A new challenge to the constitutionality of the death penalty could hit the Supreme Court’s docket soon, following the filing of a petition by former Obama administration acting solicitor general Neal Katyal on Monday.
Katyal, who argued more cases before the Supreme Court last term than any other attorney, has garnered attention for his arguments against President Trump’s travel ban. But Katyal’s filing on Monday, first reported by Buzzfeed, indicated Katyal is spoiling for another high-profile battle at the Supreme Court in the coming term.
Katyal’s petition urges the Supreme Court to review the constitutionality of the death penalty and whether capital punishment in Arizona — “which includes so many aggravating circumstances that virtually every defendant convicted of first degree murder is eligible for death” — in particular, violates the Eighth Amendment.
“In the last twenty years, the number of death sentences imposed and carried out has plummeted,” said the petition filed by Katyal. “A national consensus has emerged that the death penalty is an unacceptable punishment in any circumstance.”
Katyal continued, “[T]he present reality of capital punishment — that those sentenced to death must spend decades languishing on death row with the remote but very real possibility of execution hovering like a sword of Damocles — is ‘a punishment infinitely more ghastly’ than a swift death.”
Katyal’s petition comes on behalf of Abdel Daniel Hidalgo, who killed someone in exchange for $1,000 from a gang member, according to the petition, and also killed a bystander during the course of his crime.
The Supreme Court has not appeared hospitable to death row inmates in its most recent term, including after Justice Neil Gorsuch returned the high court to a full bench of nine justices. One of Gorsuch’s first major actions on the Supreme Court was to cast a decisive vote with the 5-4 majority to allow a slew of Arkansas executions to proceed earlier this year. While Gorsuch has written extensively on the issue of death and dying, his jurisprudence on the death penalty is limited.
Justice Stephen Breyer, however, has repeatedly indicated his desire for the Supreme Court to review the death penalty. Breyer has authored dissents and made other comments urging his colleagues on the high court to review the constitutionality of the death penalty.
If the case is evenly divided between the high court’s ideologically right and left blocs, then Justice Anthony Kennedy’s vote could again prove determinative. While such action is not necessarily reflective of his opinion of the merits of the case, Kennedy twice granted the petitioner additional time to file the petition that finally reached the Supreme Court on Monday.
