By Zach Stern

In order to comply with Supreme Court precedent since the reinstatement of the death penalty in 1976[1], states are required to implement procedures that narrow the group of people eligible for death.[2] The reason for this is obvious: the death penalty should be reserved for the worst offenses and the worst offenders. Otherwise known as the narrowing requirement, states have two options to comply.[3] First, states can narrow the number of cases eligible for first-degree murder and make every first-degree murder case eligible for the death penalty.[4] Alternatively, state legislatures can enact statutory aggravators that must be present in a first-degree murder case for death to be on the table.[5] Arizona has chosen this second option. As a result, Arizona currently has eleven statutory aggravators.[6]

The Supreme Court’s insistence on this narrowing requirement is twofold. First, in order to comply with Eighth Amendment precedent, our society’s harshest penalty cannot be handed out in a “random” manner.[7] Without the narrowing requirement, there is no law governing who receives the death penalty, rendering the use of death arbitrary and violative of the Eighth Amendment. And second, in this country, when the death penalty has been imposed historically, it has been in a racist and classist manner[8]; black defendants are, and have been, far more likely to receive capital punishment than white defendants, and black defendants are most likely to receive the death penalty when the victim is white.[9] In order to avoid arbitrary punishments in violation of the Constitution, and the racist imposition of capital punishment, states must sufficiently, and legally, narrow the class of persons eligible for death.

While Arizona’s eleven statutory aggravators at first glance appears to do just this, it has failed to do so. A study between 2002 and 2012 showed that nearly 99% of first-degree murder cases in Maricopa County contained one aggravator, thus making the case death eligible.[10] If the purpose of the narrowing requirement is to limit the number of cases, and defendants, eligible for death, and base it around the worst offenses, 99% is clearly too high. The reason 99% of first-degree murder cases are death eligible is because the eleven statutory aggravators cover (nearly) all possible homicide cases. For instance, if a murder is committed in an “especially heinous, cruel or depraved manner,” it is death eligible.[11] Most murders are certainly cruel. And those that are not are most likely not first-degree murder cases, making them automatically ineligible for the death penalty. Moreover, if the defendant was previously convicted of a serious offense, even if the offense is related to the murder (if the murder involved a robbery, for example), the defendant becomes death eligible.[12] Arizona’s statutory scheme has created a situation where virtually every first-degree murder will contain one of the statutory aggravators, failing to comply with Supreme Court precedent.

The constitutionality of Arizona’s capital sentencing scheme was challenged in 2016 in Hidalgo v. Arizona.[13] The state argued that Arizona’s prosecutors, juries and judges narrow the class of persons eligible for the death penalty. However, this is who has historically done this narrowing; and in 1972, the Supreme Court outlawed the use of the death penalty precisely because of the arbitrary, and racist, manner, in which prosecutors, juries and judges were imposing death.[14] Despite this, the Arizona Supreme Court accepted this argument, and the United States Supreme Court denied cert, refusing to hear the case.[15]

Recently, the Arizona legislature has taken steps to resolve this problem.[16] Throughout 2019, the legislature discussed reducing the number of aggravators. The legislature removed the aggravator which makes a murder death eligible if it involved the use of a stun gun. Almost no murder cases have become death eligible only because of the use of a stun gun, rendering that aggravator useless. Some say getting rid of the useless aggravators is a step in the right direction. However, the opposite may be true. Instead, the aggravators that are most often used will stay on the books, and the death penalty will continue to be possible in most first-degree murder cases. This will not narrow the class of persons eligible for this most serious penalty.

Arizona has two options if it seriously wants to comply with the law. First, the state supreme court can consider finding the state’s use of capital punishment unconstitutional. Because of its arbitrariness, and failure to adequately narrow the class of defendants eligible for death, the scheme violates the Eighth Amendment. If the state supreme court does not want to do that, which it made clear when deciding Hidalgo, the legislature should instead limit the number of statutory aggravators in Arizona but do so in a meaningful way. The “stun gun” aggravator is hardly ever used; so, getting rid of it will do little. Instead, the legislature should hear from capital defense lawyers, as well as prosecutors, and figure out how to seriously narrow the class of defendants eligible for death. Every murder that is arguably “depraved and cruel” should not be automatically death eligible. After all, what kind of murder is not cruel? The legislature should do away with such ambiguous language, and in so doing, comply with Supreme Court precedent, the United States Constitution, and most importantly, the lessons our country’s racist history has taught us.

[1] Gregg v. Georgia, 428 U.S. 153 (1976).

[2] Lowenfield v. Phelps, 484 U.S. 231, 244 (1988); Zant v. Stephens, 462 U.S. 862 (1983).

[3] Lowenfield, 484 U.S. at 246.

[4] Id.

[5] Id.

[6] A.R.S. 13-751(f)(1)-(10).

[7] Gregg v. Georgia, 428 U.S. 153, 188 (1976).

[8] Furman v. Georgia, 408 U.S. 238, 249 (1972) (Douglas, J., concurring).


[10] Hidalgo v. Arizona, 138 S. Ct. 1054, 1056 (2018).

[11] A.R.S. 13-751(f)(4).

[12] A.R.S. 13-751(f)(2).

[13] Id.

[14] Furman v. Georgia, 408 U.S. 238 (1972).

[15] Justice Breyer did issue a “statement respecting the denial of certiorari,” which was joined by Justices Ginsburg, Sotomayor and Kagan, in which they outlined the constitutional problems with Arizona’s death penalty scheme.