A nine-mem­ber death penal­ty assess­ment team appoint­ed by the American Bar Association​’s (ABA) Death Penalty Moratorium Implementation Project has deter­mined that Arizona​’s cap­i­tal pun­ish­ment laws are plagued with seri­ous prob­lems and that the state should imme­di­ate­ly take steps to improve the fair­ness and accu­ra­cy of the sys­tem. A report issued by the assess­ment team iden­ti­fied sig­nif­i­cant prob­lems, includ­ing the lack of a cen­tral­ized sys­tem of pro­vid­ing indi­gent defense ser­vices in cap­i­tal cas­es that leaves some defen­dants with­out ade­quate rep­re­sen­ta­tion, inad­e­quate com­pen­sa­tion for defense coun­sel, fail­ure to imple­ment a mech­a­nism to ensure that death sen­tences are imposed pro­por­tion­ate­ly in cap­i­tal cas­es, and an impre­cise appli­ca­tion of what crimes should be con­sid­ered ​“espe­cial­ly cru­el, heinous or depraved” to make them eli­gi­ble for the death penal­ty.

​“This is not an aca­d­e­m­ic issue. Real peo­ple, vic­tims’ fam­i­ly mem­bers as well as defen­dants, rely on our sys­tem to get this right. Unfortunately, the evi­dence shows that we have not always done so. Since 1973, Arizona has exon­er­at­ed eight inmates who already had been sen­tenced to death and resided on death row await­ing exe­cu­tion. Our con­cern for pub­lic safe­ty means that each cit­i­zen of Arizona has a stake in achiev­ing jus­tice, and we must not allow short­com­ings to per­sist with pub­lic safe­ty at stake,” not­ed the assess­ment team’s chair, Professor Sigmund Popko of the Sandra Day O’Connor College of Law at Arizona State University.

To address the prob­lems iden­ti­fied dur­ing its 21-month study of Arizona’s death penal­ty, the assess­ment team made a series of rec­om­men­da­tions, including:

  • All poor defen­dants must receive com­pe­tent lawyers at ever state of the cap­i­tal process. Currently, Arizona does not pro­vide statewide over­sight of its indi­gent defense sys­tem. As a first step, Arizona should con­duct a study of Maricopa County’s four indi­gent defense offices to deter­mine if the appar­ent dis­crepen­cies in aver­age expen­di­tures on cap­i­tal cas­es are prob­lem­at­ic and sig­nal dif­fer­ence in the qual­i­ty of represenation.
  • Arizona should pro­tect inno­cent death row inmates by pro­vid­ing ade­quate fund­ing for over­sight of crime labs and foren­sic inves­ti­ga­tions. The group rec­om­mend­ed that the state take steps to ensure that bio­log­i­cal evi­dence is test­ed quick­ly and accu­rate­ly to deter­mine guilt or inno­cence as ear­ly in an inves­ti­ga­tion as pos­si­ble. It also rec­om­mend­ed that the state cre­ate an inde­pen­dent agency to over­see its crime laboratories.
  • Arizona should pro­tect against arbi­trari­ness in cap­i­tal sen­tenc­ing. The team rec­om­mend­ed the estab­lish­ment of a cap­i­tal case review com­mit­tee based in the Arizona Prosecuting Attorneys’ Advisory Council. This review com­mit­tee would exer­cise final dis­cre­tion as to whether the death penal­ty should be sought and would take this deci­sion-mak­ing abil­i­ty out of the hands of local prosecuting attorneys.
  • Arizona should col­lect and ana­lyze the data that is nec­es­sary to deter­mine whether its death penal­ty sys­tem is fair and accu­rate. The group rec­om­mend­ed that Arizona estab­lish and fund a clear­ing­house to col­lect data on first-degree mur­der cas­es, includ­ing infor­ma­tion on each coun­ty’s pro­vi­sions for defense ser­vices. The team also called on the state to fund a study of the admin­is­tra­tion of cap­i­tal pun­ish­ment to check for socio-eco­nom­ic, racial, geo­graph­ic, and oth­er potential disparities.
  • Arizona should lim­it its ​“espe­cial­ly heinous, atro­cious, or depraved” aggra­vat­ing cir­cum­stance. The assess­ment team rec­om­mend­ed that Arizona elim­i­nate the vague­ness of its cur­rent aggra­vat­ed cir­cum­stance word­ing by adopt­ing a uni­form and spe­cif­ic def­i­n­i­tion that could give more guid­ance to jurors dur­ing the penal­ty phase of a death penalty case.

To exam­ine Arizona’s death penal­ty, the team — which also includ­ed chief coun­sel to the Capital Litigation Section of the Arizona Attorney General’s Office, a for­mer Arizona Supreme Court jus­tice, three part­ners in law firms, and the direc­tor of the Center for Urban Inquiry at Arizona State University — mea­sured Arizona law, pro­ce­dure and prac­tices against pro­to­cols devel­oped by the ABA to eval­u­ate the effec­tive­ness and fair­ness of death penal­ty statutes. The Arizona state assess­ment is the third such report issued by the ABA Death Penalty Moratorium Implementation Project. Additional reviews are under­way in Florida, Indiana, Ohio, Pennsylvania, Tennessee and Virginia.

(ABA Press Release, ​“Arizona Legal Team Urges Reforms of State Death Penalty System, Identifies Broad Problem Areas,” July 17, 2006). Read the ABA’s press release. Read the fact sheet sum­ma­riz­ing Arizona’s death penal­ty prob­lems and the team’s rec­om­men­da­tions. Read the report’s exec­u­tive sum­ma­ry. Read the full Report.

See Innocence, Arbitrariness, Representation and Studies.

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