Arizona case shows governors don’t have to carry out executions, even after a court issues a death warrant

On March 2, the Arizona state supreme court issued a death warrant in the case of Aaron Gunches and set an April 6 execution date. It did so despite the fact that the state’s recently elected attorney general, Democrat Kris Mayes, had asked the court in January not to proceed with her predecessor’s request to move forward with Gunches’ execution.

The next day, Gov. Katie Hobbs announced that she would not act on the death warrant and that Gunches would not be put to death next month.

Her refusal to do so set up an apparent clash between the executive and judicial branches in a state where only the state supreme court can issue death warrants and set execution dates and thus made national news.

Death penalty supporters denounced the governor’s decision as an unconstitutional and lawless act. A spokesperson for the Maricopa County Attorney’s Office, which prosecuted Gunches, claimed that the governor “has a constitutional and statutory responsibility to carry out all sentences, including the execution of Aaron Gunches.”

As they portrayed it, Gov. Hobbs was following in the footsteps of Southern governors who  refused to enforce court-ordered desegregation in the mid-20^th century.

But this comparison mischaracterizes what Hobbs is doing.

In fact, Gov. Hobbs does not have the responsibility that the Maricopa County Attorney claims she has and is not defying a court order. She was well within her authority as chief executive in deciding not to go forward with the Gunches death warrant.   

We can see this clearly if we take a look at the case and the court’s order.

In 2008, Gunches was sentenced to death after pleading guilty to kidnapping and first-degree murder. The case involved the 2002 murder of his girlfriend’s ex-husband.

Last December, Gunches took the unusual step of asking the state supreme court to move forward with his execution, saying he wanted to give closure to the family of his victim.

According to the Death Penalty Information Center, over the last half-century or so, only about 10 percent of death row inmates have done what Gunches did and waived “part of their ordinary appeals.”

The state’s lame duck attorney general, Republican Mark Brnovich, moved quickly and formally petitioned the court to issue a death warrant.

But there were more twists and turns: In January, Gunches wrote to the state supreme court a second time, now seeking to withdraw his previous request to be executed. He did so after he learned that Attorney General Mayes had announced a “pause” in Arizona executions and that she would not be seeking any new death warrants.

Referring to himself in the third person, he wrote, “Gunches would not have filed his motion had he known this stunning news.”

Mayes filed a motion in support of Gunches’ request and informed the supreme court that the state would not move forward with his execution pending the full review of “Arizona’s protocols and processes governing capital punishment” that Gov. Hobbs is undertaking.

In its decision last week, the court claimed that it lacked the legal authority to grant the requests of either Gunches or Mayes.

It cited an Arizona statute that says, “After a conviction and sentence of death are affirmed and the first post-conviction relief proceedings have concluded, the supreme court shall issue a warrant of execution that authorizes the director of the state department of corrections to carry out the execution 35 days after the supreme court’s mandate or order denying review or upon motion by the state.”

It italicized “shall” to drive home the point about its limited legal authority.

And, as if one italicized imperative were not enough, it also noted that an Arizona rule of criminal procedure governing the issuance of death warrants contained another imperative which it also italicized. “After affirming a death sentence,” the court wrote, “the Supreme Court must issue a warrant of execution… if any one or all three specific requirements pursuant to Rule 31.23(a) are met,” as they had been in the Gunches case.

This rule, it argued, “eliminates virtually all of this court’s discretion.”

The court didn’t stop there. It pointed out that “the state’s contention that the court should not issue a warrant of execution ‘without the State avowing that an execution could actually move forward’ is not persuasive.”

And, while the court acknowledged that “Governor Hobbs has established a task force to ‘review and provide transparency into the ADCRR’s lethal injection Arizona drug and gas chamber chemical procurement process, execution protocols, and staffing considerations including training and experience,’” it concluded that, “(T)he review itself … does not constitute good cause for refraining from issuing the warrant.”

In a working scheme of constitutional government, we expect chief executives to faithfully carry out court orders as the Maricopa County Attorney argued that Hobbs should do in this case.

But the judicial decision in the Gunches case was an authorization to act, not an order to do so.

Note the language of the statute that the court itself relied on. It says only that the court “shall issue a warrant of execution that authorizes the director of the state department of corrections to carry out the execution.” (italics added).

This means that after a death warrant is issued, the executive branch has permission to proceed with an execution, not that it is required to do so.

Investigating Arizona’s recent series of botched executions to ensure that the state does not violate the constitutional ban on “cruel and unusual punishment,” as that investigation promises to do, qualifies as a very good reason for Gov. Hobbs not to use the authority her state’s supreme court gave her in the Gunches case.

As she explained on Friday, “Under my administration, an execution will not occur until the people of Arizona can have confidence that the state is not violating the law in carrying out the gravest of penalties.”

This nation and its people would be well served if more governors followed Gov. Hobbs’s example of scrupulous dedication to her state’s laws and to the Constitution of the United States.

Austin Sarat (@ljstprof) is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. He is author of numerous books on America’s death penalty, including Gruesome Spectacles: Botched Executions and America’s Death Penalty and  Lethal Injection and the False Promise of Humane Execution. The views expressed here do not represent Amherst College.