Arizona case could quash death penalty

Execution critics optimistic that time is right for high court to revisit capital punishment

An Arizona death row inmate’s Supreme Court case could force an end to capital punishment in Texas and across the country.

The appeal, filed by the powerhouse attorney behind the Hawaii federal case fighting President Donald Trump’s travel ban, challenges the overly broad qualifying factors that can make a murder conviction death-eligible in Arizona. But if the court chooses to take up the question, any ruling could impact the Lone Star State’s death chamber — or shut it down entirely.

“It’s a broken system,” said Ben Cohen, a lawyer with the Promise of Justice Initiative, which filed an amicus brief supporting the appeal. “I think the Supreme Court will ultimately come to the place that the vast majority of Americans have come to, which is that the death penalty is unnecessary and excessive.”

Decades-old legal debate

Attorney Neal Katyal is representing Abel Hidalgo, who was convicted in a gang-related $1,000 contract killing in 2001. His petition, filed in August, asks the Court to consider two factors: whether Arizona law is not narrow enough to be constitutional and whether the death penalty as a whole is unconstitutional.

The Court can choose to take up either or both questions — or refuse to hear the case altogether. If the justices accept the case, it’ll head to oral arguments and a decision could come by mid-2018.

The issue of the breadth or narrowness of crime statutes involving capital punishment is a decades-old legal debate. In 1972, a groundbreaking Supreme Court decision eliminated the death penalty, deeming existing laws too arbitrary.

States responded by revising their laws to include specific “aggravating circumstances” that could make a case capital — and the justices validated the new statutes in a 1976 decision.

In Texas, those aggravating factors include multiple murders, slayings of children under the age of 10, murder-for-hire and murders committed in the course of other crimes like rape or burglary.

In Arizona, a slightly broader set of aggravating factors includes killings involving a stun gun, “especially heinous” slayings, murder-for-hire, murders committed in a “cold, calculated manner with pretense of moral or legal justification” and more.

The court hasn’t really looked at the death penalty as a whole since 1976, Cohen said.

“But it looks at cases about the death penalty and the machinery of the death penalty,” he continued. “And every year, it tinkers with that machinery and every year it fails to yield a system that accurately identifies the worst of the worst.”

Ripe for reconsideration

The justices could have announced a decision on whether to take the case this month, but a conference slated for Tuesday was called off. The earliest a decision could come now is in December.

Even if the court doesn’t rule on the broader question, the Arizona-specific question could end up impacting Texas, where “almost every murder” is eligible for the death penalty, according to Jessica Brand, legal director at the Fair Punishment Project.

Having a case heard by the Supreme Court is always a long shot. But some experts are optimistic the time is ripe for a reconsideration of the nation’s harshest punishment — especially since Justice Stephen Breyer’s 2015 landmark dissent calling for a “full briefing” on the matter.

Justices Ruth Bader Ginsburg, Anthony Kennedy and Sonia Sotomayor have all expressed concerns about capital punishment in different contexts — and it only requires four votes for the Supreme Court to take up a case.

“I don’t know which case they’ll take and I don’t know when they’ll take it,” Cohen said. “But I do know that it’s coming.”