American Bar Association Releases a Report on Arizona's Death Penalty
The American Bar Association (ABA) Death Penalty Moratorium Implementation Project released a report on July 17, 2006, about Arizona's death penalty. The report, prepared by the Arizona Death Penalty Assessment Team, found that "Arizona's death penalty is plagued with serious problems." The Assessment Team identified several reforms that Arizona needs to make, and the ABA recommended that "Arizona impose a temporary moratorium on executions."
Below is information about the report. You can also visit the Death Penalty Moratorium Implementation Project web page at http://www.abanet.org/moratorium/. That page will include assessments of other states and will change as new reports are published.
Summary of Problems
Below is a list of the problems that the Arizona Death Penalty Assessment Team identified.
- Inconsistent system of providing representation for indigent defendants. "Although the State of Arizona provides indigent defendants with counsel at trial, on direct appeal, and in state post-conviction proceedings, Arizona's indigent defense services is a mixed and uneven system that lacks level oversight and standards and does not provide uniform, quality representation to indigent defendants in all capital proceedings."
- Insufficiently compensated appointed counsel. "The compensation paid to appointed attorneys who represent capital defendants is insufficient for counsel to meet their obligations under the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (Guidelines), despite the fact that the Arizona Rules of Criminal Procedure require defense counsel to be familiar with the Guidelines and that the Arizona Supreme Court may mandate compliance with portions of the Guidelines."
- Lack of a mechanism to ensure proportionality. "While proportionality review is the single best method of protecting against arbitrariness in capital sentencing, the Arizona Supreme Court is not required to undertake a proportionality review in capital cases. Since 1992, the Arizona Supreme Court has rejected any arguments that the absence of proportionality review denies capital defendants equal protection and due process of law, or that it is tantamount to cruel and unusual punishment."
- Lack of effective limitations on the "especially cruel, heinous, or depraved" aggravating circumstance. "In 2002, the Arizona Capital Case Commission expressed concerns regarding the ambiguity of the (F)(6) statutory aggravating circumstance (a murder committed in an 'especially cruel, heinous or depraved manner'), but no changes have yet been made. Currently, the courts, in determining the constitutionality of jury instructions used to explain this aggravating circumstance, require the instructions to contain 'essential narrowing factors' and provide 'specificity and direction' to the jury, but do not mandate that a uniform and specific definition be used."
Summary of Recommendations
Below is a summary of the reforms that the Arizona Death Penalty Assessment Team recommended. (A full list of reforms appears in the introduction to and in each section of the report.) The report noted, "Despite the best efforts of a multitude of principled and thoughtful actors in the Arizona criminal justice system, our research establishes that at this point in time, the State of Arizona cannot ensure that fairness and accuracy are the hallmark of every case in which the death penalty is sought or imposed." The ABA recommended that Arizona place a moratorium on the death penalty until the reforms could be implemented.
- All poor defendants receive competent lawyers at every stage of the capital process. "In the United States, criminal defendants who are poor are entitled to attorneys. Arizona's system does not ensure, however, that poor defendants on trial for their lives will receive a competent one. Arizona's various indigent defense services combine to form a mixed and uneven system that lacks oversight and fails to provide uniform, quality representation to indigent defendants in all capital proceedings. The State's failure to provide statewide oversight of its indigent defense system (with the exception of the newly formed state capital post-conviction public defender office) leads to a system in which fairness and accuracy breakdowns are not only possible, but likely. Even worse, Arizona has not even conducted the research necessary to identify the scope of the problem, no less identify solutions. As a first step, Arizona should conduct a study of Maricopa County's four indigent defense offices to determine if the apparent discrepancies in average expenditures on capital cases are problematic and signal differences in the quality of representation."
- Arizona should protect innocent death row inmates by providing adequate funding for and oversight of crime labs and forensic investigations. "Crime labs and forensic investigations should be adequately funded so that biological evidence may be tested quickly and accurate determinations as to likely guilt or innocence may be made as early in the investigation process as possible. In addition, to further ensure the reliability and credibility of crime labs and to minimize the risk that wrongful convictions occur, Arizona should create an independent agency to oversee its crime laboratories."
- Arizona should protect against arbitrariness in capital sentencing. "The Arizona Death Penalty Assessment Team believes that a capital case review committee housed in the Arizona Prosecuting Attorneys' Advisory Council should exercise final discretion as to whether the death penalty should be sought. The County Attorney may choose not to seek death, but if s/he wants capital charges to be filed, a capital case review committee must make the final decision as to the appropriateness of capital charges. Alternatively, the Arizona Supreme Court should conduct a comparative proportionality review during the direct appeal stage of capital cases in which it compares the death sentence under review with sentences imposed on similarly situated defendants. This sort of review should compare the case under consideration to similar cases in which (1) death was imposed, (2) death was sought but not imposed, and (3) death could have been sought but was not. Furthermore, unless and until the Arizona Prosecuting Attorneys' Advisory Council creates the capital case review committee recommended above, Arizona should require that all prosecuting agencies involved in capital case prosecutions have written policies for identifying cases in which to seek the death penalty. As recommended by the Arizona Capital Case Commission, these policies should require the solicitation or acceptance of defense input before deciding whether or not to seek the death penalty."
- Arizona should collect and analyze the data that is necessary to determine whether its death penalty system is fair and accurate. "[T]he State of Arizona should establish and fund a clearinghouse to collect data on first-degree murder cases. At a minimum, this clearinghouse should collect data on each county's provisions of defense services in these cases. Relevant information on all death-eligible cases should be made available to the Arizona Supreme Court for use in any proportionality review it may conduct. . . . Arizona should provide funding for the completion and public release of a study of the administration of its death penalty system to determine the existence or non-existence of unacceptable disparities, socio-economic, racial, geographic, or otherwise."
- Arizona should effectively limit its "especially cruel, heinous, or depraved" aggravating circumstance. "Given the inherent vagueness of this aggravating circumstance and the possibility of overuse, it is of utmost importance that Arizona adopts a uniform and specific definition of this aggravating circumstance when instructing jurors during the aggravation phase of a capital trial."
Assessment Team Members
Below is a list of the individuals who worked on the Arizona Death Penalty Assessment Team. Under the "Report and other Published Materials" section below, you can download biographical information about the team members.
- Sigmund "Zig" Popko. Legal Writing Professor, Sandra Day O'Connor College of Law, Arizona State University
- Peg Bortner. Director of the Center for Urban Inquiry, Arizona State University
- Kent E. Cattani. Chief Counsel, Capital Litigation Section, Arizona Attorney General's Office
- Jonodev O. Chaudhuri. Associate Justice, Yavapai-Apache Nation Court of Appeals
- Larry A. Hammond. Partner, Osborn Maledon, P.A.
- Jose de Jesus Rivera. Partner, Haralson, Miller, Pitt, Feldman & McAnally, P.L.C.
- Thomas A. Zlaket. Former Justice, Arizona Supreme Court.
Report and Other Published Materials
Below is a list of the various published materials associated with this report, including the report itself. The documents are available in both Microsoft Word and Adobe PDF format.
- Arizona Death Penalty Assessment Report, Executive Summary. Word or PDF.
- Arizona Death Penalty Assessment Report, Full Report. Word or PDF.
- Arizona Death Penalty Assessment Guide. Word or PDF. The research guidelines from the ABA Death Penalty Moratorium Implementation Project for each state's death penalty assessment team.
- Arizona Death Penalty Assessment Team Biographies. Word or PDF. A list of the team members, with accompanying biographies, who prepared the report.
- Fact Sheet: Arizona's Death Penalty, Problems and Recommendations. Word or PDF. A fact sheet summarizing the problems with Arizona's death penalty and recommended reforms.
- Arizona's Compliance with ABA Recommendations. Word or PDF. A series of charts that show where Arizona does and does not compy with ABA policies regarding the death penalty.
- Frequently Asked Questions. Word or PDF. FAQs about the ABA Death Penalty Moratorium Implementation Project.
