Arizona’s execution pitted experts against politicians. Experts lost | Austin Sarat

On Wednesday, 19 March, Arizona executed Aaron Gunches by lethal injection. As ABC News reports, he was put to death for “kidnapping and killing 40-year-old Ted Price by shooting him four times in the Arizona desert”.

Gunches’s case was unusual in many ways, not least that he stopped his legal appeals and volunteered to be executed, then changed his mind before changing it again. His execution was scheduled to be carried out almost two years ago. It was put on hold when the Arizona governor, Katie Hobbs, commissioned an independent review of the state’s death penalty procedures after a series of botched executions.

But over the last several months, she pushed hard to make sure Gunches died for his crime. She even fired the expert retired Judge David Duncan who she had chosen to do that review, before he could complete his report.

Her decision to let Duncan go was shocking. At the time, she offered the following explanation: “Your review has, unfortunately, faced repeated challenges, and I no longer have confidence that I will receive a report from you that will accomplish the purpose and goals of the Executive Order that I issued nearly two years ago.”

The governor also noted that the department of corrections, rehabilitation & reentry had conduct “a comprehensive review of prior executions and has made significant revisions to its policies and procedures”. But doubt about whether she could rely on a review conducted by the group which is in charge of the state’s executions in why she appointed Duncan in the first place.

That is why I suspect that Hobbs tossed Duncan aside because she didn’t like the facts he was finding or the conclusions he seemed to be reaching.

Facts are stubborn things, but, in our era, they can be tossed aside with little political cost and no regret. Why rely on expertise if it gets in the way of achieving a result you want to reach?

Still, Hobbs’s unprecedented decision to “kill the messenger” was another low moment for a society increasing living by a line uttered by a newspaper editor in the classic movie The Man Who Shot Liberty Valence: “When the legend becomes fact, print the legend.”

In the world of capital punishment, the “legend” to which politicians like Hobbs are attached is that it can make America a safer and more just place. They want us to believe that they embrace the death penalty to bring closure to family members of murder victims rather than to accrue political capital.

Note what Arizona attorney general Kris Mayes said during a news conference following the execution: “An execution is the most serious action that the state takes, and I assure you that it is not taken lightly. Today, Arizona resumed the death penalty, and justice for Ted Price and his family was finally served.”

After Gunches’s death, the sister of the man he murdered echoed that sentiment. Karen Price called the execution “the final chapter in a process that has spanned nearly 23 years”.

Ted Price’s daughter added that Gunches’s death means that she will no longer have to revisit “the circumstances surrounding my father’s death” as she had to for over two decades of seemingly endless legal proceedings. “Today,” she said, “marks the end of that painful chapter, and I couldn’t be more grateful”.

That chapter would not have ended if Governor Hobbs had been willing to listen to her own expert.

Before being sacked, Judge Duncan prepared a draft of his report and wrote a letter to the governor’s office previewing his conclusions. He called lethal injection an unreliable method of execution and said: “Drug manufacturers don’t allow states to use the appropriate drugs.”

Duncan had spent nearly two years reviewing Arizona’s use of lethal injections. As he explained, “Early on, I thought lethal injection would work. The more I learned about it I learned that that was a false hope.”

Duncan told the governor that, in his view, using lethal injection was too risky. In his view, the best course would be for Arizona to adopt the firing squad because “it has the lowest botch rate.”

That was not the news Hobbs hoped her expert would deliver, so she let Duncan go. It seems he just didn’t understand that she wanted him to ease the way toward a resumption of lethal injection executions rather than suggesting that the state should not execute anyone until it could adopt what he considered to be a better method.

And Duncan was not the only one raising questions about Arizona’s resumption of lethal injection executions. Last January, law professor Corinna Lain, a leading expert on lethal injection, said: “The evidence is overwhelming that Arizona cannot lawfully carry out an execution by lethal injection at this time. Its pentobarbital protocol is sure or very likely to cause a tortuous death even in the best of circumstances.”

She went on to say: “The circumstances here are far from optimal. The State is on the cusp of using an inexperienced, untrained team to inject likely expired drugs stored in unmarked mason jars that were produced by a company that does not make drugs for human consumption and that will be compounded by a pharmacy that the … (the state) itself has previously disavowed.”

Disregarding expert knowledge is very much in fashion in many areas of American life, not just where the death penalty is concerned. The Atlantic’s Tom Nichols explains that “Trump allies make noises about expert failures … [and] demonize what its constituents believe was the medical establishment’s attempt to curtail civil rights during the coronavirus pandemic.” He argues that Elon Musk’s attack on civil servants is really an attack on the “very notion of apolitical expertise.”

But, as Nichols explains, such doubt is not confined to Washington DC. It is found in the “homes of ordinary American families”. There, “knowledge of every kind is also under attack. Parents argue with their child’s doctor over the safety of vaccines. Famous athletes speculate that the world might actually be flat. College administrators ponder dropping algebra from the curriculum because students keep failing it.”

So, it is not surprising that the attack on knowledge would infect decisions about how to end the lives of people condemned to death. Political leaders – including Democrats like Hobbs – know they can play into the burgeoning culture of disrespect for what experts have to say, so they dispense with Duncan and ignore Lain.

The more publicly they display that disrespect, the more politically they can benefit.

It wasn’t always this way when decisions had to be made about methods of execution. At the end of the 19th century, before New York decided to abandon hanging, the state convened a commission to consider and recommend alternatives.

That commission sought out the best minds to help them make their decision. It chose the electric chair.

The decision whether electrocution “would be by Alternating Current (AC) or Direct Current (DC)” was informed by a competition between Thomas Edison and George Westinghouse, both pioneers in the development of electricity.

That was then. Today, as the Arizona example shows, such expertise does not govern the choice of execution methods.

In the wake of the Gunches execution, Governor Hobbs and the “down with experts crowd” may feel vindicated because nothing seemed to have gone awry. But they should not rest easy, and neither should any of the 112 inmates on Arizona’s death row.

Studies have shown that lethal injection has the worst track record of any method of execution used in the last century in this country. That is why it is only a matter of time before an execution in Arizona proves the folly of ignoring experts and the insights they offer.