Case Information
*1 Per Curiam REYER SUPREME COURT OF THE UNITED STATES
ABEL DANIEL HIDALGO v. ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF ARIZONA No. 17–251. Decided March 19, 2018 The petition for a writ of certiorari is denied.
Statement of J USTICE B , with whom J USTICE G INSBURG , J USTICE S OTOMAYOR , and J USTICE K AGAN join, respecting the denial of certiorari.
The petition in this capital case asks an important Eighth Amendment question:
“Whether Arizona’s capital sentencing scheme, which includes so many aggravating cirсumstances that vir- tually every defendant convicted of first-degree mur- der is eligible for death, violates the Eighth Amend- ment.” Pet. for Cert. (i).
I
“Our capital punishment cases under the Eighth
Amendment address two different aspects of the capital
decisionmaking process: the eligibility decision and the
selection dеcision.”
Tuilaepa
v.
California
,
In respect to the first, the “eligibility decision,” our
рrecedent imposes what is commonly known as the “nar-
rowing” requirement. “To pass constitutional muster, a
*2
v.
capital sentencing scheme must ‘genuinely narrow the
class of persons eligible for the death penalty and must
reasonably justify the imposition of a more severe sen-
tence on the defendant compared to others found guilty of
murder.’ ”
Lowenfield
v.
Phelps
,
The second aspect of the capital decisionmaking process, the “selection decision,” determines whether a death- eligible defendant should actually receive the death penalty. Tuilaepa , supra , at 972. In making this individualized determination, the jury must “consider relevant mitigating evidence of the character and record of the defendant and the circumstances of the crime.” Ibid. ; see also Marsh , supra , at 173–174 (“[A] state capital sentencing system must . . . permit a jury to render a reasoned, individual- ized sentencing determination bаsed on a death-eligible defendant’s record, personal characteristics, and the cir- cumstances of his crime”). This second aspect of the capi- *3 tal punishment decision—the selection requirement—is not before us.
II
Our precedent makes clear that the legislature may
satisfy thе “narrowing function . . . in either of . . . two
ways.”
Lowenfield
,
A
Consider the first way a state legislature may satisfy
the Constitution’s narrowing requirement—namely, by
enacting a narrow statutory definition of capital murder.
Some States have followed this approach. For example, in
Lowenfield
, this Court upheld Louisiana’s use of this
method because it concluded that the State’s сapital mur-
der statute narrowed the class of intentional murderers to
a smaller class of death-eligible murderers. 484 U. S., at
246. Specifically, Louisiana’s capital murder statute was
limited to cases in which “ ‘the offender’ ” not only had
“ ‘specific intent to kill or to inflict great bodily harm’ ” but
also (1) targeted one of three specifically enumerated
categories of victims (children, “ ‘a fireman or peace officer
engaged’ ” in “ ‘lawful duties,’ ” or multiple victims); or (2)
*4
was “ ‘engaged in the perpetration or attempted perpetra-
tion of ’ ” certain other serious specified crimes; or (3) was a
murder-for-hire.
Id.
, at 242 (quoting La. Rev. Stat. Ann.
§§14:30(A)(1)–(5) (West 1986)). The
Lowenfield
Court also
noted that Texas’ capital murder statute “narrowly de-
fined the categories of murder for which a death sentence
could be imposed.” 484 U. S., at 245; see also
Jurek
v.
Texas
,
Unlike the Louisiana and Texas statutes, Arizona’s capital murder statute makes all first-degree murderers eligible for death and defines first-degree murder broadly to include all premeditated homicides along with felony murder based on 22 possiblе predicate felony offenses. See Ariz. Rev. Stat. Ann. §§13–1105(A)(1)–(2) (2010) (includ- ing, for example, transporting marijuana for sale). Per- haps not surprisingly, Arizona did not argue below and does not suggest now that the State’s first-degree murder statute alone can meet the Eighth Amendment’s narrow- ing requirement.
B
Because Arizona law broаdly defines capital murder, the State has sought to comply with the narrowing require- ment through the second method—namely, by setting forth statutory “ aggravating circumstances” designed to permit the “jury . . . at the penalty phase” to make “find- ings” that will narrow the legislature’s broad definition of the capital offense. Lowenfield , supra , at 246. The Arizona Legislature has set forth a list of statutory aggravating factors that the jury must consider “in determining whether to impose a sentence of death.” Ariz. Rev. Stat. Ann. §13–751(F) (Cum. Supp. 2017); see Appendix, infra. And under Arizona law, a person convicted of first-degree *5 murder may be sentenced to death only if at least one of these aggravating factors is present. §13–752(E).
In this case, thе petitioner sought an evidentiary hear- ing to establish through witnesses, expert testimony, and documentary evidence that the statutory aggravating circumstances set forth in §13–751(F) apply to virtually every first-degree murder case in the State. The state trial court consolidated the petitioner’s motion for an evidentiary hearing with similar motions filed by 17 other first-degree murder defendants. See Brief in Opposition 4. Unlike the petitioner, the other defendants had committed their crimes after the Arizona Legislature increased the number of statutory aggravating factors from 10 to 14. Compare Ariz. Rev. Stat. Ann. §13–703(F) (2001) (10 aggravators) with Appendix, infra (14 aggravators).
In his request for a hearing, the petitioner pointed to, among other things, evidence he obtained through public records requests regarding more than 860 first-degree murder cases in Maricopa County (the county where he was charged) between 2002 and 2012. As the Arizona Supreme Court noted, this evidence indicated that “one or more aggravating circumstances were present in 856 of 866” cases examined. 241 Ariz. 543, 550, 390 P. 3d 783, 789 (2017). In other words, about 98% of first-degree murder defendants were eligible for the death penalty. The petitioner adds in his briefing before this Court that this is true under either the 10 aggravating factors in effect when he was sentenced or the 14 factors set forth under the expanded provisions Arizona has since adopted. See Reply Brief 5 (citing C. Spohn, Aggravating Circum- stances in First-Degree Murder Cases, Maricopa County, AZ: 2002–2012). Narrowing an impermissibly broad capital murder statute by about 2% is not, the petitioner says, suffiсient under this Court’s precedents.
The state trial court denied the petitioner’s request for
an evidentiary hearing, and the Arizona Supreme Court
*6
affirmed. 241 Ariz., at 548–549, 390 P. 3d, at 788–789.
However, the Arizona Supreme Court did not dispute the
petitioner’s evidence. It assumed that “Hidalgo is right in
his factual assertion that nearly every charged first degree
murder could support at least one aggravating circum-
stance.”
Id
., at 551,
C
Despite assuming that the aggravating circumstances
fail to materially narrow the class of death-eligible first-
degree murder defendants, the Arizona Supreme Court
nevertheless concluded that the State’s death penalty
system meets the Constitution’s narrowing requirement.
It said that the petitioner was “mistaken . . . insofar as he
focuses only on the legislatively defined aggravating cir-
cumstances” because use of those circumstances “is not the
only way in which Arizona’s sentencing scheme narrows
the class of persons eligible for death.”
Id.
, at 551–552,
We have considered (and rejеcted) the first of these other ways since Arizona’s first-degree murder statute does not “provid[e] for categorical narrowing at the defini- tion stage.” Zant , 462 U. S., at 879. What about the second way—that is, narrowing by means of the “statutory aggravators”? Again, the Arizona Supreme Court as- sumed that those factors do not, in fact, narrow the class *7 of death-eligible first-degree murder defendants. Instead it assumed that “Hidalgo is right in his factual assertion that nearly every charged first degree murder could sup- port at least one aggravating circumstance.” 241 Ariz., at 551, 390 P. 3d, at 791. That assumption, without more, would seem to deny the constitutional need to “genuinely” narrow the class of death-eligible defendants. Zant , su- pra, at 877. Moreover, the third and fourth narrowing methods the Arizona Supreme Court invoked are basically beside the point—they do not show the necessary legisla- tive narrowing that our precedents require. And the final other way (individualized sentencing determinations) concerns an entirely different capital punishment re- quirement—the selection decision—which is not at issue in this case. See supra , at 2–3.
Finally, the Arizona Supreme Court seemed to suggest
that
prosecutors
may perform the narrowing requirement
by choosing to ask for the death penalty only in those
cases in which a рarticularly wrongful first-degree murder
is at issue. See
* * *
Although, in my view, the Arizona Supreme Court mis- applied our precedent, I аgree with the Court’s decision today to deny certiorari. In support of his Eighth Amendment challenge, the petitioner points to empirical evidence about Arizona’s capital sentence system that suggests about 98% of first-degree murder defendants in Arizona were eligible for the death penalty. That evidence is unrebutted. It points to a possible constitutional prob- *8 lem. And it was assumed to be true by the state courts below. Evidence of this kind warrants careful attention and evaluation. However, in this case, the opportunity to develop the record through an evidentiary hearing was denied. As a result, the record as it has come to us is limited and largely unexamined by experts and the courts below in the first instance. We do not have evidence, for instance, as to the nature of the 866 cases (perhaps they implicate only a small number of aggravating factors). Nor has it been fully explainеd whether and to what ex- tent an empirical study would be relevant to resolving the constitutional question presented. Capital defendants may have the opportunity to fully develop a record with the kind of empirical evidence that the petitioner points to here. And the issue presentеd in this petition will be better suited for certiorari with such a record. *9 REYER , J.
Appendix to opinion of B
APPENDIX
Ariz. Rev. Stat. Ann. §13–751(F) (Cum. Supp. 2017) “F. The trier of fact shall consider the following aggra- vating circumstances in determining whether to impose a sentence of death:
“1. The defendant has been convicted of another offense in the United States for which under Arizona law a sen- tence of life imprisonment or death was imposable.
“2. The defendant has been or was previously convicted of a serious offense, whether preparatory or completed. Convictions for serious offenses committed on the same occasion as the homicide, or not committed on the same occasion but consolidated for trial with the homicide, shall be treated as a serious offense under this paragraph.
“3. In the commission of the offense the defendant knowingly created a grave risk of death to another person or pеrsons in addition to the person murdered during the commission of the offense.
“4. The defendant procured the commission of the of- fense by payment, or promise of payment, of anything of pecuniary value.
“5. The defendant committed the offense as considera- tion for the receipt, or in еxpectation of the receipt, of anything of pecuniary value.
“6. The defendant committed the offense in an especially heinous, cruel or depraved manner.
“7. The defendant committed the offense while: “(a) In the custody of or on authorized or unauthorized release from the state department of corrections, a law enforcement agency or a county or city jail.
“(b) On probation for a felony offense.
“8. The defendant has been convicted of one or more other homicides . . . that were committed during the com- mission of the offense.
“9. The defendant was an adult at the time the offense *10 REYER , J. Appendix to opinion of B was committed or was tried as an adult and the murdered person was under fifteen years of age, was an unborn child in the womb at any stage of its development or was seventy years of age or older.
“10. The murdered person was an on duty peace officer who was killed in the course of performing the officer’s officiаl duties and the defendant knew, or should have known, that the murdered person was a peace officer.
“11. The defendant committed the offense with the intent to promote, further or assist the objectives of a criminal street gang or criminal syndicate or to join a criminal street gang or criminal syndicate.
“12. The defendant committed the offense to prevent a person’s cooperation with an official law enforcement investigation, to prevent a person’s testimony in a court proceeding, in retaliation for a person’s cooperation with an official law еnforcement investigation or in retaliation for a person’s testimony in a court proceeding.
“13. The offense was committed in a cold, calculated manner without pretense of moral or legal justification.
“14. The defendant used a remote stun gun or an au- thorized remote stun gun in the commission of the offense.
[Note: Since 2001, the Arizona Legislature has added aggravators 11 through 14.]