“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,” attorney Neal Katyal told BuzzFeed News.
He was also the lead attorney for Hawaii’s challenge to Pres. Donald Trump’s travel ban.
Four justices have been waiting for an opportunity to hear a case of this magnitude, the brief states.
Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Anthony Kennedy have expressed various concerns about the Supreme Court’s handling of death penalty cases.
Hidalgo, an Arizona inmate, has been arguing for the past three years that “The death penalty law is unconstitutional because it doesn’t do enough to narrow who is eligible for the death penalty among those convicted of murder,” the brief maintains.
Katyal’s petition wants the justices to hear Hidalgo’s case and “strike down Arizona’s death penalty law.”
Even though each justice has their own opinion about death penalty laws, Katyal, joined by several other prominent attorneys, contends “the time is now,” to argue his case before the court.
Katyal cited constraints the justices used in their 1976 historical landmark ruling with Gregg v. Georgia. “The evidence is in. 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.”
At the time, the Gregg court found that new state death penalty laws were constitutional because they required the finding of aggravating circumstances. The court’s controlling opinion limited who was eligible for execution “so as to minimize the risk of wholly arbitrary and capricious action.”
Today’s Arizona’s death penalty law is such that there are so many aggravating circumstances that “every first-degree murder case filed in Maricopa County in 2010 and 2011 had at least one aggravating factor,” making the person eligible for the death penalty, reported BuzzFeed.
The state’s death penalty scheme has utterly failed “to genuinely narrow the class of persons eligible for the death penalty” as the court has required over the time since Gregg, Katyal maintained.
“A national consensus has emerged that the death penalty is an unacceptable punishment in any circumstances,” according to Katyal’s petition, “The court should take the case and rule that the death penalty, nationwide, is unconstitutional under the Eighth Amendment’s guarantee against cruel and unusual punishment.”
Katyal’s petition focuses on three key arguments. “First, states can’t give guidance to ensure that only the worst offenders are sentenced to death. Second, states can’t enforce the death penalty without ensnaring and putting to death the innocent. And finally, the present reality of capital punishment — decades spent on Death Row with the remote but very real possibility of execution — is its own possible constitutional violation.”
In its historical 1976 decision, “The court acknowledged that it might someday revisit the constitutionality of the death penalty in light of more convincing evidence.”