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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…

U.S.: A Wiser Generation of Prosecutors

The newly elected district attorney in Denver, Beth McCann, announced last month that her office would no longer seek the death penalty. "I don't think that the state should be in the business of killing people," she said.

In Harris County, Tex., which includes Houston and has long been one of the most execution-friendly counties in America, the new district attorney, Kim Ogg, said there would be "very few death penalty prosecutions" under her administration.

In January, the Democratic attorney general in Washington State, Bob Ferguson, proposed a bill that would ban the death penalty there. The bill is supported by the governor, Jay Inslee, a bipartisan group of legislators and, notably, by Mr. Ferguson's Republican predecessor.

These women and men are at the forefront of a new generation of local and state law-enforcement officials, most elected in 2015 and 2016, who are working to change the national conversation about the proper role of the prosecutor - one of the most powerful yet least understood jobs in the justice system.

Just a few years ago, it was political suicide for a district attorney almost anywhere to profess anything less than total allegiance to the death penalty, or to seeking the harshest punishments available in every case.

Times are changing. As capital punishment's many flaws have become impossible to ignore, its use has dwindled. The number of new death sentences and executions continues to drop - only 30 people were sentenced to death nationwide in 2016, and 20 were executed. Prosecutors aren't just seeking fewer death sentences; they're openly turning against the practice, even in places where it has traditionally been favored.

Reformist prosecutors are also changing how they handle non-capital offenses, which make up the vast majority of prosecutions. Kim Foxx, the new state's attorney in Cook County, Ill., which includes Chicago, ordered her prosecutors in December not to bring felony charges in shoplifting cases involving less than $1,000 of goods, which is the vast majority of cases. 

The idea is to keep more nonviolent offenders, many of whom are homeless, drug addicted or mentally ill, out of jail and steer them into treatment programs where they will be less likely to re-offend.

Prosecutors like these are especially important today. Donald Trump's blunt, hysterical "law and order" campaign distorted the reality of crime in America - invoking an apocalyptic hellscape when in fact crime remains at historic lows. Now that Mr. Trump is president, his dark vision is likely to be implemented on the federal level by his pick for attorney general, Jeff Sessions, who as a senator has fought almost all efforts at justice reform.

In these circumstances, the best chance for continued reform lies with state and local prosecutors who are open to rethinking how they do their enormously influential jobs.

Source: The New York Times, Editorial, February 6, 2017

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