A former acting solicitor general in the Obama administration filed a brief Monday challenging the constitutionality of the death penalty in Arizona and nationally.
Neal Katyal took up the appeal of Arizona inmate Abel Daniel Hidalgo, BuzzFeed reports. Katyal is also noteworthy for being a lead lawyer in the state of Hawaii's challenge to President Donald Trump's travel ban.
Hidalgo pleaded guilty in 2015 to killing two men, Michael Cordova and Jose Rojas, in 2001. He had, however, challenged the constitutional licitness of the state of Arizona's death penalty, arguing that it was too broad in the number of aggravating factors it permits for death penalty sentencing.
In March 2017, the Arizona Supreme Court rejected Hidalgo's appeal unanimously. But, Katyal said, his case represents a new opportunity to revisit the constitutionality of the death penalty, both in Arizona and nationally.
"I have spent the last few years with my team looking for cases that highlight the gross problems with the death penalty in practice, and this case is a perfect example of them," Katyal told BuzzFeed. "We look forward to the Supreme Court's review of Mr. Hidalgo's petition."
The petition itself presents two questions for the court: "whether Arizona's capital sentencing scheme, which includes so many aggravating circumstances that virtually every defendant convicted of first-degree murder is eligible for death, violates the Eighth Amendment" and "whether the death penalty in and of itself violates the Eighth Amendment, in light of contemporary standards of decency."
Sixty percent of Americans support the death penalty, while 37 percent oppose it, according to a recent Gallup survey.
In 1972's Furman v. Georgia, the Supreme Court shocked the nation by effectively declaring the death penalty unconstitutional. However, while a majority of justices concurred that the death penalty as presented in the cases collected under that decision violated the Eighth Amendment, they could not reach a consensus on why, or whether the death penalty was categorically unconstitutional.
Four years later, in Gregg v. Georgia, the high court concluded that sufficient reforms to the penalty had been implemented by state legislatures to render it constitutional once more. But in that case, Katyal wrote, "[T]he court acknowledged that it might someday revisit the constitutionality of the death penalty in light of ‘more convincing evidence.'"
"The evidence is in," Katyal's brief reads. "The long experiment launched by Gregg — in whether the death penalty can be administered within constitutional bounds — has failed. It has failed both in Arizona in particular and in the Nation more broadly."
After Gregg, in order to be eligible for the death penalty, a murder must be found to include certain "aggravating" factors. But, the brief argues, because of how broad Arizona's definition of "aggravating" is, its death penalty regime essentially fails to adhere to this requirement and is therefore unconstitutional.
But beyond that, Katyal argues, "A national consensus has emerged that the death penalty is an unacceptable punishment in any circumstance." (The language of "national consensus" has been a mainstay of death penalty abolitionists for decades.) This, the brief says, is because the number of death sentences has declined.
Katyal further argues that the death penalty is illicit because of insufficient guidance from states; because the execution of the innocent cannot be precluded as a possibility; and because of the years and years that capital litigation now requires.
Whether the court will take up the appeal remains an open question. Some on the court, like Justices Stephen Breyer and Ruth Bader Ginsburg, are open opponents of capital punishment. Others are more sympathetic, possibly including newly appointed Justice Neil Gorsuch, whose first vote on the court was to join his conservative colleagues in permitting the execution of convicted murderer Ledell Lee to proceed.