An Arizona case pending in the Supreme Court could go a long way toward ending the death penalty nationwide, says Harvard law Prof. Laurence Tribe. At issue is “aggravator creep,” the rising number of aggravating factors used to justify executions.
The Supreme Court soon may accept a case challenging Arizona’s death penalty statute and capital punishment nationwide in Hidalgo v. Arizona, Harvard law Prof. Laurence Tribe writes in the Washington Post. After the high court ruled the death penalty unconstitutional 45 years ago because it was administered arbitrarily, Arizona and other states rewrote their death-penalty statutes in an attempt to narrow the punishment to the worst offenders. The Arizona legislature passed a law in 1973 that required prosecutors to prove at least one of six aggravating factors before the death penalty could be imposed. Since then, the Arizona legislature has more than doubled its number of aggravating factors to 14. Scholars call this problem “aggravator creep.” As a result of Arizona’s expanded list of aggravating factors, 99 percent of those convicted of first-degree murder are eligible for execution. This fails to meet the constitutional duty to narrow the punishment to murderers “most deserving” of the punishment.
Studies show that people in Arizona (and nationally) accused of murdering white victims are much more likely to receive the death penalty. There are also geographic disparities among Arizona counties. Nationwide, eleven states with the death penalty on their books have not had an execution in the past 10 years; four states have suspended the death penalty, and 19 have abolished it. Executions went from a modern high of 98 in 1999 to 20 in 2016. Tribe says 160 people have been exonerated and freed from death row because of evidence that they were wrongly convicted. The National Academy of Sciences concluded that 4 out of every 100 people sentenced to death in the U.S. are innocent. When even 1 in 1,000 would be unacceptable, the continued use of the death penalty undermines the public’s confidence in the criminal-justice system, Tribe writes.