Weighing Death: Is Death Penalty Eligibility “Especially Heinous, Cruel or Depraved”?

The Supreme Court in Furman v. Georgia tacitly authorized states to impose the death penalty so long as their authorizing statutes ensure that eligibility is not so expansive as to lead to arbitrary and capricious infliction of death. When the death penalty is arbitrarily or capriciously imposed, it is considered cruel and unusual punishment and, thus, violates the Eighth and Fourteenth Amendments of the U.S. Constitution. One method to ensure that eligibility is not overexpansive is to weigh aggravating factors against mitigating factors. Using aggravating factors in such fashion creates the risk of facial vagueness, and—thanks to ill-advised Supreme Court deference allowing state courts to narrow already overbroad terms—these defective aggravators have become popular and widely used. For example, Arizona courts continue to apply defective aggravators by extensively redefining the key terms of facially deficient aggravators. This Note argues that one such aggravator—the “especially heinous, cruel or depraved” aggravator—is facially vague, defective, overused, and must be discarded.