Arizona Death Penalty Appeals Process

Started by heidi salazar, April 25, 2010, 06:46:14 PM

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heidi salazar

Appeals Process

Direct Appeal

Death penalty cases are automatically appealed to the Arizona Supreme Court. Prior to the enactment of
Arizona's new death penalty sentencing statute, the Court independently reviewed the propriety of the
death sentence. Under the new statute, the Arizona Supreme Court reviews the conviction and sentence
for error, but does not independently determine whether to impose a death sentence.
Prior to State v. White, 168 Ariz. 500, 815 P.2d. 869 (1991), the Arizona Supreme Court engaged in a
proportionality review of each case to determine whether the death penalty was excessive or
disproportionate. This review is not constitutionally required and the Court no longer conducts such a
To the extent that the ruling of the Arizona Supreme Court addresses a federal constitutional issue,
either of the parties can appeal a decision of that court directly to the United States Supreme Court by
petitioning for a writ of certiorari.

Post-Conviction Relief

Immediately following the final conclusion of the direct appeal to the Arizona Supreme Court, postconviction
relief (PCR) proceedings are initiated in the trial court. Post-conviction relief proceedings
allow the defendant to raise claims relating primarily to whether: (1) trial counsel provided effective
representation during the trial and sentencing hearing; (2) there is "newly-discovered" evidence that
would have changed the verdict or sentence had it been presented at the time of trial; and (3) a change in
the law that applies retroactively would probably change the conviction or sentence.
The trial court's decision on the post-conviction relief claims can be appealed to the Arizona Supreme
Court by either party, and the parties may file a petition for writ of certiorari requesting the United
States Supreme Court to review the decision of the Arizona Supreme Court.

Federal Habeas Corpus

Under 28 U.S.C. 2254, a state prisoner may seek relief in federal district court on claims that his
federal constitutional rights were violated at trial or at sentencing. A federal constitutional claim may
only be raised in federal court if it has first been raised in a procedurally appropriate manner in state
court. During the federal habeas corpus proceeding, the federal court decides if the state court ruling
conflicts with controlling United States Supreme Court authority.

If the prisoner's claim was not properly presented in state court, he can still pursue the claim in federal
court if he establishes "cause and prejudice" for his failure to present the claim in state court or that
failure to consider the claim would result in a "fundamental miscarriage of justice," based on actual
innocence or ineligibility for the death penalty.
The decision of the United States District Court may be appealed by either party. The appeal from the
United States District Court is taken to the United States Court of Appeals for the Ninth Circuit, and the
parties may seek review of the decision of that court by filing a petition for writ of certiorari with the
United States Supreme Court.


The initial warrant of execution is issued by the Arizona Supreme Court to the Director of the
Department of Corrections after the Court has affirmed the death sentence and either the first PCR
proceeding is concluded or the period of time to file the PCR petition has expired. The warrant
designates a twenty-four hour period for execution of the sentence between thirty-five and sixty days
following the issuance of the warrant. If the initial warrant is stayed by any court, the Arizona Supreme
Court is required to issue a subsequent warrant upon the State's request after the stay is lifted. Stays of
execution will not be issued upon the filing of subsequent PCR petitions, except upon separate
application for a stay made to the Arizona Supreme Court. The separate application must set forth
particular issues appropriate for a successive PCR petition.
In 1992, a constitutional amendment was passed by Arizona voters changing the method of execution
from lethal gas to lethal injection. Prisoners sentenced before November 23, 1992, have the choice of
either lethal gas or lethal injection.

Competency to be Executed

In Arizona, a prisoner is not subject to execution if found to be mentally incompetent or pregnant. A
prisoner is not competent to be executed unless the prisoner understands that (1) he/she is being
punished for murder, and (2) the punishment is death.
If the court finds that the prisoner is incompetent, he/she remains in the custody of the Department of
Corrections until the Arizona Supreme Court reviews the trial court's finding. If the supreme court
upholds the finding of the trial court, the prisoner is transferred to a licensed behavioral health or mental
health facility operated by the Department of Corrections for competency restoration treatment. While
the prisoner is being treated, the sentence is suspended.
The Department of Health Services is responsible for the restoration of competency treatment of the
prisoner. During treatment, the chief medical officer of the State Hospital is required to file status
reports with the superior court at sixty-day intervals until competency is restored. When the Department
of Health Services believed the prisoner has been restored to competency, the prisoner is entitled to a
hearing in the trial court to address the competency issue. Once there is a finding that the prisoner has
been restored to competency, the Arizona Supreme Court orders the issuance of a death warrant.


The Arizona Board of Executive Clemency is a five member panel appointed by the governor and
confirmed by the State Senate. The Board reviews all death sentences and determines whether to
recommend to the governor reprieve, commutation or pardon, or to make no recommendation at all.
The Board conducts a hearing in which the defendant and his attorney, the State's attorneys, and the
victim's family and friends, as well as the public, are allowed to participate and provide statements
regarding the prisoner and the crime.
If the Board recommends reprieve, commutation or pardon, the governor then has constitutional
authority to grant the recommended relief to the prisoner. The governor may only take such action upon
a recommendation by the Board.

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