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Will the Supreme Court Kill The Death Penalty This Term?

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Will the U.S. Supreme Court add the fate of the death penalty to a term already fraught with hot-button issues like partisan gerrymandering, warrantless surveillance, and a host of contentious First Amendment disputes?
That’s the hope of an ambitious Supreme Court petition seeking to abolish the ultimate punishment. But it runs headlong into the fact that only two justices have squarely called for a reexamination of the death penalty’s constitutionality.
Abel Hidalgo challenges Arizona’s capital punishment system—which sweeps too broadly, he says, because the state’s “aggravating factors” make 99 percent of first-degree murderers death-eligible—as well as the death penalty itself, arguing it’s cruel and unusual punishment.
He’s represented by former acting U.S. Solicitor General Neal Katyal—among the most successful Supreme Court practitioners last term. Hidalgo also has the support of several outside groups who filed amicus briefs on his behalf, notably one from a group including Ari…

Death penalty case latest test for Arkansas court

A looming Arkansas Supreme Court decision over whether information about execution drugs should be kept secret could reveal whether the state's death penalty system is truly "broken," as Arkansas' last top attorney once claimed. It's the 1st major test for a court whose sharp divisions last year over another divisive issue - gay marriage - resulted in justices punting rather than deciding.

Unlike the gay marriage case, the state's highest court can't rely on the U.S. Supreme Court to step in and decide the issue. But the clock is still ticking, with days to go until part of Arkansas' execution drug supply expires.

Roughly a month has passed since justices heard oral arguments from lawyers for the state and the inmates. A lower court struck down the secrecy law, which lets the prison system withhold information about the manufacturer, seller and other information about the lethal drugs, even from the inmates themselves. 8 death-row inmates sued to overturn the law.

Arkansas has 34 inmates on death row, but hasn't executed an inmate since 2005, when Mike Huckabee, a Republican, was governor.

Former Gov. Mike Beebe, a Democrat, signed death warrants while in office but completed 8 years in office without one taking place, because of legal challenges. He also said he would have abolished the death penalty if lawmakers sent him legislation doing so.

Beebe's successor, Republican Gov. Asa Hutchinson, is a death penalty supporter but has gone through the first year and a half of his term without an execution.

Hutchinson set dates last year for the first executions since 2005, but the court granted stays until the inmates' challenge was heard. At the time, he cast it as another step in the legal process.

"Had it not been set, then we would be sitting here 2 years, 3 years from now waiting for the next court challenge," Hutchinson told reporters. "Nothing moves if the governor does not set the date."

The window is closing for any of the executions to move forward, even if the state wins the case. Arkansas has until June 30 to execute the inmates with drugs it currently has on-hand. 15 doses of the paralytic vecuronium bromide expire at the end of next month, and the state's supplier has said it will not provide anymore. Sending the case back to Circuit Judge Wendell Griffen, who struck down the law, could narrow that window even further.

Complicating that timeline further is the fact that Supreme Court decisions typically take effect 18 days after they're issued - though justices can stray from that practice.

If justices were to allow executions to move forward, Hutchinson and state officials will be faced with the question of how - and if - the state should put 8 men to death in a matter of days. If justices agree with Griffen and strike down the execution law, it puts the state in a familiar position of trying to revive a death penalty process that's been in limbo for more than a decade due to court challenges and drug shortages.

It would also come nearly three years after former Attorney General Dustin McDaniel bemoaned the state of the death penalty system, saying he didn't see executions resuming anytime soon.

"I continue to support the death penalty, but it's time to be frank. Our death penalty system as it currently exists is completely broken," McDaniel said 3 years ago.

The uncertainty surrounding the case is similar to last year, when the state weighed whether to uphold a judge's decision striking down Arkansas' ban on gay marriage. That case was sidelined for months over an unusually public dispute over which justices could hear it. Justices ultimately dismissed the case hours after the U.S. Supreme Court legalized same-sex marriage nationwide.

This case may not provide clarity on the future of executions in Arkansas. But it could indicate whether the state's highest court is willing to, at least this time, give a definitive answer on a controversial matter.

Source: Associated Press, June 19, 2016

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