281 P.3d 1053
Ariz. Ct. App.2012Background
- Appellants, death-row inmates, challenge A.R.S. § 13-757(A) as unconstitutional delegation of legislative power to the Department of Corrections.
- Statute directs the Department to supervise lethal injection by intravenous administration of a lethal dose of substances.
- Appellants allege the Department deviated from its own lethal-injection protocol in 2010–2011, demonstrating lack of minimal standards.
- Department’s execution protocol is lengthy (35 pages) with detailed procedures and substances; the protocol is subject to change.
- Department has recently amended protocol to include multiple chemical options and notice procedures, but retains director discretion to deviation without notice.
- Trial court dismissed the complaint; the Arizona Court of Appeals affirms, finding no separation-of-powers violation but acknowledging concerns about last-minute protocol changes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 13-757(A) provides sufficient standards | Cook et al. contend it lacks sufficient standards. | Respondents argue it provides a definite policy and is implementable by the Department. | Section 13-757(A) provides sufficient standards. |
| Whether Department's last-minute protocol changes violate separation of powers | Beaufort et al. argue changes hinder judicial review and usurp the judiciary. | State/Department maintain last-minute changes are reviewable and within departmental discretion. | Last-minute changes raise concerns but do not, as applied, violate separation of powers. |
| Whether the amended protocol remedies review concerns | Amendments improve notice and reviewability but may still allow unilateral changes. | Amendments increase notice and provide paths for review; no current constitutional violation. | Amendments reduce, but do not eliminate, concerns; no constitutional violation found as of record. |
Key Cases Cited
- State v. Prentiss, 163 Ariz. 81 (1989) (separation of powers protects against branch overreach)
- Arizona Mines Supply Co., 107 Ariz. 199 (1971) (legislature may delegate details to an agency)
- Griffith Energy, L.L.C. v. Ariz. Dep’t of Revenue, 210 Ariz. 132 (2005) (agency fills in details under delegated authority)
- Andrews v. Willrich, 200 Ariz. 533 (2001) (some blending of powers is constitutionally acceptable)
- Towery v. Brewer, 672 F.3d 650 (2012) (last-minute protocol changes raise serious constitutional concerns)
- Lopez v. Brewer (Lopez I), 680 F.3d 1068 (2012) (execution procedures and access to counsel issues in review)
- Dickens v. Brewer, 631 F.3d 1139 (2011) (Eighth Amendment safeguards in lethal injection protocols)