In a new filing, Neal Katyal is asking the high court to consider Arizona’s death penalty law — and whether the death penalty itself is unconstitutional.
WASHINGTON — One of the country’s top lawyers is asking the Supreme Court to take up a case that could reshape — or even end — the death penalty in America.
The aggressive filing comes as the Supreme Court is already set to hear a high-profile series of cases.
An Arizona death row inmate, Abel Daniel Hidalgo, has been arguing for the past three years that the state’s death penalty law is unconstitutional because it doesn’t do enough to narrow who is eligible for the death penalty among those convicted of murder.
Earlier this year, Neal Katyal, best known these days for serving as the lead lawyer for Hawaii’s challenge to President Trump’s travel ban, agreed to serve as Hidalgo’s lawyer at the Supreme Court.
Katyal, the former acting solicitor general in the Obama administration, asked the justices in Monday’s filing to hear Hidalgo’s case, and to strike down Arizona’s death penalty law.
The filing comes more than two years after Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, called for a wholesale review of the constitutionality of the death penalty. Justice Sonia Sotomayor has also expressed great concerns about the courts’ handling of death penalty cases, as well as some states’ death penalty laws.
And Justice Anthony Kennedy has expressed concerns about the death penalty’s imposition, and has cast key votes excluding groups of people — like children and the intellectually disabled — from being eligible for the death penalty. He has not, however, given any specific indication that he is ready to join Breyer’s call to review the constitutionality of the death penalty overall — and has allowed several executions to proceed since Breyer's call.
Katyal, however, joined by other lawyers at his firm, Hogan Lovells, as well as by Susan Corey and others at the Office of the Legal Advocate in Arizona, and Arizona attorney Garrett Simpson, thinks the time is now — a move that could be tied to concerns by many liberal lawyers about whether and when Kennedy, at 81, might retire from the court.
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Source: BuzzFeed News, Chris Geidner, August 15, 2017
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