The Strange Death of Arizona's Execution Protocol Review

The state's plans for a "thorough and independent review" ended in an epistolary slapfight.

In the last edition, I talked about how Arizona commissioned a review of its execution protocol in 2023, after a series of botched executions. At the time, Hobbs argued that “a comprehensive and independent review must be conducted to ensure these problems are not repeated in future executions,” promising that “an execution will not occur until the people of Arizona can have confidence that the state is not violating the law in carrying out the gravest of penalties.“ After receiving a draft outline of its conclusions last month, however, Hobbs suspended the review, fired the former federal magistrate judge conducting it, and announced the state would resume executions as early as March of next year—based on assurances not from the independent investigator she promised but the career corrections official she appointed as the system’s director.

As expected, each side had its version of what went down. Hobbs claimed that Judge David Duncan had vastly exceeded the scope of his review (notably, by rejecting the possibility of humane lethal injection or gassing) and accused him of numerous factual errors. Duncan fired back that he had merely followed his findings to their logical conclusion and vigorously disputed the supposed factual errors.

Then the Arizona Republic published the draft outline and surrounding correspondence, shedding light on the short and tumultuous life of the review. The picture that emerges leaves neither side covered in glory.

David Duncan’s Execution Review Certainly Had Eyes beyond Its Scope

Hobbs claimed that Duncan’s scope was limited to fixing issues with the state’s current execution protocol, which he exceeded most egregiously by recommending another method (firing squad). Whether or not that’s true, it’s hard to argue that Duncan didn’t have bigger eyes than his mandate, as seen in the following passage on page 2:

Thus, within the appropriate scope of the Independent Review, the reader will not find answers to questions often posed when considering capital punishment as a matter of public policy. No answer will be provided regarding the wisdom of spending millions of dollars to execute capital defendants rather than committing them to prison for the remainder of their natural lives without possibility of parole at a fraction of the cost. No answer is contained herein as to whether it is defensible to allow for the utilization of an irrevocable punishment when it is known that mistakes in prosecution are made such that it is a fact that the innocent have been executed and that the executed cannot be exonerated.

Moreover, this Report does not address whether it is humane to subject the victims of capital crimes, often surviving family members, to a decades-long process that deprives the surviving victims of the healing that can occur when legal proceedings are finally concluded [Consider inserting Justice Breye ‘sr quote that one cannot have a death penalty that is both quick and fair.] Finally, there is presented here no answer whether it is wise public policy to employ the death penalty in reliance on a supposed deterrent effect when that supposed effect is unsupported by evidence.

As someone who repeats every jot and tittle of this on a weekly basis, it’s hard to come away from this paragraph thinking Hobbs is totally off-base. Presenting a one-sided view of an issue’s major controversies in a report that will carry the imprimatur of the state governor, while claiming any counterargument exceeds the document’s scope, hardly suggests a fair and professional review to follow. (Caveat: Duncan is adamant that the document is not a finished product, and this paragraph may never have been intended for the light of day.)

In a response to ADCRR’s¹ correspondence with the governor, Duncan claims that his firing squad recommendation—where Hobbs accuses him of most egregiously exceeding his scope—is based on “the lowest botch rate (0%) of all procedures…far preferable to the widely reported 7% botch rate for lethal injection.” These numbers unmistakably come from Amherst professor Austin Sarat’s study of botched executions; while I share Duncan’s high opinion of Sarat, I’ve cautioned before against a gospel reliance on this study given lethal injection’s inherent uncertainties (a limitation Sarat himself admits).

Arizona Questions Duncan’s Commitment; Duncan Slams Arizona’s Cooperation

ADCRR Deputy Director Ashley Oddo wrote to the governor’s office seemingly questioning Duncan’s commitment, offering up a long list of blown-off dates and unanswered communications. Duncan doesn’t dispute some of this, chalking it up to a bout of long COVID. Where they acknowledge his work, however, Oddo and Duncan disagree sharply.

While elsewhere implying that the current ADCRR shouldn’t be held accountable for “practices of the past,“ Oddo questions Duncan’s reliance on certain witnesses to past executions where others claimed not to see anything out of the ordinary. Duncan counters by citing a member Arizona’s execution team itself. Where Oddo specifically claimed process improvements over the past administration—storage of the state’s pentobarbital supply—Duncan noted the current administration’s contemporaneous practice of keeping an unlabeled controlled substance in a department refrigerator.

Oddo further claims that Duncan did not document the state’s efforts to “break down the silos“ of execution-related secrecy by collaboration with other states, information that Duncan claimed the department could not substantiate. The state also insisted that “confidentiality concerns“ prevented him from witnessing an execution rehearsal in person or speaking directly to the state’s new IV team; Duncan contends that this would have compromised his ability to investigate the point “where the mistakes occur,” and that an independent investigation should not be obligated to follow a course set out by its subject.

Arizona Outlines a Clear Choice on Lethal Injection

As Republic editorial editor Elvia Díaz notes, it’s hard not to notice the timing of all this: with Donald Trump’s decisive 2024 victory and “a tough reelection in just two years,” she likely “wants to show her toughness to Donald Trump’s electorate.”

That’s not the only question to ask, either. Whatever critiques the state may have of Duncan’s methods, the problem he ran into is universal with lethal injection. Hobbs herself cited “serious questions about ADCRR’s execution protocols and lack of transparency²” among reasons to create his review, and yet she shut it down rather than allowing him to pierce the veil over essential portions of Arizona’s executions. This, combined with every lethal injection state and the federal government enshringing the same priority in law or policy, makes it clear that official secrecy is not just beneficial but essential.

Governments can have transparency or they can continue lethal injection. However deftly she may dodge the ensuing questions, the governor’s choice is clear.

1. The Arizona Department of Corrections, Rehabilitation and Reentry.

2. Emphasis mine.