Arizona death penalty case will determine whether a private citizen can compel an execution

Parental rights. Gun owners’ rights. Crime victims’ rights. Each of these slogans reminds us of the rising tide of populist anger in recent American politics. They mark the efforts of some politicians to mobilize private citizens against the expertise and authority of public officials as they have done in school board meetings and in challenges to COVID-19 restrictions.

Those efforts were on display last week when Linda Price, the sister of an Arizona murder victim, Ted Price, asked the state supreme court to order Gov. Katie Hobbs to carry out the execution of Aaron Gunches, the man who kidnapped and murdered her brother in 2002.

Grunches was scheduled to be put to death on April 6, but the governor has made it clear that she does not believe that she can do so in a lawful and appropriate manner by that date.

The court should not help a private citizen compel her to do so anyway.

Prior to Price’s suit, the Gunches case already had more than its share of twists and turns. Last November, Gunches said he wanted to be executed and asked the state supreme court to issue a death warrant. Republican Attorney General Mark Brnovich joined him in that request.

But after Bronvich was defeated for re-election, Gunches changed his mind, and Democrat Kris Mayes, the new attorney general, asked the state supreme court to withdraw the execution warrant.

Earlier this month, the court rejected Mayes’ request and set the April 6 execution date. Following that decision, Gov. Hobbs said that her administration would not go forward with the execution. She argued that the death warrant “authorized” the execution but did not require that it take place.

In January, Gov. Hobbs had announced a pause in Arizona’s executions because of what she called a “history of executions that have resulted in serious questions about (the state’s) execution protocols.” She also launched an investigation of the state’s “lethal injection drug and gas chamber chemical procurement process, as well as execution protocols, and staffing.”

After the court set the April 6 date, Gov. Hobbs again referenced the serious problems that have recently plagued Arizona executions. She reiterated her promise that “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.”

The problems Hobbs referenced were spelled out in an eye-opening document filed in the Price case by Ryan Thornell, the recently installed director of Arizona’s Department of Corrections. Thornell describes chaos and dysfunction in Arizona’s death penalty system and confirms that his department cannot be ready to execute Gunches next month.

The problems he documents include shortages among the staff who play leading roles in carrying out executions, serious concerns about the credentials of the pharmacist who compounded the state’s lethal injection drugs, the possibility that the drug supply itself has expired, and the fact that the team responsible for inserting an IV in Gunches’s arm would not be available for an April 6 execution.

Despite these difficulties, Linda Price wants Gunches put to death on schedule.

She claims that the governor’s refusal to do so violates her rights as the family member of a murder victim. Those rights, which she names “justice” and “finality,” are mentioned in the Arizona Constitution and its Victims’ Bill of Rights.

If the Arizona supreme court grants Price’s request, it would mark an unprecedented departure from a long-standing and well-recognized legal principle: When a state punishes an offender it does so as a representative of the People, not as an instrument of crime victims or their families.

It wasn’t always that way.

As the Harvard historian Jill Lepore points out, “For centuries, criminal trials were, like civil ones, contests between individual parties: Victim v. Defendant. By the early modern era, the state had become the prosecuting party in criminal trials, which then took the form of Crown v. Defendant (and, in the United States, of State v. Defendant).”

Lepore calls this change “foundational” to civil society, in which “the community comes to be umpire, by settled standing rules, indifferent, and the same to all parties.”

That is why crime victims and their families traditionally played little or no role in government decisions about the prosecution or punishment of the people who  harmed them. They would not have been able to do what Price is doing now.

But, more than a half century ago, at the dawn of America’s tough-on-crime era, all that began to change. Lepore traces that change and the birth of the modern movement for victims’ rights to 1966. She claims that it developed as a protest and counterweight to what was then the Supreme Court’s dominant interest in the rights of criminal defendants.

Spurred on by “law-and-order” politicians, Lepore writes, the term “victims’ rights” soon became part of the American lexicon.

By the early 1990s, according to the National Institute of Justice, “every State had enacted statutory rights for crime victims, and many had adopted constitutional amendments protecting victims’ rights. Today, all 50 States have passed some form of a statutory crime victims’ bill of rights, and 29 have amended their constitutions to include rights for crime victims.”

All of this is evidence that the victims’ rights movement has, as Lepore puts it, “lately reached new heights.”

But what is happening in Arizona threatens to take things too far.

Compelling a governor to go forward with an execution to satisfy the grief and anger of a victim’s family would turn back the clock to a time when doing justice was a form of private vengeance and when it seemed most important to quickly exact a pound of flesh. If Gov. Hobbs were to put someone to death when the state corrections department says it is not prepared to do so in a lawful way, she would shirk her duty to “take care that the laws be faithfully executed.”

While crime victims deserve our support and sympathy, the Arizona supreme court should draw the line at allowing a private citizen to compel the state’s chief executive to carry out an execution. If it fails to do so, it will do incalculable damage to the idea that when a state  executes one of its citizens it must do so scrupulously and in a manner that honors our constitutional commitment to ensure that the punishment it inflicts is not cruel and unusual.

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.