PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
petition for a writ of certiorari is denied.
Statement of JUSTICE BREYER, with whom JUSTICE Ginsburg,
Justice Sotomayor, and Justice Kagan join, respecting the
denial of certiorari.
petition in this capital case asks an important Eighth
"Whether Arizona's capital sentencing scheme, which
includes so many aggravating circumstances that virtually
every defendant convicted of first-degree murder is eligible
for death, violates the Eighth Amendment." Pet. for
capital punishment cases under the Eighth Amendment address
two different aspects of the capital decisionmaking process:
the eligibility decision and the selection decision."
Tuilaepa v. California, 512 U.S. 967, 971 (1994).
States must comply with requirements for each decision. See
Kansas v. Marsh, 548 U.S. 163, 173-174 (2006)
("Together, our decisions in Furman v. Georgia,
408 U.S. 238 (1972) (per curiam), and Gregg v.
Georgia, 428 U.S. 153 (1976) (joint opinion of Stewart,
Powell, and Stevens, JJ.), establish that a state capital
sentencing scheme must" comport with requirements for
respect to the first, the "eligibility decision, "
our precedent imposes what is commonly known as the
"narrowing" requirement. "To pass
constitutional muster, 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)). To satisfy the
"narrowing requirement, " a state
legislature must adopt "statutory
factors which determine death eligibility" and
thereby "limit the class of murderers to which the death
penalty may be applied." Brown v. Sanders, 546
U.S. 212, 216, and n. 2 (2006) (emphasis added); see also
Tuilaepa, supra, at 979 ("'Once the jury
finds that the defendant falls within the
legislatively defined category of persons eligible
for the death penalty, . . . the jury then is free to
consider a myriad of factors to determine whether death is
the appropriate punishment'" (quoting California
v. Ramos, 463 U.S. 992, 1008 (1983); emphasis added));
Lowenfield, supra, at 246 (specifying that the
"legislature" may provide for the
"narrowing function" by statute (emphasis added));
Zant, supra, at 878 ("[S]tatutory
aggravating circumstances play a constitutionally necessary
function at the stage of legislative definition:
they circumscribe the class of persons eligible for the death
penalty" (emphasis added)).
second aspect of the capital decisionmaking process, the
"selection decision, " determines whether a
death-eligible defendant should actually receive the death
penalty. Tuilaepa, supra, at 972. In making this
individualized determination, the jury must "consider
relevant mitigating evidence of the character and record of
the defendant and the circumstances of the crime."
Ibid.; see also Marsh, supra, at 173-174
("[A] state capital sentencing system must . . . permit
a jury to render a reasoned, individualized sentencing
determination based on a death-eligible defendant's
record, personal characteristics, and the circumstances of
his crime"). This second aspect of the capi- tal
punishment decision-the selection requirement-is not before
precedent makes clear that the legislature may satisfy the
"narrowing function ... in either of . . . two
ways." Lowenfield, 484 U.S., at 246. First,
"[t]he legislature may itself narrow the definition
of capital offenses Ibid, (emphasis added). Second,
"the legislature may more broadly define capital
offenses, " but set forth by statute "aggravating
circumstances" which will permit the "jury ... at
the penalty phase" to make "findings" that
will narrow the legislature's broad definition of the
capital offense. Ibid.; see also Tuilaepa,
supra, at 972 ("The aggravating circumstance may be
contained in the definition of the crime or in a separate
sentencing factor (or in both)"). The petitioner here,
Abel Daniel Hidalgo, contends that the Arizona Legislature
has failed to satisfy the narrowing requirement through
either of these two methods.
the first way a state legislature may satisfy the
Constitution's narrowing requirement-namely, by enacting
a narrow statutory definition of capital murder. Some States
have followed this approach. For example, in
Lowenfield, this Court upheld Louisiana's use of
this method because it concluded that the State's capital
murder statute narrowed the class of intentional murderers to
a smaller class of death-eligible murderers. 484 U.S., at
246. Specifically, Louisiana's capital murder statute was
limited to cases in which "'the offender'"
not only had "'specific intent to kill or to inflict
great bodily harm'" but also (1) targeted one of
three specifically enumerated categories of victims
(children, "'a fireman or peace officer
engaged'" in "'lawful duties, '"
or multiple victims); or (2) was "'engaged in the
perpetration or attempted perpetration of" certain other
serious specified crimes; or (3) was a murder-for-hire.
Id., at 242 (quoting La. Rev. Stat. Ann.
§§14:30(A)(1)-(5) (West 1986)). The
Lowenfield Court also noted that Texas' capital
murder statute "narrowly defined the categories of
murder for which a death sentence could be imposed." 484
U.S., at 245; see also Jurek v. Texas, 428 U.S. 262,
271 (1976) (joint opinion of Stewart, Powell, and Stevens,
JJ.) (upholding the Texas capital murder statute, which made
"a smaller class of murders in Texas" death
the Louisiana and Texas statutes, Arizona's capital
murder statute makes all first-degree murderers eligible for
death and defines first-degree murder broadly to include all
premeditated homicides along with felony murder based on 22
possible predicate felony offenses. See Ariz. Rev. Stat. Ann.
§§13-1105(A)(1)-(2) (2010) (including, for example,
transporting marijuana for sale). Perhaps not surprisingly,
Arizona did not argue below and does ...