Supreme Court Won’t Hear Arizona Death Penalty Challenge (1)

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By Jordan S. Rubin

The death penalty is still alive in America after the U.S. Supreme Court declined March 19 to take up a bold challenge to it.

The high court rejected convicted killer Abel Hidalgo’s petition attacking the punishment nationwide and in Arizona, where he was sentenced to death.

Legal analysts predicted the justices would reject the broader nationwide question—only a minority of the court has publicly questioned the constitutionality of capital punishment.

But some court watchers speculated the justices might want to take on the Arizona-specific issue.

Hidalgo argued the state’s system makes too many killers eligible for death.

That’s significant because the Supreme Court has 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 death penalty is constitutionally permissible, the court said.

“The evidence is in” that the death penalty is unconstitutional both in Arizona and nationwide, Hidalgo said in his Aug. 14 petition. He was represented by Hogan Lovells partner Neal Katyal, a former acting U.S. solicitor general.

The court nevertheless rejected Hidalgo’s petition—though not without comment from the court’s Democratic appointees.

Justice Stephen G. Breyer, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, issued a statement respecting the denial. It focused on the state-specific question.

“The Arizona Supreme Court misapplied our precedent,” Breyer wrote.

But he still agreed with the decision to deny review.

Hidalgo referenced evidence “that suggests about 98% of first-degree murder defendants in Arizona were eligible for the death penalty,” Breyer noted.

But even though that evidence poses “a possible constitutional problem,” Hidalgo was unable to make a proper record of that evidence because “the opportunity to develop the record through an evidentiary hearing was denied,” Breyer said.

But a developed record would merit the court’s attention, the statement suggested.

“Capital defendants may have the opportunity to fully develop a record with the kind of empirical evidence that the petitioner points to here,” he wrote.

“And the issue presented in this petition will be better suited for certiorari with such a record.”

Another Denial, More Respect

In an unrelated petition in another murder case rejected the same day, Sotomayor issued her own statement respecting denial.

Glen Campbell was convicted of aggravated murder and sentenced to life-without-parole in Ohio.

He challenged the state law that says murder sentences are “not subject to review.”

Like Breyer’s statement respecting the denial in Hidalgo, Sotomayor agreed the denial here was appropriate for procedural reasons, but nonetheless felt the underlying issue warranted scrutiny.

She agreed with the denial “because Campbell failed adequately to present his constitutional arguments to the state courts.”

But she wrote separately—and alone—to highlight her view that “a statute that shields from judicial scrutiny sentences of life without the possibility of parole raises serious constitutional concerns.”

“Life without parole ‘is the second most severe penalty permitted by law,’” Sotomayor observed, quoting a 1991 case.

The cases are Hidalgo v. Arizona , U.S., No. 17-251, review denied 3/19/18 and Campbell v. Ohio, U.S., No. 17–6232, review denied 3/19/18 .

To contact the reporter on this story: Jordan S. Rubin in Washington at

To contact the editor responsible for this story: C. Reilly Larson at

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