A prosecutor’s case against death penalty

Rick Unklesbay watched through the glass in the witness room as the poison flowed down the long thin plastic tubes into the arm of Donald J. Miller and, quickly and quietly, killed him. It was Nov. 8, 2000.

Unklesbay felt obligated to be at the Arizona state prison that day since, as a prosecutor in Pima County, it had been his job to see that Miller was strapped onto the gurney and pumped full of deadly drugs.

In 1993, Miller was hired by his friend Jose Luna to kill the mother of Luna’s child, 18-year-old Jennifer Gueder, who been asking Luna for $50 a month to help offset the cost of diapers and formula.

She was shot to death with a .25 caliber pistol.

Luna pleaded guilty and received a life sentence.

Miller went to trial and got death. Think of that.

Two men. Same crime. The one more responsible still alive.

Even with his death sentence Miller would most likely still be alive as well if he hadn’t asked a judge to vacate his appeals. Not all of those who receive the state’s most severe penalty can take life on death row. Miller was one of those who preferred death. A “volunteer” prosecutors call them.

Unklesbay has been prosecuting murderers since 1981. Sixteen of his convictions have resulted in death sentences.

But in so many of them, as happened with Miller and Luna, the punishments for the guilty wind up being wildly divergent, determined by variables that range from who decides they should face the death penalty, who represents them, who prosecutes them, who the judge is, who’s on the jury, even what county they’ve committed their crime.

And so, after all these years, Unklesbay wrote a book, a straightforward look at some of his capital cases and how they led a lifetime prosecutor to decide that the death penalty should be abolished.

The book is called “Arbitrary Death: A Prosecutor’s Perspective on the Death Penalty.”

“That’s what struck me about these cases,” Unklesbay told me, “their arbitrary nature. I didn’t write the book trying to persuade anyone whether they should agree or disagree with the death penalty. But to understand the process, trying to take a lay perspective. When someone gets the death penalty it’s not like in a movie Western where the scaffold with the hangman’s noose goes up the next day.”

Each death penalty case goes for automatic reviews. The process between the imposition of the sentence and carrying it out can be decades, with each case costing taxpayers millions.

It’s why some smaller counties don’t have the resources to pursue a death penalty at all.

“It’s a human system,” Unklesbay said, “so it’s subjective. And that goes for a number of steps along the way. We spend millions on each case, so if you wanted to look at it in a way that is fairly crass, it is not very efficient for all the money taxpayers are pouring into the system.”

And it also doesn’t seem equitable given the unpredictable nature of who is executed and who is not.

Unklesbay doesn’t preach in his book, however. He tells the story of the crimes and the cases and allows the reader to puzzle over the outcomes, sometimes wondering how a judge could NOT impose a death sentence, sometimes wondering the opposite.

As it says in the title of his book, so much of the process seems arbitrary.

“On a number of occasions I’ve had victim family members tell me that if they’d clearly understood the delays and the appeals and the years that pass that they would have asked us not to consider a death sentence,” Unklesbay said.

And yet we now have Arizona Attorney General Mark Brnovich wanting Gov. Doug Ducey to go after a drug that will allow Arizona to start carrying out death sentences. And U.S. Attorney General William Barr wanting the same.

And President Donald Trump saying after the mass shootings in Dayton, Ohio, and El Paso, Texas, “Today, I’m also directing the Department of Justice to propose legislation ensuring that those who commit hate crimes and mass murders face the death penalty and that this capital punishment be delivered quickly, decisively, and without years of needless delay.”

Unklesbay sighs at such comments.

“Clearly the president doesn’t understand how the American justice system works,” he said.

Getting politicians to abandon the death penalty isn’t easy. They’d rather waste the millions on each case than to have a potential opponent say they’ve gone soft on crime.

But what does an actual execution bring.

Unklesbay writes: “The ending is anticlimactic. The execution has not brought back the victim of course and, with few exceptions, has not brought anyone any satisfaction. Families continue to try to survive their loss, but I’m yet to be told that an execution has brought closure.”