Restoring Empirical Evidence to the Pursuit of Evenhanded Capital Sentencing

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Joseph J. Perkovich  is a founding Principal Attorney of Phillips Black, Inc., a nonprofit public interest law practice providing direct representation in capital habeas corpus litigation, and an Adjunct Associate Professor of Law at the Washington University School of Law.

In the denial of certiorari review in Hidalgo v. Arizona, 138 S. Ct. 1054 (2018), a four-Justice statement commented on the petition and the underlying litigation challenging, on the basis of empirical evidence, whether the Arizona capital sentencing statute sufficiently narrows the pool of defendants eligible to receive the death penalty. The Hidalgo Statement observes that the Arizona Supreme Court erred in its application of the Federal law and the petition raised an “important Eighth Amendment question” based on research into the operation of the sentencing statute. In declining the case, the four Justices encouraged similar future challenges and urged the development of trial court records examining any such statistical proof of alleged constitutional deficiencies.

Since the landmark decision McCleskey v. Kemp, 481 U.S. 279 (1987), the Supreme Court has essentially sidelined empirically developed challenges to criminal statutes. Hidalgo offers noteworthy guidance to the potential restoration, after three decades, of a former avenue for constitutional redress premised upon statistical and historical analyses.

This article addresses the present implications of the Burger and Rehnquist Courts’ foreclosure of this means to constitutional scrutiny and suggests steps to restoring the evidentiary salience of empirical proof reflecting the actual operation of the death penalty.

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