A 2018 decision in the Arizona Supreme Court raised new strong claims that the death penalty in the U.S. has become a "fatal lottery," with critical implications for its constitutionality and its future in American criminal law. In the case, Hidalgo v. Arizona, the defense provided preliminary evidence that over the past twenty years, nearly 98% of all first- and second-degree murder defendants in Maricopa County-the state's largest county and location of the nation's fifth largest city-were death-eligible. The Arizona Supreme Court conceded this point even as it rejected Mr. Hidalgo's appeal. What the Arizona Supreme Court conceded, and what the evidence showed, was the expansive criteria for death eligibility made it impossible for states to "perform the 'constitutionally necessary' narrowing function at the stage of legislative definition" to prevent "a pattern of arbitrary and capricious sentencing.
Judges | Law
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Jeffrey A. Fagan,
Furman's Legacy: New Challenges to the Overbreadth of Capital Punishment,
Colum. Hum. Rts. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2837