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.
Katyal is handling the travel ban case, and is playing a major role in an important trio of business cases testing whether labor law can be used to forbid arbitration agreements in employment contracts.
But Katyal has shrugged off the workload, stating he will share and consolidate some of his teaching duties at Georgetown University Law Center, where he is a professor. On Monday, Katyal tweeted that the death-penalty petition is “what we’ve been up to & why we’ve been relatively silent for a while. Time to realize the death penalty in practice is a disaster. “
In an interview Katyal said his firm has a long history of significant death-row representations, and “we redoubled our efforts” after Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, said in a 2015 dissent that the court should revisit whether the penalty is constitutional.
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.”
As an Arizona legislator, retired Supreme Court justice Sandra Day O’Connor helped draft a reformed state death-penalty law in 1973 that legislators have expanded since.
Dale Baich, an Arizona federal defender and veteran of death-penalty litigation, said, “In 1973, there were six aggravators. Now there are 14 factors.” Baich added, “The time is right for the Supreme Court to take a look at the Arizona death penalty statute.”