An Arizona appeals court judge has urged the state’s supreme court to rule that the death penal­ty vio­lates Arizona’s state con­sti­tu­tion­al pro­hi­bi­tion against cru­el and unusu­al pun­ish­ment. In an August 16, 2018 opin­ion dis­sent­ing from the Arizona Supreme Court’s affir­mance of death-row pris­on­er Jason Bush​’s con­vic­tion and sen­tence, Court of Appeals Judge Lawrence Winthrop (pic­tured) — sit­ting by des­ig­na­tion in the case because of the recusal of one of the high court’s jus­tices — wrote that “[t]he death penal­ty not only inflicts unnat­u­ral­ly cru­el pun­ish­ment, but the appli­ca­tion and imple­men­ta­tion of the death penal­ty is, at best, arbi­trary and capri­cious.” According to Judge Winthrop, the dan­gers of wrong­ful con­vic­tions and death sen­tences, sys­temic ​“flaws in admin­is­ter­ing the death penal­ty, and our his­toric inabil­i­ty to devise a method to imple­ment the death penal­ty free from human bias and error” require that the death penal­ty be declared uncon­sti­tu­tion­al. His opin­ion cat­a­logued a range of prob­lems in Arizona’s appli­ca­tion of cap­i­tal pun­ish­ment, includ­ing racial bias, wrong­ful con­vic­tions, and geo­graph­ic dis­par­i­ties. The death penal­ty, he also wrote, ​“has been shown to … impose unin­tend­ed trau­ma on the victim’s fam­i­ly and friends, and to be cost pro­hib­i­tive. … [G]iven the con­tin­ued reports that demon­strate defen­dants may be sen­tenced to death because of jurors’ inher­ent bias, and stud­ies that demon­strate the death penal­ty has no iden­ti­fi­able deter­rent effect, the answer to the ques­tion of whether the cost of the death penal­ty out­weighs the soci­etal ben­e­fit is a resound­ing, ​‘No.’” Judge Winthrop’s dis­sent echoes many of the themes of — and fre­quent­ly quotes from — U.S. Supreme Court Justice Stephen Breyer’s dis­sent in Glossip v. Gross (2015), which ques­tioned whether the death penal­ty, as applied today, vio­lates the U.S. Constitution. ​“We sim­ply can no longer ignore the seem­ing­ly inher­ent vari­ants and prob­lems asso­ci­at­ed with imple­ment­ing the death penal­ty,” Judge Winthrop wrote. ​“To con­tin­ue to affirm the enforce­ment the death penal­ty, giv­en what we now know, is to approve a pun­ish­ment that is both cru­el and unusu­al.” The court major­i­ty in Bush’s case upheld his con­vic­tion and death sen­tence, reject­ing a vari­ety of argu­ments that the tri­al and sen­tenc­ing were con­sti­tu­tion­al­ly flawed. The major­i­ty ​“express[ed] no opin­ion … [on] the valid­i­ty of cap­i­tal pun­ish­ment under Arizona’s Constitution,” reserv­ing that judg­ment for a case in which ​“the issue [were prop­er­ly] raised, devel­oped, and argued.” However, Bush’s case, they wrote, was ​“not the appro­pri­ate case to address or decide” that issue.

(Howard Fischer, Border mili­tia­man’s con­vic­tions, death sen­tences upheld in Arivaca slay­ings, Capitol Media Services, August 16, 2018.) Read the Arizona Supreme Court’s deci­sion in Arizona v. Jason Eugene Bush. See Arizona and Arbitrariness.

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