The U.S. Supreme Court has declined to review a sweep­ing chal­lenge to the con­sti­tu­tion­al­i­ty of cap­i­tal pun­ish­ment brought by Arizona death-row pris­on­er Abel Hidalgo (pic­tured). After sched­ul­ing con­sid­er­a­tion of Hidalgo v. Arizona for ten sep­a­rate court con­fer­ences, the Court on March 19 unan­i­mous­ly denied Hidalgo’s peti­tion for writ of cer­tio­rari. In a state­ment issued in con­junc­tion with the Court’s rul­ing, how­ev­er, Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, expressed con­cern about a sec­ond issue raised by Hidalgo — the con­sti­tu­tion­al­i­ty of Arizona’s method of decid­ing which defen­dants are eli­gi­ble for the death penal­ty. The four jus­tices said that the Arizona Supreme Court had mis­ap­plied Supreme Court prece­dent on that ​“impor­tant Eighth Amendment ques­tion,” but believed the fac­tu­al record was insuf­fi­cient­ly devel­oped to war­rant the court’s review of the case at this time. Hidalgo had pre­sent­ed records from more than 860 first-degree mur­der cas­es over an eleven-year peri­od in Maricopa County—where he was charged — show­ing that 98% of first-degree mur­der defen­dants in that coun­ty were eli­gi­ble for the death penal­ty, but had been denied an evi­den­tiary hear­ing to fur­ther devel­op the issue. This ​“evi­dence is unre­butted,” the four jus­tices said, and ​“would seem to deny the con­sti­tu­tion­al need to ​‘gen­uine­ly’ nar­row the class of death-eli­gi­ble defen­dants.” Although “[e]vidence of this kind war­rants care­ful atten­tion and eval­u­a­tion,” they wrote, the absence of an evi­den­tiary hear­ing had left the Court with a fac­tu­al record that ​“is lim­it­ed and large­ly unex­am­ined by experts and the courts below.” With an ​“oppor­tu­ni­ty to ful­ly devel­op a record with the kind of empir­i­cal evi­dence that the peti­tion­er points to here,” the four jus­tices said, ​“the issue pre­sent­ed in this peti­tion [would] be bet­ter suit­ed for cer­tio­rari.” The court declined with­out com­ment to review a broad­er chal­lenge Hidalgo pre­sent­ed to the con­sti­tu­tion­al­i­ty of cap­i­tal pun­ish­ment itself. Hidalgo is one of many death-row pris­on­ers to raise that issue in the wake of a 2015 dis­sent by Justices Breyer and Ginsburg in Glossip v. Gross in which they said it is ​“high­ly like­ly that the death penal­ty vio­lates the Eighth Amendment” pro­hi­bi­tion against cru­el and unusual punishments.

(Michael Kiefer, U.S. Supreme Court turns down case chal­leng­ing Arizona’s death penal­ty, The Arizona Republic, March 19, 2018; Chris Geidner, Death Penalty Opponents See Some Good News In The Supreme Court’s Decision Not To Hear A Case, BuzzFeed News, March 19, 2018; Adam Liptak, Supreme Court Won’t Hear Challenges to Arizona’s Death Penalty Law, The New York Times, March 19, 2018; Amy Howe, Justices decline to weigh in on con­sti­tu­tion­al­i­ty of death penal­ty, SCOTUSblog, March 19, 2018.) Read the state­ment by Justices Breyer, Ginsburg, Sotomayor, and Kagan. Find links to the Supreme Court plead­ings in Hidalgo v. Arizona here. See Arizona and Supreme Court.

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