Could Hidalgo v. Arizona give SCOTUS the impetus to end the death penalty?

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The U.S. Supreme Court will decide soon whether to accept Hidalgo v. Arizona, which not only challenges Arizona’s death penalty statute, but the death penalty nationwide. Lawyers for Abel Hidalgo argue that there are so many aggravating circumstances for which a defendant can be sentenced to death in Arizona, the sentence is unconstitutional based on the conditions the high court laid out in Gregg v. Georgia. There are 14 factors, which means that 99 percent of first degree murderers are death eligible – which they maintain means the death penalty is no longer reserved for the worst of the worst. Hidalgo also asks the court to consider whether the death penalty nationwide is constitutional.

There has been little optimism of late that the Supreme Court would even consider a case challenging the constitutionality of the death penalty, but several legal scholars say Hidalgo could be the right case at the right time.

Harvard Constitutional Law Professor Laurence H. Tribe writes in a Washington Post op-ed that “The Hidalgo case exemplifies the problems with our current capital punishment regimes, problems that several Supreme Court justices have expressed interest in addressing. It also presents these constitutional problems cleanly, without the procedural obstacles that sometimes dissuade justices from hearing important constitutional cases.”

Northwestern Pritzker School of Law Professor Robert C. Owen told Bloomberg Law’s Jordan Rubin that “there’s a strong argument” that Arizona’s death penalty system violates the Eighth Amendment, noting that, “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,”

Another cause for optimism is that the lawyer presenting the case to the high court is Neal Katyal, the former Solicitor General under President Obama.

But even those who are optimistic admit that their hopes are tempered by the realization that if the court grants review, the vote could ultimately come down to Justice Kennedy, who has not given either death penalty opponents or supporters confidence in predicting what side he would come down on. As Bloomberg’s Rubin has pointed out, Kennedy has voted with the majority in finding that executing juveniles (Roper v. Simmons) and those who have raped children (Kennedy v. Louisiana), as well as those with intellectual disabilities (Atkins v. Virginia) as cruel and unusual, but upheld Kentucky’s lethal injection protocol (Baze v. Rees) and joined the majority in finding that the use of midazolam (Glossip v. Gross) did not constitute cruel and unusual punishment.

Hidalgo’s petition was initially scheduled for consideration on November 21, but it was rescheduled, and a new date has not been set.

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