In dissent, Arizona jurist explains why he "would hold, as a matter of state law, that the death penalty is unconstitutional"

A helpful reader made sure I saw the remarkable opinions handed down yesterday by the Arizona Supreme Court in Arizona v. Bush, No. CR-11-0107-AP (Az. Oct. 16, 2018) (available here).  This case looks like it was shaping up to be a fairly standard capital appeal, until one judge (sitting by designation to replace a recused Justice) decided to start a constitutional brush fire.  Specifically, Judge Lawrence Winthrop of Arizona Court of Appeals authored a lengthy dissenting opinion that expands on these introductory assertions:

The historical implementation of the death penalty bears little resemblance to its current administration. In distant times when the death penalty was quickly imposed, the execution was open for public viewing, and there was minimal evidence to contradict the accuracy of a defendant’s conviction, the death penalty may have served as an efficient method of not only enforcing criminal law but also advancing legitimate policy goals. Society, however, has evolved and no longer administers the death penalty in this manner.

Instead of taking weeks, prisoners on death row, and the victim’s families, often wait for decades for the sentence to be administered. Further, over the years, numerous studies have criticized the death penalty as disproportionally affecting defendants of color and, with increasing frequency, in part due to advancements in technology, we have become aware of defendants who have been wrongly convicted and whose death sentences have ultimately been commuted―either due to their own actual innocence or because of incurable procedural flaws from their trial. Some of these wrongful convictions were obtained because of overzealous prosecutors who pursued conviction and imposition of the death penalty at the expense of candor; some convictions were obtained because of the failures of defendants’ resource-deprived appointed counsel; some convictions were obtained because of jurors’ biases; and some may have been fortuitously imposed simply because of the county in which the defendant committed the crime. Each conviction obtained through these means highlights the 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.

Additionally, the death penalty has not been conclusively shown to deter criminal behavior, a primary rationale of criminal law and sentencing. Moreover, taxpayers are spending millions of dollars to prosecute, convict, and sentence defendants to death. As further explained below, the death penalty has been shown to be cruel and unusual, to not have any notable deterrent effect, to impose unintended trauma on the victim’s family and friends, and to be cost prohibitive.

Although current United States Supreme Court jurisprudence rejecting Eighth Amendment attacks on the death penalty preclude a state court from interpreting the United States Constitution to provide greater protection than the Court’s own federal constitutional precedents provide, Arkansas v. Sullivan, 532 U.S. 769, 772 (2001), state courts “are absolutely free to interpret state constitutional provisions to accord greater protection to individual rights than do similar provisions of the United States Constitution.” Arizona v. Evans, 514 U.S. 1, 8 (1995).  Because we may interpret Arizona’s Constitution to provide greater protections to Arizona citizens, I would hold, as a matter of state law, that the death penalty is unconstitutional.

Unsurprisingly, the majority of the court in Bush was disinclined to leave the dissent's assertions unaddressed, and here a concluding part of the majority's response:

In sum, the dissent’s resort to article 2, section 15 to support its view that Arizona’s death penalty is unconstitutionally “cruel and unusual” is difficult to reconcile with the relevant text, history, and caselaw. Cf. Glossip, 135 S. Ct. at 2747 (Scalia, J., concurring) (noting that “not once in the history of the American Republic has this Court ever suggested the death penalty is categorically impermissible,” largely because “[i]t is impossible to hold unconstitutional that which the Constitution explicitly contemplates” under the Fifth Amendment).  And even if relevant facts might exist to support the dissent’s critique in some respects, they certainly are not in this record as no such evidence was presented here....

Absent a constitutional violation, the propriety of Arizona’s capital scheme is strictly a matter of policy, which is outside our purview under our constitution’s separation of powers.  See Ariz. Const. art. 3 (“[T]he legislative, the executive, and the judicial . . . departments shall be separate and distinct, and no one of such departments shall exercise the powers properly belonging to either of the others.”).  The dissent incorrectly suggests that we would defer to the legislature on matters of constitutional interpretation and application, abdicating our constitutional authority and responsibility.  But that mischaracterizes our position and conflates constitutional issues, appropriate for judicial resolution, with purely policy choices, appropriate for the law-making role of the legislature and governor, or the people themselves.

The dissent’s various criticisms of the death penalty and its alleged flaws — the time and cost involved in pursuing and administering capital punishment; its arbitrary application and disproportionate or discriminatory impact on minorities; implicit and explicit biases, including racial and geographic disparities; and lack of any measurable deterrent effect — are arguments that have been raised over the years for total abolition of capital punishment.  See, e.g., Maloney, 105 Ariz. at 358–59.  But these are largely policy-laden factors that are proper subjects for legislative consideration, debate, and decision, not appropriate topics for judicial resolution in the absence of any evidence or argument.  See, e.g., Endreson, 108 Ariz. at 370 (stating that “the question of the abolishment of the death penalty under the Arizona Constitution is a question properly left to the legislature or the people of this State through constitutional amendment”); State v. Alford, 98 Ariz. 124, 132 (1965) (declining to “pass upon whether capital punishment, as a public policy, is effective” because under Arizona’s separation of powers, “[w]e are limited to the judicial function of faithfully and impartially interpreting the law as enacted by the legislature”).