How Arizona has failed at carrying out the death penalty
Arizona has carried out most executions with lethal injection since 1992, but with a litany of changing protocols and problems, which ultimately halted executions in the state for eight years. Photo courtesy Arizona Department of Corrections, Rehabilitation and Reentry
It could have been a reception after a funeral: cold cuts, breads and salads set out for the guests. But it was a somber gathering in a conference room at the Central Prison Unit in Florence after the execution of Robert Comer in May 2007, and the buffet was set by the Arizona Department of Corrections, Rehabilitation and Re-entry for the witnesses to the execution — as if anyone felt like eating.
Comer killed a man at a campground on Four Peaks in the Tonto Forest northeast of Phoenix in 1987. Then he and his girlfriend held another camping couple at gunpoint. Comer tied them up and raped the woman. She escaped and ran barefoot down the mountain to get help.
Comer was as angry and chaotic as a thunderstorm and epically uncooperative with everyone. When jail detention officers came to take him to his sentencing, he had to be flushed out of his cell with a firehose and dragged to court wearing nothing but a towel over his lap. Spectators could see his Swastika tattoo. The prosecutor called him “the reincarnation of the devil.” In his early years in prison, he set fires in his cell and violated every possible rule he could.
After 20 years on death row, a more subdued Comer volunteered for execution. He wanted to die, and after lengthy court proceedings to prove he was of sound mind, a court determined he was competent to waive his appeals.
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Executions are surreal — not only because of what they look like, but also what they don’t look like. Comer’s was the first of five that I witnessed. I covered seven others in my 16 years as a reporter at The Arizona Republic, from the death warrants to the last-minute litigation, to the media pack at the prison, to the political fallout afterward to the U.S. Supreme Court.
When the curtain opened, Comer was strapped to a gurney on the other side of a large glass window, covered to his neck by a sheet. He looked directly at me with burning eyes and nodded. I couldn’t believe he could see me, but then he nodded again, a bit more aggressively, and when I nodded back, he looked to the other witnesses in the viewing room. It was a last effort to make human contact before he died.
He said his last words, “Go Raiders,” thanked his attorney, who was a Raiders football fan and kept eye contact with the spectators as he slowly nodded off.
Earlier that day, when I asked then-Arizona Attorney General Terry Goddard why he was also there as a witness, he replied, “If I’m supposed to support this, then I should know what it looks like.”
A day later, one of Goddard’s assistants, who had also attended the execution, called me to note a painful irony.
“We go to great lengths to try to convince ourselves that this is not a violent act,” he said. “We are still killing someone.”
If I’m supposed to support this, then I should know what it looks like.
– Former Arizona Attorney General Terry Goddard
Comer’s execution seemed to have gone off without a hitch. But afterward, Dale Baich, who was head of the Capital Habeas Unit at the Federal Defenders Office in Phoenix, which specializes in death-penalty appeals, got tips that the executioner had been a St. Louis vein surgeon named Alan Doerhoff. Just eight months earlier, Doerhoff had been banned from performing executions by a federal judge in Missouri because he was dyslexic and had been improvising the killing drug doses.
That didn’t stop him, however. He was hired by the federal government as part of its Indiana-based execution team, where he was outed by multiple national media outlets.
Where do you go next? Arizona, of course. The Arizona Department of Corrections, Rehabilitation and Re-entry (ADCRR) would not reveal his name and had paid him in cash to avoid a paper trail. Through a request under Arizona public records laws, Dale got ahold of the EKG report that monitored Comer’s heart during the execution. There was a signature noting when death occurred, but it was illegible. I sent it to the reporter at the St. Louis newspaper who had discovered him in the first place and verified it as Doerhoff’s.
That was my first look at how executions are carried out: with guesswork and last-minute changes, with nameless executioners paid in cash to avoid a paper trail and with medical support teams of dubious competence. And all of it is shrouded by laws that hide what is going on in the death chamber.
When done correctly, execution by lethal injection doesn’t look like much of anything. The condemned person just drifts off.
But Arizona has a long history of not doing it correctly. The state has changed drugs and protocols with no notice, smuggled in drugs it couldn’t obtain legally, and once used an experimental cocktail of drugs that left a man gasping on the table for nearly two hours.
And that’s just what the witnesses to the execution could see. For years, the state’s protocol included a paralytic drug that masked any body movement or discomfort so that no one knew if the condemned person was experiencing distress or suffocating. “He just went to sleep,” is what witnesses and the media would typically say.
Then there was what went on before the curtain opened, with doctors and crew failing to insert catheters in arms and hands and resorting repeatedly to a painful surgical procedure in the man’s groin.
And in the extreme, there was a 2014 incident in which an executioner injected 15 doses of a drug combination that was supposed to kill in one.
There would also be years-long periods without executions as lawyers and bureaucrats battled in court over the killing drugs, the qualifications of executioners, government transparency and lack thereof.
As a journalist, I investigated and reported on all of those things. As a defense attorney, Dale Baich litigated all of them. At times, we exchanged information about what was unfolding.
Now that we are both retired, we are only half joking when we talk about the PTSD it left us.
The protocols take shape
Comer’s 2007 execution was the first Arizona execution in seven years and would be the last for three more, as execution protocols were hammered out nationwide.
Shortly afterward, the U.S. Supreme Court reviewed a lethal injection challenge in Kentucky which led to the 2008 decision called Baze v. Rees. The Court approved the procedure and ruled that, for prisoners to prevail on a claim that a method of execution is cruel or unusual under the Eighth Amendment, they must show a “substantial risk of serious harm.”
Executions across the country were put on hold awaiting that decision. Arizona and other states then reconciled their own issues through litigation and moved forward with executions. Arizona’s new protocol detailed procedures for housing the condemned person, the equipment in the death chamber, the drugs to be used, the witnesses who could attend and a minute-by-minute timetable of the execution itself.
The litigation was ongoing, each new infraction of the protocol, each new problem drawing new lawsuits. The issues remained the same, even as ADCRR changed directors, then changed again, when Katie Hobbs was narrowly voted in as governor.
Unlike previous administrations, Hobbs says she does not intend to turn a blind eye to how Arizona’s prisons are run and how executions are carried out. She appointed a retired federal magistrate judge, David Duncan, to analyze the shortcomings in Arizona’s execution strategies: 16 years of litigation over drugs and medical qualifications, transparency, equipment, an incalcitrant prison department, and most of all botches.
Arbitrary acts of prosecution
Dale Baich spent most of his career defending death row prisoners in their final appeals. He cynically sometimes refers to himself as a pallbearer. He’s witnessed 15 executions, all of them men he defended and got to know personally. As head of the Capital Habeas Unit, he oversaw appeals in Arizona, Oklahoma, Utah, Nevada and some cases in Ohio and California.
Dale also guided most of the litigation over execution protocols in Arizona and nationally, including the 2015 U.S. Supreme Court case Glossip v. Gross, which requires defense attorneys who object to lethal injection to come up with alternative solutions, which, of course, is impossible.
As for me, I am not against the death penalty in principle. Over 16 years as a reporter for The Arizona Republic, I covered countless murder trials, and some were so outrageously cruel and violent that I felt death was a suitable outcome.
But I also came to believe that it was an impossible sentence, inconsistently applied, dependent on the jurisdiction and the individual prosecutors. It is so expensive to try in a court of law, that some jurisdictions won’t even consider it.
The cost to defend a capital case pleaded to a lesser sentence was $213,337. A death penalty case that resulted in a life sentence averaged $580,255 to defend. And a case that ended in a death penalty cost $1,066,187. High-profile cases cost three and four times that amount.
It is frequently erroneous. Since 1972, 206 Arizona death sentences have been reversed and 10 condemned prisoners have been exonerated, according to the Death Penalty Information Center in Washington DC. (I’ve interviewed two of them.)
It takes decades to get from conviction to execution: 30 prisoners have died on Arizona’s death row while awaiting execution, some of old age.
And it is racist, though not in ways you might expect.
The conventional wisdom is that people of color are disproportionately represented on Arizona’s death row. In fact, 62 of 109 prisoners on Death Row, or 57%, are white. According to the 2021 Census, 53% of the state’s population is also white. Among the other death row residents are 21 Hispanics, 17 Blacks, four Native Americans and three Asians. And of the 40 men executed since 1992, 30 were white, five Hispanic, three Native American and two Black.
So, how is the death penalty racist? It’s all about who you killed. If you killed a kid or a cop, or multiple people, the death penalty is in the cards. And after that, if you killed a white woman or a white man who wore a tie to work, your chances of landing on death row are greater.
Of those same 40 killers executed, 52 of their victims were white and six were Hispanic; none of the victims were Black, Native American or Asian. Certainly, people of those races have been murdered. Were none of those murders horrific enough to earn a death sentence?
In 1972, a considerably more-liberal-than-today U.S. Supreme Court tackled a case called Furman v. Georgia to determine whether the death penalty as applied was constitutional. They decided it was not. But the justices could not agree on particulars and instead issued nine different opinions.
Some of the justices determined the death penalty was sought randomly, at the whim of prosecutors. They agreed, however, that the death penalty needed to be abolished, at least until prosecutors came up with a way to distinguish the worst of the worst cases that merited death.
The day after Furman was decided, a Republican Arizona state senator named Sandra Day O’Connor, a member of Arizona’s Senate Judiciary Committee, went to a staff attorney’s office, dropped the Furman decision on his desk and said to him, “I want you to write a death penalty we can live with.”
In 1973, the Arizona Legislature enacted the modern death penalty statute setting forth a new procedure for death penalty cases. To comply with Furman, Arizona established six aggravating factors that identified the murder as more serious — cruelty; murder for hire; a murder that is heinous, cruel, or depraved, for example — and worthy of a death sentence.
Four years later, in Gregg v. Georgia, the U.S. Supreme Court reinstated the death penalty as many of the new state statutes, including Arizona’s, addressed the concerns expressed in Furman.
But by 2014, the number of aggravating factors in Arizona’s death penalty statute had ballooned to 14, once again providing a system in which nearly every murder could be death-eligible. It has since been cut back to 10.
Death sentences still congregate in certain jurisdictions, tried by the same small groups of prosecutors. In the 1990s, Pima County led the state in both seeking the death penalty and winning death sentences in court — until the leading death penalty prosecutor was disbarred for misconduct and associates in the office were suspended. Then the baton passed to Maricopa County, until that court was overwhelmed with death cases. One of that county’s most active death-seeking prosecutors recently surrendered his law license rather than face hearings for misconduct allegations.
The Price of Death
Even trying a capital murder case is arbitrary, because most of Arizona’s counties can’t afford them.
According to a cost analysis done in 2016 by one of Maricopa County’s Public Defender offices, it cost an average of $27,191 to defend a non-capital first-degree murder case. (This does not include the price to prosecute the case.)
Because death penalty defendants get two attorneys and investigators, the cost to defend a capital case pleaded to a lesser sentence jumped to $213,337. A death penalty case that resulted in a life sentence averaged $580,255 to defend. And a case that ended in a death penalty cost $1,066,187. And certain high-profile cases cost three and four times that amount.
Then, assuming a death row prisoner isn’t resentenced, doesn’t die in prison, isn’t exonerated and finally runs out of appeals, the state has to find an efficient and “humane” way to kill him.
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