Resurgence of Executions at the State and Federal Level

By Brianna Pachuilo.

After seventeen years without a single federal execution, the federal government resumed executing death-row inmates last summer in the midst of a global pandemic. This timing was curious with declining national approval of the death penalty and a nationwide battle to keep people healthy and alive at the height of a global health crisis. Arizona has recently followed suit, with the Arizona Department of Corrections (ADC) announcing it is also prepared to resume executions. The execution uptake intertwines a number of legal, political, and humanitarian concerns at the federal and state level.

Federal Level

Starting in July 2020, the federal government began carrying out executions at an alarming rate. Over the past year, there has been an unprecedented thirteen executions in the past six months, which is three times the amount of people that have been executed in the past six decades combined. In his 2019 announcement of the plan to resume executions, former Attorney General William Barr provided the Trump administration’s cited reason for this uptick as bringing justice to victims and relief to their families. The rushed executions have left a number of legal questions unanswered. Regarding the Federal Death Penalty Act, it is unclear whether courts are required to evaluate an intellectual disability according to the prevailing medical standards at the time of sentencing or at the time of execution. Apart from the painful irony of putting government resources into ending people’s lives while the nation is fighting to keep citizens alive and healthy, COVID-19 also raised other ethical concerns for the executions. The Supreme Court upheld the D.C. Circuit Court’s decision to overturn the stays of execution for Mr. Johnson and Mr. Higgs—who were both COVID-19 positive—consequently allowing their executions to proceed despite an evidentiary hearing that the lung damage caused by COVID-19 “may increase the tortuous effects of the drug.” Mr. Higgs was the last to be federally executed before  the change of presidential administration in January brought the practice to a halt. However, this federal uptake seems to have encouraged some states to follow suit, despite increased national disapproval of the death penalty.

National Attitudes

Capital punishment has the highest level of opposition since 1966. Those who oppose the death penalty hold concerns that it has a dispporpotionate impact on minorities, ineffectively deters crime, and presents a large risk of excuting innocent poeple. The shift in attitudes may be the result of the  national Black Lives Matter Movement for racial equality and the push in mainstream media to educate the public on the devastating consequences of racial disparities in our criminal justice system. Michael B. Jordan’s 2019 box office hit Just Mercy recounts the true story of Bryan Stevenson—a lawyer in Alabama who worked to overturn wrongful convictions of those on death row. Netflix has also produced multiple films and series, including 13th and When They See Us, documenting systematic disadvantages people of color encounter in the American judicial system. Although a shift may be occurring in national attitudes, state practices have yet to keep up with this change.

Arizona’s Executions

Arizona is a capital punishment state with 119 individuals on death row as of October 1, 2020. Arizona has a tainted history with carrying out executions after a botched execution and attempts to illegally obtain drugs. The last person the state executed was Mr. Joseph Wood in 2014. The state experimented with a new drug combination that tragically prolonged Mr. Wood’s execution for two hours before he was finally pronounced dead. Witnesses report hearing Mr. Wood gasp for air over 600 times during those excruciating two hours. Former ADC Director Charles Ryan claimed that Mr. Wood was comatose and not in pain, but medical experts report that the director’s claims are false. While people have different stances on whether the death penalty should exist, almost all agree that executions should be carried out in a humane and painless manner. Mr. Wood’s execution was clearly unacceptable. Unbelievably, ADC was caught in another scandal involving execution drugs just one year after their experimental drug combination led to a botched execution. In 2015, the FDA intercepted ADC’s attempts to sneak in an illegal drug from India at the Phoenix airport. Possibly motivated by the Trump administration’s execution vigor, the ADC has recently reported that they have obtained a supply of execution drugs and are prepared to resume executions after their seven-year break.

With the ongoing COVID-19 pandemic and increasing disapproval of the death penalty, now seems an inappropriate time for Arizona to resume executing death row inmates. Additionally, there is still a large humanitarian concern that a COVID-19 infection makes the drugs excruciatingly painful. While there is still ambiguity about if or when executions will resume in Arizona, the resurgence of conversations about the death penalty leaves the future of those on death row in Arizona uncertain.

"death row prison" by Sky Noir is licensed under CC BY-NC 2.0

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By Brianna Pachuilo

J.D. Candidate 2022

Brianna is a 2L staff writer from Phoenix, AZ. She earned her Bachelors degree in Sociology from Grand Canyon University. During her first year, she was an International Rule of Law and Security fellow and is a now a student clinician for the Post Conviction Clinic. In her free time Bri enjoys rock climbing, experimenting with recipes, and playing with her Boston Terrier puppy.

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.