PHOENIX — The former federal magistrate hired by Gov. Katie Hobbs to study the execution process says he was dismissed for telling her what she didn't want to hear — that there is no humane way to kill someone with lethal injection.
"She asked me to find out what went wrong with the previous injections that resulted in perceptions, widely held, that they were botched,'' David Duncan said Wednesday — the day after Hobbs said she has lost confidence in his work and will no longer wait for his report before the state ends a two-year pause on executions.
He said he was tasked with studying whether lethal injections can be safely used and making "recommendations on that point."
Duncan said that what he found, and reported in an outline he submitted, was that the methods used to put inmates to death are far from being "humane,'' as they were promoted when lethal injections were authorized by voters. Complicating that, he said, is state-sanctioned secrecy.
"She asked me to increase transparency,'' Duncan told Capitol Media Services the day after he got a call Tuesday from the Governor's Office saying his services were no longer needed. "I prepared a report that I thought would do that. And it's ironic that a report that was designed to increase transparency was terminated on the eve of its disclosure.''
Hobbs, in her letter to Duncan on Tuesday, said he had gone far afield of her directive shortly after she took office in January 2023 "to focus on procurement, protocols, and procedures related to carrying out an execution under existing law.''
Exhibit No. 1 from the Democratic governor was his suggestion that if Arizona wants to continue to put condemned inmates to death, the most humane way would be a firing squad, which he said would avoid the mistakes and problems that led to multiple reports of inmates suffering as staffers administered the fatal drugs.
But Duncan said that proposal fits squarely within the central question Hobbs presented to him: Review the death penalty procedures including the experience of the staff at the Arizona Department of Corrections, Rehabilitation and Reentry to conduct executions. In fact, that's exactly what she said when announcing she had hired him to conduct an independent review.
"Recent executions have been embroiled in controversy,'' Hobbs said in January 2023, after reports that prison employees had repeated problems in placing the intravenous line into veins. "The death penalty is a controversial issue to begin with. We just want to make sure the practices are sound and that we don't end up with botched executions like we've seen recently.''
Duncan said that's what he delivered.
"I don't think they wanted to hear that,'' he said. "I think they wanted me to say everything was fine. And I could not say that.''
He said any discussion needs to start with the question of whether the procedure is humane.
Issues with gas chamber, IV lines
Arizona voters in 1992 approved lethal injection for executions.
Prior to that, the state-approved method was the gas chamber. But in the chamber's first use that year since 1976, it took 11 minutes for Donald Harding to die, prompting a call for an alternative.
In the ensuring years, the state had issues legally finding the proper drugs, including an ill-fated effort by the Department of Corrections in 2015 to buy 1,000 vials of sodium thiopental from a supplier in India, only to have them seized by U.S. Customs and Border Protection.
Arizona began executions again in 2022.
The process in the first execution that year, Duncan said, took about 40 minutes just to complete inserting the intravenous line. Ultimately the execution team had to cut into Clarence Dixon's groin area, which one media observer said resulted in "a fair amount of blood.''
Two more executions were conducted in 2022, with reports in both cases of problems with IV lines.
It was against that backdrop that Hobbs made her January 2023 announcement appointing an independent reviewer. Her fellow Democrat, Attorney General Kris Mayes, also newly elected, agreed not to seek any warrants of execution until that review was done.
Duncan said the idea of using lethal injections is seen by the public as no different than what happens when they have to put a beloved pet to sleep. "It's seamless and it's perfect and it works every time,'' he said.
"And there was no reason for us as people 40 years ago, when this (execution method) was adopted, to think it would not be a humane method that's equivalent to what happens with our dogs.''
But that equivalency is false, Duncan said.
Secrecy breeds errors, he says
The companies that manufacture the drugs used by veterinarians won't allow them to be sold to the state for executions. More problematic, he said, is who performs the procedures.
"The medical personnel who are best suited to do this are not allowed to be anywhere near it because the American Board of Anesthesiologists will withdraw the board certification for any anesthesiologist who participates in an execution,'' he said. The American Medical Association's code of ethics says that, "as a member of a profession dedicated to preserving life when there is hope of doing so, a physician must not participate in a legally authorized execution.''
"So you're very much restricted on finding the appropriate personnel to do it,'' Duncan said. "And that has led, also, to the botches.''
There's another flaw, he said.
"In the world of execution it is so secretive that no best practices ever emerge, no mistakes are shared, no lessons are ever learned or shared with other people,'' he said.
"The hope that we have in our administrative state that when we turn over decisions to agencies, that they will get good at things, just does not happen because nobody ever studies it internally,'' said Duncan. "And they don't share whatever they learned, if they did.''
He called it a "siloed environment that breeds errors and flawed practices that hobble lethal injections.''
"Such secrecy in government is not desirable or normal,'' said Duncan.
His draft outline reported a related problem: Lack of oversight. It mentioned "corrections officials seeking to learn on the eve of an execution what doses of lethal drugs to administer from Wikipedia.''
All that, he said, is what led to the suggestion that if the state is going to execute someone, there are more humane ways.
"We have a perfectly safe way of putting somebody in a chair and put a target adjusted a little bit to the left and then having six to 12 people shoot at it at the same time,'' said Duncan.
"That person will be out of consciousness in under a second and dead, probably, in two,'' he said, in comparison to the more lengthy and apparently painful procedures now used for lethal injections.
Report no longer needed, says Hobbs
Hobbs said on Tuesday that Duncan's not-yet-completed report is no longer necessary.
She said Ryan Thornell, her choice as the head of the prison system, has now completed his own review of the execution process. That report lays out a series of changes from revised training requirements to extensive documentation of all aspects of the process.
"With these changes in place, ADCRR is prepared to conduct an execution that complies with the legal requirements if an execution warrant is issued,'' the governor said.
Christian Slater, her press aide, echoed that when asked Wednesday about Duncan's concerns.
"ADCRR has conducted a thorough review of policies and procedures and made critical improvements to help ensure executions carried out by the state meet legal and constitutional standings,'' he said. And Slater said Hobbs "remains committed to upholding the law while ensuring justice is carried out in a way that's transparent and humane.''
But Slater did not answer a question of whether Hobbs believes the way the state executes inmates fits her definition of humane.
Mayes, however, said she is satisfied with the review by Thornell and is now ready to start seeking warrants of execution on the 25 individuals on death row who have exhausted their appeals.
And Richie Taylor, her press aide, said Mayes believes executions using the current method "can be carried out humanely.''
There is another option.
The 1992 law authorizing lethal injection also left in place the ability of inmates who already had been sentenced to instead choose the gas chamber. The last inmate to choose that was Walter LaGrand in 1999.
There are some who remain on death row who are eligible for that option. The state spent some money several years ago refurbishing the gas chamber, including replacing seals on the chamber's hatch door, and buying materials to make hydrogen cyanide gas.
Duncan said that has its own issues and hardly fits the definition of humane.
"Not only is it wrong as a way of killing somebody because it's heinous,'' Duncan said, "it's what the Nazis did. I just don't think we should be doing that and suffocating people in a painful death like that.''
Get your morning recap of today's local news and read the full stories here: tucne.ws/morning
