As the nation moves beyond its 1,000th execution since capital punishment resumed in 1976, landmark legal battles have left Arizona’s death chamber unused for five years.
And it doesn’t appear as if anyone will be executed soon in Arizona.
When the state puts its next person to death will depend on the 9th U.S. Circuit Court of Appeals in San Francisco, where 11 Arizona death row inmates are awaiting rulings, some for as many as nine years.
"Then they still get a chance to appeal to the U.S. Supreme Court," said assistant Arizona attorney general Kent Cattani, chief counsel over capital litigation.
Don Jay Miller, a Tucson man convicted of murdering an 18-year-old woman, was the last person to be executed in Arizona on Nov. 8, 2000. At the time, Arizona was ranked ninth nationally in the number of inmates executed since 1976 with 22.
Shortly afterward, all Arizona death penalty appeals were put on hold until June 2004, when the last of a number of landmark cases in federal court was resolved, said Dale Baich, who is in charge of the Federal Public Defender’s Capital Habeas Unit.
The most significant of those was Ring v. Arizona, in which the U.S. Supreme Court ruled that juries rather than judges should decide death penalty cases, forcing the state to change its law.
Ring was decided in June 2002, but cases couldn’t move forward because the high court didn’t say whether the ruling was retroactive.
Eighty-five death row inmates in Arizona and 25 in other states waited two years before the Supreme Court said Ring wasn’t retroactive.
And while no cases moved for those four years, federal courts have been historically slow anyway, Cattani said.
A death row inmate gets a set of appeals in state courts and then moves onto federal court to what are known as habeas corpus appeals.
The federal appeals process looks at whether there were any constitutional mistakes at the state level.
The cases of 77 of Arizona’s 108 condemned inmates are in federal court, 10 of them having been there more than 10 years, according to a chart prepared by the Arizona Attorney General’s Office.
Those include Warren Summerlin, whose 20 years in federal court is the longest for an Arizona death row inmate, and Robert Comer, who has spent five of 10 years in federal court trying to end his appeals and be executed.
"Rather than simply look at the numbers, you have to look at each case on its own to figure out why it’s been pending in the court for a certain length of time," Baich said.
Congress is now looking at limiting the ability to appeal in federal court. Sen. Jon Kyl, RAriz., authored the Streamlined Procedures Act of 2005, which could come to a vote in the Judiciary Committee early next year. A similar bill is moving through the House of Representatives.
"It would eliminate the jurisdiction of federal courts in all habeas cases," Baich said. "So what would happen is a significant part of the appellate process would be eliminated."
The bill would be a radical change to the system and be unfair, Baich said.
Cattani testified before Congress on Nov. 10, saying it is time to reassess whether provisions enacted in 1996 to limit delay in federal court are working.
In theory, federal appeals should take less time than the state appeals, but research by a commission that reviewed Arizona’s death penalty laws in 2001 found that appeals stayed in state courts an average of six years and 10 years in federal court.