The U.S. Supreme Court will soon consider taking a case that challenges Arizona’s death-penalty law on the grounds that it fails to narrow the punishment to the worst offenders. Regardless of whether the court accepts it, the case raises serious questions about the death penalty that the Arizona Legislature needs to come to grips with.
As the attorney general, I was responsible for overseeing dozens of appeals from sentences of death. Six people were executed during my tenure. It was critical for me that we imposed the ultimate sanction only on those most deserving.
Tragically, our state has failed in this undertaking in fundamental ways. The breadth of our statute, capturing nearly every first-degree murder, makes it unconstitutional. But more than that, Arizona’s use of the death penalty is bad policy.
Arizona does not have a good track record for getting it right. At least nine times our death penalty has swept up the innocent in its net. Nationwide, 160 people have been exonerated from death row. Getting it wrong once is one time too many. Death, in its finality, means correcting a wrongful sentence is not an option. Sentencing the innocent to die undermines the public’s confidence in the entire criminal justice system, and is reason alone to abandon the death penalty.
Moreover, Arizona’s death penalty scheme has unsettling racial disparities in its application. People in Arizona who are accused of murdering white victims are more likely to receive the death penalty. Hispanic men who are accused of murdering whites are more than four times as likely to be sentenced to death as white defendants accused of murdering a Hispanic victim. Any other state policy with that sort of disparity would be quickly repudiated. The Legislature should end this horrible death penalty malfunction.
The spiraling costs of seeking and imposing a death sentence are further reason to abandon the policy. These costs have caused the location of the crime to take precedence over its heinousness. Several counties simply cannot afford to pursue the death penalty, creating imbalances having nothing to do with the crime. Maricopa County imposed the death penalty at a rate 2.3 times higher than the rest of the state between 2010 and 2015. The increased use of the death penalty was driven, in part, by an overzealous County Attorney, Andrew Thomas, who later lost his law license for abusing his authority.
The costs associated with defending Arizona’s statute (never mind the cases themselves) have been substantial. Dozens of convictions have been set aside because Arizona, unlike almost every other state, did not provide for jury sentencing in capital cases. Arizona was one of two states to extend the death penalty to felony murders, leading to a rebuke by the Supreme Court and further reversals. The Arizona Supreme Court narrowly interpreted our state’s prohibition on executing the intellectually disabled until they were recently forced to reconsider. And case after case has been reversed because of flaws in the instructions given in capital sentencing proceedings.
The case now before the Supreme Court is only the latest example of these problems. But the case itself highlights stunning breadth of Arizona’s statute. Virtually every first-degree murder is eligible for the death penalty, leaving imposition of the death penalty to the unfettered discretion of prosecutors and juries, causing an intolerable risk of arbitrariness in its administration.
We’ve been here before. In 1972, the court struck down every state’s death-penalty statute because they operated to execute a “capriciously selected random handful,” rather than the worst offenders. Similar to other states’ efforts, then-state Sen. Sandra Day O’Connor and Rudy Gerber (who later became an Arizona judge) rewrote Arizona’s statute to comply with the court’s narrowing requirements by obligating the prosecutor to prove one or more aggravating factors before the death penalty could be imposed.
More than four decades have passed and we are back to square one. Despite the efforts of O’Connor and Gerber, Arizona has failed to narrow the application of the death penalty and has been unable or unwilling to provide the guidance necessary to ensure that the death penalty is only imposed on the worst offenders.
Finally, 31 states have abandoned the death penalty. In light of its myriad problems, Arizona should join the rising tide against imposing it.
Terry Goddard served as the state attorney general from 2003 to 2011 and the mayor of Phoenix from 1984 to 1990. He is senior counsel at Dentons US LLP.