Former acting U.S. Solicitor General Neal Katyal is hoping that the time is finally right for the U.S. Supreme Court to declare the death penalty unconstitutional again.
Katyal, now a Hogan Lovells partner in Washington, filed
a certiorari petition with the court on Monday in an Arizona death-row case, asking the court to decide whether "the death penalty in and of itself violates the Eighth Amendment, in light of contemporary standards of decency."
If the court grants the case, it will add to the high court's blockbuster docket of upcoming cases for the fall term, on issues ranging from political gerrymandering to President Donald Trump's immigration travel ban.
The Arizona case is titled Hidalgo v. Arizona. The main flaw in the Arizona death-penalty statute, Katyal wrote, is that so-called "aggravating factors" have been added over the years to the point where 99 percent of those who commit first-degree murders are eligible to be executed.
"The Arizona death penalty statute is deeply unconstitutional, as it does not in practice narrow who is subject to the death penalty," Katyal said, adding that "the death penalty as a whole, after decades of experience, is flatly unconstitutional as well."
One of Katyal's arguments is that with the sharp drop in death sentences and executions nationwide, capital punishment has become "a rare and freakish punishment" that the Eighth Amendment forbids.
The brief notes that only 31 people were sentenced to death last year, down 90 percent from 20 years before.
Citing Gregg v. Georgia, the 1976 Supreme Court decision that reinstated the death penalty after it was suspended in 1972, Katyal wrote that "Gregg’s hope that the punishment of death could be administered rationally and in accord with legitimate penological purposes has proved to be empty, a fatal mistake which this court must now correct."
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Source: The National Law Journal, Tony Mauro, August 15, 2017
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