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Will the U.S. Supreme Court add the fate of the death penalty to a term already fraught with hot-button issues like partisan gerrymandering, warrantless surveillance, and a host of contentious First Amendment disputes?
That’s the hope of an ambitious Supreme Court petition seeking to abolish the ultimate punishment. But it runs headlong into the fact that only two justices have squarely called for a reexamination of the death penalty’s constitutionality.
Abel Hidalgo challenges Arizona’s capital punishment system—which sweeps too broadly, he says, because the state’s “aggravating factors” make 99 percent of first-degree murderers death-eligible—as well as the death penalty itself, arguing it’s cruel and unusual punishment.
He’s represented by former acting U.S. Solicitor General Neal Katyal—among the most successful Supreme Court practitioners last term. Hidalgo also has the support of several outside groups who filed amicus briefs on his behalf, notably one from a group including Arizona judges and prosecutors.
The high court effectively struck down the death penalty in 1972 in Furman v. Georgia, only to resurrect it four years later in Gregg v. Georgia. Since then, the justices have narrowed the classes of people who can receive the penalty, ruling that juveniles, the mentally disabled, and non-killers can’t be executed.
Despite that narrowing over the years, and an overall decline in the use of the death penalty across the country, it’s far from clear that a majority of the nine justices are ready to abolish the punishment, death penalty lawyers and professors told Bloomberg Law.
Even if Hidalgo’s petition can pick up the four votes needed for the court to take the case, victory for death penalty abolitionists might still be out of reach, especially if swing-Justice Anthony Kennedy declines to vote in the death row inmate’s favor, they said.
Yet the justices could—and very well may—elect to just take up the Arizona-specific question and ignore the blockbuster issue of the death penalty itself, they pointed out.
Hidalgo’s petition was initially scheduled for the justices to consider for the first time at their Nov. 21 private conference, but it was rescheduled Nov. 13 and no replacement date has been set.
In reinstating capital punishment, the Gregg court said that laying out aggravating factors—specific conditions required to return a death sentence—would limit otherwise unconstitutional discretion in capital sentencing schemes. Under such schemes, “in the absence of more convincing evidence … the infliction of death as a punishment for murder is not without justification and thus is not unconstitutionally severe,” the high court said in Gregg.
But now “the evidence is in,” Hidalgo said in his Aug. 14 petition seeking Supreme Court review.
Arizona’s 14 aggravating factors mean 99 percent of first-degree murderers are eligible for the death penalty—it’s not limited to the worst offenders as required, he said.
Plus, racial and geographic disparities, the disturbing reality that innocent people are executed, and other troubling factors show that it’s time for the death penalty to be abolished once and for all, he argues.
The state wants the high court to stay out of it.
“There is no reason for this Court to take this case and affirm once again what it has consistently announced,” Arizona said in its Oct. 16 brief in opposition.
The Supreme Court “has consistently refused to micromanage States’ and juries’ determination of which killers deserve a capital sentence,” the state said, noting Hidalgo killed multiple people.
It looks like Arizona has “gone off the deep end” in defining its aggravating factors for capital punishment eligibility, Margery M. Koosed told Bloomberg Law. Koosed is emeritus professor of law at The University of Akron School of Law in Akron, Ohio, where her scholarship focuses on death penalty issues.
If the court takes the case, then it would be required “to decide whether it takes seriously the mandate that it issued 40 years ago: that death penalty states must make a meaningful effort to separate out the most culpable murderers,” death penalty professor Evan Mandery told Bloomberg Law. Mandery teaches at John Jay College of Criminal Justice in New York, where he’s chairperson of the department of criminal justice.
“Arizona’s scheme, similarly to several other states, includes so many kinds of murders that it eliminates almost no one,” Mandery said.
“There’s a strong argument that” Arizona’s system “violates the Eighth Amendment principle, which the Supreme Court has consistently upheld since 1972, that the death penalty must be reserved for especially aggravated homicides,” Robert C. Owen told Bloomberg Law. Owen, clinical professor of law at Northwestern Pritzker School of Law in Chicago, has argued several death penalty cases on behalf of death row inmates at the high court.
“If every first-degree murder case is legally eligible to be pursued as a death penalty prosecution, there is a significant risk that decisions about which cases to actually pursue as capital will be influenced by impermissible or irrelevant factors such as geography, race or budgetary constraints,” Owen said.
There’s “no doubt” that Kennedy’s vote is crucial to the outcome of the case, particularly when it comes to the merits of the case if cert. is granted, Koosed said.
It’s “extremely unlikely” that there’s any scenario where the death penalty is struck down without Kennedy’s vote, Mandery said.
“Certainly, where criminal defendants have prevailed in close cases at the Court in recent years, Justice Kennedy’s vote has generally been decisive,” Owen said. So if the high court grants review on the overall question of the death penalty’s lawfulness, “I think the merits decision might well turn on Justice Kennedy’s views,” he said.
This all may not bode well for Hidalgo and his supporters.
That’s because Kennedy “has not, to date, shown any inclination to question the constitutionality of the death penalty overall,” Kent Scheidegger, Legal Director of the Criminal Justice Legal Foundation, told Bloomberg Law.
Kennedy “has, of course, authored or joined some important decisions limiting its application to particular categories of defendants, but that is quite different,” Scheidegger, who has filed amicus briefs against inmates in scores of death penalty cases at the high court, said.
As a supporter of capital punishment, Scheidegger “would have been more worried about it if the presidential election had gone the other way,” he said, referring to his view that Trump-appointee Justice Neil M. Gorsuch is unlikely to vote to abolish the death penalty.
“One of the first significant Supreme Court actions after Justice Gorsuch joined the Court was to let Arkansas go ahead with a spate of executions,” Scheidegger pointed out.
“That decision was 5-4, with Justice Kennedy in the majority,” he noted.
It’s “fascinating” that Kennedy has either written or been in the majority for several big death penalty decisions in recent years, professor Chad W. Flanders told Bloomberg Law. Flanders teaches at Saint Louis University School of Law in St. Louis, and has written about the Hidalgo case.
Kennedy wrote the majority opinion in Roper v. Simmons, which held in 2005 that executing juveniles is cruel and unusual. He also wrote for the majority in the coincidentally-named Kennedy v. Louisiana, which, in 2008, said the same about executing those who have raped children. That same year, Kennedy signed onto Chief Justice John G. Roberts Jr.'s plurality opinion in Baze v. Rees, upholding Kentucky’s lethal injection protocol.
He joined former Justice John Paul Stevens’s 2002 majority opinion in Atkins v. Virginia, which held the death penalty for the mentally disabled unconstitutional, and he also signed onto Justice Samuel A. Alito Jr.'s 2015 majority opinion in Glossip v. Gross, which rejected the claim that using the execution drug midazolam is cruel and unusual.
Glossip sparked a dissent from Justice Stephen G. Breyer, joined by Justice Ruth Bader Ginsburg, questioning the death penalty’s constitutionality in terms that Hidalgo’s petition echoes.
But Breyer and Ginsburg alone can’t decide the issue in Hidalgo’s favor.
“The fact that no more than two members of the Court have ever expressed interest in reopening the question of the constitutionality of the death penalty indicates to me that there is little chance of the high court reconsidering the matter that was settled in Gregg,” Scheidegger, who filed an amicus brief against the inmate in Glossip, said.
But the matter isn’t settled, Hidalgo says.
“The Eighth Amendment was not fossilized at some point in the past, and Gregg’s judgment that capital punishment could be imposed constitutionally was, expressly, a provisional one: The Court made clear that it might one day revisit the question in light of ‘more convincing evidence,’” he wrote, quoting Gregg in his Oct. 31 reply to the state’s opposition brief.
“The Court did not—and could not—conclusively settle what the '[e]volving standards of decency’ permit,” he said, quoting Kennedy’s 2008 opinion in Kennedy.
It’s tough to know for sure what any of the justices will do in Hidalgo, but one of Kennedy’s hotly contested opinions in another area of the law could be a sign of hope for those seeking to overturn the death penalty here.
Flanders noted Kennedy’s 2015 majority opinion in Obergefell v. Hodges, which recognized the right of same-sex couples to marry. Kennedy handed down his Obergefell opinion at a time when popular opinion was trending toward marriage equality but not all states permitted it yet.
Flanders could see Kennedy “making the same kind of move” in Hidalgo as he did in Obergefell.
Popular opinion against the death penalty has increased over the years and many states have abolished the penalty by law or at least in practice, Hidalgo observed in his brief.
But the state’s brief says Hidalgo paints too rosy a picture in this respect, given, for example, that voters in California, Nebraska, and Oklahoma all approved death penalty initiatives in 2016.
At any rate, Hidalgo may still be reaching for the same spirit that moved Kennedy in Obergefell, where the swing-justice drew heavily on notions of dignity in his majority opinion.
“They ask for equal dignity in the eyes of the law,” Kennedy wrote in that case, referring to same-sex couples arguing in favor of marriage equality. “The Constitution grants them that right,” he said.
Kennedy has also expressed dignity concerns in his death penalty jurisprudence.
“Evolving standards of decency must embrace and express respect for the dignity of the person, and the punishment of criminals must conform to that rule,” he wrote in Kennedy.
Hidalgo didn’t shy away from referencing dignity in his cert. petition.
The death penalty “no longer accords with fundamental precepts of decency and the ‘dignity of man,’” Hidalgo said, quoting a 1958 Supreme Court case that said it’s cruel and unusual to revoke U.S. citizenship as a punishment.
“The Constitution’s proscription on ‘cruel and unusual punishments’ protects, at its heart, human dignity,” he said, citing Kennedy’s 2008 opinion in Kennedy as well as the 1958 case.
Hidalgo also argued that the “delays and conditions inherent in the imposition of capital punishment are themselves an affront to human dignity.”
Even if the justices don’t want to grapple with the broader nationwide question, they could agree to only consider whether Arizona’s death penalty regime is constitutional. (Of course, they could reject the petition entirely, as they do with most of the petitions that come before them.)
At the very least, it’s not a lock that they’ll take on the stormy issue of capital punishment in general.
The Supreme Court has avoided taking “the big case” in recent years that would challenge the constitutionality of the death penalty in the United States as a whole, Robert Dunham, executive director of the Death Penalty Information Center, told Bloomberg Law.
But the high court “has been taking cases in which states or counties have been engaging in questionable practices that have disproportionately resulted in death sentences,” Dunham said. He noted two cases from last term, both from Texas: Buck v. Davis, where the court reversed a death sentence infected by racial animus, and Moore v. Texas, where it reversed a lower court ruling that used the wrong standard to evaluate a death row inmate’s intellectual ability.
Hidalgo’s case likewise presents the justices with an opportunity to reject outlier practices in Arizona, Dunham said.
“It’s entirely possible they could grant cert. on” the Arizona question alone, Mandery said. “The important thing to remember is they really are distinct questions,” he said.
Koosed thinks it more likely the high court will grant review of the Arizona-specific question than the question attacking the death penalty as a whole.
The justices are usually more comfortable “chipping away” than taking a “broad-based” approach, she said.
Owen also said the narrower Arizona question has a better chance at getting Supreme Court review, and that it’s unlikely the justices will take up the broader question.
He said that while “it would be entirely appropriate for the Court to use the Hidalgo case as a vehicle to reconsider the constitutionality of the death penalty for the country at large, I think the Court is more likely, at least for the time being, to deal with the serious flaws of Arizona’s problematic system in isolation.”
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