State death penalty law avoids legal challenge

California’s death penalty law sidestepped a legal challenge Monday when the U.S. Supreme Court denied review of a similarly wideranging law in Arizona.

An Arizona Death Row inmate had asked the court to consider whether the state’s law violated constitutional standards because it makes virtually every first-degree murderer subject to potential capital charges. When the high court struck down all state death penalty laws in 1972, it said those laws must reserve the death penalty for those convicted of the worst categories of murders.

If the court had taken up the inmate’s case and struck down the Arizona law, the ruling could have overturned death penalty laws in other states including California, where a study found that 95 percent of all first-degree murder convictions over a 25-year period could have been charged as capital crimes.

But after considering the case at closed-door conferences for four months, the justices rejected the appeal Monday, leaving intact an Arizona Supreme Court ruling that upheld the state law.

The vote was unanimous. But the court’s four liberal-leaning justices, led by Justice Stephen Breyer, issued a separate opinion saying the case raised serious issues.

To meet constitutional standards, a state law “must genuinely narrow the class of persons eligible for the

death penalty,” said Breyer, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

He said the Arizona court, in upholding the law, “seemed to suggest that prosecutors may perform the narrowing requirement” by deciding which murders were serious enough for capital charges. Past Supreme Court rulings require states, in their laws, to set those limits rather than leaving the task up to prosecutors, Breyer said.

But he said this was the wrong case to make the decision, because the condemned prisoner, whose lawyers cited academic studies on the breadth of the Arizona law, did not persuade the state’s courts to hold hearings on the actual scope of the law and how it is applied. Such a record is necessary to determine whether the law is unconstitutionally broad, Breyer said.

In a 2015 opinion, Breyer and Ginsburg said the death penalty itself probably violated constitutional standards because it was applied arbitrarily, after long delays, and because it was likely that some innocent people had been executed. Breyer wrote another opinion in 2016 saying California’s death penalty appeared to be constitutionally defective.

The Arizona case involved Abel Hidalgo, convicted of two 2001 murders in Maricopa County. His lawyers said studies showed that, over an 11-year period, 99 percent of all first-degree murders in that county could have been prosecuted as capital crimes. The state’s law, originally drafted narrowly, “now provides prosecutors and jurors with unfettered discretion,” defense lawyers said.

In response, Arizona’s lawyers said the law provides “clear, objective standards” for capital murders.

The California death penalty law also started narrowly, covering only selected categories of intentional killings, such as murder of a police officer, murder for financial gain and multiple murders. But that law, passed by legislators over Gov. Jerry Brown’s veto in 1977, was expanded by a 1978 voter initiative and later court rulings and now applies to most types of first-degree murders, including some committed unintentionally in the course of another crime.

The state has the nation’s largest Death Row, with 746 condemned prisoners. It has not executed anyone since January 2006, but a number of inmates could be scheduled for execution within the next year because of a 2016 initiative limiting review of execution methods, and Supreme Court rulings rejecting challenges to lethal injection drugs in other states.

The case is Hidalgo vs. Arizona, 17-251.