Soon the U.S. Supreme Court will consider a petition for certiorari addressing the death penalty in Arizona and possibly nationwide.
Together with more than 20 retired judges and prosecutors experienced with Arizona’s capital system, I have urged the high court to take Hidalgo v. Arizona to eradicate arbitrariness and overbreadth from the death penalty system.
In 1972, in Furman v. Georgia, the Supreme Court invalidated capital statutes for making death sentences as capricious as being struck by lightning and, instead, required precise guidelines to avoid executions of a “capriciously selected random handful” of offenders.
Following Furman, then-Arizona state Sen. Sandra Day O’Connor asked me, as the associate director of the Arizona Criminal Code Commission, to draft a new death sentencing statute consistent with the court’s narrowing requirement.
The new death penalty law Arizona adopted in 1973 sought to comply with the court’s narrowing requirement by making prosecutors prove at least one of six defined aggravating factors as a precondition to imposing death.
Later as a judge of the Maricopa County Superior Court and then the Arizona Court of Appeals, I saw firsthand the problems with evolving capital statutes.
Since the law’s passage in 1973, the Arizona Legislature, like that of some other states, including California, has steadily expanded aggravating factors, eventually to 14 broadly defined circumstances. “Heinous,” “depraved,” “cruel,” “calculated” and “without legal justification” are among the sweeping tautologies in these aggravators. The statute now encompasses eligibility for death far beyond “the worst of the worst.”
Abel Hidalgo was convicted and sentenced to death in Maricopa County for a gang-related shooting. Hidalgo was born into a gang-affiliated family, and had suffered childhood abuse. In the lower courts, Hidalgo offered expert evidence showing that, over a period of 11 years in Maricopa County, where Phoenix is located, at least one aggravating factor existed in 856 of 866 murders, 99 percent of all cases. When virtually all first-degree murders are eligible for death, the “worst of the worst” requirement turns on its head. Every murderer is now “the worst.”
Arizona’s aggravator creep has led to a muscular surge in death sentences. Recently, Maricopa County had 65 percent more death penalty cases than the nation’s next three highest capital jurisdictions combined.
One consequence of this development is finding enough qualified lawyers to handle the onslaught, leading to delays in imposing the sentences and, inevitably, ineffective representation. Aggravator creep has also enabled racial disparities: a Hispanic man accused of killing a white victim in Arizona is 4.6 times more likely to be sentenced to death than a white killer of a Hispanic victim, giving new meaning to “white lives matter.”
Since Furman, this nation has been tinkering with capital punishment in counterproductive ways prompted in part by legislators’ disdain for empirical research and preference for tough-on-crime halos over constitutional laws. The court could conclude this experiment by holding that the overbroad death penalty is no longer constitutional in Arizona and, indeed, in all capital states.
Thirty-one states have abandoned capital punishment, including 19 that have formally abolished it, four that have imposed moratoria, and eight that have gone without an execution in the past decade.
The 20 executions in the nation in 2016 is the lowest number since 1991. Only 2 percent of counties make up the majority of the country’s death penalty statistics, with Maricopa County at the top of the list.
Among the reasons for increasing capital discomfort is the fear, observed by O’Connor herself, of executing innocent people. A 2014 National Academy of Sciences study found that 4 percent of people sentenced to death between 1973 and 2004 were likely innocent. Since 1973, 159 people have been freed from death row with evidence of their innocence.
While the Supreme Court could instruct the Arizona Legislature to fix its statute again, the legislative pattern over the past four decades has resulted in the re-creation of the very arbitrariness the court condemned in Furman.
The more sensible remedy is to acknowledge that the death penalty is broken beyond legislative repair. Ending capital punishment altogether, achieved in the European Union long ago, would remove the risk of executing the innocent, increase public confidence in our justice system, save millions of public dollars, and affirm the inherent value of each human life, including those now politically devalued.
Rudy Gerber retired from the Arizona Court of Appeals in 2001 after 22 years as a judge. He is now an arbitrator and adjunct law professor at Empire College School of Law in Santa Rosa, California.