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Conover: Death penalty study should be broader


PHOENIX — The top prosecutor from the state’s second largest county said a planned study of how the death penalty is implemented in Arizona doesn’t go far enough.

“I applaud them for looking at how it’s actually carried out,’’ Pima County Attorney Laura Conover said of the decision by Gov. Katie Hobbs to review the processes and procedures used by the Department of Corrections, Rehabilitation and Reentry to put condemned inmates to death.

That includes what the governor said have been “botched executions,’’ including situations when prison employees had repeated problems in placing the intravenous line carrying the chemicals into the veins of condemned men.

In the interim, Attorney General Kris Mayes, the only person in the state with that power, said she will not seek warrants to execute anyone until that study is completed.

But Conover told Capitol Media Services that the study should be broader.

“The flaws in the death penalty are at the get-go,’’ she said. And the heart of that, said Conover, is how decisions are made about which cases prosecutors seek the death penalty and whether there are biases in both that decision and the ability of all defendants to get equal treatment, including by the juries who make the ultimate decision of life or death.

But Rachel Mitchell, her Maricopa County counterpart, said Tuesday she has not seen any such bias.

She said that even defendants who cannot afford private counsel are assigned “extremely experienced attorneys’’ and even have the opportunity to have court-provided private investigators. Nor does she believe that race plays a factor at any stage, including the decision by jurors — who get the last word under Arizona law — whether to sentence someone to death or life behind bars.

Figures from state prison officials show that 17 of the 110 inmates on death row are Black, about 15%. But Blacks comprise less than 5% of the state’s population.

The data for those classified by the state as Mexican-American is a bit different, encompassing 22 condemned inmates, or 20% of the total.

Only thing is, that category, as used by the agency, encompasses only those born in the United States.

By contrast, the Census Bureau, which puts the Hispanic population of Arizona at close to 31%, includes all in Arizona regardless of where they were born, a category that includes not just those of Mexican descent but also Puerto Ricans, Cubans and others.

“In terms of racial composition of death row, what you have to look at, as I do, is each individual case,’’ Mitchell said.

“I’m looking at facts of those,’’ she said, including what state law calls “aggravating’’ and “mitigating’’ factors that prosecutors and jurors can consider in determining whether the death penalty is appropriate versus seeking a sentence of life in prison. All that, Mitchell said, is to “make sure that case warrants the ultimate punishment.’’

Conover, however, said it’s not that clear cut.

“The data is clear across the country historically that both race and class play an absolutely unacceptable role in how it’s been applied, just leading to terrible outcomes,’’ she said.

“In other words, the concept of the death penalty being reserved for the ‘worst of the worst’ has not borne fruit,’’ Conover continued. “The data shows that the race of the accused, the race of the victim, and then socio-economic class’’ all play a role.’’

Even Mayes said the state needs to study more than what happens between the time someone is sentenced to death and the time that is carried out, the stated purpose of the appointment by Hobbs of a Death Penalty Independent Review Commissioner.

And the attorney general told Capitol Media Services the issue goes beyond race.

“In particular, I’m interested in knowing whether there are disparities between counties in Arizona in terms of who receives the death penalty,’’ Mayes said.

“It is beginning to look like the death penalty is only being sought in Maricopa County because Maricopa County can afford it,’’ she explained, what with the huge price tag on prosecutors and defense counsel devoting years — and sometimes decades — of their time to just a handful of cases. “We need to understand that better before we go forward.’’

The statistics show that about 60% of Arizonans live in the state’s largest county, versus close to 73% of death row inmates sentenced from courts there.

About 14 percent of the state lives in Pima County. That closely tracks the percent of death-row inmates.

But all that is changing, with Conover, on taking office in 2021, deciding not to seek the death penalty in any cases.

The balance of the 110 includes six from Mohave County — about double its share of the state population — with three from Yuma County, two from Yavapai and one each from Coconino, La Paz and Pinal counties.

Even Hobbs, in issuing her executive order Friday to study the processes used to carry out executions, said she is open to looking at related issues like whether the death penalty is imposed fairly.

“That’s certainly a conversation worth having,’’ Hobbs said. The governor said she is “certainly would be willing to entertain further action on the broader issue of the whole process.’’

Mitchell, for her part, appears less than enthusiastic about even the narrower review promoted by Hobbs and Mayes as it delays the execution of 21 inmates who already have exhausted their appeals.

“Families of those murdered by those sentenced to death walk a long and painful path,’’ she said. “For most, this is a journey that is decades long.’’

And Mitchell sidestepped the question of whether she supports or opposes the study of the execution process — and the delay in the meantime in carrying them out.

“I am doing neither,’’ she said. What Mitchell said she does support is an “expeditious’’ study so that executions can resume and victims can have the “justice’’ she said they are promised in the 1990 voter-approved amendment to the Arizona Constitution, including a “prompt and final conclusion of the case after the conviction and sentence.’’

“It is my hope that as a state we will not abandon our promise of justice, because justice delayed is justice denied,’’ she said.

Conover, however, said she sees the issue of the time involved in capital cases from a different perspective — and one she said she and her prosecutors try to explain to survivors when informing them she will not be seeking the death penalty.

“You have to tell them that their grief is raw and their needs are urgent,’’ she said. “But a homicide prosecution could take a year or two or three.’’

And with appeals and post-conviction legal proceedings in death penalty cases, she warns them “you may not see this case to resolution in your lifetime.’’

“And, frankly, it wasn’t uncommon for families to not want that and to say, ‘I don’t want to go that route,'‘’ Conover said, but rather seek a more immediate and final action with a sentence of life behind bars without the possibility of parole.

She acknowledged there’s also a fiscal element to her decision to avoid seeking the death penalty.

“You’re going to take your best and brightest and you’re going to write this blank check of taxpayer money and ask them to just pursue one particular case, ostensibly forever, for the rest of their career,’’ Conover said, given the decades it takes.

In fact, there is one inmate — Ronald T. Williams, convicted of a 1981 murder during a robbery in Scottsdale — has been on death row since 1984. And two others have convictions that date back to 1989.

Hobbs has yet to name the commissioner for the study. And the governor has set no deadline for that person’s report.