k. Specific Aggravation under Arizona's Scheme.

• Jurisdiction: Arizona

i. Generally.

(1) The aggravating circumstances are not too broad to be meaningful. Landrigan, 176 Ariz. at 6.

ii. Prior Life Felony.

(1) The distinction between prior life felonies and other prior felonies does not violate equal protection. Arnett, 119 Ariz. at 48.

iii. Prior Life or Violent Felony.

(1) This aggravator is not insufficiently narrowing or unconstitutionally vague. Walden, 183 Ariz. at 616; accord Lee, 185 Ariz. at 557.

iv. Grave Risk of Death to Another.

(1) This aggravator is not unconstitutionally vague or broad. McMurtrey, 151 Ariz. at 108.

v. Expectation of Pecuniary Gain.

(1) This aggravator is not unconstitutionally vague. Nash, 143 Ariz. at 400; accord Rossi, 146 Ariz. at 366; Smith, 146 Ariz. at 500.

(2) Pecuniary gain sufficiently narrows the class of persons eligible for the death penalty. West, 176 Ariz. at 449; accord White, 194 Ariz. at 355, ¶ 49.

(3) This aggravator is not unconstitutional for failing to distinguish between murder for hire and a routine felony (burglary or robbery) where a death occurs. Schad, 163 Ariz. at 419.

(4) This aggravator is not unconstitutional because in a robbery-murder it double-counts the element of pecuniary gain and so insufficiently narrows. Carriger, 143 Ariz. at 161; accord Greenway, 170 Ariz. at 163-64; Trostle, 191 Ariz. at 18; Kemp, 185 Ariz. at 65.

(5) Similarly, this aggravator is not unconstitutional because in burglary-murder it double-counts the elements of pecuniary gain and so insufficiently narrows. West, 176 Ariz. at 449; accord Dickens, 187 Ariz. at 24.

vi. Heinous, Cruel, or Depraved.

(1) Heinous, Cruel, or Depraved: Vagueness: Historical Perspective.

(a) In Proffitt v. Florida, the United States Supreme Court (Supreme Court) held that the “heinous, atrocious, and cruel” aggravator as construed by the Florida Supreme Court was not unconstitutionally vague. 96 S. Ct. at 2968.

(b) In Knapp, the Arizona Supreme Court (Court) applied a dictionary definition to each term of this aggravator. 114 Ariz. at 543.

(i) Editor’s Note: For a more detailed discussion of Knapp, see Section 29(b).

(c) In Godfrey v. Georgia, the Supreme Court ruled that Georgia’s “vile, horrible, and inhuman” aggravator had been unconstitutionally applied in the case because the Georgia Supreme Court had not followed its own limiting definition. 100 S. Ct. at 1766-67.

(d) In Ortiz, the Court ruled that the Knapp definitions survived Godfrey and had been appropriately applied in the case. 131 Ariz. at 206.

(e) The Court would then cite to Ortiz as affirming

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