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March 19, 2018

Three Justices join Justice Breyer questioning how Arizona's death penalty system operates

Many month ago, as highlighted here, the cert petition in Hidalgo v. Arizona generated considerable attention.  That matter ended today when the petition for a writ of certiorari was denied, along with this lengthy statement by Justice Breyer joined by Justices Ginsburg, Sotomayor and Kagan. I was expecting some Justices to say something really notable after all this build up, by the statement ends this way:

Although, in my view, the Arizona Supreme Court misapplied our precedent, I agree with the Court’s decision today to deny certiorari. In support of his Eighth Amendment challenge, the petitioner points to empirical evidence about Arizona’s capital sentence system that suggests about 98% of first-degree murder defendants in Arizona were eligible for the death penalty.  That evidence is unrebutted. It points to a possible constitutional problem.  And it was assumed to be true by the state courts below. Evidence of this kind warrants careful attention and evaluation. However, in this case, the opportunity to develop the record through an evidentiary hearing was denied. As a result, the record as it has come to us is limited and largely unexamined by experts and the courtsbelow in the first instance. We do not have evidence, for instance, as to the nature of the 866 cases (perhaps they implicate only a small number of aggravating factors).  Nor has it been fully explained whether and to what extent an empirical study would be relevant to resolving the constitutional question presented.  Capital defendantsmay have the opportunity to fully develop a record with the kind of empirical evidence that the petitioner points to here. And the issue presented in this petition will be better suited for certiorari with such a record.


March 19, 2018 at 12:01 PM | Permalink


Denying cert to a death petition because the lower courts refused to let you make a record on the constitutionality of your execution? I try not to keep Kafka's name off my lips, but...

Posted by: RW | Mar 19, 2018 12:25:48 PM

urgh, should read try to keep Kafka's name off my lips

Posted by: RW | Mar 19, 2018 12:26:13 PM

As I said originally, didn't think there was much chance that the justices would use the challenge for an across the board attack on the death penalty since there simply aren't five votes for that. So, what did one expect?

It turns out to be the standard thing -- the long continuing battle to limit the death penalty when possible. Kennedy has spoken about the constitutional rule that colloquially can be said to be "worse of the worst":

"The rule of evolving standards of decency with specific marks on the way to full progress and mature judgment means that resort to the penalty must be reserved for the worst of crimes and limited in its instances of application. In most cases justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense. Difficulties in administering the penalty to ensure against its arbitrary and capricious application require adherence to a rule reserving its use, at this stage of evolving standards and in cases of crimes against individuals, for crimes that take the life of the victim."


But, this does leave open the power to execute in at least some cases & his joining in Glossip suggests he opposes something he sees as a veiled across the board attack on capital punishment. The back-up here was that the standards were too open-ended. It would seem like a somewhat promising case, especially since the effect in Arizona wouldn't be that large. So, tinker tinker.

The result seems to leave an opening for further challenge here with a better record. The long opinion shows there are four ready-made votes, Kagan's vote notable since often she doesn't join these separate statements/dissents from denial. "Meh" maybe but in the long game, notable.

As is Sotomayor's statement in the LWOP context in another case today.

Posted by: Joe | Mar 19, 2018 1:26:09 PM

"Worst of the worst."

Posted by: Joe | Mar 19, 2018 1:28:15 PM

An unusual statement to say the least. Translated from lawyer speak to plain English. "Even though four votes are enough to grant cert, we don't think that we have a fifth vote on the merits. Particularly, we are not sure that we can get the Chief Justice or Justice Kennedy to find a constitutional right based on assuming the allegations made in this case. Therefore, we are not granting cert. We are sorry for the defendant in this case, but we really need a case in which a judge granted a hearing and defense counsel made a good record."

Posted by: tmm | Mar 19, 2018 2:55:25 PM


Posted by: torvic | Apr 1, 2018 12:02:33 AM

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