Arizona attorneys ask U.S. Supreme Court to review state death-penalty statute

Arizona defense attorneys on Monday asked the U.S. Supreme Court to consider whether state statutes give too much discretion to prosecutors to determine which murders deserve to be punished by a death penalty, and whether the inability of certain counties to fund capital trials violates the due process clause of the Constitution.

The petition for a writ of certiorari, as such requests are known, also extrapolates to the nation as a whole. It asks the high court if it is time to reconsider the death penalty in light of changing opinions, nationally and internationally, as to whether it constitutes cruel and unusual punishment.

It will be months before the court decides if it will hear the case.

The question has been bouncing around Arizona courts since 2015. In March, the Arizona Supreme Court knocked it down, ruling that the state statutes were sufficient.

Phoenix defense attorneys Susan Corey, Garrett Simpson and Consuelo Ohanesian, who argued the matter in Maricopa County Superior Court and the state Supreme Court, decided to take it to the nation's capital. And they enlisted Washington, D.C., attorney Neal Kumar Kaytal as lead counsel.

Kaytal, a former acting U.S. Solicitor General, has tried more cases before the U.S. Supreme Court than any other attorney, including the one determining that military trials at Guantanamo violated the Constitution and international law.

Most recently, Kaytal represented the state of Hawaii in challenging President Donald Trump's travel ban.

"We knew our chances are better with him on the case," Corey said.

RELATED: Arizona publishes new lethal-injection rules for prisoner executions

Corey, an attorney with the Maricopa County Office of the Legal Advocate, researched more than a decade's worth of capital murder cases in her attempt to prove that the state statute is arbitrary.

In 1972, in a case called Furman vs. Georgia, the U.S. Supreme Court set aside the death penalty after determining that it was randomly applied at the total discretion of prosecutors. Four years later it was reinstated when states came up with the concept of identifying aggravating factors that more specifically identified — or narrowed — the definition of the "worst of the worst" murders, those that called for death.

Arizona's death-penalty statute fit into that category. Among the aggravating factors are that the murder was especially cruel, heinous or depraved; that it was committed for monetary gain; that there were multiple murders; that the victim was a child; and so on.

But over the past four decades, the number of aggravating factors in the Arizona state statute has risen from six to 14, and Corey and Simpson argue that virtually every murder now has aggravating factors that qualify it for the death penalty.

To prove their point, they assembled data from 866 murders over an 11-year period and found that 856, or 98.8 percent, of them had aggravating factors that could qualify them as death cases. They concluded that the only real determinant was the whim of the prosecutor.

Furthermore, they noted that smaller Arizona counties tend to pursue fewer capital cases because of the expense of trying them.

Corey and Simpson and other attorneys first broached the question in 2015 on behalf of 27 defendants facing capital murder charges. A Maricopa County Superior Court judge expressed sympathy with their logic, but determined that the decision rested with the state Supreme Court, which refused to hear the argument.

That meant that Corey and Simpson had to wait until one of those defendants was actually sentenced to death to raise the question again. It fell upon the case of Abel Hidalgo, who committed murder for hire in 2000. In March, the Arizona Supreme Court upheld his death sentence.

Corey and Simpson had argued there were so many aggravating factors that every murder was death eligible. The state countered that each case needed to be evaluated by itself, that no one aggravator applied to all murders and all aggravators could not apply to a single murder.

The defense attorneys say that leaves discretion to the prosecutors, when the narrowing is supposed to be done by legislators defining in statute which cases call for death.

They hope the U.S. Supreme Court will reconsider.

"A legislature is able to establish 'clear and objective' systemwide standards that

will lead to uniform distinctions between those who are death-eligible and those who are not," said Monday's petition. "By contrast, if the question is left to the prosecutors’ 'standardless sentencing discretion,' the class of death-eligible defendants will shift depending on which prosecutor is making the charging decision. In that sort of scheme, those not sentenced to death are often 'just as reprehensible' as those who are, a form of arbitrariness that the Furman Court firmly rejected."

The petition goes further, questioning the relevance of the death penalty in America. It says 104 countries have abolished it, and notes that in the past 15 years, seven U.S. states have as well. Meanwhile, 117 death-row prisoners have been exonerated since 1989.

READ: Arizona lawyer's sleuthing frees murder convict

"In short, the death penalty has become a rare and 'freakish' punishment," the petition says.

The petition invokes the famous dissent by Supreme Court Justice Stephen Breyer in a 2015 decision on lethal injection in which he asked "a more basic question: whether the death penalty violates the Constitution."

The Maricopa County Attorney’s Office, which contested Corey’s original argument alleging death-penalty prosecutions are arbitrary and which tried the Hidalgo case in Superior Court, declined comment.

Attorney General Mark Brnovich, whose office defended the Hidalgo death sentence and the death-penalty statute before the Arizona Supreme Court, said only, “We've always believed that those who commit the ultimate crime deserve the ultimate punishment."