Brnovich aside, it’s time to abolish death penalty

In a recent letter, Attorney General Mark Brnovich told Gov. Doug Ducey that he should get on the stick and start executing death row prisoners.

This was principally a play for political attention, not a serious policy initiative or admonition.

Arizona hasn’t executed anyone since 2014, due to legal challenges of the cocktail mix of drugs the state was using and the difficulty of obtaining them.

But there is no evidence that the suspension is due to a lack of effort or due diligence by Ducey or his Department of Corrections. In fact, the DOC effectively resorted to smuggling in an attempt to obtain drugs for executions.

U.S. Attorney General William Barr recently announced that the federal government, which hasn’t executed anyone since 2003, would resume doing so.

The federal Department of Justice has dictated a one-drug injection for executions, pentobarbital. And it has ruled that the Food and Drug Administration has no authority to regulate or seize drugs that are intended to be used in executions, which is one of the ways the resumption of executions in Arizona was thwarted.

If Barr ordered the resumption of federal executions, the federal government must have the drug, reasoned Brnovich. And if the federal government has the drug, then Arizona should be able to obtain it, if only the governor would try hard enough, was the thrust of his missive.

Whether the federal government has the stuff is unknown. But what is known is that it would be exceedingly difficult to obtain pentobarbital, or any other drug, for executions in a lawful and straightforward way.

The manufacturers flatly forbid that use.

The FDA may no longer have authority to seize the drug if imported for that purpose, although the DOJ opinion so holding is likely to be challenged in court.

But for the drug to end up in the hands of the federal or some state government to effectuate an execution, someone along the chain of custody would have to violate a contractual obligation or obtain it under false pretenses, at a minimum.

Pace Brnovich, the time is not ripe for Arizona to resume implementing the death penalty. In fact, the time is ripe to abolish it.

The moral arguments about the death penalty are irresolvable. There are those who believe that it is immoral for the state to take a life irrespective of the circumstances. And others believe that, as Brnovich put it in his letter, “those who commit the ultimate crime deserve the ultimate punishment.”

I don’t happen to believe that the death penalty is, per se, immoral. But I would put a twist on the supporters’ moral argument to make both a moral and practical point: Humans and their institutions are too fallible to be entrusted with death as the ultimate punishment.

According to death penalty opponents, there have been 166 death row prisoners exonerated and released across the country, including nine in Arizona.

Prosecutors contend that this is a legacy of practices and a legal culture that no longer exist. That with modern practices and forensic science, innocent people will no longer be sentenced to die.

That’s nonsensical hubris. We are not perfect. We do not create perfect institutions. If there is a death penalty, innocent people will be sentenced to die. Anyone not acknowledging that should be politely dismissed from the discussion.

With life in prison as the ultimate punishment, errors can be corrected if found. Death isn’t subject to correction.

Nor are there strong enough utilitarian arguments to justify the certainty that innocent people will be put to death. There is no clear evidence that the death penalty serves as a deterrent. Our collective sense of justice, or honor for the victims, doesn’t override our obligation to admit the possibility of error in individual cases.

While the moral arguments can linger on, the practical case against the death penalty has become irrefutable.

Even if the federal government and the state resume executions, only a fraction of those sentenced to death will ever be put to it.

The randomness drains the exercise of any substantive justice component, leaving just a desiccated political gesture.

If the state has to resort to subterfuge and smuggling to obtain the means of execution, it’s time to make life in prison the ultimate punishment.