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PHOENIX — Arizona is in no position to conduct an execution, according to attorneys for the prisons director and the governor in a death row case that could lead to an unprecedented separation-of-powers showdown.
Gov. Katie Hobbs is facing criticism from a victim’s family for planning to defy an execution order for a prisoner on death row convicted of a 2002 murder. The execution of Aaron Gunches was set for next month, but Hobbs said she wouldn’t act on the order and would pause executions until she is confident they can be carried out humanely and in accordance with the Constitution.
In legal briefings filed Wednesday, lawyers for the state argued the corrections department lacks staff with expertise to carry out an execution. They said the state doesn’t have a pharmacist who can prepare the lethal injection drugs, and that officials couldn’t find records from the previous administration about where the drugs came from or who prepared them.
“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,” attorneys for the state wrote.
“To order the Director to do so, particularly under these circumstances, would be unprecedented, contrary to law, and contrary to the public interest.”
READ MORE:Arizona Supreme Court will consider ordering governor to execute Aaron Gunches
State supreme court orders execution in April
Gunches was sentenced to death for the 2002 murder of Ted Price, a former longtime boyfriend of Gunches’ girlfriend. Gunches kidnapped and shot Price multiple times.
Gunches and the previous Arizona attorney general sought and received a warrant of execution from the Arizona Supreme Court for the death sentence to be carried out. Gunches initially asked for his death sentence to be carried out as soon as possible, to deliver justice to the victim’s family. But he changed his mind and filed a subsequent motion asking the court to withdraw his request, citing concerns about the state’s ability to execute people safely and effectively.
The warrant sets Gunches’ execution for April 6, and the state Board of Executive Clemency has scheduled a clemency hearing for March 23.
Newly elected Attorney General Kris Mayes and Hobbs paused executions, pending a review of the death penalty process by an independent commissioner. After the Supreme Court granted the warrant, Hobbs stated she would not act on it.
Victim’s family criticizes governor
In a statement, the victim’s sister 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.
Price’s family is asking the Supreme Court to force Hobbs to carry out the execution warrant.
Attorneys: State lacks staff, knowledge for proper executions
In a joint response from attorneys for Hobbs and newly appointed Department of Corrections Director Ryan Thornell, the state argued it was not currently able to exercise “its most awesome and irreversible power.”
Thornell said in a declaration that the Department of Corrections lacks the staff “with the necessary institutional knowledge and expertise to conduct an execution.”
According to Thornell, the drugs used for executions require updated efficacy testing, and the department has not been able to identify and contract with execution team members who would administer the drugs.
The state said these factors lead it to believe it cannot carry out an execution in a constitutional matter, “if it could perform one at all.”
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Arizona resumed the death penalty in 2022 after a nearly eight-year hiatus, executing three men, but execution team members struggled to insert the IV lines in all three cases.
In one instance, death row prisoner Frank Atwood offered guidance to the execution team as he lay strapped to the gurney in the death chamber. The state currently has 110 prisoners on death row.
Can the governor defy an execution warrant?
The attorneys argued that the execution warrant merely “authorizes” an execution, but it does not mandate the state carry it out. Compelling the state to do so, they said, would be an “extraordinary” and “drastic” step that would go against separation of powers and constitutional avoidance principles.
“There absolutely is a clear basis for us to pause these executions,” said Attorney General Kris Mayes in an interview with The Arizona Republic, part of the USA TODAY Network. “The governor and I have a duty to uphold the law and the Constitution. And we are doing that by ensuring that we can carry out executions in a constitutional and lawful manner.
“I don’t think it’s any secret that we inherited one of the worst, most incompetent and most ill-funded Department of Corrections in the country,” Mayes said. “And I don’t think that it takes a leap to suggest that we should understand whether they are capable of carrying out the death penalty before we do it.”
Mayes said she is not personally opposed to the death penalty, but she wants to make sure the state can carry it out “in a lawful and constitutional manner.”
Maricopa County Attorney Rachel Mitchell has also argued to the state’s highest court that Hobbs doesn’t have the authority to ignore the execution order.
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.
Gunches, in his most recent filing, said he has “not changed his mind” and still wants to be executed. Gunches asked to be transferred to Texas “where the law is still followed and inmates can still get their sentences carried out.”
The court denied his request.
Contributing: The Associated Press
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