I was grateful to contribute to the Akron Law Review’s recent symposium issue on Justice Scalia’s legacy in criminal law and procedure. My short piece, available here, analyzes Justice Scalia’s work in death penalty cases. One of the issues I tackle has to do with the viability of judicial abolition on the post-Scalia Court. I mention this now because a new petition has arrived at the Court in Hidalgo v. Arizona, which was featured on SCOTUSBlog this week and which offers the Court the opportunity to consider judicial abolition. Neal Katyal is counsel of record for Hidalgo, and Katyal’s name certainly lends gravitas to the petition.
One thing about the petition irked me. In its recitation of the facts, the petition simply says that Hidalgo “killed someone in exchange for $1,000 from a gang member. In the course of that crime, he killed a bystander.” Those facts are literally true, but woefully incomplete and santitized.
Yes, Hidalgo killed “someone,” but that someone had an identity: Michael Cordova, whom Hidalgo shot in the forehead. And as the Arizona Supreme Court’s opinion states, Hidalgo took the $1,000 from the gang member “without knowing Cordova or why the gang wanted him murdered.” In other words, it was just business for Hidalgo. The “bystander” reference is also problematic. The “bystander” was Jose Rojas, and his death was no accident; it was not as if Rojas was walking by and was randomly struck by a bullet that had ricocheted off of a cement wall. Hidalgo, the facts from the lower court opinion show, deliberately shot Rojas in the head to prevent him from being available as a witness. And after Hidalgo had shot both men in the head, according to the state supreme court, Hidalgo “shot each victim five more times to ensure he died.”
To be fair, Hidalgo attaches the Arizona Supreme Court opinion as an appendix. So the complete set of facts is literally contained in the petition, if the reader ventures to the appendix to read the state court opinion. Still, the petition’s effort to sanitize the murders here is frustrating to read.
Substantively, the per se challenge to the death penalty is not the only issue raised in the petition. Hidalgo leads with the claim that Arizona’s list of statutory aggravating factors — 14 of them, see Ariz. Rev. Stat. 13-751 — fail to perform the constitutionally required narrowing function because they are so numerous and broad that a defendant would be death eligible for most any first-degree murder. It’s an interesting framing of the narrowing problem, but I am skeptical of the claim for a variety of reasons, including some identified in the Arizona Supreme Court opinion.
The question is not, “how many aggravators appear on the state’s list?” I would argue that the Eighth Amendment does not require a numerical cut-off point. If it did, how would we know what that cut-off point is? Rather, the question is whether each aggravator on the list circumscribes the broader class of first-degree murderers. The mere fact that all of the aggravators added together will apply to a broader class of murderers than any individual aggravator does not make the scheme insufficiently narrow, because all of the aggravators on the list will not apply to each case (indeed, if there were a case in which all 14 aggravators applied to the defendant, it would be hard to argue that that defendant was not deserving of death-eligibility).
In other words, one could argue, the constitutionality of the State’s narrowing procedure should be judged on an as-applied basis: once the State enumerates eligibility factors in its capital sentencing scheme, the only thing left is to determine the validity of each factor as it applies to the defendant in a given case. If one could make what amounts to a facial challenge to the list of statutory aggravators generally, then the remedy is . . . what? Excising some? And if the Constitution required the State to narrow its list even further, how would the Eighth Amendment — or a court — even know which aggravators had to be excised? What standard would be employed to effect that remedy?
It seems to me that the only way to answer those questions is to evaluate each individual aggravator for its validity. And yet Hidalgo does not allege that any of the aggravators that apply in his case were themselves constitutionally invalid. Curious. The State Supreme Court, in my view, properly disposed of this claim, relying on the authority of Tuilaepa v. California, and also properly understood the distinction between eligibility and selection.
But let’s assume for the moment that Arizona’s scheme of aggravators is constitutionally overbroad. Even if Arizona’s legislature — voluntarily, or as a result of judicial compulsion — had to further narrow its list, Hidalgo’s crime surely would fit into one or more factors on a constitutionally permissible shorter list that distinguish his crime from a first-degree murder generally. He killed more than one person in a single criminal episode, substantially premeditated the killing of Cordova, committed the Cordova murder for pecuniary gain, and the murders were closely connected to the activities of a criminal enterprise. It is not clear, then, that Hidalgo would escape the death penalty even if the statute was narrowed further. Perhaps this is why he focuses on the breadth of the statutory list generally, rather than on the particular aggravators in his case. Even if we assumed the invalidity of Arizona’s list, it is not difficult to imagine a constitutionally permissible list of statutory aggravators that would make Hidalgo death-eligible.
Still, keep an eye on this case.