Arizona AG Asks Court to Set Execution Dates, Sparking Broad Backlash

Nearly sev­en years after the botched exe­cu­tion of Joseph Wood put the death penal­ty on hold in Arizona, state offi­cials are seek­ing to resume exe­cu­tions. Arizona Attorney General Mark Brnovich announced on April 6, 2021 that he is ask­ing the Arizona Supreme Court to set a brief­ing sched­ule and issue exe­cu­tion war­rants for death-row pris­on­ers Clarence Dixon and Frank Atwood. At present, no state but Texas has any pend­ing exe­cu­tions sched­uled for 2021. 

The Attorney General’s announce­ment drew swift back­lash from defense lawyers, racial jus­tice and civ­il rights groups, for­mer cor­rec­tions offi­cials, and spir­i­tu­al advi­sors for the fed­er­al pris­on­ers who were exe­cut­ed in 2020 and 2021.

In March, the Arizona Department of Corrections, Rehabilitation, and Reentry (ADCRR) announced that it had obtained a sup­ply of the bar­bi­tu­rate pen­to­bar­bi­tal and was pre­pared to restart exe­cu­tions. Brnovich, who says the men have no appeals remain­ing in their cas­es, is seek­ing a ​“firm brief­ing sched­ule” to resolve exe­cu­tion-relat­ed issues in the cas­es before the Arizona Supreme Court issues the war­rants. The Attorney General asserts that this sched­ule — which would lim­it the time in which the court could review issues — is need­ed to com­ply with ADCRR test­ing and dis­clo­sure oblig­a­tions regard­ing the drug that will be used in the executions.

Attorneys for Dixon and Atwood issued state­ments sharply chal­leng­ing the attor­ney general’s rep­re­sen­ta­tions con­cern­ing the cas­es. Dixon, they say, is severe­ly men­tal­ly ill and also has seri­ous phys­i­cal dis­abil­i­ties, and his men­tal sta­tus can­not be prop­er­ly assessed while pan­dem­ic-relat­ed con­cerns lim­it expert’s abil­i­ty to trav­el and to con­duct nec­es­sary in-per­son eval­u­a­tions. Atwood main­tains his inno­cence, but his defense lawyers’ abil­i­ty to inves­ti­gate and present evi­dence sup­port­ing his inno­cence claim has been imped­ed by the pandemic.

“In light of Clarence Dixon’s severe men­tal ill­ness and debil­i­tat­ing phys­i­cal dis­abil­i­ties, includ­ing blind­ness, it would be uncon­scionable for the state of Arizona to exe­cute him,” Dixon’s attor­ney Dale Baich said in a state­ment. ​“Moreover, by seek­ing to exe­cute Mr. Dixon, the state is attempt­ing to skirt its own respon­si­bil­i­ty for fail­ing to pro­tect him from the hor­rif­ic abuse and neglect he suf­fered as a child, fail­ing to imple­ment prop­er super­vi­sion when he was found to be Not Guilty by Reason of Insanity in con­nec­tion with a dif­fer­ent crime and [released] just days before the mur­der, and fail­ing to con­duct a thor­ough and reli­able inves­ti­ga­tion into the case.”

In an April 8 com­men­tary, Is it not crazy to exe­cute a men­tal­ly ill killer?, Arizona Republic colum­nist EJ Montini not­ed that Dixon’s ​“his­to­ry of men­tal ill­ness is long and unchal­lenged.” There is ​“some­thing unhinged about a sys­tem that would exe­cute him,” Montini wrote.

Atwood’s lawyer, Joseph Perkovich, also said sig­nif­i­cant issues were present in his case. ​“Frank Atwood’s lit­i­ga­tion since ear­ly 2020 has been frus­trat­ed by the COVID-19 pan­dem­ic,” Perkovich said in a state­ment. ​“The State is now attempt­ing to sweep aside the most pro­found issues that can arise in our legal sys­tem, includ­ing whether the con­vict­ed is actu­al­ly guilty of the crime and whether death is a moral­ly or legal­ly ten­able pun­ish­ment in the individual’s case. Mr. Atwood needs the oppor­tu­ni­ty to present these issues before the Arizona Supreme Court enter­tains set­ting an exe­cu­tion date.” Atwood says that eye­wit­ness­es saw the vic­tim in his case alive sev­er­al hours after he alleged­ly encountered her.

Social jus­tice advo­cates also strong­ly crit­i­cized Brnovich’s announce­ment. In a let­ter to Governor Doug Ducey, 18 nation­al and local civ­il rights groups led by the state and nation­al ACLU urged the gov­er­nor to ​“recon­sid­er the deci­sion to resume exe­cu­tions.” Their let­ter not­ed that cap­i­tal pun­ish­ment ​“con­tin­ues to be applied in a racist man­ner, is error-prone, cost­ly, and dis­pro­por­tion­ate­ly tar­gets vul­ner­a­ble indi­vid­u­als.” The let­ter warned of the unre­li­a­bil­i­ty of the death penal­ty, point­ing to the 10 death row exon­er­a­tions in Arizona and 185 nation­wide since cap­i­tal pun­ish­ment resumed in the U.S. in the 1970s. It also raised con­cerns about Arizona’s his­to­ry of botched executions.

Twenty-one for­mer cor­rec­tions offi­cers also wrote to Gov. Ducey, cau­tion­ing him that resum­ing exe­cu­tions could exact a sig­nif­i­cant toll on prison work­ers tasked with car­ry­ing out the exe­cu­tions. ​“Those of us who have par­tic­i­pat­ed in exe­cu­tions expe­ri­enced the trau­ma first-hand, while oth­ers of us wit­nessed the toll it has tak­en on col­leagues. Post-trau­mat­ic stress dis­or­der, sub­stance abuse, and even sui­cide increase among cor­rec­tions staff fol­low­ing prox­im­i­ty to an exe­cu­tion, even among those who did not par­tic­i­pate direct­ly,” they wrote. ​“The men and women who have under­tak­en the impor­tant and chal­leng­ing job of keep­ing Arizona’s pris­ons safe and secure should not have to face this added burden.” 

Four spir­i­tu­al advi­sors who min­is­tered to pris­on­ers exe­cut­ed by the fed­er­al gov­ern­ment also warned Ducey of the trau­ma caused by exe­cu­tions. ​“We rec­og­nize the deep pain the fam­i­lies of mur­der vic­tims have suf­fered, and we wish them peace and heal­ing,” they wrote. ​“At the same time, we have seen that car­ry­ing out exe­cu­tions does not pro­vide that solace, it only per­pet­u­ates a cycle of vio­lence and harm.” They described the ​“last­ing hor­ror” of watch­ing ​“offi­cials method­i­cal­ly pre­pare to end the life of a human being,” and expressed grief at the end of an oppor­tu­ni­ty for growth and redemption.