Gov. Katie Hobbs is under fire for pulling the plug on an independent review of the death penalty in Arizona that she ordered when she first took office last year.
Then, with an executive order, Hobbs along with Democratic Attorney General Kris Mayes said they would pause all executions of death row inmates in the state until the review was conducted. Retired U.S. Magistrate Judge David Duncan was hired to do it.
But then, last week, the governor dismissed Duncan, after officials at the state department of corrections objected to a draft of the report. His conclusion? That lethal injection is not a viable method of execution and that a firing squad might be more humane.
Now, the attorney general says she will seek a death warrant for death row inmate Aaron Gunches soon, and that she’s confident the state can resume executions in compliance with state and federal law.
But, Dale Baich, former head of the Capital Habeas Unit at the Federal Defender's Office in Arizona, where he represented people on death row for decades, disagrees. Today, he’s also an adjunct professor at ASU’s Sandra Day O’Connor College of Law, where he teaches a class on the death penalty.
Baich joined The Show to talk about how he feels no one was expecting the governor to change tacks.
Full conversation
DALE BAICH: This came out of the blue all along. The governor and the attorney general have said that they were waiting for the independent review report to come in. And in fact, the attorney general said just in June that she insisted on the independent review to be finished before she would seek execution warrants. And we were all surprised to hear that a final report would not be issued and that the state would rely on an internal review rather than an independent review.
LAUREN GILGER: Right. Right. A big shift there. What do you make of that? Do you think that the judge here, the retired judge here should be allowed to finish the report?
BAICH: Absolutely, he is eminently qualified and he was taking a very serious look at all of the problems that have occurred over the past decade when Arizona carried out executions. So it was important for him to identify those issues and to make recommendations to improve the process.
GILGER: So let's back up then, Dale, and talk about some of the history of problems here in Arizona with the death penalty and lethal injection. This has been a conversation for quite some time. There have been some very notable examples that have gotten a lot of critical attention. What kinds of questions was Duncan tasked with answering here in regards to that?
BAICH: The Independent Review commissioner was tasked with identifying the problems that occurred over the past decade and to look into issues related to the source of the drugs, the qualifications of the people who carried out the executions and to make recommendations in his review. And, and that was cut short.
GILGER: I want to ask about the idea of a botched execution. And if you think that that's what we've seen in Arizona in several instances, many have called these that but others are disputing that at this point.
BAICH: There have been problematic and botched executions under the Department of Corrections leadership dating back to 2010. In 11 out of 16 executions, the people selected by the department to set the IV lines failed in their efforts. One execution took over an hour and 57 minutes because the Department of Corrections decided to use a drug combination despite knowing that that same combination failed in another state and at least twice the department imported execution drugs in violation of federal law. So these are some of the issues that the commissioner was tasked with investigating.
GILGER: And what we can see so far of that report as well, which is not complete as we know. There are some things that are raising alarms as well. For example, drugs being stored in unmarked containers. There's the issue of cash being paid to executioners. What are some red flags to you?
BAICH: Well, those two issues along with the qualifications of the people carrying out the executions. You know, it was noted in his report that Wikipedia was consulted by the execution team. I have questions about that. What are the qualifications of these executioners, the two people who each received $20,000 in cash for each execution in 2022? What are their qualifications?
Secrecy keeps that information from the public, and what the governor promised in 2023 in her executive order was that she wanted the execution process to be transparent and it looks like that won't happen.
GILGER: So it seems as if there was going to be a conclusion in this report, that lethal injection was not a viable method of execution in practice was the quote I think, and that something like a firing squad would be more humane is that in the death penalty world? And in the moment we find ourselves in that conversation is that a controversial view?
BAICH: It's not. And I think the reference to the firing squad in the draft outline has been misinterpreted by the governor's office. The commissioner was not proposing firing squad as an option. He was comparing firing squad to lethal injection. So yes, there, there are problems with lethal injection.
Historically, it was viewed as a more humane way to execute people. But what we have come to learn is that the person who's being executed suffers from pulmonary edema, they may not be completely anesthetized if a state is using a three drug protocol. So, so yes, executions by lethal injection are problematic.
GILGER: There is, of course, also a political side to this deal. The Arizona Supreme Court is deciding right now who should have the authority to seek death warrants. After Maricopa County Attorney Rachel Mitchell kind of forced the issue. Arizona Attorney General Kris Mayes says this is her realm and that's sort of the issue there.
But Kris Mayes also says right now that she will seek a death warrant for death row inmate Aaron Gunches soon. And I wonder what you make of that? Like, do you think the state can carry out a safe and humane execution right now?
BAICH: That's yet to be seen. We just don't know and that's why the independent review was so important so that the public could be informed how executions will be carried out in Arizona going forward.
GILGER: So you think this is still an open question?
BAICH: Absolutely.
