« Two notable new commentaries on how we define violent offenders and what to do with them | Main | ABA delegates pass resolution against mandatory minimums and defer vote on resolution against new Sessions charging memo »

August 15, 2017

Spotlighting a prominent constitutional challenge to Arizona's and the nation's death penalty

Chris Geidner has this new Buzzfeed News report about a new cert petition under the headline "A Top Lawyer Asks Supreme Court To Hear A Major Death Penalty Case." Here are some of the details:

An Arizona death row inmate, Abel Daniel Hidalgo, has been arguing for the past three years that the state’s death penalty law is unconstitutional because it doesn’t do enough to narrow who is eligible for the death penalty, among those convicted of murder. Earlier this year, Neal Katyal, best known these days for serving as the lead lawyer for Hawaii’s challenge to President Trump’s travel ban, agreed to serve as Hidalgo’s lawyer at the Supreme Court.

Katyal, the former acting solicitor general in the Obama administration, asked the justices in Monday’s filing to hear Hidalgo’s case and to strike down Arizona’s death penalty law.

The filing comes more than two years after Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, called for a wholesale review of the constitutionality of the death penalty. Justice Sonia Sotomayor has also expressed great concerns about the courts’ handling of death penalty cases, as well as some states’ death penalty laws.

And Justice Anthony Kennedy has expressed concerns about the death penalty’s imposition, and has cast key votes excluding groups of people — like children or the intellectually disabled — from being eligible for the death penalty. He has not, however, given any specific indication that he is ready to join Breyer’s call to review the constitutionality of the death penalty overall — and has allowed several executions to proceed since Breyer's call.

Katyal, however, joined by other lawyers at his firm, Hogan Lovells, as well as the Office of the Legal Advocate in Arizona and Arizona attorney Garrett Simpson, thinks the time is now — a move that could be tied to concerns by many liberal lawyers about whether and when Kennedy, at 81, might retire from the court. “I have spent the last few years with my team looking for cases that highlight the gross problems with the death penalty in practice, and this case is a perfect example of them,” Katyal told BuzzFeed News on Monday evening. “We look forward to the Supreme Court's review of Mr. Hidalgo's petition.”...

The brief points out that the court in Gregg found the new state death penalty laws to be constitutional because they required the finding of “aggravating” circumstances — a move that the court’s controlling opinion concluded would “direct and limit” who was eligible for execution “so as to minimize the risk of wholly arbitrary and capricious action.”

Forty years later, Arizona’s death penalty law is such that there are so many aggravating circumstances that “every first degree murder case filed in Maricopa County in 2010 and 2011 had at least one aggravating factor” making the person eligible for the death penalty. Hidalgo pleaded guilty in 2015 to two January 2001 murders in a murder-for-hire scheme in Maricopa County, Arizona. He was then sentenced to death by a jury. “Arizona’s scheme utterly fails,” Katyal wrote, to “genuinely narrow the class of persons eligible for the death penalty” as the court has required over the time since Gregg.

For this reason alone, Hidalgo’s legal team argues, the court should take the case and strike down Arizona’s death penalty law. But, beyond that, the filing goes on, “A national consensus has emerged that the death penalty is an unacceptable punishment in any circumstance.” The brief argues that the court should take the case and rule that the death penalty, nationwide, is unconstitutional under the Eighth Amendment’s guarantee against cruel and unusual punishment. This is so, the brief argues, because “the number of death sentences imposed and carried out has plummeted.”

The brief also points to three further key arguments in support of this larger aim: First, states can’t give guidance that ensures that only “the worst offenders” are sentenced to death. Second, states can’t enforce the death penalty without “ensnaring and putting to death the innocent.” And, finally, “the present reality of capital punishment” — decades spent on death row with “the remote but very real possibility of execution” — is its own possible constitutional violation.

The cert petition, available at this link, sets out these "Questions Presented":

I.  Whether Arizona’s capital sentencing scheme, which includes so many aggravating circumstances that virtually every defendant convicted of first-degree murder is eligible for death, violates the Eighth Amendment.

II.  Whether the death penalty in and of itself violates the Eighth Amendment, in light of contemporary standards of decency.

August 15, 2017 at 11:12 AM | Permalink


Looking at the author's Twitter feed, saw this that might be of interest:

A new lawsuit in DC federal court is challenging gun ownership prohibitions for white-collar crime offenders


Posted by: Joe | Aug 15, 2017 12:47:22 PM

Q1 starkly presents the question of whether there is a statutory narrowing requirement at all. AZ makes felony murder death eligible and in Ring v. AZ the state argued that the sole source of statutory narrowing comes from the aggravating circumstances. The record before the Court is that 99% of all first degree murders have an aggravating circumstance present.

Posted by: John | Aug 15, 2017 1:52:27 PM

In a perfect world, SCOTUS would grant cert. and take this as an opportunity to repudiate all this sentencing "jurisprudence"--

Posted by: federalist | Aug 15, 2017 2:02:40 PM

Thanks for the gun suit link, Joe. I have thought the kinds of claims raised in the complaint have been ripe for litigation ever since Heller. That we are nearly a decade since Heller and the issue has not yet been seriously address is an interesting example of how slowly some constitutional doctrines develop.

Posted by: Doug B. | Aug 15, 2017 3:31:24 PM

The recent D.C. ruling involving public carry might force their hand unless it is avoided by an en banc ruling or something else. Seems to be a clear conflict between the circuits.

Posted by: Joe | Aug 15, 2017 8:37:53 PM

Nothing new just a high profile liberal that websites like these and op-ed are made for. Has zero chance of succeeding. Next #KILLtheKILLERS

Posted by: deano | Aug 16, 2017 7:38:33 AM

Moving to the original comment ...

I don't think Anthony Kennedy is ready (shortly after Glossip, the man himself still alive because the state itself granted a moratorium to examine the problems with their procedure) to declare the death penalty unconstitutional.

If the Supreme Court takes this case, pretty good chance it will only take the first question. The liberals will strategically not want to grant cert just to re-affirm the death penalty's constitutionality on the other point.

Posted by: Joe | Aug 16, 2017 10:21:33 AM

If the Congress decides to impeach Justices for their wrongful decisions, start with Justice Kennedy. This dangerous extremist must be stopped by the Senate.

Posted by: David Behar | Aug 17, 2017 12:31:48 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB