Katie Hobbs Doesn’t Have to Carry out Execution of Murderer: Arizona Supreme Court

Arizona Gov. Katie Hobbs delivers her State of the State address at the Arizona Capitol in Phoenix on Jan. 9, 2023. (Ross D. Franklin/AP Photo)

Arizona Gov. Katie Hobbs does not have to carry out the execution of a convicted murderer, the Arizona Supreme Court ruled on March 22.

Justices rejected a bid from Karen Price, whose brother was killed by Aaron Gunches in 2002.

“The Arizona statute governing warrants of execution states that this Court’s role is to ‘issue a warrant of execution that authorizes the director of the state department of corrections to carry out the execution,’” the court said. “This statutory ‘authorization’ does not serve as a basis for a writ of mandamus, which ’seeks to compel a public official to perform a nondiscretionary duty imposed by law.'”

The ruling came after Hobbs chose not to have Gunches executed on April 6, the date the court set when it issued an execution warrant.

Hobbs has said her administration would not carry out any executions “until the people of Arizona can have confidence that the State is not violating the law in carrying out the gravest of penalties.” The Democrat ordered a review of the state’s execution protocols after taking office following the 2022 election.

Arizona’s Supreme Court had earlier ruled that, under state law, it had to issue a warrant of execution once certain conditions were met and that those conditions were met in the case of Gunches.

Price, backed by Maricopa County Attorney Rachel Mitchell, asked the court to issue a writ of mandamus, which would compel Hobbs and Arizona Corrections Director Ryan Thornell to carry out the execution.

“Like all elected and appointed officials, Governor Hobbs and Director Thornell took an oath to uphold the United States Constitution and Constitution and laws of Arizona. In Arizona, that means enforcing lawfully imposed sentences, including the death penalty,” Mitchell, a Republican, said in a filing (pdf).

While the attorney’s office recognizes executions must be done in a constitutional manner, Mitchell challenged Hobbs’s position, asserting that “even a cursory review of Arizona’s execution policies and protocols proves that Arizona’s citizens can be confident its executions are carried out in a constitutional manner.”

“No court has found that Arizona’s current execution procedures and protocols—the very ones used for the three executions completed in 2022—violate the United States or Arizona constitutions,” the filing stated. “Whatever the basis of the Governor’s concerns, a constitutional violation is not supported by evidence. In the absence of any constitutional prohibition, no law allows the Governor to unilaterally suspend executions.”

Hobbs said in an executive order in January that the executions Arizona has carried out “have resulted in serious questions” about the execution protocols and that “a comprehensive and independent review must be conducted to ensure these problems are not repeated in future executions.” She suspended executions until a review of the protocols is completed.

Thornell told the court in a declaration that his agency does not have staffers “with the necessary institutional knowledge and expertise to conduct an execution.”

Executions in Arizona were paused from 2015 to 2021. Under Republican Gov. Doug Ducey, three executions were carried out in 2022.

In Arizona, 109 inmates are currently on death row. All but three are male.

Gunches, who has been on death row since 2004, asked for an execution warrant in 2022 “so that justice may be lawfully served and give closure to the Victims family.” He received support from then-Arizona Attorney General Mark Brnovich, a Republican. But he changed his mind later. Democrat Arizona Attorney General Kris Mayes backed Gunches’s new position, citing the review of the protocols. But the state’s top court rejected the bid to not issue a warrant.

The court more recently turned down a new request from Gunches, who said he wants to be transferred to Texas for execution. In that state, he said, “the law is still followed and inmates can still get their sentences carried out.”

Aaron Gunches in an undated image. (Arizona Department of Corrections)

More on Ruling

In the new ruling, the court said that it was cognizant of Arizona’s Constitution, which states in part that the governor “shall take care that the laws be faithfully executed” and that a governor’s power of reprieve, commutation, and pardon is limited.

But it said the parties petitioning for the writ had “mixed questions of law and fact” that were not properly brought before the court, justices said.

“Accordingly, we decline to address those issues,” the court said.

The requested relief was denied without prejudice, meaning legal action can be brought again in the future on the same matter.

“With this ruling, the court recognizes that the Governor’s actions have constitutional implications, and the Governor has a duty to follow the law,” the Maricopa County Attorney’s Office said in a statement. “We are assessing next steps to ensure the law is upheld and victims receive justice.”

Hobbs has not yet weighed in on the ruling.