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November 12, 2017

Former state Arizona AG, only now, says his state's death penalty is "unconstitutional" and "bad policy"

Terry Goddard, who served as the Arizona's attorney general from 2003 to 2011, apparently just now got around to figuring out that how his state administers the death penalty makes it unconstitutional and bad policy.  He explains his new thinking in this commentary headlined "Arizona's 40-year experiment with the death penalty has failed."  Here are excerpts (with some emphasis added for my follow-up commentary):

As the attorney general, I was responsible for overseeing dozens of appeals from sentences of death.  Six people were executed during my tenure.  It was critical for me that we imposed the ultimate sanction only on those most deserving.

Tragically, our state has failed in this undertaking in fundamental ways.  The breadth of our statute, capturing nearly every first-degree murder, makes it unconstitutional.  But more than that, Arizona’s use of the death penalty is bad policy.

Arizona does not have a good track record for getting it right.  At least nine times our death penalty has swept up the innocent in its net.  Nationwide, 160 people have been exonerated from death row.  Getting it wrong once is one time too many.  Death, in its finality, means correcting a wrongful sentence is not an option.  Sentencing the innocent to die undermines the public’s confidence in the entire criminal justice system, and is reason alone to abandon the death penalty.

Moreover, Arizona’s death penalty scheme has unsettling racial disparities in its application.  People in Arizona who are accused of murdering white victims are more likely to receive the death penalty.  Hispanic men who are accused of murdering whites are more than four times as likely to be sentenced to death as white defendants accused of murdering a Hispanic victim.  Any other state policy with that sort of disparity would be quickly repudiated.  The Legislature should end this horrible death penalty malfunction.

The spiraling costs of seeking and imposing a death sentence are further reason to abandon the policy.  These costs have caused the location of the crime to take precedence over its heinousness.  Several counties simply cannot afford to pursue the death penalty, creating imbalances having nothing to do with the crime....

The costs associated with defending Arizona’s statute (never mind the cases themselves) have been substantial. Dozens of convictions have been set aside because Arizona, unlike almost every other state, did not provide for jury sentencing in capital cases.  Arizona was one of two states to extend the death penalty to felony murders, leading to a rebuke by the Supreme Court and further reversals.  The Arizona Supreme Court narrowly interpreted our state’s prohibition on executing the intellectually disabled until they were recently forced to reconsider.  And case after case has been reversed because of flaws in the instructions given in capital sentencing proceedings....

We’ve been here before. In 1972, the court struck down every state’s death-penalty statute because they operated to execute a “capriciously selected random handful,” rather than the worst offenders.  Similar to other states’ efforts, then-state Sen. Sandra Day O’Connor and Rudy Gerber (who later became an Arizona judge) rewrote Arizona’s statute to comply with the court’s narrowing requirements by obligating the prosecutor to prove one or more aggravating factors before the death penalty could be imposed.

More than four decades have passed and we are back to square one.  Despite the efforts of O’Connor and Gerber, Arizona has failed to narrow the application of the death penalty and has been unable or unwilling to provide the guidance necessary to ensure that the death penalty is only imposed on the worst offenders.

Though I am not an expert on the statutory and practical ins-and-outs of the death penalty in Arizona, I am pretty sure that the vast majority of the problems cited here by former state AG Goddard were plenty evident circa 2003 when he started serving his eight years at the top lawyer and law enforcement official in the state.  For example, this DPIC list of death row exonerations indicates that eight of the nine exonerations in Arizona occurred by 2003.  If "getting it wrong once" is, as Goddard says now, "one time too many" and "reason alone to abandon the death penalty," why didn't Goddard while serving as AG become a vocal opponent of capital punishment?

Similarly, I believe the breadth of the Arizona statute allowing capital punishment for nearly all first-degree murders is not a new reality.  If that reality makes the statute unconstitutional in the view of Goddard, why did he work vigorously to uphold death sentences under that statute for eight years?  In his role as AG, Goddard swore an oath to uphold the US Constitution, and he should have felt duty-bound not to seek to preserve capital convictions secured via an unconstitutional statute.  But, it would seem, Goddard was very slow to achieve this critical constitutional wisdom.

Likewise, I would guess that "unsettling racial disparities" in the  application of Arizona's death penalty did not only recently become evident.  (Linked here, for example, is a 1997 article with data on this kind of disparity and discrimination in Arizona.)   Did Goddard even care about the data on disparities when serving in the AG role for eight years?   If he really believes "any other state policy with that sort of disparity would be quickly repudiated," I would like to ask him why he did not quickly repudiate the death penalty over the eighth years he was in an ideal official position to do something about this state policy. 

I make these points not only to suggest that there is a notable johnny-come-lately quality to Goddard's capital criticisms, but also to wonder if Goddard might someday write another commentary that explains why a person in the role of Attorney General cannot or will not face up to problems in a state's criminal laws until long after completing service.  I have always wondered whether it is just political and institutional pressures that prompt government officials to defend questionable criminal laws and practices, or whether other sets of personal and professional factors are the heart of this story.  Some first-person accounting of just how and why Goddard has now come to a different view of these issues a number of years after his extended tenure as state AG could actually make his commentary much more valuable than the standard abolitionist review of reasons to oppose the death penalty.

November 12, 2017 at 06:09 PM | Permalink

Comments

I have no knowledge of the career of Mr. Goddard, so would be interested to know his opinion over his long career regarding the death penalty. Those in office often are more inclined to uphold the power of the government, especially if the policy is chosen in some fashion by the chief executive of the state.

People have changed their mind when they changed roles. Those who strongly stated a view as a member of the executive at times changed their minds while on the judiciary. Certain moments might be deemed tipping points. The fact problems existed alone doesn't necessarily answer the question there. The case cited might be seen as such a point -- the case to be decided serves perhaps as a moment he felt it is time to say "enough."

A quick search found Goddard, at least while in office (oath or no oath, people do at times convince themselves wrongly they are doing okay things there), supportive of the death penalty. So, I'd be interested if he discussed his reasons for his apparent change of position. Thus, there is some common ground re questions and institutional pressures.

Posted by: Joe | Nov 12, 2017 10:42:23 PM

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