Four Supreme Court Justices raised important questions about whether Arizona’s capital punishment law is constitutional in a statement about the Court’s denial of Abel Daniel Hidalgo’s petition for review on Monday.
Mr. Hidalgo raised two questions: whether the death penalty in and of itself violates the Eighth Amendment, and whether Arizona’s capital sentencing scheme is unconstitutional because it allows the death penalty for almost every defendant convicted of first-degree murder.
In a dissent in 2015, Justice Stephen G. Breyer, joined by Justice Ruth Bader Ginsburg, explained that the unreliability and arbitrariness that infect death penalty cases likely render capital punishment unconstitutional under the Eighth Amendment. The dissent detailed many problems with capital punishment, including the fact that innocent people have been executed; death penalty cases are tainted by racial bias; capital defendants often are inadequately represented by counsel; death penalty charging decisions are improperly politicized; and capital punishment is geographically arbitrary.
Justice Breyer called for the Court to consider whether the death penalty violates the Constitution.
The Court declined that invitation in Mr. Hidalgo’s case.
But in response to that denial, Justice Breyer, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, addressed the Arizona-specific question, writing that the state’s capital sentencing scheme may be unconstitutional because it does not adequately restrict who is eligible for the death penalty.
States must limit the death penalty to only the worst cases, and states like Arizona use “aggravating factors” to distinguish the worst cases from all other murder cases.
Mr. Hidalgo argued that Arizona has so many aggravating factors that virtually every murder case is eligible for the death penalty. He introduced evidence gleaned from public records requests that shows about 98 percent of first-degree murder defendants in Arizona were eligible for the death penalty.
“That evidence is unrebutted,” Justice Breyer wrote. “It points to a possible constitutional problem. And it was assumed to be true by the state courts below. Evidence of this kind warrants careful attention and evaluation.”
But the lower courts denied Mr. Hidalgo a hearing where he could develop and test his evidence, leaving an insufficient evidentiary record. The Justices’s statement concludes that it would be better for the Court to address the issue in a case where the capital defendant has had the opportunity to fully develop the empirical evidence.