Supreme Court won't hear challenges to Arizona's death penalty law

The Supreme Court on Monday turned down a request that it take a fresh look at whether the death penalty is constitutional anywhere in the nation.

The court also refused to consider a narrower question in the same case: Whether Arizona’s capital sentencing system, which appears to make virtually all murderers eligible for the death penalty, violates the Constitution.

In a 2015 dissent, Justice Stephen Breyer had urged his colleagues to revisit the death penalty, saying that “it is highly likely” that it violates the Eighth Amendment, which bars cruel and unusual punishments. He said that there was evidence that innocent people have been executed, that death row exonerations were frequent, that death sentences were imposed arbitrarily and that the capital justice system was warped by racial discrimination and politics.

Only Justice Ruth Bader Ginsburg joined the 2015 dissent, and the issue does not seem to have gained traction in the intervening years.

Breyer on Monday also issued a statement on the narrower challenge, saying that Arizona’s capital sentencing system may well be unconstitutional and inviting a further challenge with more evidence. Justices Ginsburg, Sonia Sotomayor and Elena Kagan joined Breyer’s statement.

The case concerned Abel Daniel Hidalgo, who agreed to kill Michael Cordova, whom he did not know, for $1,000 payment from a gang member. He committed the murder at an auto body shop in 2001, and he also killed Jose Rojas, a bystander who happened to be present.

When the Supreme Court reinstated the death penalty in 1976 after a four-year moratorium, it upheld capital sentencing systems that sought to reserve the penalty for the worst offenders by insisting that juries find “aggravating factors” before a death sentence may be imposed.

Arizona’s system includes so many possible factors, its critics say, that it does almost nothing to cull the worst offenders from others. Around 98 percent of convicted murderers, they say, are eligible for the death penalty there.

Hidalgo pleaded guilty and was sentenced to death after a jury found that he had killed in exchange for money, committed multiple homicides and had committed another serious crime.

Breyer wrote that the record in the case, Hidalgo v. Arizona, No. 17-251, was too thin to adequately evaluate the argument that the state’s approach was unconstitutional.

Using public records requests, Hidalgo’s lawyers had obtained information about 860 first-degree murder cases in one Arizona county. They showed that essentially every defendant was eligible for the death penalty under the state’s sentencing laws.

“That evidence is unrebutted,” 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 state courts had rejected Hidalgo’s request for a hearing to develop and test the evidence, Breyer wrote. The Supreme Court would be in a better position to consider the constitutionality of Arizona’s sentencing system, he wrote, after a more rigorous empirical inquiry.