USA TODAY International Edition
Supreme Court declines to take up Arizona death penalty case
WASHINGTON – The Supreme Court refused again Monday to decide whether the death penalty is unconstitutional.
The action came in a case from Arizona in which lawyers asked the court to strike down the state’s capital punishment system and the nation’s.
The court’s four liberal justices said Arizona’s system, under which most defendants convicted of first-degree murder are eligible for the death penalty, may be unconstitutional. But they said the case was not ready for the high court’s review.
The justices have in recent years sided with death row defendants for specific reasons, from racial discrimination and intellectual disability to incompetent lawyers. But in their most important case, they ruled 5-4 in 2015 that even a controversial type of lethal injection can continue to be used in executions.
That case produced the dissent that led to Monday’s order. Justice Stephen Breyer, backed by Justice Ruth Bader Ginsburg, said then that the nation’s 40-year-old system of capital punishment should be re-examined because a declining number of death sentences were sometimes unreliable, often arbitrary, and nearly always led to such long delays before execution that they no longer serve as a deterrent.
Since then, lawyers for death row inmates have tried to get the justices to reconsider whether capital punishment is constitutional.
“A national consensus has emerged that the death penalty is an unacceptable punishment in any circumstance,” former U.S. acting solicitor general Neal Katyal argued in the latest case. “And this court’s opinions, supported by reams of evidence, are trending unmistakably toward that consensus.”
His client, Abel Daniel Hidalgo, killed two men in Arizona in 2001 and, by the time he was found and charged, had killed two women in Idaho in 2002.
The question in the case, as in most death penalty disputes, wasn’t about guilt or innocence but whether the penalty is dished out fairly. Arizona lists so many potential aggravating circumstances in its capital punishment statute that almost every first-degree murderer is eligible for execution, Katyal claimed.
Arizona officials had asked the court to turn down the case, citing Hidalgo’s heinous crimes and refuting claims that the death penalty is unfairly administered. The decline in executions, the state said in court papers, is due largely to problems states have in obtaining the drugs needed for lethal injections.
“Despite the logistical difficulties, states have continued in their unwavering efforts to constitutionally impose and carry out capital sentences,” the state’s solicitor general, Dominic Draye, wrote. “If anything, the lengths to which states must presently go is proof of their commitment to maintaining capital punishment.”
The court’s action was unsigned, but Breyer wrote a 10-page concurrence laying out possible grounds for declaring Arizona’s system unconstitutional. He concluded that the factual record was not fully developed. Justices Ginsburg, Sonia Sotomayor and Elena Kagan agreed.
The court also heard from several groups opposed to the death penalty, such as Amnesty International, and from former Arizona judges, prosecutors, defenders and legislators who agree with opponents. “Years of experience and study demonstrate that the death penalty serves no legitimate end and is a grossly disproportionate form of punishment,” the Fair Punishment Project wrote.
“A national consensus has emerged that the death penalty is an unacceptable punishment in any circumstance.”
Neal Katyal Former U.S. acting solicitor general