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“Death is qualitatively different from other punishments that can be imposed by the state.” Recognition of this disturbing conclusion led to the heightened scrutiny demonstrated in a series of United States Supreme Court rulings beginning with Furman v. Georgia, which set forth the constitutionally acceptable range of discretion that a judge or jury may use in imposing the death penalty. States have attempted to bring their statutes within the Furman v. Georgia range by articulating aggravating circumstances that warrant the imposition of the death penalty. One controversial circumstance that many states employ permits a capital sentence where the offense is characterized as “heinous,” “cruel,” or “depraved.” In Maynard v. Cartwright (Maynard II), the United States Supreme Court's latest ruling applying heightened scrutiny, the Court held that the Oklahoma Supreme Court's application of its state statute violated the eighth and fourteenth amendments of the United States Constitution. The Court focused on Oklahoma's “heinous” aggravating circumstance which provided the basis for the death penalty.

Arizona's death penalty statute also contains an aggravating circumstance provision allowing the death penalty when a murder is “heinous, cruel, or depraved.” The Arizona courts hold that this statute may be read in the disjunctive. This Note examines the history underlying the guidelines the United States Supreme Court has established for constitutionally permissible applications of “heinous, cruel, or depraved” aggravating circumstance provisions. The Arizona death penalty scheme and the accompanying attempts to limit application of the “heinous” aggravating circumstance provision are also be analyzed. The implications of Maynard II for Arizona's capital sentencing scheme is examined by comparing the interpretation of the heinous provisions in Oklahoma and Arizona. Finally, this Note advocates that Arizona narrow the use of its aggravating circumstance provision to comply with the mandate to channel the discretion of the sentencer.

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32 Ariz. L. Rev. 193 (1990).