On March 19, 2018, the U.S. Supreme Court denied certiorari in Hidalgo v. Arizona, a case that raised an evidence-based challenge to the constitutionality of the death penalty. The Questions Presented in the case were:
- Whether Arizona’s capital sentencing scheme, which includes so many aggravating factors that virtually every defendant convicted of first-degree murder is eligible for death, violates the Eighth Amendment.
- Whether the death penalty in and of itself violates the Eighth Amendment, in light of contemporary standards of decency.
At its core, the petition argued that the “long experiment” to consider “whether the death penalty can be administered within constitutional grounds…has failed.” Looking back to the decisions by the U.S. Supreme Court in Furman v. Georgia, 408 U.S. 238 (1972), to abolish capital punishment, and four years later in Gregg v. Georgia, 428 U.S. 153 (1976) permitting its reinstatement, attorneys for Hidalgo pressed the Court to consider whether the way the death penalty is currently administered meets constitutional muster under Gregg. The primary question the Petition raised was whether eligibility for the death penalty is sufficiently “narrow” under capital murder statutes nationwide to avoid unconstitutional arbitrariness in its application. In the case of Arizona, the Petition argued that “the number of statutory aggravators has proliferated such that ‘virtually every’ person—around 99%—convicted of first-degree murder is eligible for the death penalty.” Hidalgo argued that legislatures have been unable to ensure that their death penalty statutes do not result in the same arbitrariness that forced the Court to suspend the use of capital punishment in 1972.
Although the Court ultimately denied review, Justice Breyer—joined by Justices Kagan, Sotomayor, and Ginsburg—issued a rare statement regarding the denial of certiorari. In it, Justice Breyer offered a possible clue about what the Court is looking for in future cases challenging the constitutionality of capital punishment. Breyer wrote,
In support of his Eighth Amendment challenge, the petitioner points to empirical evidence about Arizona’s capital sentence system that suggests about 98% of first-degree murder defendants in Arizona were eligible for the death penalty. That evidence is unrebutted. 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. However, in this case, the opportunity to develop the record through an evidentiary hearing was denied. As a result, the record as it has come to us is limited and largely unexamined by experts and the courts below in the first instance….the issue presented in this petition will be better suited for certiorari with such a record.
This appears to suggest that more empirical data concerning the potentially arbitrary application of the death penalty should be developed in the lower courts before raising the challenge at the Supreme Court.