Death has been knocking on the Supreme Court’s door for years. But like a homeowner dismissing away an unsolicited salesman, the Court has turned off the lights and refused to answer. Last August, Abel Daniel Hidalgo came knocking when he filed a petition for a writ of certiorari following an Arizona jury’s decision to sentence him to death for killing someone in exchange for $1,000 from a gang member, as well as an eyewitness. Hidalgo’s petition challenged the constitutionality of (1) Arizona’s capital punishment scheme and (2) the death penalty itself under the Eighth Amendment’s prohibition against cruel and unusual punishment. On October 16, Arizona filed its respondent brief in opposition and now, the question remains: will Hidalgo’s appeal induce the Court to answer?

Notable Death Penalty Decisions

The Court has not addressed the constitutionality of the death penalty itself since it ended Furman v. Georgia’s de facto capital punishment moratorium in Gregg v. Georgia. In Furman, the Court held, in a per curiam decision with no plurality, that all death penalty statutes violated the Eighth Amendment.[1] Among the fractured reasoning was a concern that current death penalty statutes gave juries standardless discretion to decide who lived and who died, resulting in an impermissibly arbitrary and discriminatory system. [2] This was the first and last time the Court has held the death penalty unconstitutional under the Eighth Amendment.

Just four years later in Gregg, the high court approved a panoply of revised state laws which included aggravating factors that narrowed the class of death eligible persons, because they sufficiently reigned in unconstitutional jury discretion, minimizing the risk of wholly arbitrary and capricious application feared in Furman.[3] The Court has since clarified that Gregg requires “an aggravating circumstance must genuinely narrow the class of persons [death] eligible.”[4] But it has never addressed how much “narrowing” the constitution actually demands. In regards to the constitutionality of the death penalty itself, the Gregg court acknowledged that it might someday revisit the issue in light of “more convincing evidence.”[5]

Hidalgo argues “the evidence is in.”

Many abolitionists believed that the Court’s fervently debated decision in Glossip v. Gross––ultimately holding constitutional the use of midazolam as the initial drug in executions[6]––indicated it might soon take up the question of whether the death penalty itself violates the Eighth Amendment.

But such sanguinity was short lived. The Court denied certiorari for sixty-one death penalty cases last term and although it heard four,[7] none addressed the hotly contested question of whether the death penalty is unconstitutional per se. For example, in Reed v. Lousiana, the Court denied certiorari and rejected Reed’s argument that because capital punishment had only been imposed on “those unlucky few prosecuted under anachronistic circumstances,” it is time to assess whether “evolving standards of decency” have established that the imposition of death “constitutes cruel and unusual punishment.”

Notably, Justice Breyer’s numerous dissents throughout the Court’s death penalty decisions have consistently implored the Court to reconsider the death penalty’s constitutionality.[8] While many lawyers have viewed Justice Breyer’s opinions as an open invitation to bring a per se capital punishment challenge to the Court, each has failed to convince the Court it was the right time for the debate. But Hidalgo’s petition, filed by Neal Katyal––former Obama administration solicitor general––observes that his case fits the bill. Hidalgo contends that because ­­­his case comes to the Court on direct review, the constitutional issues are well-preserved, and because the “breadth” of Arizona’s aggravating factors “make it an exemplar of arbitrariness,” it is the “ideal vehicle” for a second and final nationwide abolition.

While Hidalgo’s reasoning is appealing and Katyal is an impressive advocate, the Court previously refused to hear a similar appeal last term; and Hidalgo still needs four votes for the Court to accept his case for consideration. Unfortunately, it is unlikely that the Court’s liberal Justices will garner the votes necessary to both grant Hidalgo’s petition and subsequently hold the death penalty unconstitutional.

Hidalgo’s Challenge to Arizona’s Death Penalty Scheme

Through Arizona’s capital punishment scheme––which requires a defendant meet only 1 of 14 broad aggravating factors­­ to be death eligible––99% of the state’s first-degree murder defendants qualify for death. Hidalgo argues that this scheme does not achieve the standard Gregg demands––states must design “aggravating circumstances” that “minimize the risk of wholly arbitrary and capricious action” so as to “narrow” the death eligible.[9] Instead, Arizona’s scheme unconstitutionally transforms every murderer into the “worst of the worst.”[10]

This failure to narrow argument stems from the corollary that because an aggravating factor can fail to sufficiently narrow by itself [11], so too, can a sentencing scheme that has too many. But in a recent UC Davis Law Review article, Chad Flanders––Professor of Law at Saint Louis University––attacked Hidalgo’s argument, noting that Gregg requires “conceptual but not empirical narrowing.” In other words, a state’s statute must limit the death eligible only in principle rather than limit the actual number of those in the class. He reasons that this “conceptual” reading of the narrowing requirement is “better” than an “empirical” reading, but the Court’s capital punishment jurisprudence has never addressed this idea.

Thus, Hidalgo’s petition raises a persuasive point: Arizona’s scheme results in almost every Arizona murderer being death eligible, giving Gregg’s narrowing requirement “more bark than bite.” But while Hidalgo’s claim seems grounded in the Court’s decisions, the Court has yet to directly address a challenge to a broad state death penalty scheme like Arizona’s and has, in fact, denied other petitions for certiorari challenging similar statutes.

Hidalgo’s Death Penalty Per Se Challenge

Next, Hidalgo argues the death penalty is unconstitutional per se because no possible capital punishment scheme can be designed in such a way to prevent the arbitrary and capricious imposition of death that Furman requires. Hidalgo’s petition expounds on three reasons to abolish capital punishment, as noted by Justice Breyer’s dissent in Glossip: (1) the death penalty is fallible, (2) it is still applied arbitrarily, and (3) a consensus exists to support abolition.

The evidence supporting Hidalgo’s first point––that the sheer number of exonerations prove the death penalty is seriously unreliable––is well-established. Since 1973, 159 prisoners on death row have been exonerated, with the most recent in May of this year. And while the number of defendants who were similarly innocent but have already been executed is unclear, one widely accepted study puts the figure at “no less than four percent.” These alarming numbers derive from many flaws in the administration of death, including: public pressure to obtain a conviction, distortions in the jury selection process, and faulty forensic testimony. Recently, John Oliver––host of Last Week Tonight on HBO––brought the dire implications of defective forensic evidence to light, explaining that evidence once considered “airtight” may now be viewed as “junk science.” Among the issues discussed, Oliver established that seemingly infallible evidence––such as fingerprints and DNA––can be wrong; and that some judges even continue to admit bite mark evidence after a leading bite mark expert witness denounced its reliability. Despite this overwhelming evidence, the Supreme Court has never meaningfully addressed the issue in its death penalty decisions.

Second, Hidalgo echoes Justice Stewart’s concurrence in Furman, arguing that because states continue to execute a “capriciously selected random handful” of defendants, the death penalty is “cruel and unusual in the same way being struck by lightning is.” It is true that, forty-five years after Furman, the death penalty is still arbitrarily imposed on “death-eligible” defendants without meaningfully distinguishing between offenders. Instead, juries are improperly influenced by factors relating to race, gender, geography, disparities in the exercise of prosecutorial discretion, and insufficient resources to represent capitally charged inmates.[12]

Third, Hidalgo argues that death is “cruel and unusual” as defined by “evolving standards of decency that mark the progress of a maturing society.”[13] Indeed, with support for the death penalty at its lowest in 40 years, and “30 States hav[ing] either formally abolished the death penalty or hav[ing] not conducted an execution in more than eight years,” there seems to be a decline in the United States’ previous accord for the practice. But it still may not be the right time to address a per se death penalty challenge because the overall numbers are not in abolitionists’ favor. In fact, just last November, California’s initiative to abolish the death penalty was voted down while its measure to sped up the death penalty process was passed, and Oklahoma voters overwhelmingly supported a referendum to prevent abolition in their state––showing it is not so clear the country’s standards have evolved beyond state-sanctioned killings.

Another compelling argument that the death penalty is “cruel” is that rather than deterring crime, it merely fosters revenge. Capital punishment proponents argue that the death penalty provides relief to the moral outrage that follows a brutal murder case. But our society has long opposed such pure retributivism. We do not torture tortures, nor rape rapists. But we continue allowing prisoners to await death on death row for an average of thirteen years. This lengthy duration further destabilizes any argument that the death penalty serves any retributive or deterrent purpose. The death penalty’s cruel nature is even more inexorable because the United States has botched 3% of its executions––administered through injection, electrocution, gas, firing squad and hanging.

The death penalty is also “unusual” because 140 countries worldwide are abolitionist in law or in practice. The United States should aim to be associated with those countries that have decided the world is better without the death penalty rather than being among China, Iran, North Korea, and Yemen as carrying out the most executions last year. Furthermore, as University of Baltimore law professor John Bessler argues, because mock executions are considered “psychological torture” in international law, actual execution should qualify as similarly cruel and unusual.

The Death Penalty and Race

In his petition, Hidalgo maintains that the Court can no longer turn a blind eye to the robust evidence confirming the death penalty’s discriminatory imposition.

The Court first expansively examined the issue of race in the death penalty context in McCleskey v. Kemp when––despite its holding in Eddings v. Oklahoma that death must be imposed “fairly, and with reasonable consistency, or not at all”[14]––it rejected objective evidence substantiating the penalty’s unfair applicable from the eminent Baldus study.[15] The study found that “blacks who kill whites are sentenced to death at nearly 22x the rate of blacks who kill blacks and 7x the rate of whites who kill blacks,” and “after taking into account some 230 nonracial factors that might legitimately influence a sentence,” race was the most compelling factor in the imposition of death.[16] The McCleskey Court accepted the racial disparities as true but rejected them as a reason to abolish the death penalty because doing so would open the floodgates to future lawsuits challenging the constitutionality of various punishments for other crimes. In dissent, Justice Brennan acutely blamed the Court’s holding on a “fear of too much justice.” [17]

The effect of race in capital sentencing was revisited just last term in Buck v Davis, where the prosecutor called an expert witness who testified that because the defendant was black, he was more likely to be a future danger to society.[18] Writing for the majority, Chief Justice Roberts interestingly emphasized that imposing a criminal sanction based on race “poisons public confidence” in the judicial process. [19] The Court held that the possibility of Buck being sentenced to death “in part because of his race . . . is a disturbing departure from a basic premise of our criminal justice system.”[20] The Chief Justice noted, “[o]ur law punishes people for what they do, not who they are.”[21] While the Court’s decision in Buck only answered the narrow question of whether the federal appeals court should have allowed the defendant to appeal a challenge to his death sentence, Chief Justice Roberts’ reference to race begs the question of whether the Court may, in the future, be willing to examine the role race plays in a jury’s decision to impose death. Evidently, Justice Breyer’s assertion endures: “individuals who are executed are not the ‘worst of the worst,’ but, rather, are individuals chosen at random, on the basis, perhaps of geography, perhaps of the views of individual prosecutors, or still worse on the basis of race.”[22]

It follows, Hidalgo argues, that the death penalty must be abolished because the improper influence on jurors of irrelevant factors, like race, are born from features of our Constitution that “the Court itself has increasingly recognized are both problematic and incapable of repair.”

Under Gregg, the Constitution demands that States provide guidance to juries to prevent standardless imposition of the death penalty that would violate the Eighth and Fourteenth Amendments.[23] But under Woodson v. North Carolina, once a defendant is death eligible, States must give juries complete discretion to decline to impose death.[24] As Hidalgo argues, permitting juries to exercise “untrammeled discretion to grant mercy to whomever they wish,” “reintroduces into the death penalty system the very sort of arbitrariness that [Gregg’s] narrowing requirement is intended to remove.” In other words, this discretion allows a juror’s prejudice to dictate which defendants are more worthy of life

After the atrocities advanced by Nazi dictatorship, Germany decided the State should never have the power to kill. Comparably, our extensive history of state supported lynchings and long-term racial discrimination coupled with giving the government the power to kill­­­­––at a rate disproportionately higher for black defendants––merits similar condemnation, not countenance.

Even if Hidalgo convinces the Court to open its door, will he have the votes for abolition?

Following Justice Scalia’s death, the Court seemed evenly split when it came to capital punishment. Justice Breyer and Justice Ginsburg believe it is unconstitutional. Justice Ginsberg has stated that if she “were a queen, there would be no death penalty.” But rather than declaring­­ the death penalty unconstitutional in every capital case––as the late Justices Marshall and Brennan­­––she has decided to maintain a voice in the debate.

Justice Sotomayor and Justice Kagan have not ruled the death penalty unconstitutional per se, but they do believe it is inflicted in an unconstitutional manner. While Justice Sotomayor has been reluctant to speak out against the death penalty during her career, as director for the Puerto Rican Legal Defense and Education Fund in 1981, she signed an internal memo urging the organization to oppose the death penalty­­––stating that capital punishment was “associated with evident racism in our society.” And although she has not challenged the constitutionality of the death penalty while on the bench, she has become an outspoken critic of the methods of execution, calling lethal injection “our most cruel experiment yet” in a recent dissent to a denial of certiorari.[25] Justice Kagan recently called the district court’s reasoning in support of the lethal injection drug in Glossip v. Grossgobbledygook” and although she has affirmed her support for the death penalty based on its “established law,” she––like all the Justices––holds the power to help change the law as it exists and––if joined by four others––would likely exercise it.

On the other hand, the conservative wing of the Court––including Chief Justice Roberts, Justice Thomas, and Justice Alito––has consistently upheld the constitutionality of the death penalty and Justice Gorsuch seems likely to be a reliable fifth vote. While Justice Gorsuch has argued against euthanasia  by stating that “[a]ll human beings are intrinsically valuable,” “life itself is a basic good,” and “the intentional taking of human life by private persons is always wrong,” Justice Gorsuch relied on the phrase private persons during his Senate confirmation hearings to reconcile these views with his favoring of the death penalty. And in one of his first Supreme Court cases, Justice Gorsuch denied a stay request from Arkansas death-row inmates facing execution––indicating he is likely a staunch vote in favor of death.

Finally, Justice Kennedy has held relatively moderate views in the death penalty debate, placing him somewhere in the middle. In Kennedy v. Lousiana, he seemed to signal his willingness to reexamine the use of the death penalty because “in most cases,” justice is better served by “confining [a defendant] and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense.”[26] He has also considered whether the length of the death process is “consistent with sound administration of the justice system” and recently dedicated four pages of an concurring opinion to questioning solitary confinement on death row in cases in which those topics were not at issue.

Thus, while it is not entirely clear the Court has the votes to abolish the death penalty, Hidalgo’s enumerated reasons for abolition might appeal to Justices Sotomayor, Kagan and Kennedy in the wake of a full briefing on the issue.

Death penalty proponents may argue that because the principle of stare decisis demands decisions be made according to precedent, the question of the death penalty’s constitutionality is moot. But that concept is inapplicable where “the governing decisions are unworkable”[27] or a past decision’s rationale “no longer withstands careful analysis.”[28] And unlike other constitutional issues grounded simply in the technical legal issues at stake, capital punishment decisions involve the personal feelings of the justices regarding state-sanctioned killing of human beings. [29] Justice Ginsberg once noted that while she wishes she could “go back to the day when the Supreme Court said the death penalty could not be administered with an even hand,” she is not likely to get that opportunity. But Hidalgo’s filing has given the high court just that. While the majority of the public may still favor the death penalty, the government should aim to be better than the individuals they govern and the state should not have the power to decide who lives and who dies.

As Justice Brennan announced, “the death penalty experiment has failed.” [30] And with Justice Kennedy’s indeterminate time left on the court, I hope the Court will recognize that now is the time to answer the door and admit it.


[1] Furman v. Georgia, 408 U.S. 238 (1972).

[2] See id.

[3] Gregg v. Georgia, 428 U.S. 153 (1976).

[4] Zant v. Stephens, 462 U.S. 862, 877 (1983) (emphasis added).

[5] Id. at 187.

[6] Glossip v. Gross, 135 S. Ct. 2726, 2762 (2015)

[7] See Davila v. Davis, 137 S. Ct. 2058 (2017); McWilliams v. Dunn, 137 S. Ct. 1790 (2017); Moore v. Texas, 137 S. Ct. 1039 (2017); Buck v. Davis, 137 S. Ct. 759 (2017).

[8] See e.g. Siraci v. Florida, 137 S. Ct. 470, 484 (2016) (Breyer, dissenting from denial for certiorari); Glossip, 135 S. Ct. 2726 (Breyer, dissenting); Valle v. Florida, 132 S. Ct. 2726, 2769 (2011) (Breyer, dissenting from denial of stay); Knight v. Florida, 120 S. Ct. 459, 461 (1999) (Breyer, dissenting from denial for certiorari).

[9] Gregg, 428 U.S. at 189.

[10] See Kennedy v. Louisiana, 554 U.S. 407, 446–447 (2008).

[11] See Gregg, 428 U.S. at 195, n. 46 (noting that a death penalty “system could have standards so vague that they would fail adequately to channel the sentencing decision patterns of juries with the result that a pattern of arbitrary and capricious sentencing like that found unconstitutional in Furman could occur.”).

[12] Glossip v. Gross, 135 S. Ct. 2726, 2762 (2015).

[13] Gregg, 428 U.S. at 172.

[14] Eddings v. Oklahoma, 455 U.S. 104, 112 (1982).

[15] McCleskey v. Kemp, 481 U.S. 279 (1987).

[16] Id. at 288.

[17] Id. at 328 (Brennan, dissenting).

[18] Buck v. Davis, 137 S. Ct. 759 (2017).

[20] Id. at 778.

[21] Id.

[22] Siraci, 137 S. Ct. at 484 (Breyer, dissenting from denial for certiorari).

[23] 428 U.S. 153.

[24] Woodson v. North Carolina, 428 U.S. 280 (1976).

[25] Arthur v. Dunn, 137 S. Ct. 725, 733 (2017) (Sotomayor, dissenting).

[26] Kennedy v. Louisiana, 554 U.S. 407, 447 (2008).

[27] Payne v. Tennessee, 501 U.S. 808, 809 (1991).

[28] Lawrence v. Texas, 539 U.S. 558, 577 (2003).

[29] (noting that “[n]ew justices have described being the final word on whether a death-row inmate is executed — often during a late-night, last-chance appeal to the Supreme Court — as a time when the responsibility of the role crystallizes.”).

[30] McCollum v. North Carolina, 512 U.S. 1254, 1255 (U.S. 1994) (Brennan, dissenting) .