Arizona

Arizona

Arizona Ends Death-Row Solitary Confinement, Sees Reduced Prisoner Anxiety, Lowered Costs, and Increased Safety

Several months after Arizona settled a lawsuit over the conditions of confinement on the state's death row, the state has ended the practice of automatically housing condemned prisoners in solitary confinement, and prisoners and prison officials alike are praising the changes. Carson McWilliams (pictured), Division Director for Offender Operations in the Arizona Department of Corrections (ADC), told the Arizona Republic that the new incarceration conditions provide an "atmosphere where [prisoners] can socialize," resulting in "reduce[d] anxiety" that, in turn, "adds to safety control" of the prison. And, prison officials say, it has reduced institutional costs. Prior to the lawsuit, death row had meant 23-hour-per-day confinement in a concrete cell the size of a parking space, shuttered by a steel door with a perforated slot through which the prisoners would receive their meals, and with a bench bed and a sink attached to an uncovered toilet. Prisoners had no contact visits with families or lawyers, were handcuffed behind the back and subjected to body-cavity searches whenever they left their cells, and were restricted to showering or exercising three times a week. They also were denied prison jobs and educational opportunities. About the solitary conditions, McWilliams remarked, "The more you're restricted inside a cell, the more likely you are to have depression, to have anxiety, to have other types of mental problems that could lead to some type of problem inside the system, whether its self harm, or suicide, or aggression towards a staff member or towards another inmate." One death-row prisoner who was interviewed by the paper said, "It’s hard to explain the deprivation. . . . It weighs on your mind." McWilliams said it now requires fewer officers to manage death row because officers no longer have to deliver individual meals or individually escort each of the 120 prisoners. Kevin Curran, who has been a prison warden at various facilities run by the ADC, said that he "feels safer among the death-row men than among the career criminals and gangsters in the general population." Under the new conditions, prisoners are able to socialize with each other in activities such as playing basketball, volleyball, or board games, and can eat meals together. One ADC corrections officer told the Arizona Republic that he was "apprehensive" at first about the changes, but the transition has been "very good" with only a "few minor incidents," which were "a lot less" than he expected. 

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DPIC Year End Report: New Death Sentences Demonstrate Increasing Geographic Isolation

Nearly one-third (31%) of the 39 new death sentences imposed in the United States in 2017 came from just three counties, Riverside, California; Clark, Nevada; and Maricopa, Arizona, according to statistics compiled for DPIC's annual year end report. In a press release accompanying the annual report, DPIC said that the year's sentences reflect "the increasing geographic isolation and arbitrary nature of the death penalty." Riverside imposed five death sentences in 2017, Clark four, and Maricopa three, and no other county imposed as many as two. The other 3,140 counties and parishes in the country imposed 27 new death sentences, fewer than the record low total of death sentences imposed in the country last year. These three counties were featured in a 2016 report by Harvard University's Fair Punishment Project of the most prolific death sentencing counties in the country. That report found that the death penalty high-use counties tended to share "a history of overzealous prosecutions, inadequate defense lawyering, and a pattern of racial bias and exclusion," among other criminal justice issues. In a recent article about DPIC's year end report published in the Desert Sun, Dunham said, "You don’t see counties that overproduce death penalties and are model citizens in the administration of justice as a whole." Current Riverside County District Attorney Mike Hestrin told the paper that he “strenuously” objected to that characterization, which he called "a bunch of nonsense." Riverside County Public Defender Steven Harmon said that while the county has historically overused the death penalty, Hestrin, who took office in 2015, "has taken a far more measured approach to deciding in which cases he should seek the death penalty.” The Desert Sun reported in 2016 "an astronomical rise in wiretaps" in Riverside county that was "so vast it once accounted for nearly a fifth of all U.S. wiretaps," including triple the number issued by any other state or federal jurisdiction in 2014. Riverside police ranked 9th in the nation in killings of civilians. 76% of those sentenced to death in Riverside between 2010 and 2015 were defendants of color, and during that time frame it imposed death sentences at a rate that was 9 times greater per homicide than the rest of the state. All six defendants sentenced to death in Riverside in 2016 or 2017 were black or Latino. Riverside has imposed more death sentences than any other county in the country over the last five years, and 2017 was the second time in the last three years that it sentenced more people to death than any other county. Its five death sentences constituted 45% of the death sentences imposed in California this year, and more than were imposed by any other state. Four other southern California counties (Los Angeles, Kern, Orange, and San Bernardino) are also among the ten most prolific death sentencers in the past five years, and the region has been dubbed "the buckle of a new death belt." Riverside County alone has imposed 8.5% of all new death sentences in the country since 2013, and the five-county "death belt" has imposed 21.8%. By contrast, Harris County, Texas, which has executed more people than any other county, produced no executions or death sentences this year. Only 15% of all counties in the U.S. have ever imposed a death sentence that resulted in an execution. (Click image to enlarge.)

History of Lynchings of Mexican Americans Provides Context for Recent Challenges to U.S. Death Penalty

From 1846 to 1870, more than 100 men and women were hanged on the branches of the notorious "Hanging Tree" in Goliad, Texas. Many were Mexicans or Mexican Americans and many were killed by lynching. In a November 25 op-ed in the San Antonio Express-News, historian Alfredo Torres, Jr. writes that these public killings are a reminder that "the noose, [which] has been identified as emblematic of violence and oppression toward African-Americans, [is] often overlooked as a symbol of terror for Mexican-Americans." Torres says that no region experienced more lynchings of Mexican Americans than Southern Texas, and the public spectacles on the Goliad County Courthouse lawn (pictured), now an historic landmark and tourist attraction, were witnessed by Anglo families "in a carnival-like atmosphere, bringing picnic baskets and taking photos." Lynchings of more than 871 Mexican Americans are documented across 13 Western and Southwestern states after the Civil War. But Torres says "these numbers don’t compare to what was done in Texas," where historians William D. Carrigan and Clive Webb estimate that more than 5,000 Mexican Americans were murdered between 1910 to 1920. That wave of terror included numerous extra-judicial lynchings and murders of Mexican Americans by vigilantes, local law-enforcement officers, and Texas Rangers. Texas A & M-Kingsville journalism professor Manuel Flores wrote in an October 2017 column in the Corpus Cristi Caller-Times that the death and legend of Josefa “Chipita” Rodriguez—framed for the 1863 ax murder of a White cotton merchant and horse trader in what was still Confederate Texas—symbolizes the racial violence against Mexican Americans in the state and "are as pertinent to the state of Texas as that of the Alamo and Goliad stories." Rodriguez was falsely accused of murder and the theft of $600 after the dismembered body of John Savage was found on the banks of the river near her traveler's lodge. Though there was no evidence of her involvement in the murder and she insisted “No soy culpable" ("I'm not guilty"), she was quickly tried, sentenced, and hanged. In 1985, the Texas Legislature adopted a resolution absolving Rodríguez of the murder, and Gov. Mark White signed the resolution, posthumously pardoning her on June 13, 1985. Cardigan and Webb say that widespread lynchings of Mexican Americans persisted into the 1920s, "eventually declining largely because of pressure from the Mexican government." Issues of racial bias against Mexicans and others of Latino descent in the administration of the death penalty in the U.S. persist. 122 Latino prisoners have been executed in the United States since 1985. Texas has carried out 84.4% of those executions (103), including the controversial execution of Mexican national Ruben Ramírez Cárdenas on November 8, in violation of international treaty obligations to have permitted him to obtain consular assistance from his government. 373 Latino/a prisoners are on state or federal death rows across the United States, with three-quarters sentenced to death in California (188), Texas (67), or Arizona (27). A challenge to the constitutionality of Arizona's death penalty, filed by Abel Daniel Hidalgo, is currently pending in the U.S. Supreme Court. His petition presents evidence that in Arizona, "a Hispanic man accused of killing a white man is 4.6 times as likely to be sentenced to death as a white man accused of killing a Hispanic victim." The Court will consider during its December 1 conference meeting whether to accept Hidalgo's case for review.

NEW VOICES: Former Law Enforcement Officials Say Arizona, Kansas Should End Death Penalty

Former high-ranking law enforcement officials from Arizona and Kansas have called on their states to end the death penalty. In separate op-ed stories one week apart, former Arizona Attorney General Terry Goddard (pictured, left) and former Kansas Secretary of Corrections Roger Werholtz (pictured, right) conclude that the capital punishment schemes in their states have failed and should be abandoned. In a November 5 op-ed in the Arizona Daily Star headlined Arizona's 40-year experiment with the death penalty has failed, Attorney General Goddard said "Arizona does not have a good track record for getting [the death penalty] right," pointing to problems of innocence, racial disparity, cost, and persistent structural problems with the state's death penalty law. Goddard, a former Mayor of Phoenix, later oversaw the executions of six people during his tenure as the state's Attorney General from 2003 to 2011. He now says the state's death penalty has "failed ... in fundamental ways," with a statute so broad that it "captur[es] nearly every first-degree murder" and defective statutory provisions and judicial procedures that have caused "dozens of [cases to] have been set aside." He says "[s]entencing the innocent to die ... is reason alone to abandon the death penalty." Although "[g]etting it wrong once is one time too many," Arizona "has swept up the innocent in its net" at least nine times. Goddard argues that the "unsettling racial disparities" in the application of Arizona's death penalty—Hispanic men accused of murdering whites are sentenced to death at more than four times the rate of white defendants accused of murdering Hispanics—and "[t]he spiraling costs of seeking and imposing a death sentence are further reason to abandon the policy." Goddard concludes that, after four decades of using capital punishment, "Arizona has failed to narrow [its] application ... and has been unable or unwilling to provide the guidance necessary to ensure that the death penalty is only imposed on the worst offenders." Given these "myriad problems," he says, "Arizona should join the rising tide against imposing it." On October 31, Corrections Secretary Werholtz also authored an op-ed advocating ending the death penalty, though for very different reasons. In an opinion piece in the Topeka Capital-Journal entitled End the death penalty in Kansas, Secretary Werholtz addressed the state's budget shortfall and the challenges it posed to keeping corrections staff, prisoners, and communities safe. Werholtz—who served 28 years with the Kansas Department of Corrections, including eight as its Secretary—says "one simple choice" in addressing the problem "would be to eliminate the excessive amounts of money we are spending on Kansas’ broken death penalty by replacing it with life without parole." As Kansas faces a decision on whether to build a new execution facility to replace an execution chamber that the state has never used, Werholtz "believe[s] it’s time we acknowledge that the return on our investment in the death penalty has been abysmal. Numerous studies conclude that the death penalty keeps us no safer than imprisonment, and yet it siphons away far more crime prevention dollars." Currently, he says, Kansas is unable to fully staff its correctional facilities or make technological improvements to ensure the safety of corrections officers and prisoners alike. “With funds so scarce, and the needs so great,” Werholtz says, “it simply makes no sense for us to continue to invest more in our ineffective death penalty."

Mixed Rulings in Arkansas and Arizona Highlight Issue of Lethal-Injection Secrecy

Recent court rulings in Arkansas and Arizona reaching opposite outcomes highlight the continuing controversy over state practices keeping information relating to state acquisition of drugs for use in executing prisoners secret from the public. A state trial court judge in Pulaski County, Arkansas ruled on September 19 that the Arkansas Department of Correction must disclose package inserts from the supplies of the sedative midazolam recently purchased by the state as part of its three-drug execution protocol. On September 21, a federal district court judge in Arizona denied a First Amendment challenge brought by a coalition of news organizations seeking disclosure of who supplies execution drugs to the state. In the Arkansas case, circuit court judge Judge Mackie Pierce rejected arguments by lawyers for the state that the packet inserts were shielded from disclosure under state law because disclosure of the inserts would ultimately result in the discovery of who supplied execution drugs to the state. The Arkansas ruling was the second time a state trial court had ordered the Arkansas Department of Correction to disclose packaging information about its execution drugs under the state's Freedom of Information Act and public-disclosure requirements in the Arkansas Method of Execution Act. In April, another Arkansas judge directed the state to disclose packaging information related to its supply of potassium chloride, the third drug in the execution protocol, which causes the prisoners searing pain before it stops the heart unless the prisoner has been adequately anesthetized. Also in April, the drug distributor, McKesson Medical-Surgical, Inc., sued the state in an attempt to prevent it from carrying out executions with supplies of the paralytic drug, vercuronium bromide, obtained from the company under what McKesson described as false pretenses. Assistant Attorney General Jennifer Merritt had told Judge Pierce that it was necessary to keep the package labels secret because some drug manufacturers had objected to the state’s use of their drugs in executions. In his ruling, Judge Pierce said the Arkansas legislature knew how to grant pharmaceutical companies secrecy under the state's execution law, but didn’t do so. “They know what manufacturers are. They knew what the issues were," he said. The state has appealed the April order and is seeking an emergency stay to block implementation of the current order. In the Arizona case, a group of local and national news organizations, including The Arizona Republic, Guardian News & Media, Arizona Daily Star, The Associated Press, and two local television stations had sought disclosure of the state's drug suppliers, arguing that such disclosure was essential for the integrity of the criminal justice system and to determine whether the death penalty was being carried out humanely. District court judge Grant Murray Snow wrote that while the First Amendment protects speech about the death penalty, it does not require Arizona to disclose "protected information" about the identity of its drug supplier, "to the detriment of the state's ability to carry out its constitutional, lawfully imposed criminal punishments." Last December, Judge Snow had ruled in favor of the media on a separate secrecy issue, requiring the Arizona Department of Corrections to permit media witnesses to see the entire execution, including each time drugs are administered. Media witnesses had been unable to see key portions of the botched execution of Joseph Rudolph Wood in 2014, when he was administered 15 doses of lethal-injection drugs in an execution that took nearly two hours to complete. Arizona has not carried out an execution since then and no executions are currently scheduled.

Arizona Prisoner Asks U.S. Supreme Court To Declare State's Death Penalty Unconstitutional

An Arizona death-row prisoner has petitioned the U.S. Supreme Court to review the constitutionality of the state's capital punishment statute, arguing that Arizona's sentencing scheme "utterly fails" the constitutionally required task of limiting the death penalty to the worst crimes and worst offenders. On August 15, lawyers for Abel Daniel Hidalgo (pictured) wrote that a study of more than a decade's worth of murder cases from Maricopa County, where Hidalgo was tried, showed that aggravating factors that could make a defendant eligible for the death penalty were present in 99% of all the cases. This, they say, violates the Eighth Amendment requirement established by the Court that a capital-sentencing statute must “genuinely narrow the class of persons eligible for the death penalty.” They wrote that evidence presented to the Arizona state courts showed that "every first degree murder case filed in Maricopa County in 2010 and 2011 had at least one aggravating factor" that made a defendant eligible for the death penalty, and that over the course of eleven years, 856 of 866 first-degree murder cases filed in the county had one or more aggravating circumstances present. In a press statement, Hidalgo's defense team says that, as a result, "geography and county resources—rather than the characteristics of the offender or the crime—play an outsized role in Arizona’s arbitrary application of the death penalty." With the fourth largest death row in the U.S. as of January 2013, Maricopa County imposed the death penalty at more than double the rate per murder as the rest of the state, and its 28 death sentences imposed between 2010-2015 were the third most of any U.S. county. Hidalgo's petition notes that defendants of color accused of killing white victims "are more than three times as likely to be sentenced to death as minorities accused of killing other minorities ... [a]nd a Hispanic man accused of killing a white man is 4.6 times as likely to be sentenced to death as a white man accused of killing a Hispanic victim." This, they say, makes Arizona's death penalty unconstitutionally arbitrary. In the alternative, the petition argues—citing national legislative and sentencing trends—that the death penalty nationwide now offends "evolving standards of decency" and should be declared unconstitutional. The lawyers write, "[t]he long experiment ... in whether the death penalty can be administered within constitutional bounds has failed. It has failed both in Arizona in particular and in the Nation more broadly." 

In Lawsuit Settlement, Arizona to End Automatic Solitary Confinement for Death-Row Prisoners

Arizona will soon end its policy of automatically and indefinitely incarcerating death-row prisoners in solitary confinement, joining a growing number of states to ease draconian conditions on their state death rows. Arizona's action is part of a settlement of a federal lawsuit filed against the Department of Corrections (DOC) by death-row prisoner Scott Nordstrom (pictured), which argued that the state's death-row conditions were unconstitutionally harsh. Nordstrom's attorney, Sam Kooistra, said that the change in housing does not mean "softer treament" for condemned prisoners, but rather that they "get treated more like non-death sentence inmates do" by being afforded an individualized housing assessment based upon their conduct in prison and the risk they pose to others. 70% of the approximately 2,900 prisoners on death row in the U.S. are automatically held alone in their cells for more than 20 hours per day, with nearly two-thirds held in solitary confinement more than 22 hours per day, according to a survey of state corrections officials by The Marshall Project. Other states such as California, Colorado, Louisiana, Nevada, North Carolina, Tennessee, and Virginia—prompted by court challenges over death-row conditions—have already begun to allow death-sentenced prisoners more time out of their cells and, in some cases, to eat meals and exercise with other inmates, have contact visits with family members, and hold prison jobs. In February, a federal appeals court declared unconstitutional Pennsylvania's long-standing practice of automatically keeping prisoners whose death sentences had been overturned in solitary confinement—sometimes for years—until they had completed retrial or resentencing proceedings and received a lesser sentence. Nine condemned prisoners in Florida have also filed suit on behalf of the more than 350 prisoners currently held on the state's death row, which asks the court to prohibit prisoners from being held in solitary confinement for indefinite duration and without a case-specific justification. Currently, Florida holds death-sentenced prisoners in solitary confinement up to 23 hours every day. Three prisoners on Louisiana's death row have filed filed a federal class action lawsuit charging that their isolation at the Louisiana State Penitentiary at Angola amounts to a “severe denial of human fundamental needs.” Although prison officials have begun allowing death-sentenced prisoners four hours out of their cell per day, as well as some educational programming and activities with other prisoners, Betsy Ginsberg—one of the Angola prisoners’ lawyers—said the class-action lawsuit will continue to ensure that the recent changes are “constitutionally adequate, properly implemented, and permanent.” These developments in death-row conditions come in the midst of a national rethinking of the use of solitary confinement, which has come under fire as unnecessarily, psychologically debilitating, cruel, and expensive. 

Execution Drugs Three States Attempted to Illegally Import Have Now Expired

Three thousand vials of the anesthetic sodium thiopental that three states attempted to illegally import into the United States for use in executions have now expired, according to an investigative report by BuzzFeed News. Arizona, Nebraska, and Texas each purchased 1000 vials of the drug in 2015 from a questionable supplier in India called Harris Pharma, despite warnings from the Food and Drug Administration (FDA) that importation of the drug would violate federal law. Citing documents obtained from the FDA through a public records request, BuzzFeed reports that the sodium thiopental in the shipments expired in May 2017. The FDA confiscated the sodium thiopental Arizona and Texas attempted to bring into the country after U.S. Customs and Border Protection agents seized the shipments at airports in Phoenix and Houston. Federal officials justified their action saying that a 2012 court order "requires the FDA to refuse admission to the US any shipment of foreign manufactured sodium thiopental being offered for importation that appears to be an unapproved new drug or a misbranded drug." FedEx halted Nebraska's shipment in India because of "improper or missing paperwork." Harris Pharma, the company that sold the drugs, claimed to have manufactured the sodium thiopental itself, but the facilities it registered with the FDA and the Drug Enforcement Administration were not equipped to produce pharmaceuticals. Harris had, in fact, purchased the drug from another Indian manufacturer and resold it to the three states at a substantially inflated price. The sole U.S. manufacturer of sodium thiopental halted production in 2011 over ethical concerns about the use of the product in executions. In January 2017, Texas sued the FDA in federal court over the agancy's continued detention of the drugs without having issued a formal decision on the disposition of the drugs. The FDA issued a final order in April 2017 refusing to release the drugs to Arizona and Texas, and Texas has challenged that ruling. A spokesperson for the Texas Department of Criminal Justice said the state's lawsuit against the FDA would continue, despite the expiration of the drugs. Last year, a Texas official whose name was redacted from official documents said in an affidavit that the state, "intends to continue importing thiopental sodium from the same foreign source, and with the same labeling, as the entry that FDA is currently detaining."

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