruling against Cruz were adequate.

“What that means is if Arizona has its own state law grounds for rejecting Cruz’s claim, and that state law has been adequately applied and this is not a new procedural rule … then Cruz doesn’t get a review of this claim,” Dunham said.

This is not the only Arizona death-row case the justices have considered. The U.S. Supreme Court in December heard the appeals of two inmates who argued they had ineffective assistance of counsel and needed new hearings.

No ruling has been handed down in those cases. But Dunham said it isn’t a coincidence that Arizona is again before the high court.

“Arizona has historically provided defendants substandard representation and denied death row prisoners meaningful access to judicial review,” he said.

Dunham said it’s unclear whether Cruz’s death sentence will be overturned if the Supreme Court rules in his favor, or if it will be returned to the lower courts for resentencing. Arguments in the case have not yet been scheduled, but it will not likely be heard until after the next court term begins in October.

“Regardless of what the outcome of this case is, it raises significant questions about whether Arizona can be trusted to provide fair trial and fair appeals in death penalty cases,” Dunham said.

Trial seeks details on suppliers of death penalty drugs

News organizations will clash with Arizona prison officials over the First Amendment at a trial to determine whether the public has a right to know who supplies execution drugs and the qualifications of people who carry out the death penalty.

The Associated Press, Arizona Republic and other news operations are seeking the information in a lawsuit filed after the 2014 death of Joseph Rudolph Wood, who was given 15 doses of a two-drug combination over nearly two hours in what his attorney called a botched execution.

The trial is set to begin Tuesday in Phoenix.

Similar challenges to the death penalty are playing out in other parts of the country that seek more transparency about where states get their execution drugs.

States are struggling to obtain execution drugs because European pharmaceutical companies began blocking the use of their products for lethal injections.

In the Arizona case, the news organizations say information about executions has historically been open to the public and that journalists witness executions as proxies for the general public.

They argued that the release of the information helps the public determine whether executions are carried out humanely and promotes public confidence in the criminal justice system.

“The public cannot meaningfully debate the propriety of lethal injection executions if it is denied access to this essential information about how individuals are being put to death by the state,” lawyers for the news organizations said in the lawsuit.

The Arizona Department of Corrections didn’t have an immediate comment Monday on the trial. The Arizona Attorney General’s Office, which is defending the state at trial, didn’t return phone calls and an email seeking comment.

State law prohibits the disclosure of information that would identify anyone serving on an execution team.

The state said that confidentiality extends to suppliers of the drugs used. An Arizona prisons official has suggested that previous disclosures about suppliers have led other vendors to refuse to provide the drugs.

Other plaintiffs in the case include the Guardian News & Media, Arizona Daily Star, CBS 5 (KPHO-TV) and 12 News (KPNX-TV).

The news organizations won a partial victory last year when U.S. District Judge Murray Snow ruled the state must let witnesses view the entirety of an execution, including each time drugs are administered.

Snow concluded that witnesses to Wood’s death couldn’t see that he was receiving additional doses of the drugs after the first ones failed to kill him.

A new execution protocol issued in January will let witnesses see the injections through a camera in a room where the drugs are loaded into an inmate’s IV line.

Last month, the state settled a separate lawsuit filed by death-row inmates who alleged that Arizona’s prisons chief had abused his discretion in the methods and amounts of drugs used in executions. The agreement limited the power of prison officials to change execution drugs at the last minute.

There are currently 118 prisoners on death row in Arizona.

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