No. 17IN THE

Supreme Court of the United States
_________

ABEL DANIEL HIDALGO,
v.

Petitioner,
STATE OF ARIZONA,
_________

Respondent.

On Petition for a Writ of Certiorari to the
Supreme Court of Arizona
_________
PETITION FOR A WRIT OF CERTIORARI
_________
SUSAN L. COREY
CONSUELO OHANESIAN
OFFICE OF THE LEGAL
ADVOCATE
222 N. Central Avenue
Suite 154
Phoenix, AZ 85004
(602) 506-4111
GARRETT W. SIMPSON
GARRETT SIMPSON PLLC
Box 6481
Glendale, AZ 85312
(623) 910-7216

NEAL KUMAR KATYAL
Counsel of Record
COLLEEN ROH SINZDAK
MITCHELL P. REICH
HOGAN LOVELLS US LLP
555 Thirteenth Street, NW
Washington, DC 20004
(202) 637-5600
neal.katyal@hoganlovells.com

THOMAS P. SCHMIDT
HOGAN LOVELLS US LLP
875 Third Avenue
New York, NY 10022
(212) 918-5547
Counsel for Petitioner

 CAPITAL CASE
QUESTIONS PRESENTED
I. Whether Arizona’s capital sentencing scheme,
which includes so many aggravating circumstances
that virtually every defendant convicted of firstdegree murder is eligible for death, violates the
Eighth Amendment.
II. Whether the death penalty in and of itself violates the Eighth Amendment, in light of contemporary standards of decency.

(i)

 TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ........................................i
TABLE OF AUTHORITIES.......................................iv
OPINIONS BELOW....................................................1
JURISDICTION ..........................................................1
STATUTE INVOLVED ...............................................2
INTRODUCTION........................................................2
STATEMENT ..............................................................5
REASONS FOR GRANTING THE PETITION .........8
I.

II.

THIS COURT SHOULD GRANT
CERTIORARI TO CLARIFY THE
SCOPE
OF
THE
EIGHTH
AMENDMENT’S
NARROWING
REQUIREMENT ............................................ 10
A.

The Arizona Supreme Court’s
Decision Breaks With The Clear
Precedent Of This Court And
Endorses A System In Which The
Death
Penalty
May
Be
“Wantonly” And “Freakishly”
Imposed ................................................... 10

B.

The Arizona Supreme Court’s
Decision
Splits
From
The
Decisions
Of
Other
State
Supreme Courts...................................... 16

C.

The Arbitrariness Of The Death
Penalty In Arizona Has Real And
Troubling Consequences ........................ 18

THIS COURT SHOULD GRANT
CERTIORARI
TO
DETERMINE
WHETHER THE DEATH PENALTY
IS CONSTITUTIONAL.................................. 21
(ii)

 iii
TABLE OF CONTENTS—Continued
Page
A.

B.

The Death Penalty Is “Cruel And
Unusual” Punishment ............................ 21
1.

A
National
Consensus
Rejects The Death Penalty............. 22

2.

The Death Penalty Cannot
Be Administered In A
Manner That Comports With
The Eighth Amendment................. 25

This Is A Suitable Vehicle To
Decide The Constitutionality Of
The Death Penalty, And The
Court
Should
Decide
The
Question Now ......................................... 34

CONCLUSION .......................................................... 38
APPENDIX A—Opinion of the Supreme Court
of the State of Arizona (Mar. 15, 2017) ............... 1a
APPENDIX B—Order of the Arizona Superior
Court, Maricopa County (June 23, 2013).......... 32a
APPENDIX C—Relevant Statutory Provisions ..... 41a

 iv
TABLE OF AUTHORITIES
Page(s)
CASES:
Allen v. Stephens,
805 F.3d 617 (5th Cir. 2015) ............................... 8
Atkins v. Virginia,
536 U.S. 304 (2002) ......................... 23, 30, 31, 35
Baze v. Rees,
553 U.S. 35 (2008) ............................................. 34
Caldwell v. Mississippi,
472 U.S. 320 (1985) ............................................. 8
Callins v. Collins,
510 U.S. 1141 (1994) ......................................... 27
Davis v. Ayala,
135 S. Ct. 2187 (2015) ....................................... 33
Furman v. Georgia,
408 U.S. 238 (1972) ................................... passim
Glossip v. Gross,
135 S. Ct. 2726 (2015) ............................... passim
Godfrey v. Georgia,
446 U.S. 420 (1980) ................................... passim
Graham v. Florida,
560 U.S. 48 (2010) ................................. 23, 24, 35
Gregg v. Georgia,
428 U.S. 153 (1976) ................................... passim
Hall v. Florida,
134 S. Ct. 1986 (2014) ................................. 22, 30
In Re Medley,
134 U.S. 160 (1890) ........................................... 33
In re Thomas,
No. PDJ-2011-9002 (Ariz. Apr. 10, 2012) ......... 20

 v
TABLE OF AUTHORITIES—Continued
Page(s)
Jurek v. Texas,
428 U.S. 262 (1976) ........................................... 15
Kennedy v. Louisiana,
554 U.S. 407 (2008) ................................... passim
Lowenfield v. Phelps,
484 U.S. 231 (1988) ................................... passim
McCleskey v. Kemp,
481 U.S. 279 (1987) ............................................. 8
McConnell v. State,
102 P.3d 606 (Nev. 2004) ............................ 16, 17
McGautha v. California,
402 U.S. 183 (1971) ........................................... 28
Parker v. Dugger,
498 U.S. 308 (1991) ....................................... 9, 10
Penry v. Lynaugh,
492 U.S. 302 (1989) ........................................... 35
People v. Ballard,
794 N.E.2d 788 (Ill. 2002) ........................... 17, 18
Ring v. Arizona,
536 U.S. 584 (2002) ............................... 12, 15, 16
Roper v. Simmons,
543 U.S. 551 (2005) ................................... passim
Sawyer v. Whitley,
505 U.S. 333 (1992) ........................................... 10
Spaziano v. Florida,
468 U.S. 447 (1984) ..................................... 10, 21
Stanford v. Kentucky,
492 U.S. 361 (1989) ........................................... 35

 vi
TABLE OF AUTHORITIES—Continued
Page(s)
State v. Ovante,
231 Ariz. 180 (2013) .......................................... 13
Steckel v. State,
711 A.2d 5 (Del. 1998) ....................................... 18
Trop v. Dulles,
356 U.S. 86 (1958) ................................... 4, 21, 34
Tuilaepa v. California,
512 U.S. 967 (1994) ..................................... 14, 28
Walton v. Arizona,
497 U.S. 639 (1990) ..................................... 11, 27
Woodson v. North Carolina,
428 U.S. 280 (1976) ..................................... 27, 30
Zant v. Stephens,
462 U.S. 862 (1983) ................................... passim
STATUTES:
28 U.S.C. §  1257(a) .................................................. 2
Ariz. Rev. Stat. § 13-751......................................... 12
Ariz. Rev. Stat. § 13-751(F) .................................. 5, 6
Ariz. Rev. Stat. § 13-752(D)...................................... 5
Ariz. Rev. Stat. §  13-1105 ............................ 5, 12, 16
Ariz. Rev. Stat. §  13-1105(A)(2)............................... 5
CONSTITUTIONAL PROVISIONS:
U.S. Const. amend. VIII ................................. passim
U.S. Const. amend. XIV ..................................... 5, 27
RULES:
S. Ct. R. 30.1 ............................................................. 2

 vii
TABLE OF AUTHORITIES—Continued
Page(s)
OTHER AUTHORITIES:
Hugo Adam Bedau & Michael L. Radelet,
Miscarriages of Justice in Potentially
Capital Cases,
40 Stan. L. Rev. 21 (1987)................................. 31
Alexander M. Bickel, The Least Dangerous
Branch: The Supreme Court at the Bar of
Politics (1962) ...................................................... 4
John H. Blume & Rebecca K. Helm, The
Unexonerated: Factually Innocent
Defendants Who Plead Guilty,
100 Cornell L. Rev. 157 (2014).......................... 31
John H. Blume et al., An Empirical Look at
Atkins v. Virginia and Its Application in
Capital Cases,
76 Tenn. L. Rev. 625 (2009) .............................. 32
Death Penalty Information Center,
Abolitionist and Retentionist Countries,
https://deathpenaltyinfo.org /abolitionistand-retentionistcountries?scid=30&did=140...................... 34
Death Penalty Information Center,
Death Sentences in the United States
From 1977 By State and By Year,
https://deathpenaltyinfo.org /deathsentences-united-states-1977-present.............. 24
Death Penalty Information Center,
Innocence Cases,
https://deathpenaltyinfo.org/ node/4900........... 37

 viii
TABLE OF AUTHORITIES—Continued
Page(s)
Death Penalty Information Center,
Number of Executions by State and
Region Since 1976,
https://deathpenaltyinfo.org /numberexecutions-state-and-region-1976............... 23, 24
Death Penalty Information Center,
States With and Without the Death
Penalty,
https://deathpenaltyinfo.org/
states-and-without-death-penalty .............. 22, 24
Death Penalty Information Center,
The Death Penalty: An International
Perspective,
https://deathpenaltyinfo.org/deathpenalty-international-perspective .................... 34
John J. Donohue III, An Empirical
Evaluation of the Connecticut Death
Penalty System Since 1973: Are There
Unlawful Racial, Gender, and
Geographic Disparities?
11 J. Empirical Legal Stud. 637 (2014) ............ 26
Fair Punishment Project, Too Broken To
Fix: Part I: An In-depth Look at
America’s Outlier Death Penalty
Counties (2016).................................................. 19
Gross et al., Rate of False Conviction of
Criminal Defendants Who Are Sentenced
to Death,
111 Proc. Nat’l Acad. Sci. 7230 (2014).............. 30

 ix
TABLE OF AUTHORITIES—Continued
Page(s)
Michael Kiefer, Prosecutorial Misconduct
Alleged in Half of Capital Cases,
Ariz. Republic (Oct. 28, 2013) ........................... 20
Marc Lacey, U.S. Finds Pervasive Bias
Against Latinos by Arizona Sheriff,
N.Y. Times (Dec. 15, 2011)................................ 20
National Registry of Exonerations,
http://www.law.umich.edu/special/exoner
ation/Pages/Exonerations-in-the-UnitedStates-Map.aspx ................................................ 30
Raymond Paternoster et al., Justice by
Geography and Race: The
Administration of the Death Penalty in
Maryland, 1978-1999,
4 Md. J. on Race, Religion, Gender, and
Class 1 (2004) .................................................... 26
Steven F. Shatz & Terry Dalton,
Challenging the Death Penalty with
Statistics: Furman, McCleskey, and a
Single County Case Study,
34 Cardozo L. Rev. 1227 (2013) ........................ 26
Robert J. Smith et al., The Failure of
Mitigation,
65 Hastings L. J. 1221 (2014) ........................... 32
Ernie Thomson, Discrimination and the
Death Penalty in Arizona,
22 Crim. Just. Rev. 65 (1997) ........................... 19

 IN THE

Supreme Court of the United States
_________
No. 17_________
ABEL DANIEL HIDALGO,
v.

Petitioner,
STATE OF ARIZONA,
_________

Respondent.

On Petition for a Writ of Certiorari to the
Supreme Court of Arizona
_________
PETITION FOR A WRIT OF CERTIORARI
_________
Petitioner Abel Daniel Hidalgo respectfully petitions for a writ of certiorari to review the judgment of
the Supreme Court of Arizona.
OPINIONS BELOW
The Supreme Court of Arizona’s opinion is reported
at 390 P.3d 783. Pet. App. 1a-31a. The trial court’s
order is unreported but is reproduced in the appendix. Id. at 32a-40a.
JURISDICTION
The Supreme Court of Arizona entered judgment
on March 15, 2017. On June 6, 2017, Justice Kennedy granted petitioner’s application to extend the time
for filing a petition for a writ of certiorari to and
including July 14, 2017. On June 29, 2017, Justice
Kennedy granted petitioner’s application to further
(1)

 2
extend the time to and including August 12, 2017.
Because August 12, 2017 is a Saturday, the petition
is due on August 14, 2017. S. Ct. R. 30.1. This Court
has jurisdiction under 28 U.S.C. § 1257(a).
STATUTE INVOLVED
The relevant provisions of the Arizona Revised
Statutes are reproduced in an appendix to this
petition. Pet. App. 41a-55a.
INTRODUCTION
Forty-five years ago, in Furman v. Georgia, 408
U.S. 238 (1972) (per curiam), this Court held that the
death penalty, as then administered, was unconstitutional. Because the death penalty was only imposed on a “capriciously selected random handful,” it
was “cruel and unusual in the same way that being
struck by lightning is cruel and unusual.” Id. at 309310 (Stewart, J., concurring).
And the Eighth
Amendment does not “permit this unique penalty to
be so wantonly and so freakishly imposed.” Id. at
310; see id. at 313 (White, J., concurring).
In response to that decision, a number of States
reinstated the death penalty, but this time seeking
by statute to confine the application of the death
penalty to the “worst of crimes.” Kennedy v. Louisiana, 554 U.S. 407, 447 (2008). In Gregg v. Georgia,
428 U.S. 153 (1976) (plurality opinion), this Court—
while affirming the central teaching of Furman that
the death penalty cannot be “inflicted in an arbitrary
and capricious manner,” id. at 188—upheld many of
those new capital sentencing schemes. The Court
concluded that that the “aggravating circumstances”
and other limitations in the statutes before it would
“suitably direct[] and limit[]” the sentencer’s discretion “so as to minimize the risk of wholly arbitrary

 3
and capricious action.” Id. at 189. But the Court
acknowledged that it might someday revisit the
constitutionality of the death penalty in light of
“more convincing evidence.” Id. at 187.
The evidence is in. The long experiment launched
by Gregg—in whether the death penalty can be
administered within constitutional bounds—has
failed. It has failed both in Arizona in particular and
in the Nation more broadly.
Taking Arizona first: The animating principle of
Gregg and Furman is that a State’s “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
sentence on the defendant compared to others found
guilty of murder.’” Lowenfield v. Phelps, 484 U.S.
231, 244 (1988) (quoting Zant v. Stephens, 462 U.S.
862, 877 (1983)). Arizona’s scheme utterly fails to do
that. The number of statutory aggravators has
proliferated such that “virtually every” person—
around 99%—convicted of first-degree murder is
eligible for the death penalty. Pet. App. 8a, 11a. The
Arizona Supreme Court held that state of affairs
acceptable because (1) prosecutors and juries can
perform the needed narrowing, and (2) each individual aggravator does some narrowing work, even if in
the aggregate they sweep in almost everyone. That
holding both conflicts with decisions of other state
supreme courts and contravenes the precedent of
this Court: The “legislature” must provide a means of
“narrow[ing] the class of death-eligible murderers,”
and the Arizona legislature certainly has not. Lowenfield, 484 U.S. at 246 (emphasis added).

 4
Turning to the Nation as a whole: The Court did
not resolve the constitutionality of the death penalty
for all time in Gregg. Nor could it, given that the
Eighth Amendment “must draw its meaning from
the evolving standards of decency that mark the
progress of a maturing society.” Gregg, 428 U.S. at
173 (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)
(plurality opinion)). In the last twenty years, the
number of death sentences imposed and carried out
has plummeted. A national consensus has emerged
that the death penalty is an unacceptable punishment in any circumstance. And this Court’s opinions, supported by reams of evidence, are trending
unmistakably toward that consensus. As the Court
has increasingly recognized, States simply cannot
provide the guidance necessary to ensure that the
penalty is imposed only on the worst offenders. Nor
can States administer the penalty without ensnaring
and putting to death the innocent. And the present
reality of capital punishment—that those sentenced
to death must spend decades languishing on death
row with the remote but very real possibility of
execution hovering like a sword of Damocles—is “a
punishment infinitely more ghastly” than a swift
death. Alexander M. Bickel, The Least Dangerous
Branch 243 (1962).
Two Justices of this Court, documenting these
flaws, have called for the Court to reexamine the
constitutionality of the death penalty. See Glossip v.
Gross, 135 S. Ct. 2726, 2755 (2015) (Breyer, J., joined
by Ginsburg, J., dissenting). With each passing
month, the Court receives more last-minute pleas for
relief from individuals sentenced to die by a punishment whose constitutionality is in grave doubt.

 5
There is no point in waiting any longer for “more
* * * evidence.” Gregg, 428 U.S. at 187.
Caprice and mistake have proven ineradicable in
the administration of death. The Eighth Amendment tolerates neither. This Court should grant
certiorari, at a minimum to declare Arizona’s death
penalty scheme unconstitutional.
STATEMENT
1.  In Arizona, first-degree murder includes any
premeditated homicide and felony murder.1 Ariz.
Rev. Stat. § 13-1105. Any defendant found guilty of
first-degree murder is eligible for the death penalty
as long as the “trier of fact finds that one or more
* * * aggravating circumstances have been proven.”
Id. § 13-752(D). There are fourteen aggravating
circumstances under Arizona law—twice the number
in the original post-Furman regime. See id. § 13751(F).
2.  Abel Daniel Hidalgo killed someone in exchange
for $1,000 from a gang member. Pet. App. 2a. In the
course of that crime, he also killed a bystander. Id.
Arizona charged him with two counts of first-degree
murder and one count of first-degree burglary.
Before his trial, Hidalgo filed a motion arguing that
Arizona’s statutes governing the imposition of the
death penalty are unconstitutional under the Eighth
and Fourteenth Amendments. He argued that the
list of aggravating factors does not adequately narrow the class of defendants eligible for death, and
1

Felony murder under Arizona law includes permutations of
22 different felonies, including transporting marijuana for sale
and felony flight. Ariz. Rev. Stat. § 13-1105(A)(2).

 6
that the large county-by-county disparities show that
the imposition of the death penalty bears no rational
relationship to the characteristics of the specific
offenses. In support of his motion, Hidalgo submitted evidence demonstrating that virtually every firstdegree murder committed in 2010 or 2011 in Maricopa County—where he was tried—had at least one
aggravating factor present. Id. at 35a. His motion
was consolidated with similar motions filed by other
capital defendants. Id. at 33a.
The trial court denied the motion. It declined to
hold a hearing, and therefore “accepted the facts as
alleged by Defendants,” namely “that every first
degree murder case filed in Maricopa County in 2010
and 2011 had at least one aggravating factor under
A.R.S. §13-751(F).” Id. at 35a-36a. But it held that
it was “bound by the Arizona Supreme Court’s holdings” that had previously upheld the State’s death
penalty scheme. Id. at 39a. The court also rejected
Hidalgo’s equal protection argument.
Hidalgo pleaded guilty, but the question whether to
sentence him to the death penalty was tried before a
jury. The jury found four aggravating circumstances: Hidalgo committed another offense eligible for a
sentence of life imprisonment or death under Arizona
law; he committed prior serious offenses (this finding
was overturned on appeal, id. at 29a); he committed
multiple homicides; and he murdered for pecuniary
gain (only with respect to one of the two murder
victims). Id. at 2a-3a. The jury sentenced Hidalgo to
death. Id. at 3a.
3.  Hidalgo appealed the death sentence to the Arizona Supreme Court. As relevant here, he once
again argued that Arizona’s death penalty scheme is

 7
unconstitutional because it fails to narrow adequately the class of offenders eligible for the death penalty,
and because it denies equal protection. The supreme
court affirmed.
a.  The court first found that Arizona’s death penalty scheme comports with the Eighth Amendment.
Hidalgo had “supplemented the record on appeal
with an expanded study of first degree murder cases
in several counties over an eleven-year period, which
concludes that one or more aggravating circumstances were present in 856 of 866 murders.” Id. at 8a. In
other words, 99% of first-degree murders were eligible for the death penalty. The court accepted that
expanded study into the record, and did not question
that figure. But it held that the lack of narrowing
was constitutionally acceptable for two reasons.
First, the court pointed to the fact that “death sentences are in fact not sought in most first degree
murder cases.” Id. at 12a. The court thus believed
the requisite narrowing could be achieved through
the “unbridled * * * discretion” of prosecutors. Id. at
14a. Second, the court asserted that each individual
factor did some narrowing work, even though taken
together the factors swept in virtually every firstdegree murder. In its view, “[t]he [U.S. Supreme]
Court has not looked beyond the particular case to
consider whether, in aggregate, the statutory scheme
limits death-sentence eligibility to a small percentage of first degree murders.” Id. at 12a. The court
also noted that the death penalty is limited to firstdegree murders, and that the trier of fact must take
mitigating circumstances into account. Id. at 13a14a.

 8
b.  Next, the court rejected Hidalgo’s argument that
intercounty disparities in the imposition of the death
penalty violate the “equal protection component
implicit in the Eighth Amendment.” Id. at 14a-16a.
Like the trial court, it held the argument foreclosed
by McCleskey v. Kemp, 481 U.S. 279 (1987), quoting
the Fifth Circuit’s assertion that “[n]o Supreme
Court case has held that the Constitution prohibits
geographically disparate application of the death
penalty due to varying resources across jurisdictions.” Pet. App. 15a-16a (quoting Allen v. Stephens,
805 F.3d 617, 629-630 (5th Cir. 2015)).
c.  Finally, the court rejected a number of other
arguments Hidalgo had made—that the trial court
erred in not holding evidentiary hearings on two
issues; that the trial court erred when it revoked its
permission to let Hidalgo represent himself; and that
the prosecutor had violated Caldwell v. Mississippi,
472 U.S. 320 (1985), when she told the jury that, if it
found there was “no mitigation,” it had no “option”
but to return a verdict of death. The Court then
independently reviewed and affirmed Hidalgo’s
death sentence.
This petition followed.
REASONS FOR GRANTING THE PETITION
I. Arizona’s capital sentencing scheme does not
“genuinely narrow the class of persons eligible for
the death penalty.” Lowenfield, 484 U.S. at 244
(quoting Zant, 462 U.S. at 877). It therefore violates
the Eighth Amendment. And the Arizona Supreme
Court’s decision upholding that scheme conflicts with
decisions from other state high courts. This Court
should grant certiorari to resolve the resulting
conflict and to vindicate the bar on the “arbitrary”

 9
and “irrational” infliction of death. Parker v. Dugger,
498 U.S. 308, 321 (1991).
II. Even if Arizona provided some meaningful limit
on the persons eligible for death, however, its death
penalty would remain unconstitutional. A national
consensus has emerged that the punishment of death
should never be imposed. That wide-ranging consensus—reflected in the laws or practices of nearly every
State—accords with the judgments of this Court and
copious evidence. It has become clear that no death
penalty scheme, no matter how designed, is capable
of preventing the arbitrary and capricious imposition
of death. Nor have States proven capable of administering the sentence of death in a manner that does
not regularly entrap the innocent. The delays and
conditions inherent in the imposition of capital
punishment are themselves an affront to human
dignity. In Gregg, this Court deferred judgment on
the death penalty’s constitutionality pending “more
* * * evidence.” 428 U.S. at 187. The evidence is now
unequivocal that the death penalty cannot be administered in accordance with contemporary standards
of decency. This Court should answer the question
whether the death penalty, in and of itself, comports
with the Eighth Amendment.

 10
I. THIS COURT SHOULD GRANT
CERTIORARI TO CLARIFY THE SCOPE OF
THE EIGHTH AMENDMENT’S
NARROWING REQUIREMENT.
A. The Arizona Supreme Court’s Decision
Breaks With The Clear Precedent Of This
Court And Endorses A System In Which
The Death Penalty May Be “Wantonly”
And “Freakishly” Imposed.
1.  The Eighth Amendment prohibits the infliction
of “cruel and unusual punishments.” This Court has
long read that prohibition to bar “the arbitrary or
irrational imposition of the death penalty.” Parker v.
Dugger, 498 U.S. 308, 321 (1991). “If a State has
determined that death should be an available penalty for certain crimes, then it must administer that
penalty in a way that can rationally distinguish
between those individuals for whom death is an
appropriate sanction and those for whom it is not.”
Spaziano v. Florida, 468 U.S. 447, 460 (1984), overruled on other grounds, Hurst v. Florida, 136 S. Ct.
616 (2016). If a State’s scheme offers “no principled
way” of making that distinction, Godfrey v. Georgia,
446 U.S. 420, 433 (1980) (plurality opinion), the
death penalty is “cruel and unusual in the same way
that being struck by lightning is cruel and unusual,”
Furman v. Georgia, 408 U.S. 238, 309 (1972) (per
curiam) (Stewart, J., concurring).
To “protect[] against arbitrary and capricious impositions of the death sentence,” Sawyer v. Whitley,
505 U.S. 333, 341 (1992), a State’s “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

 11
sentence on the defendant compared to others found
guilty of murder.’” Lowenfield v. Phelps, 484 U.S.
231, 244 (1988) (quoting Zant v. Stephens, 462 U.S.
862, 877 (1983)). The legislature may accomplish the
“narrowing function * * * in either of * * * two ways.”
Lowenfield, 484 U.S. at 246. “The legislature may
itself narrow the definition of capital offenses” at the
guilt phase, by—for example—narrowly defining the
offense of first-degree murder and then making every
defendant convicted of that offense eligible for the
death penalty. Id. at 245-246. Alternately, “the
legislature may more broadly define capital offenses
and provide for narrowing by jury findings of aggravating circumstances at the penalty phase.” Id. at
246.
A state is free to choose either of these options, but
the Constitution forbids a legislature from dispensing with statutory narrowing altogether. Indeed, the
narrowing principle is so fundamental to the constitutional administration of the death penalty that
even Justice Scalia—otherwise a vocal critic of the
Court’s
Eighth
Amendment
jurisprudence—
“adhere[d] to the precedent establish[ing] * * * that
when a State adopts capital punishment for a given
crime but does not make it mandatory,” the State
must “establish in advance, and convey to the sentencer, a governing standard.” Walton v. Arizona,
497 U.S. 639, 671 (1990) (Scalia, J., concurring in
part and concurring in the judgment). In other
words, the legislature must offer “clear and objective”
standards, Godfrey v. Georgia, 446 U.S. at 428, that
provide a “meaningful basis for distinguishing the
few cases in which [the death penalty] is imposed
from the many cases in which it is not.” Furman,
408 U.S. at 313 (White, J., concurring).

 12
2.  The Arizona Supreme Court has disregarded
that bedrock requirement of the Eighth Amendment,
upholding the constitutionality of a capital punishment scheme that renders “virtually every” defendant convicted of first-degree murder eligible for the
death penalty. Pet. App. 11a.
Because Arizona’s legislature has adopted and
retained a broad definition of first-degree murder,
Ariz. Rev. Stat. § 13-1105, it has attempted “to
comply with the Eighth Amendment’s mandate to
impose statutory limitations on capital sentencing
discretion” through the use of aggravating circumstances set out in § 13-751. Brief of Respondent
State of Arizona at 21-26, Ring v. Arizona, 536 U.S.
584 (2002) (No. 01-488) (explaining that compliance
with the Eighth Amendment was the State’s “undisputed motivation” in establishing its aggravating
circumstances). Thus, Arizona’s system is compatible with the Eighth Amendment only if the aggravating circumstances “genuinely narrow the class of
persons eligible for the death penalty.” Lowenfield,
484 U.S. at 244 (internal quotation marks omitted).
They do not. Petitioner in this case set out evidence demonstrating that the aggravating circumstances serve no narrowing function at all because
“virtually every first degree murder case [in Arizona]
presents facts that could support at least one [of the
legislature’s] aggravating circumstance[s].”
Pet.
App. 11a. The Arizona Supreme Court did not
dispute the accuracy of this claim; it approved of the
trial court’s decision to “deny[] an evidentiary hearing and instead [to] assume[] the truth of Hidalgo’s
factual assertions.” Id. at 4a-7a. But it held that
Arizona’s capital sentencing scheme is nonetheless
consistent with the Eighth Amendment. That hold-

 13
ing is plainly incompatible with this Court’s insistence that a statutory scheme must limit the class of
death-eligible defendants. See, e.g., Zant, 462 U.S. at
878.
3.  The Arizona Supreme Court offered no coherent
reason for its departure from this Court’s precedent.
In attempting to justify its holding, the state high
court pointed first to the fact that even if the death
penalty is available in almost every case, “death
sentences are in fact not sought in most first degree
murder cases.” Pet. App. 12a; see also id. at 11a
(observing that, according to Petitioner’s evidence
“prosecutors sought the death penalty * * * in about
ten percent of first degree murder cases” during the
relevant period). The state supreme court opined
that there is nothing wrong with a scheme that gives
prosecutors “unbridled * * * discretion” to define the
class of death-eligible defendants. Id. at 14a (quoting State v. Ovante, 231 Ariz. 180, 185-186 (2013) (en
banc)).
This Court has held otherwise. In Zant, the Court
held that narrowing is a “constitutionally necessary
function at the stage of legislative definition.” 462
U.S. at 878 (emphasis added); see also Gregg, 428
U.S. at 174 n.19 (“[The Eighth] Amendment was
intended to safeguard individuals from the abuse of
legislative power.” (emphasis added)). And Lowenfield made very clear that it is “the legislature”
that must provide a means of “narrow[ing] the class
of death-eligible murderers.” 484 U.S. at 246 (emphasis added).
That makes sense. A legislature is able to establish “clear and objective” systemwide standards that
will lead to uniform distinctions between those who

 14
are death-eligible and those who are not. Godfrey,
446 U.S. at 428. By contrast, if the question is left to
the prosecutors’ “standardless sentencing discretion,”
the class of death-eligible defendants will shift
depending on which prosecutor is making the charging decision. Id. (internal quotation marks and
alterations omitted). In that sort of scheme, those
not sentenced to death are often “just as reprehensible” as those who are, a form of arbitrariness that
the Furman Court firmly rejected. 408 U.S. at 309
(Stewart, J., concurring).
The Arizona Supreme Court purported to draw
support for its contrary holding from this Court’s
statements explaining that prosecutors (like judges
and juries) must enjoy broad discretion in deciding
whether to “remove a defendant from consideration
as a candidate for the death penalty.” Gregg, 428
U.S. at 199 (emphasis added). But the fact that a
prosecutor may “remove” a particular defendant from
the class of death-eligible individuals does not obviate the need for the State legislature to establish a
narrow class in the first place. As this Court has
explained, the Eighth Amendment requires both that
a State limit the class of death-eligible defendants to
avoid arbitrariness, and that it allow individualized
discretion in selecting which members of this narrow
class will actually be sentenced to death. See, e.g.,
Tuilaepa v. California, 512 U.S. 967, 972 (1994).
4.  The Arizona Supreme Court also seems to have
believed that a State’s aggravating circumstances
are constitutional so long as each individual aggravator “applies to fewer than all murders.” Pet. App.
10a-11a. But under that logic, a State would be free
to adopt two aggravators: one that covers all murders with a particular feature, and the other that

 15
covers all murders that lack the particular feature.
Or—as Arizona has done here—it could adopt a long
list of aggravators such that every convicted murderer is somehow made eligible for death. Either system utterly fails to offer a “meaningful basis for
distinguishing the few cases in which [death] is
imposed from the many cases in which it is not.”
Gregg, 428 U.S. at 188 (internal quotation marks
omitted). That is why this Court has regularly taken
a holistic approach in analyzing whether a State’s
scheme fulfills the constitutionally mandated narrowing requirement. In Jurek v. Texas, 428 U.S. 262
(1976) (plurality opinion), and Lowenfield, for example, the Court examined the Texas and Louisiana
statutes to determine whether each State’s scheme,
as a whole, “narrow[ed] the class of death-eligible
murderers,” 484 U.S. at 245-246.
5.  Finally, the Arizona Supreme Court suggested
that the State’s scheme does somehow fulfill the
narrowing function because “Arizona statutorily
limits the death penalty to a subclass of defendants
convicted of first degree murder” and because the
“statutes further limit death eligibility to the identified aggravating circumstances.” Pet. App. 13a. But
Arizona itself has previously disclaimed any reliance
on the narrowing function performed by its very
broad statutory definition of first-degree murder. In
Ring v. Arizona, the State told this Court that—after
Furman—the legislature decided to introduce aggravating circumstances “to comply with the Eighth
Amendment’s mandate to impose statutory limitations on capital sentencing discretion,” opting
against narrowing the definition of first-degree
murder, “which remains today substantially identical
to its nineteenth century territorial counterpart.”

 16
Respondent’s Brief at 22-25, Ring, 536 U.S. 584 (No.
01-488); see Ariz. Rev. Stat. § 13-1105.
Thus, by the State’s own lights, the constitutionality of Arizona’s sentencing scheme turns on whether
the aggravating circumstances “impose statutory
limits on capital sentencing discretion.” Petitioner
has demonstrated that they do not. Instead, they
render “virtually every” defendant death eligible,
returning Arizona to the pre-Furman days in which
the “unique penalty” of death is “so wantonly and so
freakishly imposed” that there is no meaningful
difference between those who receive this most
severe of all possible penalties and those that do not.
This Court’s intervention is necessary to prevent this
blatantly unconstitutional scheme from going forward.
B. The Arizona Supreme Court’s Decision
Splits From The Decisions Of Other State
Supreme Courts.
1.  Unsurprisingly, the Arizona Supreme Court’s
decision is inconsistent with the holdings of other
state supreme courts, which have properly recognized the need to narrow the class of death-eligible
defendants. The Nevada Supreme Court’s decision
in McConnell v. State is representative. 102 P.3d
606, 622 (Nev. 2004) (en banc) (per curiam). In that
case, a defendant brought a narrowing challenge to
the Nevada sentencing scheme for those convicted of
capital felony murder. The Nevada Supreme Court
held that “[b]ecause Nevada defines capital felony
murder broadly, its capital sentencing scheme must
narrow death eligibility in the penalty phase by the
jury’s finding of aggravating circumstances.” Id.
The Nevada court explained that “[a]t a bare mini-

 17
mum, then, a narrowing device must identify
restrictive and more culpable class of first
murder defendants than the pre-Furman
homicide class.” Id. (internal quotation
omitted).

a more
degree
capital
marks

That is exactly the opposite of what the Arizona
Supreme Court decided.
The Arizona Supreme
Court assumed that the State’s aggravating circumstances made “virtually every” first-degree murderer
death eligible. Pet. App. 11a. Yet it held that these
aggravating circumstances, in connection with the
State’s pre-Furman definition of the class of firstdegree murderers, were enough to satisfy the constitutional narrowing requirement.
2.  Multiple other state high courts have also recognized that it would pose a serious constitutional
problem if a State’s scheme made “virtually every”
murder defendant death eligible. For example, the
Illinois Supreme Court held that “a capital sentencing scheme must genuinely narrow the class of
individuals eligible for the death penalty and must
reasonably justify imposition of a more severe sentence on the defendant compared to others found
guilty of murder.” People v. Ballard, 794 N.E.2d 788,
816 (Ill. 2002). The Ballard Court went on to reject a
claim that the Illinois scheme’s multiple aggravators
violated this narrowing requirement, id., but a
special concurrence emphasized that the defendant
had not supplied the Court with empirical data
regarding the extent to which Illinois’ aggravating
factors “actually narrow[ed] the pool of death-eligible
defendants,” id. at 826 (McMorrow, J., specially
concurring). “Accordingly, defendant’s contention
that the death penalty statute is unconstitutional
fails in this case, not as a matter of law, but rather,

 18
as the majority notes, because defendant has failed
to substantiate his contention in any way.” Id.
(internal quotation marks and alterations omitted).
Similarly, the Delaware Supreme Court held that
“too many aggravating circumstances may violate
the principles enunciated in Furman v. Georgia and
Zant v. Stephens,” but held that the “limit has not
yet been reached in Delaware.” Steckel v. State, 711
A.2d 5, 13 n.11 (Del. 1998) (en banc).
In this case, petitioner put forward precisely the
concrete empirical evidence that was lacking in
Ballard. And that evidence demonstrated that in
Arizona, unlike in Delaware, the constitutional
“limit” on “too many aggravating circumstances” has
been reached. The Arizona Supreme Court nevertheless rejected the constitutional challenge to the
State’s death penalty scheme. The division in authority engendered by that erroneous decision warrants this Court’s certiorari review.
C. The Arbitrariness Of The Death Penalty In
Arizona Has Real And Troubling Consequences.
The arbitrariness of the death penalty in Arizona is
not just an abstract and doctrinal problem. “[T]he
death penalty inflicted on one defendant is ‘unusual’
if it discriminates against him by reason of his race,
religion, wealth, social position, or class, or if it is
imposed under a procedure that gives room for the
play of such prejudices.” Furman, 408 U.S. at 242
(Douglas, J., concurring). The standardless lottery
that is the Arizona capital sentencing scheme “gives
room for the play” of prejudice and other factors that
should have no place in the administration of the
death penalty. Id.

 19
First, the arbitrariness of Arizona’s scheme enables
troubling racial disparities. Arizona follows the
national trend in that “individuals accused of murdering white victims, as opposed to black or other
minority victims, are more likely to receive the death
penalty.” Glossip v. Gross, 135 S. Ct. 2726, 2760
(2015) (Breyer, J., dissenting). One study published
in 1997 demonstrated that “white-victim homicides
in Arizona are much more likely to result in death
sentences than minority-victim homicides.” Ernie
Thomson, Discrimination and the Death Penalty in
Arizona, 22 Crim. Just. Rev. 65, 73 (1997). “Minorities accused of killing whites are more than three
times as likely to be sentenced to death as minorities
accused of killing other minorities (6.7% vs. 2.0%).”
Id. And a Hispanic man accused of killing a white
man is 4.6 times as likely to be sentenced to death as
a white man accused of killing a Hispanic victim.
See id.
These problems have persisted since that study
was published. In Maricopa County—where Hidalgo
was tried and convicted—18% of the defendants
sentenced to death were black, even though black
people comprise just 6% of the population. Fair
Punishment Project, Too Broken To Fix: Part I: An
In-depth Look at America’s Outlier Death Penalty
Counties 12 (2016) (hereinafter “FPP Report”).2 In
all, 57% of the defendants sentenced to death between 2010 and 2015 were people of color. Id. at 11.3
2

Available at http://fairpunishment.org/wp-content/uploads/
2016/08/FPP-TooBroken.pdf.
3

Maricopa County was also the jurisdiction of Sheriff Joe
Arpaio, whose office, according to a 2011 Justice Department

 20
In short, the failure of Arizona to narrow the class of
offenders eligible for the death penalty has allowed
for bias in its imposition.
Second, Arizona’s death penalty turns on accidents
of geography and county resources, rather than the
characteristics of the offense.
Hidalgo adduced
evidence that, because of financial limitations,
several counties were unable to pursue the death
penalty even in cases with facts far more heinous
than in his own. Pet. App. 14a-15a, 34a. Maricopa
County (where Hidalgo was tried) is on the other end
of the spectrum; it imposed the death penalty at a
rate 2.3 times higher than the rest of Arizona between 2010 and 2015. FPP Report at 8. That was
driven in part by a particularly zealous County
Attorney, who was disbarred in 2012 because he had
“outrageously exploited power, flagrantly fostered
fear, and disgracefully misused the law.” In re
Thomas, No. PDJ-2011-9002, at 245 (Ariz. Apr. 10,
2012). Indeed, some form of prosecutorial misconduct has been found in 21% of capital cases in Maricopa County. FPP Report at 8.4 The happenstance
of geography is no way to “rationally distinguish
between those individuals for whom death is an
Report, had “a pervasive culture of discriminatory bias against
Latinos.” Marc Lacey, U.S. Finds Pervasive Bias Against
Latinos by Arizona Sheriff, N.Y. Times (Dec. 15, 2011) (quoting
the DOJ Report), available at http://www.nytimes.com/2011/
12/16/us/arizona-sheriffs-office-unfairly-targeted-latinos-justicedepartment-says.html.
4

See also Michael Kiefer, Prosecutorial Misconduct Alleged in
Half of Capital Cases, Ariz. Republic (Oct. 28, 2013), available
at
http://archive.azcentral.com/news/arizona/articles/
20131027milke-krone-prosecutors-conduct-day1.html.

 21
appropriate sanction and those for whom it is not.”
Spaziano, 468 U.S. at 460.
The Court should grant certiorari to bring the Arizona Supreme Court in line with its post-Furman
death penalty jurisprudence, to resolve a split between state high courts, and to end the havoc that
arbitrariness is wreaking on the administration of
justice in Arizona.
II. THIS COURT SHOULD GRANT
CERTIORARI TO DETERMINE WHETHER
THE DEATH PENALTY IS
CONSTITUTIONAL.
Invalidating Arizona’s death penalty statute under
existing doctrine would not, however, cure all of the
underlying constitutional maladies.
The death
penalty is unconstitutional full stop. This Court can
and should strike down the punishment in its entirety.
A. The Death Penalty Is “Cruel And Unusual”
Punishment.
The Constitution’s proscription on “cruel and unusual punishments” protects, at its heart, human
dignity. Kennedy v. Louisiana, 554 U.S. 407, 420
(2008); Trop v. Dulles, 356 U.S. 86, 100 (1958) (plurality opinion). The content of that proscription is
not frozen in time, but grows in light of “the evolving
standards of decency that mark the progress of a
maturing society.” Kennedy, 554 U.S. at 419 (quoting Trop, 356 U.S. at 101).
In Gregg, the Court found that “contemporary
standards” of decency did not then render the death
penalty in all circumstances unconstitutional. 428
U.S. at 175. It noted that 35 States had enacted

 22
death penalty statutes in the previous four years,
and that juries regularly imposed the punishment.
Id. at 179-182. Moreover, the Court believed that by
providing adequate guidance, States could ensure
that the penalty was administered rationally, and
restricted only to the worst offenders. Id. at 195.
The Gregg experiment has failed. A decisive majority of this country, acting through its democratic
representatives, has turned its face from capital
punishment. And Gregg’s hope that the punishment
of death could be administered rationally and in
accord with legitimate penological purposes has
proved to be empty, a fatal mistake which this Court
must now correct.
1. A National Consensus Rejects The
Death Penalty.
This Court examines “objective indicia of society’s
standards” to determine whether a national consensus has emerged deeming a punishment cruel and
unusual. Roper v. Simmons, 543 U.S. 551, 563
(2005). Every such indication now reveals a widespread consensus against the death penalty.
Thirty-one States have abandoned the death penalty. Nineteen of those States have formally abolished
the punishment. Four States—Oregon, Colorado,
Washington, and Pennsylvania—have “suspended
the death penalty” and ceased to carry out executions.5 Hall v. Florida, 134 S. Ct. 1986, 1997 (2014).
The remaining eight States have not carried out an
5

See Death Penalty Information Center (DPIC), States With
and Without the Death Penalty, https://deathpenaltyinfo.org/
states-and-without-death-penalty.

 23
execution “[i]n the past 10 years,” Roper, 543 U.S. at
565—and four of them (Kansas, Nebraska, New
Hampshire, and Wyoming) have not executed a
prisoner in twenty years or longer.6
Furthermore, in those jurisdictions that continue to
carry out death sentences, the practice is “most
infrequent.” Graham v. Florida, 560 U.S. 48, 62
(2010). Last year, 31 death sentences were imposed
and 20 executions were carried out across the nation.
Eight States with the death penalty on the books
have administered fewer than five executions in the
last decade; in most cases, just one or two.7 And a
“significant majority,” id. at 64, of those executions
that do occur—more than 85% over the last five
years—are concentrated in just five States: Texas,
Oklahoma, Florida, Missouri, and Georgia.8 Within
those States, an overwhelming majority of death
sentences are issued by a handful of counties. See
Glossip, 135 S. Ct. at 2779-780 (Breyer, J., dissenting).
Even more striking than the magnitude of the consensus is “the consistency of the direction of change.”
Roper, 543 U.S. at 566 (quoting Atkins v. Virginia,
536 U.S. 304, 315 (2002)). In the past fifteen years,

6

See DPIC, Number of Executions by State and Region Since
1976,
https://deathpenaltyinfo.org/number-executions-stateand-region-1976.
7

Id. The States are Arkansas (4), Idaho (2), Indiana (1),
Kentucky (1), Louisiana (1), South Dakota (3), Tennessee (4),
and Utah (1).
8

Id.

 24
seven States have abolished the death penalty,9 four
have formally suspended it, and four have ceased to
conduct executions.10 No State has reinstated the
punishment in that time.
Meanwhile, the numbers of death sentences and
executions throughout the country have plummeted.
See Graham, 560 U.S. at 62 (“Actual sentencing
practices are an important part of the Court’s inquiry
into consensus.”). In 1996, 315 people were sentenced to death; by 2016, that number had fallen by
90%.11 Likewise, the number of executions has fallen
by nearly 80%, from 1999, when 98 persons were
executed.12 In just the last five years, the numbers of
death sentences and executions have dropped by
more than half.13
In short, the death penalty has become a rare and
“freakish” punishment. Gregg, 428 U.S. at 206. The
frequency of its use “in proportion to the opportunities for its imposition” is infinitesimal. Graham, 560
U.S. at 66. Out of over 10,000 individuals arrested
9

See DPIC, States With and Without the Death Penalty,
supra note 5. The States are New Jersey (2007), New York
(2007), New Mexico (2009), Illinois (2011), Connecticut (2012),
Maryland (2013), and Delaware (2016).
10

See DPIC, Number of Executions by State and Region Since
1976, supra note 6. The States are California (2006), Montana
(2006), Nevada (2006), and North Carolina (2006).
11

DPIC, Death Sentences in the United States From 1977 By
State and By Year, https://deathpenaltyinfo.org/deathsentences-united-states-1977-present.
12

See DPIC, Number of Executions by State and Region Since
1976, supra note 6.
13

Id.

 25
for homicide offenses each year, fewer than twotenths of one percent ultimately receive the punishment of death.
2. The Death Penalty Cannot Be Administered In A Manner That Comports
With The Eighth Amendment.
“[T]he Constitution contemplates that in the end
[the Court’s] own judgment will be brought to bear
on the question of the acceptability of the death
penalty under the Eighth Amendment.” Roper, 543
U.S. at 590 (internal quotation marks omitted). And
precedent, logic, and bitter experience all confirm
what the people themselves have now concluded:
The death penalty simply cannot be imposed in
accord with minimum standards of proportionality,
reliability, and decency.
a.  This Court has long made clear that the Constitution can tolerate the death penalty if, and only if,
States are capable of “ensur[ing] against its arbitrary
and capricious application” by confining the punishment to “the worst of crimes.” Kennedy, 554 U.S. at
447; see Gregg, 428 U.S. at 188. This requirement
follows from the Eighth Amendment’s demand for
proportionality and humanity. As the Court explained in Kennedy, “[w]hen the law punishes by
death, it risks its own sudden descent into brutality,
transgressing the constitutional commitment to
decency and restraint.” 554 U.S. at 420. In order to
serve legitimate penological aims, the “punishment
must ‘be limited to those offenders’” whose “extreme
culpability makes them ‘the most deserving of execution.’” Id. (quoting Roper, 543 U.S. at 568).
After 45 years, the evidence is overwhelming that
States cannot satisfy this requirement. Numerous

 26
independent studies—some commissioned by States
themselves—have demonstrated that the death
penalty is routinely and pervasively imposed based
on considerations irrelevant to a person’s culpability.
See Steven F. Shatz & Terry Dalton, Challenging
the Death Penalty with Statistics: Furman, McCleskey, and a Single County Case Study, 34 Cardozo L.
Rev. 1227, 1244-256 (2013); Glossip, 135 S. Ct. at
2760-63 (Breyer, J., dissenting).
The principal
determinant of whether a defendant will be sentenced to death is typically not his blameworthiness,
but the county in which he commits his crime. Shatz
& Dalton, supra, at 1253-56; see, e.g., John J.
Donohue III, An Empirical Evaluation of the Connecticut Death Penalty System Since 1973: Are There
Unlawful Racial, Gender, and Geographic Disparities?, 11 J. Empirical Legal Stud. 637, 673 (2014).
Researchers have been unable to find any meaningful correlation between the heinousness of a person’s
offense and the likelihood he will receive a capital
sentence. See, e.g., id. at 678-679.
Meanwhile, for decades studies have consistently
found—as in Arizona—that the race of the victim is a
critical factor in predicting whether the perpetrator
will be sentenced to death. Shatz & Dalton, supra,
at 1246-51; see, e.g., Raymond Paternoster et al.,
Justice by Geography and Race: The Administration
of the Death Penalty in Maryland, 1978-1999, 4 Md.
J. on Race, Religion, Gender, and Class 1, 35 (2004)
(study commissioned by Maryland governor). Numerous other factors that should be irrelevant to the
question of who lives and who dies—gender, resources, politics—have likewise been found meaningfully determinative. Shatz & Dalton, supra, at 1251-

 27
53; Glossip, 135 S. Ct. at 2761-62 (Breyer, J., dissenting).
These problems are ineradicable. They flow from
at least two features intrinsic to the death penalty
under our Constitution, features that the Court itself
has increasingly recognized are both problematic and
incapable of repair.
The first difficulty is that the Constitution imposes
two irreconcilable demands on sentencers. On one
hand, it requires States to provide guidance to juries
so that they impose the death penalty in a consistent
and rational manner. Gregg, 428 U.S. at 195 n.47
(“[W]here the ultimate punishment of death is at
issue a system of standardless jury discretion violates the Eighth and Fourteenth Amendments.”). On
the other hand, “the fundamental respect for humanity underlying the Eighth Amendment” requires that
States leave juries complete discretion to decline to
impose death based on a defendant’s individual
characteristics. Woodson v. North Carolina, 428 U.S.
280, 304 (1976) (plurality opinion). As Justice Scalia
succinctly explained, “[t]he latter requirement quite
obviously destroys whatever rationality and predictability the former requirement was designed to
achieve.” Walton, 497 U.S. at 664-665 (Scalia, J.,
concurring in part and concurring in the judgment);
see Callins v. Collins, 510 U.S. 1141, 1151 (1994)
(Blackmun, J., dissenting) (similar). By granting
juries untrammeled discretion to grant mercy to
whomever they wish, the law reintroduces into the
death penalty system the very sort of arbitrariness
that the first “narrowing” requirement is intended to
remove.

 28
The Court has acknowledged that after four decades, this problem has defied solution short of banning the death penalty’s application to whole classes
of persons and offenses. In Kennedy, it explained
that the “[t]he tension between general rules and
case-specific circumstances has produced results not
altogether satisfactory.” 554 U.S. at 436; see Tuilaepa, 512 U.S. at 973 (explaining that “[t]he objectives of these two inquiries can be in some tension”).
The Court proceeded to state that its “response to
this case law, which is still in search of a unifying
principle, has been to insist upon confining the
instances in which capital punishment may be
imposed” to increasingly narrow sets of crimes and
individuals. Kennedy, 554 U.S. at 437. Narrowing
the death penalty, however, can only mitigate but
not cure this fundamental defect. So long as juries
retain open-ended discretion—as the Constitution
says they must—the punishment will continue to be
subject to an intolerable degree of arbitrariness.
That difficulty is compounded by a second, equally
severe problem. As Arizona’s scheme illustrates, the
first step of the sentencing process—the narrowing of
death-eligible offenders—is also infected with an
insoluble degree of caprice. One year before Furman,
this Court recognized the core difficulty: “To identify
before the fact those characteristics of criminal
homicides and their perpetrators which call for the
death penalty, and to express these characteristics in
language which can be fairly understood and applied
by the sentencing authority, appear to be tasks
which are beyond present human ability.” McGautha v. California, 402 U.S. 183, 204 (1971); see Godfrey, 446 U.S. at 442 (Marshall, J., concurring in the
judgment).

 29
Again, the Court has increasingly recognized this
problem. And again it has identified only one solution: banning the penalty’s application to classes of
offenses and persons altogether. In Kennedy, the
Court explained that while some persons who commit non-homicide offenses may rank among the most
culpable offenders, States lack the capacity to “identify standards that would guide the decisionmaker so
the penalty is reserved for the most severe cases.”
554 U.S. at 439. The Court had “no confidence,” it
explained, that the characteristics of individual cases
would not “overwhelm a decent person’s judgment,”
and render “the imposition of the death penalty * * *
so arbitrary as to be ‘freakis[h].’” Id.; see also Roper,
543 U.S. at 572 (rejecting the contention that juries
can reliably select those juvenile offenders who have
“sufficient psychological maturity, and at the same
time demonstrates sufficient depravity, to merit a
sentence of death”). That same problem holds a
fortiori for homicide crimes—offenses whose human
cost is all the more likely to “overwhelm a decent
person’s judgment,” and for which distinguishing the
most severe and blameworthy crimes is all the more
difficult.
b.  A further constitutional problem has emerged
since Gregg. In the past 45 years, the advent of more
reliable forensic techniques—particularly DNA
evidence—has revealed that innocent people are
sentenced to death with startling frequency. And it
is equally clear that States have actually carried out
executions of the innocent.
The evidence on this point is unequivocal. Since
1989, 117 individuals who were sentenced to death

 30
have been formally exonerated of their crimes of
conviction.14 Since 1973, approximately 4% of deathrow inmates have been determined to be actually
innocent. See Gross et al., Rate of False Conviction
of Criminal Defendants Who Are Sentenced to death,
111 Proc. Nat’l Acad. Sci. 7230 (2014). The numbers
continue to increase each year; two more death-row
inmates have been exonerated in 2017 alone.
There is also little doubt that States have put some
such individuals to death. Multiple, painstaking
studies have found “overwhelming” evidence that a
number of executed prisoners were actually innocent.
See Glossip, 135 S. Ct. at 2756 (Breyer, J., dissenting) (internal quotation marks omitted). And too
many close calls have occurred—including lastminute stays by this Court, eleventh-hour reprieves
by a governor, or exoneration after decades on death
row—to believe that more individuals were not
executed before evidence of their innocence came to
light. Id. at 2757, 2766 (giving examples).
Executing innocents is intolerable. Because of the
“finality” of death, the Constitution insists upon
“reliability in the determination that death is the
appropriate punishment in a specific case.” Woodson, 428 U.S. at 305. Thus, in Atkins, the Court
found that the “risk of wrongful executions” provided
an important reason why the intellectually disabled
could not constitutionally be executed. 536 U.S. at
320-321; see Hall, 134 S. Ct. at 1993 (same). At a
time when the number of exonerations was approxi14

National
Registry
of
Exonerations,
http://www.law.umich.edu/special/exoneration/Pages/Exonerati
ons-in-the-United-States-Map.aspx.

 31
mately half what it is now, see Glossip, 135 S. Ct. at
2757 (Breyer, J., dissenting), the Court explained
that it “cannot ignore the fact that in recent years a
disturbing number of inmates on death row have
been exonerated.” Atkins, 536 U.S. at 320 n.25. The
risk that intellectually disabled defendants would
give “false confessions” and be executed because of
them, the Court concluded, was too great for the
Constitution to bear. Id. at 320.
The Court “cannot ignore” that the same risk pertains to all offenders. As the evidence makes clear,
every type of defendant—mentally competent or
not—faces a substantial risk of receiving an improper sentence of death. The problems that cause such
errors are regrettably common: defendants may be
induced to give false confessions, receive poor quality
defense counsel, face prosecutorial misconduct, or
suffer from myriad other errors. See Glossip, 135
S. Ct. at 2757-58 (Breyer, J., dissenting). The unique
dynamics of capital trials—where the pressure to
obtain a conviction is enormous—make such problems all the more likely to lead to an erroneous
conviction.15 Perhaps the Constitution can tolerate a
risk of wrongful conviction outside the capital context, where the penalty is not irreversible and justice
15

John H. Blume & Rebecca K. Helm, The Unexonerated:
Factually Innocent Defendants Who Plead Guilty, 100 Cornell
L. Rev. 157, 170 (2014) (“The possibility of being sentenced to
death, even if it is remote, can lead defendants, even innocent
ones, to plead guilty to get the death penalty ‘off the table.’”);
Hugo Adam Bedau & Michael L. Radelet, Miscarriages of
Justice in Potentially Capital Cases, 40 Stan. L. Rev. 21, 63 &
n.197 (1987) (noting five cases in which innocent defendants
pled guilty in order avoid the risk of a death sentence).

 32
without error may be unattainable. But “death is
different”: States must ensure the penalty is reliably
imposed, and decades of evidence reveal that they
cannot. Gregg, 438 U.S. at 188.16
c.  Finally, the decades since Gregg have made clear
that, in order to carry out capital punishment in a
remotely rational manner, States must not subject
the convicted to inordinate delay—a form of punishment that is itself profoundly cruel, and which saps
the punishment of any legitimate penological purpose.
Fifty years ago, the average delay between a death
sentence and an execution was approximately 2
years. Today that delay has grown to more than 17
years. The reason is straightforward: As the rationality and reliability of death sentences has grown
more questionable, States have been required to
implement more and more procedural protections to
ensure the penalty is not wrongly carried out. See
Glossip, 135 S. Ct. at 2764-65, 2770-72 (Breyer, J.,
dissenting).
These protections are necessary and proper. Indeed, this Court has concluded that the Constitution
mandates them. But the result is that the death
penalty itself has become even more discordant with
the Eighth Amendment.
16

See, e.g., Robert J. Smith et al., The Failure of Mitigation,
65 Hastings L. J. 1221, 1228-229 (2014) (finding 87% of the last
100 executed offenders had characteristics akin to juveniles or
the intellectually disabled); John H. Blume et al., An Empirical
Look at Atkins v. Virginia and Its Application in Capital Cases,
76 Tenn. L. Rev. 625, 628-629 (2009) (discussing success rates
of Atkins claims).

 33
One problem is that the delay itself is a cruel form
of punishment. The agony of waiting for a death
sentence for weeks on end—let alone decades—has
long been recognized as a barbaric form of punishment. See, e.g., In Re Medley, 134 U.S. 160, 172
(1890). And death-row inmates typically must bear
this delay while housed in solitary confinement that
frequently drives prisoners to “madness.” Davis v.
Ayala, 135 S. Ct. 2187, 2209 (2015). Many individuals have given up their lives voluntarily rather than
endure this condition. Glossip, 135 S. Ct. at 2766
(Breyer, J., dissenting).
When a death sentence is administered after decades of delay, moreover, it ceases to serve any legitimate penological purpose. Id. at 2767-69 (Breyer, J.,
dissenting). Individuals are not rationally deterred
by the prospect that they have a slim chance of being
sentenced to death decades in the future. And
society’s interest in retribution is not meaningfully
served by a punishment carried out after memories
have faded and the perpetrator himself has undergone profound changes. “In most cases justice is not
better served by terminating the life of the perpetrator rather than confining him and preserving the
possibility that he and the system will find ways to
allow him to understand the enormity of his offense.”
Kennedy, 554 U.S. at 447.
d.  Finally, it is “instructive,” Roper, 543 U.S. at
575, that nearly every other developed Nation, after
considering these and other problems, has abandoned capital punishment. One hundred and four
countries have formally abolished the death penalty,

 34
and more than 30 have ceased to impose it.17 Only
23 countries imposed the death penalty last year,
and more than 85% of those executions (excluding
those performed by China) were carried out by four
countries: Iran, Saudi Arabia, Iraq, and Pakistan.18
The “overwhelming weight of international opinion”
against the death penalty is not controlling on this
Court. Roper, 543 U.S. at 578. But it reinforces the
judgment—amply evidenced in the democratic decisions of the people, the precedents of this Court, and
decades of experience—that the death penalty no
longer accords with fundamental precepts of decency
and the “dignity of man.” Trop, 356 U.S. at 100.
B. This Is A Suitable Vehicle To Decide The
Constitutionality Of The Death Penalty,
And The Court Should Decide The
Question Now.
It is time for the Court to revisit the death penalty’s constitutionality. In Gregg, this Court issued a
provisional judgment upholding capital punishment,
based on “contemporary standards” and the “evidence” available to it at the time. 428 U.S. at 175,
185. In the four decades since, the Court has never
reexamined the question. It has noted only that the
question was “settled” under existing precedent.
Baze v. Rees, 553 U.S. 35, 47 (2008) (plurality opinion); see id. at 63 (Alito, J., concurring) (“[T]he consti17
DPIC,
Abolitionist
and
Retentionist
Countries,
https://deathpenaltyinfo.org/abolitionist-and-retentionistcountries?scid=30&did=140.
18

DPIC, The Death Penalty: An International Perspective,
https://deathpenaltyinfo.org/death-penalty-internationalperspective.

 35
tutionality of capital punishment is not before us in
this case, and therefore we proceed on the assumption that the death penalty is constitutional.”).
The nature of the rights protected by the Eighth
Amendment makes clear that Gregg’s judgment is
not static. The “standard of extreme cruelty * * *
necessarily embodies a moral judgment” whose
application “must change as the basic mores of
society change.” Graham, 560 U.S. at 58 (internal
quotation marks omitted). As a result, this Court
has often revisited prior decisions upholding the
constitutionality of the death penalty as new consensus and new insights emerge. In Atkins, the Court
overturned the judgment in Penry v. Lynaugh, 492
U.S. 302 (1989), that States may execute the intellectually disabled, finding that “standards * * * ha[d]
evolved” in the intervening 13 years and reinforced
its judgment that the penalty was impermissible.
Roper, 543 U.S. at 563. Three years later, in Roper,
the Court overturned its judgment in Stanford v.
Kentucky, 492 U.S. 361 (1989), allowing the execution of juveniles, finding that “indicia [of societal
consensus] ha[d] changed” and that in the Court’s
own “independent judgment” the penalty was unacceptably cruel. Roper, 543 U.S. at 574.
The changes wrought since Gregg are far more
substantial. Gregg relied on the fact that 35 States
“ha[d] enacted new statutes that provide for the
death penalty,” and that juries regularly sentenced
individuals to death, including 254 persons in the
two years after Furman alone. 428 U.S. at 179-182.
Since then, a majority of States have abandoned
capital punishment, and the penalty has withered in
every State. See supra Part II.A.1. Equally significant, this Court has repeatedly rendered its inde-

 36
pendent judgment that the pillars on which Gregg’s
judgment rested—that the death penalty is capable
of being imposed non-arbitrarily, reliably, and in a
humane manner—were severely flawed. 428 U.S. at
206.
As the Court made clear in Kennedy,
“[d]ifficulties in administering the penalty to ensure
against its arbitrary and capricious application
require adherence to a rule reserving its use” to a
dwindling class of persons and offenses. 554 U.S. at
447.
Moreover, definitive evidence—which this
Court expressly noted it lacked at the time it issued
Gregg—now confirms that these problems are endemic to the death penalty wherever it is administered.
Two justices of this Court, documenting these problems, recently called upon the Court to examine
whether the punishment accords with the Eighth
Amendment. See Glossip, 135 S. Ct. at 2755 (Breyer,
J., joined by Ginsburg J., dissenting). This case
presents an ideal vehicle for this Court to at last do
so. The case comes to the Court on direct review,
and the constitutional issues are well-preserved. As
a result, the vehicle problems that often afflict criminal cases coming from state court are absent here:
The AEDPA standard of review is inapplicable, so
the Court can get straight to the merits without
deference; there is no independent and adequate
state ground; and the constitutional question was
pressed and passed on below.
Furthermore, Arizona is a microcosm of the problems with the death penalty catalogued by Justice
Breyer in his Glossip dissent, and so this case comes
with a suitable record and context to consider the

 37
constitutional issues. Nine people on death row have
been exonerated in Arizona, including one in 2015.19
The number and breadth of the statutory aggravators make it an exemplar of the arbitrariness in the
imposition of the death penalty in the United States.
And, while 125 people currently sit on death row in
Arizona, the State has not carried out a single execution since 2014 (when Joseph Wood had to be injected 15 times in a two-hour ordeal).
The Court therefore has the opportunity to do more
than remedy the severe infirmity in Arizona’s death
penalty scheme. It may wish to go further and
answer the question whether the penalty that the
State seeks to administer—one shot through with
arbitrariness, unreliability, and cruelty—can any
more be inflicted in accordance with the Eighth
Amendment.

19

See DPIC, Innocence Cases, https://deathpenaltyinfo.org/
node/4900.

 38
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
SUSAN L. COREY
CONSUELO OHANESIAN
OFFICE OF THE LEGAL
ADVOCATE
222 N. Central Avenue
Suite 154
Phoenix, AZ 85004
(602) 506-4111
GARRETT W. SIMPSON
GARRETT SIMPSON PLLC
Box 6481
Glendale, AZ 85312
(623) 910-7216

NEAL KUMAR KATYAL
Counsel of Record
COLLEEN ROH SINZDAK
MITCHELL P. REICH
HOGAN LOVELLS US LLP
555 Thirteenth Street, NW
Washington, DC 20004
(202) 637-5600
neal.katyal@hoganlovells.com
THOMAS P. SCHMIDT
HOGAN LOVELLS US LLP
875 Third Avenue
New York, NY 10022
(212) 918-5547

Counsel for Petitioner
AUGUST 2017

 APPENDIX

1a
APPENDIX A
_________
IN THE
SUPREME COURT OF THE STATE OF ARIZONA
_________
No. CR-15-0049-AP
_________
STATE OF ARIZONA,
Appellee,
v.
ABEL DANIEL HIDALGO,
_________

Appellant.

Appeal from the Superior Court in Maricopa County
The Honorable Roland J. Steinle, III, Judge
No. CR2011-005473
AFFIRMED
_________
Filed March 15, 2017
_________
CHIEF JUSTICE BALES authored the opinion of
the Court, in which VICE CHIEF JUSTICE
PELANDER and JUSTICES BRUTINEL, TIMMER,
and BOLICK joined.
_________
CHIEF JUSTICE BALES, opinion of the Court:
¶1
This automatic appeal concerns Abel Daniel
Hidalgo’s 2015 death sentences for murdering Michael Cordova and Jose Rojas. We have jurisdiction
under article 6, section 5(3) of the Arizona Constitution and A.R.S. §§ 13-4031 and -4033(A).

 2a
BACKGROUND
¶2
In late December 2000, Hidalgo agreed to kill
Michael Cordova in exchange for $1,000 from a gang
member. He accepted the offer without knowing
Cordova or why the gang wanted him murdered. One
morning in January 2001, Hidalgo waited in his car
near Cordova’s auto-body shop. When Cordova began
unlocking the shop, Hidalgo approached and feigned
interest in some repair work. They were joined by
Jose Rojas, who occasionally did upholstery work for
Cordova and came that morning to retrieve some
equipment. After the three men entered the shop,
Hidalgo shot Rojas in the back of the head. Hidalgo
then shot Cordova in the forehead. Even though the
shots were fatal, Hidalgo shot each victim five more
times to ensure he died.
¶3
After murdering Cordova and Rojas, Hidalgo
went to the home of his godparents, Frank and
Barbara Valenzuela. Barbara overheard Hidalgo tell
others that he had just murdered two men and
wanted to sell his car to Frank because a woman had
seen him leave the shop. Frank purchased the car,
and a few days later Hidalgo fled Arizona.
¶4
A year later, Barbara informed the Maricopa
County Attorney’s Office that Hidalgo murdered
Cordova and Rojas. Phoenix Police subsequently
interviewed Hidalgo in Idaho, where he had murdered two women in January 2002 and was under
federal arrest. Hidalgo confessed to murdering
Cordova for $1,000 and to killing Rojas to eliminate
an eyewitness.
¶5
Hidalgo pleaded guilty in January 2015 to two
counts of first degree murder and one count of first
degree burglary. The jury found four aggravating

 3a
circumstances with respect to the murder of Cordova
and three with respect to the murder of Rojas: Hidalgo committed another offense eligible for a sentence of life imprisonment or death under Arizona
law; Hidalgo committed prior serious offenses; Hidalgo murdered for pecuniary gain (only with respect
to Cordova); and Hidalgo committed multiple homicides. A.R.S. §§ 13-751(F)(1), (F)(2), (F)(5), and (F)(8).
Considering these factors and the mitigation evidence, the jury sentenced Hidalgo to death for each
murder. The trial court also sentenced Hidalgo to
10.5 years’ imprisonment for the burglary.
DISCUSSION
A. Facial Challenge to A.R.S. § 13-751
¶6
Before trial, Hidalgo filed a motion alleging
that Arizona’s death penalty statute is unconstitutional because the statutorily identified aggravating
factors do not adequately narrow the class of those
eligible for the death penalty and defendants are
denied equal protection because poorer counties
cannot afford to pursue death sentences. His motion
was consolidated with similar motions filed by defendants in other cases. The defendants sought an
evidentiary hearing to establish that every first
degree murder case filed in Maricopa County in 2010
and 2011 could support at least one aggravating
factor and that rural counties cannot afford to seek
death sentences. The trial court denied the hearing
request, ruling that even if the defendants’ factual
allegations are accepted as true, the constitutional
claims fail as a matter of law.
¶7
On appeal, Hidalgo argues: (1) he was denied
due process when the trial court refused to hold an
evidentiary hearing; (2) A.R.S. § 13-751 fails to

 4a
adequately narrow the class of those eligible for a
death sentence; and (3) death sentences are arbitrarily imposed because poorer counties cannot afford to
pursue the death penalty. This Court reviews a trial
court’s decision whether to hold an evidentiary
hearing for abuse of discretion, State v. Spears, 184
Ariz. 277, 289, 908 P.2d 1062, 1074 (1996), and
reviews “constitutional issues and purely legal issues
de novo.” State v. Moody, 208 Ariz. 424, 445 ¶ 62, 94
P.3d 1119, 1140 (2004).
1.

The Refusal to Grant an Evidentiary
Hearing

¶8
Hidalgo argues that he was entitled to an
evidentiary hearing even though the trial court
assumed his factual allegations were true in reviewing his constitutional claims. In various contexts,
courts have recognized that evidentiary hearings are
not required when courts need not resolve factual
disputes to decide constitutional issues. E.g., State v.
Gomez, 231 Ariz. 219, 225–26 ¶ 29, 293 P.3d 495,
501–02 (2012) (finding that trial courts need not hold
an evidentiary hearing on motion for new counsel
where “there is no indication that a hearing would
elicit additional facts beyond those already before the
court”); see also State v. Amaral, 239 Ariz. 217, 219 ¶
9, 220 ¶ 11, 368 P.3d 925, 927, 928 (2016) (noting
that a post-conviction relief petitioner is entitled to a
hearing “if he or she presents a ‘colorable claim[,]’”
i.e., if the petitioner “has alleged facts which, if true,
would probably have changed the verdict or sentence”).
¶9
Although Hidalgo correctly notes that capital
defendants are accorded heightened procedural
safeguards, see, e.g., Monge v. California, 524 U.S.

 5a
721, 732–33 (1998), he has not identified any opinions holding that a capital defendant is entitled to an
evidentiary hearing on a pretrial motion even if the
court’s ruling does not turn on disputed facts. Hidalgo also does not convincingly explain how the denial
of an evidentiary hearing or the lack of findings of
fact has hindered appellate review of his constitutional claims. Notably, he has not identified any
particular evidence that he would have offered that
would materially add to the factual record before the
trial court or this Court on appeal.
¶10 Hidalgo also correctly notes that due process
entitles parties to notice and a meaningful opportunity to be heard, citing Hamdi v. Rumsfeld, 542
U.S. 507 (2004), and Mathews v. Eldridge, 424 U.S.
319 (1976). But neither of these cases is apposite.
Mathews, which concerned the denial of disability
benefits, outlined a balancing test for identifying
what process is due before persons may be deprived
of liberty or property. 424 U.S. at 323, 334–35.
Hamdi applied that test in holding that citizens
detained by the military are entitled to a hearing to
challenge their designation as enemy combatants.
542 U.S. at 529–35.
¶11 Citing Hamdi and Fuentes v. Shevin, 407 U.S.
67 (1972), Hidalgo also argues that a defendant is
entitled to be heard even if the court believes his
claim is invalid. See Hamdi, 542 U.S. at 530 (“‘[T]he
right to procedural due process is ‘absolute’ in the
sense that it does not depend upon the merits of a
claimant’s substantive assertions.’”) (quoting Carey
v. Piphus, 435 U.S. 247, 266 (1978)); Fuentes, 407
U.S. at 87 (“The right to be heard does not depend
upon an advance showing that one will surely prevail

 6a
at the hearing.”). Hamdi and Fuentes each considered whether any hearing was required. See Hamdi,
542 U.S. at 509; Fuentes, 407 U.S. at 69–70. Hidalgo
also argues that parties must be permitted to develop both the law and the facts, citing Kessen v. Stewart, 195 Ariz. 488, 492 ¶ 16, 990 P.2d 689, 693 (App.
1999). But “[p]rocedural due process . . . requires
nothing more than an adequate opportunity to fully
present factual and legal claims.” Id. Hidalgo was
afforded an adequate opportunity to be heard. Procedural due process does not require an evidentiary
hearing on a motion when the legal claims do not
turn on disputed facts.
¶12 Finally, citing People v. Ballard, 794 N.E.2d
788 (Ill. 2002), Hidalgo contends that whether a
statute adequately narrows the class of those eligible
for the death penalty is necessarily a factual question. Ballard rejected an argument that Illinois’s
capital sentencing scheme was unconstitutional
because it had so many aggravating factors that it
was “difficult to imagine a first degree murder defendant who does not qualify under at least one, if
not several factors.” Id. at 817. The majority in
Ballard rejected the argument because: (1) the
sentencing scheme narrowed the eligible defendants
by means beyond the list of aggravating circumstances; and (2) it is impossible to identify how many
aggravating circumstances would be too many for
constitutional purposes. Id. at 819. The majority also
observed that the defendant had not demonstrated
that his claims were empirically accurate, id., a point
also noted by a concurring opinion, which stated,
“whether the constitutional requirement of narrowing has occurred is a factual one.” Id. at 826 (McMorrow, J., specially concurring). The concurrence did

 7a
not suggest an evidentiary hearing is invariably
required, but instead that the defendant’s claims
failed for lack of substantiation rather than as a
matter of law. Id.
¶13 The trial court did not abuse its discretion
here in denying an evidentiary hearing and instead
assuming the truth of Hidalgo’s factual assertions for
purposes of ruling on the pending motion.
2.

The Claim that A.R.S. § 13-751 Does Not
Sufficiently Narrow the Class of Defendants Eligible for the Death Penalty

¶14 To be constitutionally sound, “a 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
sentence on the defendant compared to others found
guilty of murder.’” Lowenfield v. Phelps, 484 U.S.
231, 244 (1988) (quoting Zant v. Stephens, 462 U.S.
862, 877 (1983)). Hidalgo contends that A.R.S. § 13751 does not satisfy this requirement.
¶15 We rejected a similar challenge in State v.
Greenway, 170 Ariz. 155, 823 P.2d 22 (1991). Since
Greenway, the legislature has expanded the list and
the scope of individual aggravators. Compare A.R.S.
§ 13-703(F) (1989 & Supp. 1991) (enumerating ten
aggravators), with A.R.S. § 13-751(F) (2010 & Supp.
2016) (enumerating fourteen aggravators). As a
result, Hidalgo argues, virtually every first degree
murder case in Maricopa County has facts that could
support at least one aggravator.
¶16 In rejecting Hidalgo’s argument, the trial
court stated that it was bound by Greenway and
State v. Hausner, 230 Ariz. 60, app. at 89, 280 P.3d
604, app. at 633 (2012) (noting similar argument in

 8a
appendix listing claims defendant sought to preserve
for federal review). The trial court acknowledged the
legislature has expanded the scope of death penalty
aggravators and the defendants offered to establish a
precedential fact in Arizona - that the aggravators
cover every first degree murder case filed within a
broad period of time. Nonetheless, the court concluded that jury findings can supply the constitutionally
required narrowing in a particular case.
¶17 Hidalgo argues the legislature must statutorily narrow the scope of death-eligible murders. With
the State’s permission, he supplemented the record
on appeal with an expanded study of first degree
murder cases in several counties over an eleven-year
period, which concludes that one or more aggravating circumstances were present in 856 of 866 murders.
¶18 Hidalgo’s argument finds some support from
isolated quotes - as distinct from actual holdings - in
opinions of the United States Supreme Court and our
Court. Academic commentators have made similar
arguments. See, e.g., Chelsea Sharon, Note, The
“Most Deserving” of Death: The Narrowing Requirement and the Proliferation of Aggravating Factors in
Capital Sentencing, 46 Harv. C.R.-C.L. L. Rev. 223,
244–50 (2011). Nonetheless, “[d]espite the constitutional concerns these expansive statutes [identifying
aggravating factors] raise, the vast majority of courts
have rejected narrowing challenges to such statutes.”
Id . at 238; see also Smith v. Stewart, 140 F.3d 1263,
1272 (9th Cir. 1998) (rejecting as “entirely otiose” the
claim that Arizona’s statute is unconstitutional
because it “does not properly narrow the class of
death penalty recipients”); State v. Steckel, 711 A.2d

 9a
5, 12–13 (Del. 1998); State v. Wagner, 752 P.2d 1136,
1158 (Or. 1988).
¶19 Although the United States Supreme Court
has not directly addressed whether a death penalty
statute may fail to provide sufficient narrowing by
including too many aggravating circumstances, its
case law undermines Hidalgo’s position. The narrowing requirement is rooted in Furman v. Georgia,
which struck down death penalty statutes that gave
juries unguided discretion to impose death sentences
for various types of murder and other crimes and
resulted in “this unique penalty” being “wantonly
and so freakishly imposed.” 408 U.S. 238, 310 (1972)
(Stewart, J., concurring).
¶20 After Furman, many states enacted new
capital statutes. In upholding several such statutes,
the Court in Gregg v. Georgia noted that “[t]he basic
concern of Furman centered on those defendants who
were being condemned to death capriciously and
arbitrarily.” 428 U.S. 153, 206 (1976) (opinion of
Stewart, J.). Gregg held that a death sentence may
not be imposed unless the sentencing authority finds
and identifies “at least one statutory aggravating
factor[.]” Id. The concerns underlying Furman were
obviated by the procedures reviewed in Gregg because the sentencing procedures focused the jury’s
attention “on the particularized nature of the crime
and the particularized characteristics of the individual defendant” and permitted the jury to consider
any aggravating or mitigating circumstances before
it could impose a sentence of death, and death sentences were subject to appellate review. Id. at 206-07.
¶21 More recently, the United States Supreme
Court has identified “two different aspects of the

 10a
capital decision-making process: the eligibility decision and the selection decision.” Tuilaepa v. California, 512 U.S. 967, 971 (1994). With regard to eligibility, “a capital sentencing scheme must ‘genuinely
narrow the class of persons eligible for the death
penalty and must reasonably justify imposition of a
more severe sentence on the defendant compared to
others found guilty of murder.’” Lowenfield, 484 U.S.
at 244 (quoting Zant, 462 U.S. at 877). The selection
decision requires an individualized determination
based on the character of the individual and the
circumstances of the crime. Zant, 462 U.S. at 879.
Accordingly, a statute that “provides for categorical
narrowing at the definition stage, and for individualized determination and appellate review at the
selection stage” will ordinarily satisfy Eighth
Amendment and due process concerns, id., so long as
the state ensures “that the process is neutral and
principled so as to guard against bias or caprice[.]”
Tuilaepa, 512 U.S. at 973.
¶22 “To render a defendant eligible for the death
penalty in a homicide case . . . the trier of fact must
convict the defendant of murder and find one ‘aggravating circumstance’ (or its equivalent) at either the
guilt or penalty phase.” Id. at 971-72. “[T]he aggravating circumstance must meet two requirements.
First, the circumstance . . . must apply only to a
subclass of defendants convicted of murder. Second,
the aggravating circumstance may not be unconstitutionally vague.” Id. at 972 (internal citations
omitted).
¶23 Discussions of “narrowing” challenges to death
penalty statutes may involve two different questions:
(1) whether a particular aggravator applies to fewer

 11a
than all murders; and (2) whether the scheme overall
“is neutral and principled so as to guard against bias
or caprice[.]” Id. at 972–73.
¶24 Hidalgo does not contend that any of Arizona’s
statutorily defined aggravators are insufficiently
narrow in the first sense. Cf. Godfrey v. Georgia, 446
U.S. 420, 433 (1980) (reversing death sentence where
aggravating circumstance could apply to any murder). An aggravating circumstance satisfies this
narrowing requirement so long as it applies only to a
subclass of murders. See Tuilaepa, 512 U.S. at 972;
Arave v. Creech, 507 U.S. 463, 474 (1993); Hausner,
230 Ariz. at 82 ¶ 99, 280 P.3d at 626. Hidalgo also
has not alleged that any of the statutory aggravators
are vague or that the aggravators applied in his case
were not supported by sufficient evidence or failed to
distinguish his murders from murders in general.
¶25 Hidalgo argues that Arizona’s capital scheme
is unconstitutional because it provides no narrowing
- virtually every first degree murder case presents
facts that could support at least one aggravating
circumstance. He acknowledges that prosecutors
sought the death penalty in Maricopa County in
about ten percent of first degree murder cases in
2010 and 2011. But he contends that this situation is
impermissibly “arbitrary” and violates the Eighth
Amendment and due process because there is no
principled basis for identifying which capital defendants will be subject to the death penalty.
¶26 In requiring “narrowing” in the eligibility
phase of capital proceedings, the United States
Supreme Court has focused on whether the
sentencer is required to find an aggravating fact
beyond the murder itself. Arave, 507 U.S. at 470

 12a
(stating that a capital sentencing scheme must
“suitably direc[t] and limi[t] the sentencer’s discretion
so as to minimize the risk of wholly arbitrary and
capricious action”) (internal quotation marks omitted) (emphasis added). The Court has not looked
beyond the particular case to consider whether, in
aggregate, the statutory scheme limits deathsentence eligibility to a small percentage of first
degree murders. Even if Hidalgo is right in his
factual assertion that nearly every charged first
degree murder could support at least one aggravating circumstance, no defendant will be subject to a
death sentence merely by virtue of being found guilty
of first degree murder and, as Hidalgo acknowledges,
death sentences are in fact not sought in most first
degree murder cases. Observing that at least one of
several aggravating circumstances could apply to
nearly every murder is not the same as saying that a
particular aggravating circumstance is present in
every murder. Cf. Carol S. Steiker & Jordan M.
Steiker, Courting Death: The Supreme Court and
Capital Punishment 160 (2016) (noting that the
Court assesses “whether individual aggravators”
rather than “aggravating factors taken collectively”
narrow the class of offenders eligible for the death
penalty) (emphasis in original).
¶27 As Hidalgo notes, our Court has “repeatedly
held” that “the death penalty should not be imposed
in every capital murder case but, rather, it should be
reserved for cases in which either the manner of the
commission of the offense or the background of the
defendant places the crime ‘above the norm of firstdegree murders.’” State v. Carlson, 202 Ariz. 570, 582
¶ 45, 48 P.3d 1180, 1192 (2002) (quoting State v.
Hoskins, 199 Ariz. 127, 163 ¶ 169, 14 P.3d 997, 1033

 13a
(2000)). “The specified statutory aggravators in
Arizona’s death penalty scheme are designed to
narrow, in a constitutional manner, the class of first
degree murderers who are death-eligible.” State v.
Soto-Fong, 187 Ariz. 186, 202, 928 P.2d 610, 626
(1996).
¶28 Hidalgo is mistaken, however, insofar as he
focuses only on the legislatively defined aggravating
circumstances in arguing that Arizona’s scheme does
not constitutionally narrow the class of those eligible
for death sentences. “The use of ‘aggravating circumstances’ is not an end in itself, but a means of genuinely narrowing the class of death-eligible persons
and thereby channeling the jury’s discretion.” Lowenfield, 484 U.S. at 244 (holding that narrowing
function may be performed by jury findings at guilt
or sentencing phase). The legislature’s definition of
aggravating factors is not the only way in which
Arizona’s sentencing scheme narrows the class of
persons eligible for death. See State v. Bible, 175
Ariz. 549, 603–04, 858 P.2d 1152, 1206–07 (1993).
Arizona statutorily limits the death penalty to a
subclass of defendants convicted of first degree
murder. Greenway, 170 Ariz. at 164, 823 P.2d at 31.
Arizona’s statutes further limit death eligibility to
the identified aggravating circumstances (which, as
noted above, Hidalgo does not challenge individually
as either overly broad or vague). Additionally, a
defendant in a particular case only becomes deatheligible if the state proves beyond a reasonable doubt
that one or more of the alleged aggravating circumstances exists. A.R.S. § 13-751(B); Greenway, 170
Ariz. at 164, 823 P.2d at 31. Arizona’s statutory
scheme further provides for individualized sentencing determinations that consider any mitigating

 14a
circumstances along with the defendant’s culpability,
and for mandatory appellate review. See A.R.S. § 13751(C), (E); Greenway, 170 Ariz. at 164, 823 P.2d at
31. This statutory framework seeks to “ensure that
the process is neutral and principled so as to guard
against bias or caprice in the sentencing decision.”
Tuilaepa, 512 U.S. at 973.
¶29 Finally, Hidalgo cannot successfully argue
that Arizona’s capital sentencing scheme is “arbitrary” and violates the Eighth Amendment or due
process because it leaves the decision whether to
seek death to the discretion of prosecutors. The
United States Supreme Court has rejected similar
arguments in McCleskey v. Kemp, 481 U.S. 279, 311–
12 (1987), and Gregg, 428 U.S. at 199, where the
Court observed that discretionary removal of defendants as candidates for death does not render a death
sentence imposed in a particular case arbitrary and
capricious. See also State v. Ovante, 231 Ariz. 180,
185–86 ¶¶ 18–22, 291 P.3d 974, 979–80 (2013)
(rejecting argument that “unbridled charging discretion” of prosecutors violates due process, equal
protection, and the Eighth Amendment).
3.

The Equal Protection Challenges

¶30 Before the trial court, Hidalgo argued that
A.R.S. § 13-751 is not applied equally across the
state because poor counties cannot afford to seek the
death penalty and the statute therefore violates the
Equal Protection Clause or the Arizona constitutional provisions regarding equal privileges or immunities, Ariz. Const. art. 2, § 13, or barring the enactment of local or special laws. Ariz. Const. art. 4, part
2, § 19(7). In rejecting these arguments, the trial
court noted that an equal protection claim could not

 15a
succeed absent purposeful discrimination, which the
defendants had not alleged. See McCleskey, 481 U.S.
at 292; Ovante, 231 Ariz. at 186 ¶ 21, 291 P.3d at 980
(holding that showing defendants in Maricopa County are more likely to receive the death penalty than
defendants in other counties does not establish an
Equal Protection Clause violation).
¶31 On appeal, Hidalgo disclaims relying on the
Equal Protection Clause, but instead argues that the
inter-county disparity violates the “equal protection
component implicit in the Eighth Amendment,”
which does not require a showing of purposeful
discrimination. He again argues that A.R.S. § 13-751
violates Arizona’s Equal Privileges and Immunities
Clause and prohibition on special laws. Without
developing his arguments, he also asserts that the
capital sentencing scheme violates the provisions in
article 2, sections 4 and 15 of Arizona’s Constitution,
requiring due process and barring cruel and unusual
punishment.
¶32 We reject Hidalgo’s arguments. Insofar as
Hidalgo contends that discretionary decisions by
prosecutors not to seek the death penalty create
inter-county disparities and thereby violate the
Eighth Amendment, his argument is foreclosed by
McCleskey and Ovante. The United States Court of
Appeals for the Fifth Circuit has rejected a similar
claim that a death penalty statute violated the
Eighth Amendment because certain counties disproportionately applied the death penalty. Allen v.
Stephens, 805 F.3d 617, 629–30 (5th Cir. 2015) (“[N]o
Supreme Court case has held that the Constitution
prohibits geographically disparate application of the
death penalty due to varying resources across juris-

 16a
dictions. . . . [T]he Supreme Court has specifically
acknowledged that differing law enforcement resources and prosecutorial discretion make uniform
application of the death penalty impossible.”), cert.
denied, 136 S. Ct. 2382 (2016).
¶33 Hidalgo’s assertion that the death penalty
violates Arizona’s Equal Privileges and Immunities
Clause also fails because he has not alleged purposeful discrimination. Cf. Ovante, 231 Ariz. at 186 ¶ 21,
291 P.3d at 980 (rejecting equal protection claim on
same grounds). Nor can he succeed on his assertion
that § 13-751 is an impermissible “local or special
law” in violation of article 4, part 2, section 19(7).
The statute is a general law as it applies to all death
penalty cases statewide. See Eastin v. Broomfield,
116 Ariz. 576, 584, 570 P.2d 744, 752 (1977).
¶34 The Court need not address Hidalgo’s undeveloped arguments that § 13-751 violates the due
process or the cruel and unusual punishment provisions in article 2, sections 4 and 15. See Ovante, 231
Ariz. at 185 ¶ 18 n.1, 291 P.3d at 979 (noting the
Court will not consider or address unsupported
constitutional claims). Moreover, the Court has
previously rejected arguments that the death penalty
is imposed arbitrarily and irrationally in Arizona in
violation of article 2, section 4, see, e.g., State v.
Smith, 203 Ariz. 75, 82 ¶ 36, 50 P.3d 825, 832 (2002),
and Hidalgo has not explained how Arizona’s prohibition on cruel and usual punishment should afford
any protections different than the Eighth Amendment in this context.

 17a
B. Prosecutorial Statements
Jury’s Responsibility

Diminishing

¶35 During closing argument at the penalty phase,
the prosecutor told the jurors, “[i]f you unanimously
agree that there is no mitigation, or the mitigation is
not sufficiently substantial to call for leniency, then
you shall return a verdict of death. It’s not an option.” Hidalgo contends that such remarks diminished the jury’s sense of responsibility for its verdict
and violated his rights under the Eighth and Fourteenth Amendments to the United States Constitution and article 2, sections 4 and 15 of the Arizona
Constitution.
¶36 Because Hidalgo did not object to the prosecutor’s statements, we review for fundamental error.
See State v. Henderson, 210 Ariz. 561, 567 ¶ 19, 115
P.3d 601, 607 (2005). To establish fundamental error,
Hidalgo must show he was prejudiced by an error
that went to the foundation of his case and denied
him a fair trial. Id. at 568 ¶¶ 23–24, 569 ¶ 26, 115
P.3d at 608–09. When determining whether error is
fundamental, this Court reviews the entire record
and the totality of the circumstances. State v.
Hughes, 193 Ariz. 72, 86 ¶ 62, 969 P.2d 1184, 1198
(1998).
¶37 Hidalgo argues that the prosecutor’s statements diminished the jury’s sense of responsibility
for its verdict in violation of Caldwell v. Mississippi,
472 U.S. 320 (1985). We reject this argument because: (1) the prosecutor’s statements accurately
stated the law; (2) Caldwell does not apply; and (3)
Hidalgo cannot show prejudice because the jurors are
presumed to have followed the trial court’s instructions about their role in sentencing.

 18a
¶38 The prosecutor’s statements mirror Arizona
law, which provides that “[t]he trier of fact shall
impose a sentence of death if the trier of fact finds
one or more . . . aggravating circumstances . . . and
then determines that there are no mitigating circumstances sufficiently substantial to call for leniency.”
A.R.S. § 13-751(E). This Court has held that jury
instructions restating this language do not violate
the Eighth Amendment by creating a “presumption
of death,” so long as the jury is allowed to consider
any relevant mitigating evidence. See, e.g., State v.
Harrod, 218 Ariz. 268, 281 ¶ 49, 183 P.3d 519, 532
(2008). The trial court’s instructions comported with
Arizona’s statute and our case law, and Hidalgo does
not challenge the trial court’s instructions on appeal.
¶39 Hidalgo instead argues that the prosecutor’s
statements violated Caldwell by diminishing the
jury’s sense of responsibility for its verdict. Stating
that the “law” may require a death sentence in
certain circumstances, Hidalgo contends, may confuse the jury and prevent it from recognizing that
jurors must individually make a moral determination, which can be grounded on mercy, as to the
appropriate sentence. In Caldwell, the Court reversed a death sentence imposed after a prosecutor
incorrectly suggested to the jury that “the responsibility for the ultimate determination of death will
rest with others” thereby presenting “an intolerable
danger that the jury will in fact choose to minimize
the importance of its role.” 472 U.S. at 333. Hidalgo
states that “[t]he rationale underlying Caldwell
applies equally well to these facts.”
¶40 “Caldwell, however, merely held that a death
sentence could not stand ‘when the sentencing jury is

 19a
led to believe that responsibility for determining the
appropriateness of a death sentence rests not with
the jury but with the appellate court which later
reviews the case.’” State v. Anderson, 210 Ariz. 327,
337 ¶ 22, 111 P.3d 369, 379 (2005) (quoting Caldwell,
472 U.S. at 323) (emphasis removed); see also Romano v. Oklahoma, 512 U.S. 1, 9 (1994) (noting Caldwell applies only to statements that mislead the jury
into feeling less responsible than it should for the
sentencing decision).
¶41 The prosecutor’s statements did not violate
Caldwell by suggesting that ultimate responsibility
for imposing a death sentence rested with others. To
the contrary, the prosecutor noted the jury’s responsibility by stating “each of you must decide the case
for yourself[.]” Defense counsel also noted the jury’s
responsibility in various ways, including by stating
“you are the sole judges of the sentence in this case.”
The jury instructions also thoroughly discussed the
jury’s responsibility in determining the death sentence and noted: “Your decision is not a recommendation. Your decision is binding.”
¶42 Hidalgo also speculates that the prosecutor’s
comments may have caused jurors to think they
could not consider “mercy” in making the sentencing
decision. The jury instructions, however, explained
that mitigating circumstances “are not an excuse or
justification for the offense but are factors that in
fairness or mercy may reduce the defendant’s moral
culpability.” Both the prosecutor and defense counsel
referenced this statement in their closing arguments.
¶43 Because the prosecutor’s statements accurately reflected the law, and did not violate Caldwell
when considered in light of the record, they do not

 20a
constitute error, much less fundamental error. See
State v. Benson, 232 Ariz. 452, 463 ¶ 44, 307 P.3d 19,
30 (2013) (finding no error in trial court’s overruling
objection to prosecutor’s closing argument that
accurately stated the law). In any event, Hidalgo
could not establish prejudice because the jury instructions accurately described the jury’s role in
sentencing, and the jury is presumed to have followed them. See, e.g., State v. Newell, 212 Ariz. 389,
403 ¶ 68, 132 P.3d 833, 847 (2006); see also Anderson, 210 Ariz. at 342 ¶ 50, 111 P.3d at 384 (noting
that a misstatement of the law can be cured by
court’s instruction that attorney arguments are not
evidence).
C. Revocation of Self-Representation
¶44 Hidalgo contends the trial court abused its
discretion when it revoked his self-representation
after Hidalgo refused to proceed with jury selection
on the long-scheduled trial date. “A trial court’s
decision to revoke a defendant’s self-representation
is reviewed for an abuse of discretion.” Gomez, 231
Ariz. at 222 ¶ 8, 293 P.3d at 498 (2012). Selfrepresentation may be revoked if a defendant fails to
comply with court rules or orders. Id. at 223 ¶ 15,
293 P.3d at 499.
¶45 Hidalgo contends that he was unable to proceed because a disability limits his ability to write by
hand and the trial court improperly denied him
access to a typewriter for use in preparing for trial.
The record does not show that Hidalgo’s physical
condition prevented him from preparing for trial or
that the trial court erred in denying his request to be
allowed to use a typewriter in his cell. Instead, the
trial court acted within its discretion by revoking

 21a
Hidalgo’s self-representation when, contrary to the
court’s repeated warnings and orders, Hidalgo was
unwilling to proceed on the scheduled trial date.
¶46 After Hidalgo was indicted in 2011, he was
represented by appointed counsel for several years.
In August 2014, the trial court granted a final motion to continue and set a firm trial date for December 8, 2014. At a September 2014 hearing, Hidalgo
asked to represent himself because he disagreed with
his counsel’s refusal to list and interview certain
witnesses. The trial court discussed with Hidalgo the
disadvantages of proceeding pro per and reminded
him of the trial date and his responsibility to follow
the rules. The court then granted Hidalgo’s request
to proceed pro per and appointed his counsel as
advisory counsel.
¶47 At the end of the hearing, Hidalgo filed a
handwritten motion to obtain and use a laptop
computer in his cell. In the motion, Hidalgo stated
that he suffered from “trigger finger,” an arthritic
complication that causes his fingers to lock up if held
in one place too long. After a hearing on October 17,
at which no representative appeared for the Maricopa County Sheriff’s Office (“MCSO”), the trial court
granted Hidalgo’s motion with the understanding
that it would permit a laptop or “other authorized
word processing instrument,” but noted that the
MCSO would let the court know “if that violates the
rules.”
¶48 On October 30, MCSO filed a motion for
reconsideration asking the trial court to vacate its
order and instead deny Hidalgo’s request. MCSO
said its policy prohibited providing inmates access to
such devices because of security risks and noted that

 22a
Hidalgo had twenty-seven disciplinary violations,
including threatening and assaulting staff. MCSO
also observed that Hidalgo’s advisory counsel could
provide Hidalgo access to a laptop during legal visits
to prepare any documents.
¶49 On November 19, the court heard argument on
MCSO’s motion. By this time, the case had been
assigned to a different judge for trial. The court
granted MCSO’s motion to vacate the order allowing
Hidalgo access to an “authorized word processing
instrument.” Reminding Hidalgo he had to follow the
rules, the trial court also said it could revoke his selfrepresentation if he was not prepared to go forward
with trial on December 8.
¶50 Hidalgo also filed a motion on November 19 to
continue the trial, asserting that he was having
trouble contacting witnesses and it was taking him
longer to prepare without a typewriter. On December
1, the trial court denied this motion and again reminded Hidalgo that he was required to follow the
rules. On December 3, the court held another hearing and reaffirmed that trial would begin on December 8. When Hidalgo said he could not prepare for
trial without a typewriter, the judge responded:
[I]f you’re not going to follow the rules, and
you’re going to tell me you can’t proceed on
Monday the 8th because you’re physically
incapable of doing it, then we’ll have the
hearing that’s set forth under State vs. Gomez,
and I’ll make a finding that you’re not capable
of doing it, withdraw your pro per status, and
your advisory counsel will become assigned
counsel again, and we will proceed on the 8th
with jury selection.

 23a
¶51 On the morning of December 8, Hidalgo told
the trial court that he was asking for reconsideration
of his request for a typewriter because he could not
prepare for trial without one and inmates who had
been helping him file handwritten motions were no
longer available. Hidalgo also asked the trial court to
continue the trial until March 2015 because he was
not prepared to proceed.
¶52 The trial court denied Hidalgo’s motions,
noting that a continuance would be futile because
Hidalgo claimed he was physically incapable of
preparing for trial without a typewriter and the
judge was not going to provide him one. The court
reminded Hidalgo that he had been granted pro per
status on the understanding that he would be prepared for trial on the scheduled date. After Hidalgo
reaffirmed he was not prepared to proceed, the trial
court stated, “in light of your refusal to proceed with
this matter, the court has no option but to withdraw
your pro per status[.]” The court then reassigned
Hidalgo’s advisory counsel as his appointed counsel
and began jury selection.
¶53 On appeal, Hidalgo argues that the trial court
abused its discretion in revoking his selfrepresentation because the trial court made it impossible for him to abide by the court’s orders by not
granting him access to a typewriter. He distinguishes Gomez, in which this Court upheld the
revocation of self-representation, because the defendant there had attempted to manipulate the
court, engaged in willful violations of the rules, and
continuously interrupted or delayed court proceedings.

 24a
¶54 Contrary to Hidalgo’s arguments, the trial
court did not abuse its discretion in revoking his pro
per status. Gomez recognizes that self-representation
may be revoked if a defendant fails to follow court
orders. 231 Ariz. at 223 ¶ 15, 293 P.3d at 499. The
trial court repeatedly ordered Hidalgo to be ready to
proceed with trial on December 8 and, when that day
arrived, Hidalgo informed the court that he could not
proceed. The trial court thus properly revoked Hidalgo’s pro per status based on his refusal to proceed on
the scheduled trial date.
¶55 Although Hidalgo asserts he could not prepare
for trial without a typewriter, his inability to access a
typewriter in his cell did not prevent him from
preparing his case to begin trial on December 8.
Hidalgo began representing himself on September 30
only after he had been represented by counsel for
several years and a firm trial date had been set. He
continued to have advisory counsel, and during his
period of self-representation, he filed thirty-one
handwritten motions. Although Hidalgo told the trial
court that he had been unable to file an interlocutory
appeal from the trial court’s denying him access to a
typewriter, Hidalgo did not identify to the trial court
or to this Court how denying him access to a typewriter prevented his filing any particular motion in
the trial court or otherwise preparing for trial.
¶56 We emphasize two points regarding our ruling
that the trial court did not abuse its discretion in
revoking Hidalgo’s self-representation. As the State
conceded at oral argument, it would have been
improper for the trial court to revoke Hidalgo’s pro
per status because Hidalgo had a physical disability
or because the trial court thought he was not appro-

 25a
priately preparing his case. The right to selfrepresentation respects the defendant’s right to
choose how to conduct his defense, see Faretta v.
California, 422 U.S. 806, 834 (1975), and a trial court
cannot revoke self-representation merely because it
thinks a defendant is failing to prepare for trial. See
United States v. Flewitt, 874 F.2d 669, 676 (9th Cir.
1989) (holding that district court erred in revoking
self-representation based on the defendants’ failure
to “engage in meaningful discovery, . . . to make use
of the resources available to them, and their general
failure to prepare for trial[.]”). There is a difference,
however, between revoking self-representation
because a defendant is not willing to proceed on the
scheduled trial date, which is permissible, and
revoking self-representation because a court believes
a defendant is not properly preparing for trial, which
generally is not. In the latter situation, the defendant will bear the consequences of his lack of preparation; in the former, the defendant’s refusal to proceed
disrupts the proceedings altogether, justifying the
revocation of self-representation.
¶57 It is likewise improper to revoke a defendant’s
self-representation based merely on a physical
disability. This Court has indicated that a defendant’s physical ability to conduct a defense is generally irrelevant to determining whether a defendant is
entitled to self-representation. See State v. Doss, 116
Ariz. 156, 160, 568 P.2d 1054, 1058 (1977) (“There
was evidence that the defendant was physically
unable to carry on his defense, and at various times
the defendant has acknowledged that stress affects
his speech and presents a danger of seizure. Faretta,
however, makes clear that the lack of skill and
experience is not the issue in making the choice of

 26a
self-representation.”) (footnote omitted). Accordingly,
a defendant’s disability can provide grounds for
denying or revoking self-representation only if it
renders a defendant physically incapable of presenting a case to the jury and abiding by court rules and
protocol. Cf. Savage v. Estelle, 924 F.2d 1459, 1464,
1466 (9th Cir. 1990) (upholding revocation of selfrepresentation in “rare case[s],” such as here, where
severe speech impediment prevented defendant from
“abid[ing] by [the] rules of procedure and courtroom
protocol” but distinguishing a denial of a right “to
communicate to the jury with the assistance of a sign
language interpreter, or some other mechanical or
non-mechanical means of rapid communication”).
¶58 The record does not reflect that the trial court
revoked Hidalgo’s self-representation because of a
physical disability or his failing to prepare for trial.
Instead, as the trial court expressly stated, it revoked self-representation because Hidalgo refused to
follow court orders to proceed with trial on the
scheduled date.
D. Failure to Hold Evidentiary Hearing on
Motion for New Counsel
¶59 Hidalgo argues that the trial court erred on
December 8 in denying his request for new counsel
without holding an evidentiary hearing. We review
that decision for an abuse of discretion. Gomez, 231
Ariz. at 226 ¶ 29, 293 P.3d at 502. An evidentiary
hearing on a motion for change of counsel is not
required “if the motion fails to allege specific facts
suggesting an irreconcilable conflict or a complete
breakdown in communication, or if there is no indication that a hearing would elicit additional facts
beyond those already before the court.” Id. at 225–26

 27a
¶ 29, 293 P.3d at 501–02. The defendant bears the
burden of making sufficient factual allegations in
support of his request for an evidentiary hearing.
State v. Torres, 208 Ariz. 340, 343 ¶ 8, 93 P.3d 1056,
1059 (2004).
¶60 When Hidalgo requested a change of counsel,
he informed the trial court he had been unable to get
along with his appointed lawyers and could not
“come to an agreement on this trial on my defense,
mitigation, and everything else that comes with the
trial.” He said he and his lawyers had not seen “eye
to eye for some time,” and they had been ineffective
in preparing his case. Hidalgo then asked for an
evidentiary hearing on his motion, but the trial court
denied it.
¶61 Hidalgo failed to identify specific facts sufficient to require an evidentiary hearing. His statement that he disagreed with his lawyers on “[his]
defense, mitigation, and everything else that comes
with trial” reflects disagreements over trial strategy,
and such disagreements do not constitute an irreconcilable conflict. See State v. Cromwell, 211 Ariz. 181,
186 ¶ 29, 119 P.3d 448, 453 (2005). Although Hidalgo
said his lawyers had been ineffective in preparing his
case, “generalized complaints” about differences in
strategy do not necessitate a hearing. See Torres, 208
Ariz. at 343 ¶ 8, 93 P.3d at 1059. When Hidalgo
earlier elected to represent himself, his request
likewise reflected disagreement over trial strategy namely, disagreement over his appointed counsel’s
refusal to list and interview certain witnesses rather than specific allegations of irreconcilable
differences or a complete breakdown in communication. The trial court therefore did not abuse its

 28a
discretion when it denied Hidalgo’s request for
change of counsel without holding an evidentiary
hearing.
E. Independent Review of Death Sentence
¶62 Because Hidalgo committed the murders
before August 1, 2002, we independently review his
death sentence. See A.R.S. § 13-755(A).
1.

Aggravating Circumstances

¶63 The jury found four aggravators - (F)(1) (conviction of another offense for which life or death
sentence imposable), (F)(2) (prior conviction of a
serious offense), (F)(5) (pecuniary gain), and (F)(8)
(multiple murders during commission of offense) with respect to the murder of Michael Cordova and
three aggravators - (F)(1), (F)(2), and (F)(8) - with
respect to the murder of Jose Rojas. Hidalgo does not
contest the sufficiency of the evidence, and our
review of the record confirms that the State proved
each aggravator beyond a reasonable doubt.
¶64 Hidalgo’s federal convictions for murdering
two women in 2002 were each punishable by a sentence of life imprisonment or death, and thus, either
conviction establishes the (F)(1) aggravator. The
State proved the (F)(5) aggravator because Hidalgo
confessed to murdering Cordova for $1,000. Hidalgo
also pleaded guilty to murdering Cordova and Rojas
within minutes of one another inside Cordova’s autobody shop. While stating that he murdered Cordova
because a gang member had hired him to do so, he
confessed to killing Rojas simply to eliminate a
witness to Cordova’s murder. Hidalgo’s confession
consequently established that Cordova and Rojas’s
murders were temporally, spatially, and motivationally related as required for the (F)(8) aggravator. See

 29a
State v. Djerf, 191 Ariz. 583, 597 ¶ 57, 959 P.2d 1274,
1288 (1998).
¶65 The State, however, erred when proving the
(F)(2) aggravator, which turns on Hidalgo’s having
been “previously convicted of a serious offense,
whether preparatory or completed.” When Hidalgo
murdered Cordova and Rojas in 2001, this aggravator could not be established based on offenses concurrently committed or charged. See A.R.S. § 13703(F)(2) (1989 & Supp. 2000). In 2003, the legislature amended the statute to include serious offenses
concurrently committed or charged. See A.R.S. § 13751(F)(2). Because the earlier version of the statute
applied, the State (as it acknowledges on appeal)
erred in arguing during the aggravation phase that
Hidalgo’s conviction for the first degree burglary
committed concurrently with the murders supported
the (F)(2) aggravator. See State v. Rutledge, 206 Ariz.
172, 178 ¶ 25, 76 P.3d 443, 449 (2003).
¶66 Hidalgo did not object, however, and this error
was not fundamental as he was not prejudiced. First
degree murder is also a serious offense supporting
the (F)(2) aggravator. A.R.S. § 13-703(H)(1)(a) (1989
& Supp. 2000). Hidalgo pleaded guilty to two counts
of first degree murder in 2002. While one such conviction satisfies the (F)(1) aggravator, the second
establishes the (F)(2) aggravator. Thus, the record
independently supports the finding of the (F)(2)
aggravator beyond a reasonable doubt.
2.

Mitigating Circumstances

¶67 At the sentencing phase, Hidalgo presented
several witnesses who explored his difficult and
abusive childhood, which included physical and
sexual abuse by his parents and extended family,

 30a
gang affiliation, poverty, juvenile incarceration, and
drug use. Hidalgo’s chief mitigation witness, Dr.
Clark, testified that Hidalgo likely had attention
deficit hyperactivity disorder (“ADHD”), conduct
disorder, post-traumatic stress disorder (“PTSD”),
and antisocial personality disorder (“APD”). Another
mitigation expert described the gang family and
culture Hidalgo was born into and the difficulties
with renouncing one’s gang affiliation. Hidalgo also
presented evidence that while in prison he renounced
his gang affiliation and participated in educational
and self-improvement programs. During allocution,
Hidalgo expressed remorse and a desire to be rehabilitated.
¶68 Hidalgo had a cruel and traumatic childhood.
Dr. Clark observed that Hidalgo’s upbringing and
mental disorders “constrained” his ability to make
choices. Dr. Clark’s diagnosis of PTSD, however, was
based primarily on Hidalgo’s self-reporting, and an
expert witness for the State concluded Hidalgo’s
symptoms were contrived and inconsistent with
PTSD. Hidalgo understood the wrongfulness of his
actions, and no mitigation witness convincingly
explained how his childhood or mental conditions led
him, at age 23, to murder Cordova and Rojas. Although we consider all mitigating circumstances, we
view them as less compelling because Hidalgo has
not shown their causal connection to the murders.
State v. Prince, 226 Ariz. 516, 541 ¶ 109, 542 ¶ 113,
250 P.3d 1145, 1170–71 (2011).
3.

Propriety of Death Sentence

¶69 We consider the quality and the strength, not
simply the number, of aggravating and mitigating
factors. State v. Greene, 192 Ariz. 431, 443 ¶ 60, 967

 31a
P.2d 106, 118 (1998). When independently reviewing
a death sentence, we have given “extraordinary
weight” to the multiple murders aggravating circumstance and found the pecuniary gain aggravator
“especially strong” in the case of a contract killing.
State v. Moore, 222 Ariz. 1, 23 ¶ 137, 213 P.3d 150,
172 (2009); Harrod, 218 Ariz. at 284 ¶ 63, 183 P.3d
at 535. Here, Hidalgo admitted killing one man for
$1,000 and another simply to eliminate an eyewitness. In light of the aggravating factors, we conclude
that “the mitigation is not sufficiently substantial to
warrant leniency[.]” A.R.S. § 13-755(B).
F. Additional Issues
¶70 Stating that he seeks to preserve certain
issues for federal review, Hidalgo lists twelve additional constitutional claims that have been rejected
in previous decisions. We decline to revisit these
claims.
CONCLUSION
¶71

We affirm Hidalgo’s convictions and sentences.

 32a
APPENDIX B
_________
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
_________
No. CR2011-005473-001 DT
Honorable Joseph Kreamer
_________
June 25, 2013
_________
STATE OF ARIZONA
v.
ABEL DANIEL HIDALGO
_________
MINUTE ENTRY
_________
CR2007-133812-001
CR2009-160953-001
CR2010-007882-001
CR2010-007912-001
CR2010-007912-002
CR2010-048824-001
CR2010-168096-001
CR2011-005473-001
CR2011-008004-001
CR2011-008004-002
CR2011-133622-001
CR2011-138281-001
CR2011-140108-001

Jesus Arturo Martinez, Jr.
Rudolph John Cano, Jr.
Jasper Phillip Rushing
Darnell Reuna Jackson
Eldridge Auzzele Gittens
James Clayton Johnson
Craig Michael Devine
Abel Daniel Hidalgo
Dennis Michael Levis
Thomas Michael Riley
Jesus Busso-Estopellan
Jason Neil Noonkester
Jose Alejandro Acuna
Valenzuela

 33a
CR2011-150239-001
CR2011-151833-001
CR2012-007399-001
CR2012-139607-001
CR2012-154880-001

Ryan William Foote
Jonathan Ray Cole
Zachary William Baxter
Justin Otis McMahan
Manuel Antonio Gonzalez

The parties above were permitted to join in Defendant Gittens’ Motion to Dismiss the Death Penalty, originally filed on June 29, 2012. The Court also
permitted supplemental briefing on multiple issues
related to the original Motion and conducted oral
argument on January 25, 2013 and May 3, 2013. At
oral argument on January 25, the Court denied
Defendants’ request for an evidentiary hearing and
rejected Defendants’ claim that the Arizona death
penalty statute violated the Equal Protection Clause
of the United States Constitution and Articles II and
IV of the Arizona Constitution. At oral argument on
May 3, 2013, the Court rejected Defendants’ argument that the Arizona statute fails to adequately
narrow the class of defendants eligible for the death
penalty (the “Furman” Motion) and thus denied the
remainder of the original Motion to Dismiss. At the
conclusion of the May 3 oral argument, the Court
agreed to summarize its holding in a written minute
entry. This is that minute entry.
At the outset, it should be noted that the Court
thoroughly discussed its rulings and the basis for
those rulings at the January 25 and May 3 oral
arguments. This minute entry will not repeat all of
the issues and arguments raised; the transcripts are
the best record of the Court’s holdings and rationale.
Additionally, this minute entry will not again discuss
rulings the Court made that do not directly resolve
the two central arguments made in the original

 34a
Motion, including Defendants’ request for an evidentiary hearing and issues surrounding Defendants’
attendance at the hearings on the Motion. The Court
believes that the record is sufficiently developed on
those issues for purposes of clarity on appeal.
EQUAL PROTECTION
Defendants argued that A.R.S. §13-751, Arizona’s
death penalty statute, violates the Equal Protection
Clause because similarly-situated defendants are
disparately treated, depending on where they live in
Arizona. Specifically, Defendants argued that prosecutors in poorer counties often fail to seek the death
penalty even in the most egregious cases because of
financial concerns. Defendants argued that this
violates Equal Protection because there is no “principled basis” for this disparate treatment and the
death penalty allegation is made “simply at the
whim of the prosecutor.”
The Court denied this portion of Defendants’ Motion at the January 25 oral argument. The Court
found then and reiterates now that in order to
demonstrate an Equal Protection violation, a defendant must demonstrate that the decision-makers in
his particular case acted with a discriminatory
purpose as to the particular defendant. See McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756 (1987).
Defendants have made no argument that the State
has acted with discriminatory intent as to any of the
individual Defendants joined in this Motion.
Further, the Arizona Supreme Court has made it
clear that the decision by one county not to seek the
death penalty while a similarly situated defendant in
another County might be faced with the death penalty does not constitute an Equal Protection violation.

 35a
In State v. Ovante, 231 Ariz. 180, 185-86, 291 P.3d
974, 979-80 (2013), the Court held that a showing
that defendants in Maricopa County are more likely
to receive the death penalty than similarly-situated
defendants in other counties did not constitute an
Equal Protection violation, noting that McCleskey
requires a showing of purposeful discrimination
against a particular defendant in his particular case.
Thus, inconsistent application of the Arizona statute
from county to county, including the decision of one
county not to seek the death penalty for economic
reasons or otherwise, is not an Equal Protection
violation. See also State v. White, 194 Ariz. 344, 353,
982 P.2d 819, 828 (1999) (Equal Protection means
only that the death penalty may be applied to all
persons in the State in a like position. Persons
convicted of the same crime can constitutionally be
given different sentences).
Because Defendants have failed to allege purposeful discrimination aimed individually at them in
their cases, Arizona’s statute does not violate Equal
Protection.
THE FURMAN ARGUMENT
Defendants’ second main argument is that A.R.S.
§13-751, Arizona’s death penalty statute, is unconstitutional because it fails to adequately narrow the
class of persons eligible for the death penalty. Defendants allege that every first degree murder case
filed in Maricopa County in 2010 and 2011 had at
least one aggravating factor under A.R.S. §13-751(F).
Defendants sought an evidentiary hearing to prove
this allegation. The Court denied the request for an
evidentiary hearing, but accepted the facts as alleged
by Defendants for purposes of resolving the legal

 36a
issue raised in the Motions. Thus, the question
presented to the Court is whether, assuming every
first degree murder case filed in Maricopa County in
2010 and 2011 had at least one aggravating factor,
the Arizona Death Penalty Statute fails to adequately narrow the class of persons eligible for the death
penalty.
The Court first notes that there is a strong presumption that legislative enactments are constitutional, and a party who challenges the validity of a
statute has the burden of overcoming that presumption. E.g., State v. Takacs, 169 Ariz. 392, 395, 819
P.2d 978, 981 (App. 1991). Courts therefore must
give statutes a constitutional construction whenever
possible. Id.
Against this backdrop, “[i]f a state has determined
that death should be an available penalty for certain
crimes, it must administer that penalty in a way that
can rationally distinguish between those individuals
for whom death is an appropriate sanction and those
for whom it is not.” Spaziano v. Florida, 468 U.S.
447, 460 (1984) (citations omitted). Accordingly, “a
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 sentence on the defendant compared to others
found guilty of murder.” Lowenfield v. Phillips, 484
U.S. 231, 244 (1988) (citation omitted).
Defendants argue that if every first degree murder
case in Maricopa County for two years had at least
one aggravating factor, then by definition the aggravating factors perform no narrowing function, and
the entire Death Penalty Statute is thus unconstitutional under Lowenfield et al.

 37a
The Court disagrees. First, this argument has previously been rejected by the Arizona Supreme Court.
In State v. Greenway, 170 Ariz. 155, 823 P.2d 22
(1991), the defendant argued that the number and
breadth of the aggravating factors contained in the
Death Penalty Statute failed to narrow the class of
persons eligible for the death penalty. The Arizona
Supreme Court rejected this argument and held:
We also reject defendant’s argument that our legislature has not narrowed the class of persons eligible for the death penalty. Only those persons convicted of first degree murder as defined in A.R.S.
§13-1105 are eligible for the death penalty. [citation omitted]. Moreover, only when the State has
proven one or more aggravating factors and there
are no mitigating factors sufficient to call for leniency will a person convicted of first degree murder
receive the death penalty. … Furthermore, this
narrowing process may take place “at either the
sentencing phase of the trial or the guilt phase.”
[citing Lowenfield, supra]. Arizona’s death penalty
statute narrowly defines the class of death-eligible
persons. Therefore, it does not offend the Constitution.
Id., 170 Ariz at 164, 823 P.2d at 31 (italics in
original).
The Arizona Supreme Court recently rejected this
argument again, albeit in cursory fashion. See State
v. Hausner, 230 Ariz. 60, 89, 280 P.3d 604, 633 fn. 9
(2012) (rejecting the argument that the broad scope
of Arizona’s aggravating factors encompasses nearly
anyone involved in a murder, in violation of the
United States and Arizona Constitutions). Further,
both the Ninth Circuit and the United States District

 38a
Court for the District of Arizona have also rejected
arguments that the Arizona Death Penalty Statute is
unconstitutional because it does not properly narrow
the class of death penalty recipients. See Smith v.
Stewart, 140 F.3d 1263, 127 (9th Cir. 1998); Spreitz v.
Ryan, 617 F. Supp 2d 887, 921 (D. Ariz. 2009) (citing
Stewart).
Defendants correctly point out that Greenway was
decided at a time when there were fewer aggravating
factors contained in the statute than today, and
before the (F)(2) aggravating factor was expanded to
include serious felonies committed at the same time
as the murder.1 Greenway was arguably in a different posture from these Defendants, who assert that
all or virtually all first degree murder cases now
contain at least one aggravating factor.
The flaw in Defendants’ argument is that it fails to
recognize that the required “narrowing” function can
and does occur by means other than the aggravating
factors contained in § 13-751(F). The narrowing
function begins at the “definition” stage, with the
classification of the homicide as murder, followed by
the classification to either first or second degree
murder. The statute further narrows the class of
persons eligible for the death penalty by exempting
those with intellectual disabilities. See A.R.S. §13753(A). In addition, as noted in Lowenfield, the jury
itself performs a narrowing function. “The use of
‘aggravating circumstances’ is not an end in itself,
1

When the defendant in Greenway was charged in 1988,
Arizona’s death penalty statute identified ten statutory
aggravating factors. There are now fourteen. See A.R.S. § 13751(F).

 39a
but a means of genuinely narrowing the class of
death-eligible persons and thereby channeling the
jury’s discretion. We see no reason why this narrowing function may not be performed by jury findings
at either the sentencing phase of the trial or the guilt
phase.” Lowenfield, 484 U.S. at 244-45. See also
Greenway, 170 Ariz. at 164, 823 P.2d at 31 (recognizing that the narrowing process may take place at
either the sentencing phase or the guilt phase).
The Court recognizes that language in Arizona
cases suggest that narrowing at the definition stage
may be insufficient, and that the aggravating circumstances themselves must perform an independent narrowing function. See State v. Carlson, 202
Ariz. 570, 582, 48 P.3d 1180, 1192 (2002)(the death
penalty “should not be imposed in every capital
murder case but, rather it should be reserved for
cases in which the manner of the commission of the
offense or the background of the defendant places the
crime ‘above the norm of first degree murders’”). The
Court further recognizes that the Defendants have
offered to establish a fact not previously established
in an Arizona case – that the aggravating factors in
Arizona’s current death penalty statute encompass
every first degree murder case filed during a broad
timeframe.
However, the Court is bound by the Arizona Supreme Court’s holdings, by the language of Greenway
and Hausner, and by the recognition in various cases
that the requisite narrowing function of the statute
can constitutionally occur outside the enumerated
aggravating factors found in A.R.S. §13-751.

 40a
Accordingly, for the reasons set forth above and as
set forth in detail at the May 3, 2013 oral argument,
Defendants’ Motions are DENIED.

 41a
APPENDIX C
_________
1.

Arizona Revised Statutes § 13-751.
Sentence of death or life imprisonment;
aggravating and mitigating circumstances; definition.

A. If the state has filed a notice of intent to seek the
death penalty and the defendant is:
1. Convicted of first degree murder pursuant to
section 13-1105, subsection A, paragraph 1 or 3 and
was at least eighteen years of age at the time of the
commission of the offense, the defendant shall be
sentenced to death or imprisonment in the custody
of the state department of corrections for natural
life as determined and in accordance with the procedures provided in section 13-752. A defendant
who is sentenced to natural life is not eligible for
commutation, parole, work furlough, work release
or release from confinement on any basis.
2. Convicted of first degree murder pursuant to
section 13-1105 and was under eighteen years of
age at the time of the commission of the offense,
the defendant shall be sentenced to imprisonment
in the custody of the state department of corrections for life or natural life, as determined and in
accordance with the procedures provided in section
13-752. A defendant who is sentenced to natural
life is not eligible for commutation, parole, work
furlough, work release or release from confinement
on any basis. If the defendant is sentenced to life,
the defendant shall not be released on any basis
until the completion of the service of twenty-five
calendar years if the murdered person was fifteen

 42a
or more years of age and thirty-five years if the
murdered person was under fifteen years of age or
was an unborn child.
3. Convicted of first degree murder pursuant to
section 13-1105, subsection A, paragraph 2, the
defendant shall be sentenced to death or imprisonment in the custody of the state department of
corrections for life or natural life as determined and
in accordance with the procedures provided in section 13-752. A defendant who is sentenced to natural life is not eligible for commutation, parole, work
furlough, work release or release from confinement
on any basis. If the defendant is sentenced to life,
the defendant shall not be released on any basis
until the completion of the service of twenty-five
calendar years if the murdered person was fifteen
or more years of age and thirty-five years if the
murdered person was under fifteen years of age or
was an unborn child.
B. At the aggravation phase of the sentencing proceeding that is held pursuant to section 13-752, the
admissibility of information relevant to any of the
aggravating circumstances set forth in subsection F
of this section shall be governed by the rules of
evidence applicable to criminal trials. The burden of
establishing the existence of any of the aggravating
circumstances set forth in subsection F of this section
is on the prosecution. The prosecution must prove
the existence of the aggravating circumstances
beyond a reasonable doubt.
C. At the penalty phase of the sentencing proceeding that is held pursuant to section 13-752, the
prosecution or the defendant may present any information that is relevant to any of the mitigating

 43a
circumstances included in subsection G of this section, regardless of its admissibility under the rules
governing admission of evidence at criminal trials.
The burden of establishing the existence of the
mitigating circumstances included in subsection G of
this section is on the defendant. The defendant must
prove the existence of the mitigating circumstances
by a preponderance of the evidence. If the trier of
fact is a jury, the jurors do not have to agree unanimously that a mitigating circumstance has been
proven to exist. Each juror may consider any mitigating circumstance found by that juror in determining
the appropriate penalty.
D. Evidence that is admitted at the trial and that
relates to any aggravating or mitigating circumstances shall be deemed admitted as evidence at a
sentencing proceeding if the trier of fact considering
that evidence is the same trier of fact that determined the defendant’s guilt. The prosecution and the
defendant shall be permitted to rebut any information received at the aggravation or penalty phase
of the sentencing proceeding and shall be given fair
opportunity to present argument as to whether the
information is sufficient to establish the existence of
any of the circumstances included in subsections F
and G of this section.
E. In determining whether to impose a sentence of
death or life imprisonment, the trier of fact shall
take into account the aggravating and mitigating
circumstances that have been proven. The trier of
fact shall impose a sentence of death if the trier of
fact finds one or more of the aggravating circumstances enumerated in subsection F of this section
and then determines that there are no mitigating

 44a
circumstances sufficiently substantial to call for
leniency.
F. The trier of fact shall consider the following aggravating 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 sentence 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 persons in addition to the person murdered during the commission of the offense.
4. The defendant procured the commission of the
offense by payment, or promise of payment, of anything of pecuniary value.
5. The defendant committed the offense as consideration for the receipt, or in expectation 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.

 45a
(b) On probation for a felony offense.
8. The defendant has been convicted of one or more
other homicides, as defined in section 13-1101, that
were committed during the commission of the offense.
9. The defendant was an adult at the time the offense 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 official 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 enforcement 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
authorized remote stun gun in the commission of
the offense. For the purposes of this paragraph:

 46a
(a) “Authorized remote stun gun” means a remote stun gun that has all of the following:
(i) An electrical discharge that is less than
one hundred thousand volts and less than
nine joules of energy per pulse.
(ii) A serial or identification number on all
projectiles that are discharged from the
remote stun gun.
(iii) An identification and tracking system
that, on deployment of remote electrodes,
disperses coded material that is traceable
to the purchaser through records that are
kept by the manufacturer on all remote
stun guns and all individual cartridges
sold.
(iv) A training program that is offered by
the manufacturer.
(b) “Remote stun gun” means an electronic device that emits an electrical charge and that is
designed and primarily employed to incapacitate a person or animal either through contact
with electrodes on the device itself or remotely
through wired probes that are attached to the
device or through a spark, plasma, ionization
or other conductive means emitting from the
device.
G. The trier of fact shall consider as mitigating
circumstances any factors proffered by the defendant
or the state that are relevant in determining whether
to impose a sentence less than death, including any
aspect of the defendant’s character, propensities or
record and any of the circumstances of the offense,
including but not limited to the following:

 47a
1. The defendant’s capacity to appreciate the
wrongfulness of his conduct or to conform his conduct to the requirements of law was significantly
impaired, but not so impaired as to constitute a
defense to prosecution.
2. The defendant was under unusual and substantial duress, although not such as to constitute a
defense to prosecution.
3. The defendant was legally accountable for the
conduct of another under section 13-303, but his
participation was relatively minor, although not so
minor as to constitute a defense to prosecution.
4. The defendant could not reasonably have foreseen that his conduct in the course of the commission of the offense for which the defendant was
convicted would cause, or would create a grave risk
of causing, death to another person.
5. The defendant’s age.
H. For the purposes of determining whether a conviction of any dangerous crime against children is a
serious offense pursuant to this section, an unborn
child shall be treated like a minor who is under
twelve years of age.
I. In this section, for purposes of punishment an
unborn child shall be treated like a minor who is
under twelve years of age.
J. For the purposes of this section, "serious offense"
means any of the following offenses if committed in
this state or any offense committed outside this state
that if committed in this state would constitute one
of the following offenses:
1. First degree murder.
2. Second degree murder.

 48a
3. Manslaughter.
4. Aggravated assault resulting in serious physical
injury or committed by the use, threatened use or
exhibition of a deadly weapon or dangerous instrument.
5. Sexual assault.
6. Any dangerous crime against children.
7. Arson of an occupied structure.
8. Robbery.
9. Burglary in the first degree.
10. Kidnapping.
11. Sexual conduct with a minor under fifteen years
of age.
12. Burglary in the second degree.
13. Terrorism.
2.

Arizona Revised Statutes § 13-752.
Sentences of death, life imprisonment or
natural life; imposition; sentencing proceedings; definitions

A. If the state has filed a notice of intent to seek the
death penalty and the defendant is convicted of first
degree murder, the trier of fact at the sentencing
proceeding shall determine whether to impose a
sentence of death in accordance with the procedures
provided in this section. If the trier of fact determines that a sentence of death is not appropriate, or
if the state has not filed a notice of intent to seek the
death penalty, and the defendant is convicted of first
degree murder pursuant to section 13-1105, subsection A, paragraph 1 or 3 and was at least eighteen

 49a
years of age at the time of the commission of the
offense, the court shall impose a sentence of natural
life. If the defendant was under eighteen years of age
at the time of the commission of the offense or if the
defendant is convicted of first degree murder pursuant to section 13-1105, subsection A, paragraph 2,
the court shall determine whether to impose a sentence of life or natural life.
B. Before trial, the prosecution shall notice one or
more of the aggravating circumstances under section
13-751, subsection F.
C. If the trier of fact finds the defendant guilty of
first degree murder, the trier of fact shall then
immediately determine whether one or more alleged
aggravating circumstances have been proven. This
proceeding is the aggravation phase of the sentencing proceeding.
D. If the trier of fact finds that one or more of the
alleged aggravating circumstances have been proven,
the trier of fact shall then immediately determine
whether the death penalty should be imposed. This
proceeding is the penalty phase of the sentencing
proceeding.
E. At the aggravation phase, the trier of fact shall
make a special finding on whether each alleged
aggravating circumstance has been proven based on
the evidence that was presented at the trial or at the
aggravation phase. If the trier of fact is a jury, a
unanimous verdict is required to find that the aggravating circumstance has been proven. If the trier of
fact unanimously finds that an aggravating circumstance has not been proven, the defendant is entitled
to a special finding that the aggravating circumstance has not been proven. If the trier of fact unan-

 50a
imously finds no aggravating circumstances, the
court shall then determine whether to impose a
sentence of life or natural life on the defendant
pursuant to subsection A of this section.
F. The penalty phase shall be held immediately
after the trier of fact finds at the aggravation phase
that one or more of the aggravating circumstances
under section 13-751, subsection F have been proven.
A finding by the trier of fact that any of the remaining aggravating circumstances alleged has not been
proven or the inability of the trier of fact to agree on
the issue of whether any of the remaining aggravating circumstances alleged has been proven shall not
prevent the holding of the penalty phase.
G. At the penalty phase, the defendant and the
state may present any evidence that is relevant to
the determination of whether there is mitigation that
is sufficiently substantial to call for leniency. In
order for the trier of fact to make this determination,
regardless of whether the defendant presents evidence of mitigation, the state may present any
evidence that demonstrates that the defendant
should not be shown leniency including any evidence
regarding the defendant’s character, propensities,
criminal record or other acts.
H. The trier of fact shall determine unanimously
whether death is the appropriate sentence. If the
trier of fact is a jury and the jury unanimously
determines that the death penalty is not appropriate,
the court shall determine whether to impose a sentence of life or natural life pursuant to subsection A
of this section.
I. If the trier of fact at any prior phase of the trial is
the same trier of fact at the subsequent phase, any

 51a
evidence that was presented at any prior phase of
the trial shall be deemed admitted as evidence at any
subsequent phase of the trial.
J. At the aggravation phase, if the trier of fact is a
jury, the jury is unable to reach a verdict on any of
the alleged aggravating circumstances and the jury
has not found that at least one of the alleged aggravating circumstances has been proven, the court
shall dismiss the jury and shall impanel a new jury.
The new jury shall not retry the issue of the defendant’s guilt or the issue regarding any of the aggravating circumstances that the first jury found not
proved by unanimous verdict. If the new jury is
unable to reach a unanimous verdict, the court shall
impose a sentence of life or natural life on the defendant.
K. At the penalty phase, if the trier of fact is a jury
and the jury is unable to reach a verdict, the court
shall dismiss the jury and shall impanel a new jury.
The new jury shall not retry the issue of the defendant’s guilt or the issue regarding any of the aggravating circumstances that the first jury found by unanimous verdict to be proved or not proved. If the new
jury is unable to reach a unanimous verdict, the
court shall impose a sentence of life or natural life on
the defendant.
L. If the jury that rendered a verdict of guilty is not
the jury first impaneled for the aggravation phase,
the jury impaneled in the aggravation phase shall
not retry the issue of the defendant’s guilt. If the jury
impaneled in the aggravation phase is unable to
reach a verdict on any of the alleged aggravating
circumstances and the jury has not found that at
least one of the alleged aggravating circumstances

 52a
has been proven, the court shall dismiss the jury and
shall impanel a new jury. The new jury shall not
retry the issue of the defendant’s guilt or the issue
regarding any of the aggravating circumstances that
the first jury found not proved by unanimous verdict.
If the new jury is unable to reach a unanimous
verdict, the court shall impose a sentence of life or
natural life on the defendant.
M. Alternate jurors who are impaneled for the trial
in a case in which the offense is punishable by death
shall not be excused from the case until the completion of the sentencing proceeding.
N. If the sentence of a person who was sentenced to
death is overturned, the person shall be resentenced
pursuant to this section by a jury that is specifically
impaneled for this purpose as if the original sentencing had not occurred.
O. In any case that requires sentencing or resentencing in which the defendant has been convicted of
an offense that is punishable by death and in which
the trier of fact was a judge or a jury that has since
been discharged, the defendant shall be sentenced or
resentenced pursuant to this section by a jury that is
specifically impaneled for this purpose.
P. The trier of fact shall make all factual determinations required by this section or the Constitution
of the United States or this state to impose a death
sentence. If the defendant bears the burden of proof,
the issue shall be determined in the penalty phase. If
the state bears the burden of proof, the issue shall be
determined in the aggravation phase.
Q. If the death penalty was not alleged or was alleged but not imposed, the court shall determine
whether to impose a sentence of life or natural life

 53a
pursuant to subsection A of this section. In determining whether to impose a sentence of life or natural
life, the court:
1. May consider any evidence introduced before
sentencing or at any other sentencing proceeding.
2. Shall consider the aggravating and mitigating
circumstances listed in section 13-701 and any
statement made by a victim.
R. Subject to section 13-751, subsection B, a victim
has the right to be present at the aggravation phase
and to present any information that is relevant to
the proceeding. A victim has the right to be present
and to present information at the penalty phase. At
the penalty phase, the victim may present information about the murdered person and the impact of
the murder on the victim and other family members
and may submit a victim impact statement in any
format to the trier of fact.
S. For the purposes of this section:
1. “Trier of fact” means a jury unless the defendant
and the state waive a jury, in which case the trier
of fact shall be the court.
2. “Victim” means the murdered person’s spouse,
parent, child, grandparent or sibling, any other
person related to the murdered person by consanguinity or affinity to the second degree or any other
lawful representative of the murdered person, except if the spouse, parent, child, grandparent, sibling, other person related to the murdered person
by consanguinity or affinity to the second degree or
other lawful representative is in custody for an
offense or is the accused.

 54a
3.

Arizona Revised Statutes § 13-1105.
First degree murder; classification

A. A person commits first degree murder if:
1. Intending or knowing that the person’s conduct
will cause death, the person causes the death of
another person, including an unborn child, with
premeditation or, as a result of causing the death of
another person with premeditation, causes the
death of an unborn child.
2. Acting either alone or with one or more other
persons the person commits or attempts to commit
sexual conduct with a minor under section 13-1405,
sexual assault under section 13-1406, molestation
of a child under section 13-1410, terrorism under
section 13-2308.01, marijuana offenses under section 13-3405, subsection A, paragraph 4, dangerous
drug offenses under section 13-3407, subsection A,
paragraphs 4 and 7, narcotics offenses under section 13-3408, subsection A, paragraph 7 that equal
or exceed the statutory threshold amount for each
offense or combination of offenses, involving or
using minors in drug offenses under section 133409, drive by shooting under section 13-1209,
kidnapping under section 13-1304, burglary under
section 13-1506, 13-1507 or 13-1508, arson under
section 13-1703 or 13-1704, robbery under section
13-1902, 13-1903 or 13-1904, escape under section
13-2503 or 13-2504, child abuse under section 133623, subsection A, paragraph 1 or unlawful flight
from a pursuing law enforcement vehicle under
section 28-622.01 and, in the course of and in furtherance of the offense or immediate flight from the
offense, the person or another person causes the
death of any person.

 55a
3. Intending or knowing that the person’s conduct
will cause death to a law enforcement officer, the
person causes the death of a law enforcement officer who is in the line of duty.
B. Homicide, as prescribed in subsection A, paragraph 2 of this section, requires no specific mental
state other than what is required for the commission
of any of the enumerated felonies.
C. An offense under subsection A, paragraph 1 of
this section applies to an unborn child in the womb
at any stage of its development. A person shall not be
prosecuted under subsection A, paragraph 1 of this
section if any of the following applies:
1. The person was performing an abortion for which
the consent of the pregnant woman, or a person
authorized by law to act on the pregnant woman’s
behalf, has been obtained or for which the consent
was implied or authorized by law.
2. The person was performing medical treatment on
the pregnant woman or the pregnant woman’s unborn child.
3. The person was the unborn child’s mother.
D. First degree murder is a class 1 felony and is
punishable by death or life imprisonment as provided by sections 13-751 and 13-752.