As predicted, the U.S. Supreme Court has finally turned down the capital case of Hidalgo v. Arizona with an opinion on the turn-down by Justice Breyer.
However, as not predicted, (1) the opinion is not a dissent, and (2) the issue of whether the death penalty is constitutional generally is not even mentioned.
Justice Breyer's dissent relates to the question of whether Arizona's list of circumstances that separate death-eligible cases from those where the death sentence is out of the question is too broad to serve the required "narrowing" function. It is an issue that requires legislative attention. For many years, I have been encouraging pro-death-penalty legislators to stop expanding their lists and look to pruning them. It would be useful to tailor the lists more closely to fit the circumstances in which experience has shown us that prosecutors will actually seek the death penalty and juries will actually impose it, whether closer tailoring is constitutionally required or not.
My suggestions along this line have largely fallen on deaf ears.
Justice Breyer thinks there is a constitutional issue here, but he wants a case with a better record as the vehicle.
On the more general question, the silence is encouraging. Gregg v. Georgia (1976) should be regarded as settling the matter.
However, as not predicted, (1) the opinion is not a dissent, and (2) the issue of whether the death penalty is constitutional generally is not even mentioned.
Justice Breyer's dissent relates to the question of whether Arizona's list of circumstances that separate death-eligible cases from those where the death sentence is out of the question is too broad to serve the required "narrowing" function. It is an issue that requires legislative attention. For many years, I have been encouraging pro-death-penalty legislators to stop expanding their lists and look to pruning them. It would be useful to tailor the lists more closely to fit the circumstances in which experience has shown us that prosecutors will actually seek the death penalty and juries will actually impose it, whether closer tailoring is constitutionally required or not.
My suggestions along this line have largely fallen on deaf ears.
Justice Breyer thinks there is a constitutional issue here, but he wants a case with a better record as the vehicle.
On the more general question, the silence is encouraging. Gregg v. Georgia (1976) should be regarded as settling the matter.
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