Lewis v. Jeffers/Dissent Brennan

by Harry Blackmun

Justice BLACKMUN, with whom Justice BRENNAN, Justice MARSHALL, and Justice STEVENS join, dissenting.

Seeking habeas corpus relief in the United States Court of Appeals for the Ninth Circuit, respondent Jimmie Wayne Jeffers raised two challenges to Arizona's "especially heinous . . . or depraved" aggravating circumstance. Ariz.Rev.Stat.Ann. § 13-703(F)(6) (1989) ((F)(6) circumstance or fact). ^[1] First, Jeffers contended that the Arizona Supreme Court has failed to articulate a constitutionally sufficient limiting construction of the (F)(6) circumstance. In the alternative, Jeffers argued that, even if a suitable limiting construction had been developed, its application to his case failed to satisfy constitutional requirements. The Court of Appeals, deeming itself bound by Circuit precedent, rejected respondent's first contention. Jeffers v. Ricketts, 832 F.2d 476, 482 (1987), citing Chaney v. Lewis, 801 F.2d 1191, 1194-1196 (CA9 1986), cert. denied, 481 U.S. 1023, 107 S.Ct. 1911, 95 L.Ed.2d 516 (1987). With respect to the second contention, however, the court concluded that the standard enunciated by the Arizona Supreme Court "seems to call for conduct or attitudes more shocking than those exhibited by Jeffers," 832 F.2d, at 484, and that "[b]ecause we conclude that the standard of heinousness and depravity delineated in prior Arizona cases cannot be applied in a principled manner to Jeffers, his death sentence must be struck down as arbitrary." Id., at 485.

The State then filed a petition for rehearing and rehearing en banc. The panel indicated that its ruling on the rehearing petition would be deferred " 'pending further decision of this court, sitting en banc, in Adamson v. Ricketts." Order of March 30, 1988 quoted in Brief for Respondent 21. Several months later the en banc court issued its decision in Adamson v. Ricketts, 865 F.2d 1011 (CA9 1988), cert. pending, No. 88-1553. After exhaustive analysis of the relevant Arizona precedents, the en banc court concluded:

"[T]he (F)(6) circumstance has not been given a sufficiently narrow construction by the Arizona Supreme Court such that its application will be kept within identifiable boundaries. Among the more than fifty cases in which an (F)(6) finding was appealed, we are unable to distinguish rationally those cases in which the Arizona Supreme Court upheld the finding from the few in which it did not. Because neither the legislative standard nor the case law has properly channeled decisionmaking on the imposition of the 'especially heinous, cruel orde praved' aggravating circumstance, we find that this circumstance has been arbitrarily and capriciously applied by the Arizona courts." Id., at 1038. ^[2]

The Court of Appeals subsequently denied the State's request for rehearing in Jeffers' case.

As respondent in this Court, Jeffers defends the judgment of the Court of Appeals on the grounds that no satisfactory limiting construction of the (F)(6) circumstance can be derived from the Arizona precedents, and, alternatively, that if such a construction does exist, it was improperly applied in his case. ^[3] Jeffers' first claim is logically antecedent to the second; it raises an issue of greater general importance, and, given the decision of the en banc Court of Appeals in Adamson, it can hardly be regarded as insubstantial. The Court today, however, simply refuses to discuss the merits of respondent's broad challenge to the (F)(6) circumstance; in lieu of analysis, it relies on a single sentence of dictum in an opinion in another case issued today. Because I believe that Arizona's application of the (F)(6) factor cannot be squared with this Court's governing precedents-and because I regard the majority's approach as a parody of constitutional adjudication-I dissent.

* This Court consistently has recognized that "an aggravating circumstance 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." Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235 (1983). The application to respondent of Arizona's (F)(6) circumstance can be sustained only if that aggravating factor provides a "principled way to distinguish this case, in which the death penalty was imposed, from the many cases in which it was not." Godfrey v. Georgia, 446 U.S. 420, 433, 100 S.Ct. 1759, 1767, 64 L.Ed.2d 398 (1980) (plurality opinion). The majority does not contend that the statutory language, which requires only that the murder be "especially heinous . . . or depraved," is itself sufficiently precise to meet constitutional standards. ^[4] Rather, the Court refers repeatedly to a "narrowing construction" of the (F)(6) circumstance announced by the Arizona Supreme Court. See, e.g., ante, at 776, 780, 783, and 784. The Court nowhere states precisely what that narrowing construction is, nor does it examine other Arizona cases to see whether that construction has been consistently applied. The majority suggests, however, that the "narrowing construction" was announced by the Arizona Supreme Court in State v. Gretzler, 135 Ariz. 42, 659 P.2d 1, cert. denied, 461 U.S. 971, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). See ante, at 784. Analysis of the Arizona Supreme Court's opinion in Gretzler, and of its relationship to prior Arizona capital cases, belies that characterization.

Prior to Gretzler, the Arizona Supreme Court's application of the (F)(6) circumstance was based principally on its decision in State v. Knapp, 114 Ariz. 531, 562 P.2d 704 (1977), cert. denied, 435 U.S. 908, 98 S.Ct. 1458, 55 L.Ed.2d 500 (1978), in which the court recited dictionary definitions of each of the statutory terms. "Heinous" was defined as "hatefully or shockingly evil; grossly bad"; "cruel" was defined as "disposed to inflict pain esp. in a wanton, insensate or vindictive manner: sadistic"; and "depraved" was defined as "marked by debasement, corruption, perversion or deterioration." 114 Ariz., at 543, 562 P.2d, at 716. The court concluded: "What our legislature intended to include as an aggravating circumstance was a killing wherein additional circumstances of the nature enumerated above set the crime apart from the usual or the norm." Ibid.

The Gretzler court did not suggest that the Knapp definitions were insufficient to guide the sentencer's discretion or that further narrowing was required. To the contrary, the court quoted these definitions with approval and stated: "We believe that the statutory phrase 'especially heinous, cruel, or depraved' has been construed in a constitutionally narrow fashion, and has been properly applied in individual cases. A summary of the law which has been developing in the area supports this conclusion." 135 Ariz., at 50, 659 P.2d, at 9. In explaining what kinds of murders properly would be regarded as "especially heinous . . . or depraved," the court stated that "[i]n contrast to the emphasis upon the victim's suffering and feelings in the case of cruelty, the statutory concepts of heinous and depraved involve a killer's vile state of mind at the time of the murder, as evidenced by the killer's actions. Our cases have suggested specific factors which lead to a finding of heinousness or depravity." Id., at 51, 659 P.2d, at 10. Next, drawing on examples from prior Arizona cases, the court identified five factors the presence of which would indicate that a particular killing was "especially heinous . . . or depraved." These factors were (1) "the apparent relishing of the murder by the killer," (2) "the infliction of gratuitous violence on the victim," (3) "the needless mutilation of the victim," (4) "the senselessness of the crime," and (5) "the helplessness of the victim." Id., at 52, 659 P.2d, at 11. Finally, the court noted: "[W]here no circumstances, such as the specific factors discussed above, separate the crime from the 'norm' of first degree murders, we will reverse a finding that the crime was committed in an 'especially heinous, cruel, or depraved manner.' " Id., at 53, 659 P.2d, at 12 (emphasis added).

The Arizona Supreme Court's opinion in Gretzler obviously did not announce a "narrowing construction" of the (F)(6) circumstance. The court did not suggest that the standards previously applied were inadequate, or that further constraints on the sentencer's discretion were essential. Instead, the Arizona Supreme Court cited the Knapp definitions with approval and then gave examples of their application. No matter how vaguely defined an aggravating circumstance is, there will be a finite number of cases in which that circumstance has been applied. It hardly limits the application of that aggravating factor to list those prior decisions, or to provide illustrative examples from among them. I do not see how the Arizona Supreme Court's description of the manner in which a vague aggravating factor has been applied can be regarded as the establishment of a constitutionally sufficient narrowing construction.

Nor did the Gretzler court narrow the discretion of future sentencers simply by grouping its prior decisions into categories. The use of categories could serve to guide the sentencer if (a) the categories themselves are narrow enough that a significant number of homicides will not fall within any of them, and (b) the court indicates that a murder is covered by the aggravating circumstance only if it falls within one of the enumerated categories. The Arizona Supreme Court's decision in Gretzler satisfies neither of these criteria. Most first-degree murders will fall within at least one of the five categories listed in Gretzler-hardly a surprising result, since the Gretzler categories were simply descriptive of the prior period during which the Knapp definitions had governed the application of this aggravating factor. Since Gretzler, moreover, the Arizona Supreme Court has continued to identify additional circumstances that will support the conclusion that a particular murder is "especially heinous . . . or depraved." That fact is also unsurprising. The court in Gretzler did not purport to lay down rules for the future; it simply summarized prior case law and indicated that an (F)(6) finding would be proper when "circumstances, such as the specific factors discussed above, separate the crime from the 'norm' of first degree murders." 135 Ariz., at 53, 659 P.2d at 12 (emphasis added).

The majority does not contend that the Knapp definitions furnished constitutionally sufficient guidance to capital sentencers in Arizona prior to Gretzler. Just as a reasonable sentencer might conclude that every first-degree murder is "especially heinous, cruel or depraved," see n. 4, supra, a reasonable judge could surely believe that all such killings are "hatefully or shockingly evil" or "marked by debasement, corruption, perversion or deterioration." ^[5] Yet the majority apparently concludes that the Arizona Supreme Court cured the constitutional infirmity by summarizing its prior decisions, reiterating with approval the constitutionally deficient construction relied on previously and pledging to follow the same approach in the future. ^[6]

The majority undertakes no close examination of Gretzler or of other Arizona cases, prior or subsequent. It makes no attempt to explain how the Arizona Supreme Court's construction of the terms "especially heinous . . . or depraved" can be said to satisfy the constitutional requirements announced in this Court's prior decisions. Indeed, the majority's conclusion that the Arizona court has satisfactorily limited the reach of the statutory language is supported by no analysis at all. The Court instead relies on the assertion that "we resolved any doubt about the matter in Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511, where we upheld, against a vagueness challenge, the precise aggravating circumstance at issue in this case." Ante, at 777. ^[7] The majority's claim that Wal ton involves "the precise aggravating circumstance at issue in this case," however, fundamentally misrepresents the operation of the Arizona statute.

The Arizona Supreme Court consistently has asserted that the terms "heinous," "cruel," and "depraved" "are considered disjunctive; the presence of any one of three factors is an aggravating circumstance." State v. Beaty, 158 Ariz. 232, 242, 762 P.2d 519, 529 (1988), cert. denied, 491 U.S. 910, 109 S.Ct. 3200, 105 L.Ed.2d 708 (1989). It is therefore more accurate to characterize the (F)(6) circumstance as three aggravating factors than as one. ^[8] In Walton, the Arizona Supreme Court, in determining that the (F)(6) factor had been established, relied primarily on the conclusion that the murder was especially cruel. Although the court also indicated that the murder was especially depraved, it stated clearly that this conclusion was not necessary to its finding of the (F)(6) circumstance. See State v. Walton, 159 Ariz. 571, 587-588, 769 P.2d 1017, 1033-1034 (1989) ("The clear evidence of cruelty is sufficient to sustain the trial judge's finding of that aggravating factor, but we believe that the evidence also supports the finding of depravity"). In affirming Jeffrey Walton's death sentence today, this Court also focuses its attention on the constitutional sufficiency of the Arizona Supreme Court's construction of "cruelty." The Court concludes: "Recognizing that the proper degree of definition of an aggravating factor of this nature is not susceptible of mathematical precision, we conclude that the definition given to the 'especially cruel' provision by the Arizona Supreme Court is constitutionally sufficient because it gives meaningful guidance to the sentencer. Nor can we fault the state court's statement that a crime is committed in an especially 'depraved' manner when the perpetrator 'relishes the murder, evidencing debasement or perversion,' or 'shows an indifference to the suffering of the victim and evidences a sense of pleasure' in the killing." 497 U.S., at 655, 110 S.Ct., at 3058 (emphasis added).

In the present case, however, the adequacy of the Arizona Supreme Court's construction of "cruelty" is not at issue. That court expressly found that Jeffers' crime was not "especially cruel"; its affirmance of the death sentence was based entirely on the conclusion that this murder was especially "heinous" and "depraved." In stating that Arizona has placed constitutionally sufficient limits on the State's "especially heinous . . . or depraved" aggravating factor, today's majority therefore is not in a position to rely, and cannot rely, on either the holding or the analysis of Walton. Rather, the majority relies entirely on the italicized sentence quoted above-the only sentence in the Walton opinion that discusses the Arizona Supreme Court's construction of the word "depraved." That sentence is wholly gratuitous: The Arizona Supreme Court's holding in Walton, and this Court's affirmance, do not depend upon a determination that Walton's crime was "especially . . . depraved." The opinion in Walton, moreover, makes no effort whatsoever to justify its suggestion that the state court's construction of "depravity" is sufficient to meet constitutional standards.

I think it is important that we be frank about what is happening here. The death penalty laws of many States establish aggravating circumstances similar to the one at issue in this case. ^[9] Since the statutory language defining these factors does not provide constitutionally adequate guidance, the constitutionality of the aggravating circumstances necessarily depends on the construction given by the State's highest court. We have expressed apparent approval of a limiting construction requiring "torture or serious physical abuse." Maynard v. Cartwright, 486 U.S. 356, 365, 108 S.Ct. 1853, 1859, 100 L.Ed.2d 372 (1988). This Court has not held that this is the only permissible construction of an aggravating circumstance of this kind, but prior to today we have never suggested that the aggravating factor can permissibly be construed in a manner that does not make reference to the suffering of the victim. The decision today will likely result in the execution of numerous inmates, in Arizona ^[10] and elsewhere, who would not otherwise be put to death. Yet neither in this case nor in Walton has the Court articulated any argument in support of its decision. Nor has the majority undertaken any examination of the way in which this aggravating circumstance has been applied by the Arizona Supreme Court. Instead, the Court relies on a conspicuous bootstrap. Five Members have joined the majority opinion in Walton, which in a single sentence asserts without explanation that the majority cannot "fault" the Arizona Supreme Court's construction of the statutory term "depraved." In the present case the same five Members proclaim themselves to be bound by this scrap of dictum. In any context this would be a poor excuse for constitutional adjudication. In a capital case it is deeply disturbing.

It is to some degree understandable that the majority chooses to rely exclusively on the brief and passing dictum in Walton. Had the Court examined the range of homicides which the Arizona Supreme Court has held to be "especially heinous . . . or depraved," it could not plausibly have argued that the state court has placed meaningful limits on the application of this aggravating circumstance. My dissent in Walton explains in some detail the reasons for its conclusion that this aggravating factor, as defined by the Arizona Supreme Court, fails to satisfy constitutional requirements. The United States Court of Appeals for the Ninth Circuit, sitting en banc, after exhaustive analysis of the relevant state precedents, also concluded that the "especially heinous . . . or depraved" circumstance is unconstitutionally vague. See Adamson v. Ricketts, 865 F.2d, at 1031-1039. There is no need to reiterate these arguments here. It is sufficient to note that neither this Court nor the Arizona Supreme Court has attempted to refute that analysis.

Indeed, the constitutional defects in the Arizona Supreme Court's application of the (F)(6) circumstance are illustrated by the state court's conclusion that respondent "relished" the murder, and that this factor supports a finding that the killing was "especially heinous . . . or depraved." The court based its conclusion on testimony indicating that respondent struck the victim several times after she appeared to be dead, that while striking her he called her a "bitch" and a "dirty snitch," and that with each striking blow he said, "This one is for _____," naming several of his friends on whom the victim had informed to the police. 135 Ariz., at 430, 661 P.2d, at 1131. The Arizona Supreme Court did not explain precisely what it meant by saying that the respondent "relished" his crime. But the evidence does not suggest that Jeffers killed for the sake of killing or found some intrinsic pleasure in the act of murder. Rather, the evidence indicates that respondent killed out of hatred for a particular individual and a desire for revenge. There is a difference.

It may be that a State could rationally conclude that a murder committed out of personal hatred is more reprehensible than is a killing committed for other reasons. ^[11] But the State of Arizona cannot be said to have arrived at any such conclusion. The Arizona Supreme Court has also held that a murder is "especially heinous . . . or depraved" if it is committed to eliminate a witness, see State v. Correll, 148 Ariz. 468, 481, 715 P.2d 721, 734 (1986); State v. Gillies, 142 Ariz. 564, 570, 691 P.2d 655, 661 (1984), cert. denied, 470 U.S. 1059, 105 S.Ct. 1775, 84 L.Ed.2d 834 (1985); State v. Smith, 141 Ariz. 510, 511-512, 687 P.2d 1265, 1266-1267 (1984), or if it is "senseless," see Gretzler, 135 Ariz., at 52, 659 P.2d at 11-12; and the statute itself provides that it shall be an aggravating circumstance if the murder is committed for pecuniary gain. See Ariz.Rev.Stat.Ann. § 13-703 (F)(5) (1989). ^[12] The Arizona Supreme Court has also identified other blameworthy motives which, in the court's view, suggest that a murder is "especially heinous . . . or depraved." ^[13] Taken together, the decisions of the Arizona Supreme Court hold that a murder will be deemed especially blameworthy if it is committed for virtually any reason, or for no reason at all.

The Arizona Supreme Court's decisions dealing with especially improper motives are symptomatic of a larger pattern in that court's construction of the (F)(6) circumstance. At least since Gretzler, the court has generally avoided the error of simply recounting the events surrounding a particular crime and then announcing, in conclusory fashion, that the murder was "especially heinous . . . or depraved." Rather, the court typically identifies specific factors to support its conclusion that the aggravating circumstance has been established. And if any one decision is examined in isolation, it may appear that the state court has narrowly construed the (F)(6) circumstance in a manner that satisfies constitutional requirements. The problem is that the Arizona Supreme Court has identified so many such factors, and has shown itself so willing to add new factors when a perceived need arises, that the body of its precedents places no meaningful limitations on the application of this aggravating circumstance. ^[14] The constitutional infirmity of the court's approach cannot be recognized through examination of any one opinion. It becomes very apparent upon examination of the relevant decisions taken as a whole. Unfortunately, the inquiry required for an informed assessment of the Arizona Supreme Court's application of this aggravating factor is one that this Court simply refuses to undertake.

The majority devotes most of its energy arguing that a federal habeas court, having concluded that a State has adopted a constitutionally sufficient limiting construction of an aggravating circumstance, largely should refrain from engaging in case-specific comparisons between the homicide under review and prior decisions in which the aggravating factor has been found. The Court concludes that since a rational factfinder could have determined that respondent "relished" the murder and engaged in "gratuitous violence," the death sentence must be allowed to stand. I concede that respondent's crime was not plainly distinguishable from the other murders that the Arizona Supreme Court has found to be "especially heinous . . . or depraved." Indeed, my conclusion could hardly be otherwise: having argued that the (F)(6) circumstance has been construed so broadly as to cover virtually every first-degree murder, I could scarcely contend that the court's finding in this case was bizarre or aberrational. I, however, do have some brief observations concerning the role of federal habeas courts in reviewing state-court findings of aggravating circumstances.

(1) I think that the majority is wrong in arguing that a state court's application of a valid aggravating circumstance involves a question of state law only. See ante, at 780. The statutory aggravating circumstances do perform the state-law function of determining who will be sentenced to death. But the aggravating factors also perform the distinct function of determining which murderers are eligible for the death penalty as a matter of federal law. See Zant v. Stephens, 462 U.S., at 878, 103 S.Ct., at 2743, 77 L.Ed.2d 235 ("[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"); Lowenfield v. Phelps, 484 U.S. 231, 244, 108 S.Ct. 546, 554, 98 L.Ed.2d 568 (1988). That point is particularly clear in cases like the present one, where the F6 circumstance is the only aggravating factor that the Arizona Supreme Court found to exist. If the state court erred in its determination that this aggravating circumstance had been proved, that error is of federal constitutional significance: The defendant who claims that no aggravating factor has been established is contending that the Eighth Amendment (and not simply state law) prohibits his execution. ^[15]

(2) As the majority points out, under 28 U.S.C. § 2254(d) "federal courts in habeas corpus proceedings must generally accord a presumption of correctness to a state court's factual findings." Ante, at 782 (emphasis added). The presumption of correctness does not apply, however, if the habeas petitioner demonstrates "that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing." 28 U.S.C. § 2254(d)(2). ^[16] In the present case the trial-level sentencing procedure was conducted under a clearly unconstitutional scheme. See n. 5, supra. The relevant factfinder is therefore the Arizona Supreme Court, as the majority appears to acknowledge. See ante, at 783 (arguing that "a federal court should adhere to the Jackson standard even when reviewing the decision of a state appellate court that has independently reviewed the evidence"). This Court has held that the general presumption of correctness mandated by 28 U.S.C. § 2254(d) is applicable to the factual findings of state appellate courts. Sumner v. Mata, 449 U.S. 539, 545-547, 101 S.Ct. 764, 768-769, 66 L.Ed.2d 722 (1981). The Court has also recognized, however: "[T]here might be instances . . . in which the presumption would not apply to appellate factfinding . . . because appellate factfinding procedures were not 'adequate,' see 28 U.S.C. § 2254(d)(2). For example, the question . . . might in a given case turn on credibility determinations that could not be accurately made by an appellate court on the basis of a paper record." Cabana v. Bullock, 474 U.S. 376, 388, n. 5, 106 S.Ct. 689, 698, n. 5, 88 L.Ed.2d 704 (1986).

Indeed, in the present case the inadequacy of the Arizona Supreme Court's procedure goes beyond the fact that the court did not see the witnesses and was forced to rely upon a paper record. At the times of respondent's trial and sentencing hearing, and even when his appellate briefs were submitted and oral argument was conducted, respondent had no reason to believe that the sentencer would attach particular importance to its conclusion that the defendant had "relished" the killing and inflicted "gratuitous violence" on the victim after her death. ^[17] The Arizona Supreme Court's opinion in Gretzler was issued 18 days prior to its decision in Jeffers' case-far too late for Jeffers to submit evidence or argument regarding the presence of the Gretzler factors.

In the present case there appears to be no dispute regarding the primary facts underlying the Arizona Supreme Court's finding of the (F)(6) circumstance. That is, respondent apparently does not deny that he struck the victim after she was dead or that he cursed her while doing so. But if there were a conflict in the testimony regarding this point, I would not regard the Arizona Supreme Court's factfinding procedures as "adequate" to resolve that conflict.

(3) In determining that Jeffers "relished" his crime and inflicted "gratuitous violence" on the victim, the Arizona Supreme Court did not simply apply determinate standards to a new set of facts. Rather, the assertion that respondent "relished" the killing of Penelope Cheney said as much about the court's understanding of the word "relish" as it did about Jeffers' state of mind at the time of the murder. Thus, despite the prior Ninth Circuit decision holding that the (F)(6) circumstance had been adequately narrowed, the federal court could not properly limit itself to the question whether a rational factfinder might conclude that Jeffers "relished" the killing or employed "gratuitous violence." Rather, the habeas court had both the right and the duty to ask whether the Arizona Supreme Court's construction of the (F)(6) circumstance remained adequate to satisfy the Constitution in light of its application to the case at hand. Thus, the habeas court's review in cases of this kind necessarily involves a comparison between the case under review and prior state-court decisions applying the aggravating factor not as a means of determining whether the state court "incorrectly" applied its construction of the statutory terms, but as a means of determining whether the state court's application of its construction to the instant case expands the scope of the aggravating factor in such a way as to make a previously valid limiting construction unconstitutionally broad.

(4) Indeed, I think that a comparative approach is necessary no matter what standard of review the habeas court employs. Even if the state court's finding is reviewed under a "rational factfinder" standard, the majority is wrong to say that the Court of Appeals erred in comparing Jeffers' crime to other cases in which the (F)(6) factor was established. Words like "relish" may be somewhat more precise than are "heinous" and "depraved," but they still are of less than crystalline clarity. A court attempting to apply the Jackson standard must ask whether a rational factfinder could believe that Jeffers "relished" the crime as that term has been construed by the Arizona Supreme Court. If the Arizona Supreme Court had used the word "relish" to mean one thing in each of its other decisions, and something very different in Jeffers' case, its application to Jeffers would be arbitrary-even if both meanings could be found in a given dictionary. If the Court of Appeals departed from the "rational factfinder" standard here, it was by requiring too close a correlation between this case and others, not simply by employing a comparative approach.

Suppose, for example, that the Arizona Supreme Court had consistently construed the (F)(6) circumstance as requiring "physical abuse," but had found that standard satisfied only in cases where the killer subjected the victim to prolonged, severe physical suffering. Presumably that construction would be valid. See Maynard v. Cartwright, 486 U.S., at 365, 108 S.Ct., at 1860. Suppose that the court in a subsequent case found that the (F)(6) factor had been proved when the defendant slapped the victim once and then shot him dead. The defendant, on federal habeas, could raise two related but distinct challenges. First, the defendant might argue that no reasonable factfinder could conclude that a single slap constituted "physical abuse" as that term had previously been construed by the Arizona Supreme Court. (This would amount to a contention that the state court had misapplied its own rule.) Alternatively, the defendant might argue that "physical abuse" could no longer be deemed an adequate limiting construction if that phrase was construed as including a single slap. However the challenge was framed, though, the habeas court could not limit itself to the question whether a rational factfinder could conclude that the slap fell within some plausible definition of "physical abuse."

The majority's discussion of the way in which a federal habeas court should review the application of a valid aggravating circumstance to the facts of a particular case seems to me to be flawed in significant respects. My principal disagreement, however, is with the Court's insistence on addressing the issue. The majority makes no effort to justify its holding that the Arizona Supreme Court has placed constitutionally sufficient limitations on its "especially heinous . . . or depraved" aggravating circumstance. Instead the Court relies entirely on a sentence of dictum from today's opinion in Walton-an opinion which itself offers no rationale in support of the Court's conclusion. The dissenting opinion in Walton notes the Court's increasing tendency to review the constitutional claims of capital defendants in a perfunctory manner, but the Court's action in this case goes far beyond anything that is there observed.

I dissent.

Notes

1. The (F)(6) circumstance applies when the sentencer finds that "[t]he defendant committed the offense in an especially heinous, cruel or depraved manner." In the present case, the Arizona Supreme Court found that cruelty had not been proved because "[t]here was no evidence that the victim suffered any pain." State v. Jeffers, 135 Ariz. 404, 429, 661 P.2d 1105, 1130 (1983). The court did find that the murder was "heinous" and "depraved," and the adequacy of that finding is the issue in this case. The Arizona Supreme Court disagreed with the trial court's determination that Jeffers had "knowingly created a grave risk of death to another person or persons in addition to the victim of the offense," Ariz.Rev.Stat.Ann. § 13-703(F)(3) (1989). See 135 Ariz., at 428-429, 661 P.2d, at 1129-1130. Consequently, Jeffers' sentence of death rests entirely on the (F)(6) factor.
2. Eleven judges sat on the en banc panel in Adamson. Seven judges concluded that none of the three terms ("heinous," "cruel," or "depraved") in the (F)(6) circumstance had been construed by the Arizona Supreme Court in a manner that satisfied constitutional requirements. 865 F.2d, at 1036. The other four judges argued that the state court had announced a satisfactory construction of the word "cruel"; these four declined to express a view as to the adequacy of the Arizona Supreme Court's application of the terms "heinous" and "depraved." Id., at 1058 (opinion concurring and dissenting).
3. Petitioner contends that Jeffers is not entitled to argue in this Court that the Arizona Supreme Court has failed to articulate a constitutionally sufficient limiting construction of the (F)(6) circumstance. Petitioner argues that the point has been waived, since the Ninth Circuit panel ruled against respondent on this claim and Jeffers did not seek rehearing or cross-petition for certiorari. Reply Brief for Petitioner 4. The majority correctly (though silently) rejects this proposition. There is no basis for the suggestion that respondent should have sought rehearing at the Court of Appeals, or filed a cross-petition here, after he prevailed below. It is well established that respondent may defend the judgment of the Court of Appeals on any ground supported by the record. See, e.g., Smith v. Phillips, 455 U.S. 209, 215, n. 6, 102 S.Ct. 940, 945, n. 6, 71 L.Ed.2d 78 (1982).
4. No such contention would be plausible. In Godfrey the plurality, considering Georgia's "outrageously or wantonly vile, horrible or inhuman" aggravating circumstance, concluded that "[t]here is nothing in these few words, standing alone, that implies any inherent restraint on the arbitrary and capricious infliction of the death sentence. A person of ordinary sensibility could fairly characterize almost every murder as 'outrageously or wantonly vile, horrible and inhuman.' " 446 U.S., at 428-429, 100 S.Ct., at 1765. In Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), the Court considered Oklahoma's "especially heinous, atrocious, or cruel" aggravating factor. It unanimously concluded: "[T]he language of the Oklahoma aggravating circumstance at issue . . . gave no more guidance than the 'outrageously or wantonly vile, horrible or inhuman' language that the jury returned in its verdict in Godfrey." Id., at 363-364, 108 S.Ct., at 1859. The statutory language here is no more precise.
5. In 1980, when respondent was sentenced to death by the trial judge, the Arizona Supreme Court had provided no guidance in the application of the (F)(6) circumstance beyond the definitions quoted in State v. Knapp, 114 Ariz. 531, 562 P.2d 704 (1977). Respondent's trial-level sentencing procedure was therefore conducted under an invalid scheme, and I would affirm the judgment below on that ground even if I believed that the Arizona Supreme Court had subsequently announced a valid limiting construction of this aggravating factor. See Clemons v. Mississippi, 494 U.S. 738, 762-772, 110 S.Ct. 1441, 1455-1461, 108 L.Ed.2d 725 (1990) (dissenting opinion).
6. In describing the kinds of murders that will qualify as "especially heinous . . . or depraved," the Arizona Supreme Court has continued to employ the formulations relied upon in Knapp. See, e.g., State v. Fulminante, 161 Ariz. 237, 254-255, 778 P.2d 602, 619-620 (1988) (quoting Knapp definitions), cert. granted, 494 U.S. 1055, 110 S.Ct. 1522, 108 L.Ed.2d 762 (1990); State v. Beaty, 158 Ariz. 232, 242, 762 P.2d 519, 529 (1988) (same), cert. denied, 491 U.S. 910, 109 S.Ct. 3200, 105 L.Ed.2d 708 (1989); State v. Poland, 144 Ariz. 388, 405, 698 P.2d 183, 200 (1985) (same); State v. Johnson, 147 Ariz. 395, 401, 710 P.2d 1050, 1056 (1985) ((F)(6) finding is appropriate in cases where the killer "acted in such a fashion that his acts set him apart from the 'norm' of first degree murderers").
7. The majority also places peculiar emphasis on the Court of Appeals' conclusion that the (F)(6) aggravating factor, as construed by the Arizona Supreme Court, is not unconstitutionally vague. See ante, at 776-777. It is most unusual for this Court to show deference to the legal conclusion of a Court of Appeals, particularly a conclusion made in the decision under review. And it is simply perverse for this Court to rely upon a Court of Appeals decision for a proposition that is no longer good law within the Circuit. The majority inexplicably neglects to mention that the panel's conclusion on this point has been superseded by the decision of the en banc court in Adamson v. Ricketts, 865 F.2d 1011 (CA9 1988), in which all seven judges who expressed a view on the question concluded that the Arizona Supreme Court had failed to articulate a constitutionally sufficient narrowing construction of the terms "heinous" and "depraved."
8. It might be even more accurate to say that the (F)(6) aggravating circumstance includes two distinct concepts: (1) cruelty and (2) heinousness/depravity. The Arizona Supreme Court has made only the most superficial effort to explain the difference between a murder that is "heinous" and a murder that is "depraved." See Adamson v. Ricketts, 865 F.2d, at 1034-1035, n. 38.
9. One commentator has stated: "Twenty-four states permit imposition of the death penalty based on a finding that the murder was, in some ill-defined way, worse than other murders. The states use a variety of terms to denote this aggravating circumstance, with most statutes containing, either alone or in some combination, the terms 'especially heinous, atrocious, or cruel,' 'depravity of mind,' or 'outrageously vile wanton or inhuman.' These aggravating circumstances . . . have generated more controversy than any other aggravating circumstance. Commentators have universally criticized them as vague, overbroad, and meaningless." Rosen, The "Especially Heinous" Aggravating Circumstance in Capital Cases-The Standardless Standard, 64 N.C.L.Rev. 941, 943-944 (1986) (footnotes omitted).
10. In addition to the present case, on at least 12 occasions the Arizona Supreme Court has found that a particular murder was especially heinous and/or depraved but not especially cruel. See State v. Ceja, 126 Ariz. 35, 39-40, 612 P.2d 491, 495-496 (1980); State v. Clark, 126 Ariz. 428, 436-437, 616 P.2d 888, 896-897, cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980); State v. Bishop, 127 Ariz. 531, 534, 622 P.2d 478, 481 (1980); State v. Tison, 129 Ariz. 546, 555, 633 P.2d 355, 364 (1981), cert. denied, 459 U.S. 882, 103 S.Ct. 180, 74 L.Ed.2d 147 (1982); State v. Ortiz, 131 Ariz. 195, 210, 639 P.2d 1020, 1035 (1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2259, 72 L.Ed.2d 863 (1982); State v. Woratzeck, 134 Ariz. 452, 457, 657 P.2d 865, 870 (1982); State v. Zaragoza, 135 Ariz. 63, 69, 659 P.2d 22, 28, cert. denied, 462 U.S. 1124, 103 S.Ct. 3097, 77 L.Ed.2d 1356 (1983); State v. Harding, 137 Ariz. 278, 294, 670 P.2d 383, 399 (1983), cert. denied, 465 U.S. 1013, 104 S.Ct. 1017, 79 L.Ed.2d 246 (1984); State v. Fisher, 141 Ariz. 227, 252, 686 P.2d 750, 775, cert. denied, 469 U.S. 1066, 105 S.Ct. 548, 83 L.Ed.2d 436 (1984); State v. Villafuerte, 142 Ariz. 323, 331, 690 P.2d 42, 50 (1984), cert. denied, 469 U.S. 1230, 105 S.Ct. 1234, 84 L.Ed.2d 371 (1985); State v. Martinez-Villareal, 145 Ariz. 441, 450-451, 702 P.2d 670, 679-680, cert. denied, 474 U.S. 975, 106 S.Ct. 339, 88 L.Ed.2d 324 (1985); State v. Wallace, 151 Ariz. 362, 367-368, 728 P.2d 232, 237-238 (1986), cert. denied, 483 U.S. 1011, 107 S.Ct. 3243, 97 L.Ed.2d 748 (1987). In four cases besides the present one, that has been the only aggravating circumstance. See State v. Ceja, supra; State v. Bishop, supra; State v. Villafuerte, supra; State v. Wallace, supra.
11. The identification of particularly blameworthy motives for murder would seem, however, to be more appropriately a task for the legislature than for the State's judiciary. See Rosen, 64 N.C.L.Rev., at 990-991. The codification of an aggravating factor as vaguely defined as the (F)(6) circumstance is in essence an act of legislative abdication, since it requires the state courts to make fundamental policy choices under the guise of "interpreting" the statute.
12. The Arizona Supreme Court has construed this aggravating factor as applying whenever "the expectation of financial gain was a cause of the murders." State v. Clark, 126 Ariz., at 436, 616 P.2d, at 896. The court in Clark rejected the specially concurring justice's position, id., at 437, 616 P.2d at 897, that this aggravating circumstance applied only to murders committed by hired killers.
13. See State v. Martinez-Villareal, 145 Ariz., at 451, 702 P.2d, at 680 (murder to demonstrate "manliness" reflects "a manifest disregard for the fundamental principles upon which our society is based"); State v. McCall, 139 Ariz. 147, 162, 677 P.2d 920, 935 (1983) ((F)(6) finding supported in part by the fact that the mutilation of the victims' bodies "was designed to be a 'message' to warn other people"), cert. denied, 467 U.S. 1220, 104 S.Ct. 2670, 81 L.Ed.2d 375 (1984).
14. A State might reasonably conclude that a murder is especially reprehensible if the victim is 10 years old (because a child is physically vulnerable and has most of his life ahead of him); or 75 years old (because of the respect traditionally accorded to the elderly); or 40 years old (because a person of that age is likely to have others dependent upon him for support). A cogent argument could also be made that the killing of a 21- or 55-year-old victim is especially blameworthy. But while none of these choices would be unreasonable, the State, with a statute of this kind, must choose. If the state court invoked first one argument and then the other, and ultimately found in virtually every case that the age of the victim made the murder "especially heinous . . . or depraved," the aggravating circumstance would be too broad.
15. Similarly, the Eighth Amendment prohibits the imposition of a capital sentence unless the defendant is found to have killed, attempted to kill, or intended that a killing take place. Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). It may be that the laws of many States require a similar finding. But the adequacy of the procedure by which that finding is made is a question of federal as well as state law.
16. The presumption of correctness is also inapplicable if "the material facts were not adequately developed at the State court hearing," § 2254(d)(3), or if "the applicant did not receive a full, fair, and adequate hearing in the State court proceeding." § 2254(d)(6).
17. The Arizona Supreme Court in Gretzler summarized prior Arizona decisions in support of its conclusion that the (F)(6) circumstance would be established if the murderer "relished" the killing or employed "gratuitous violence." But those prior decisions did not use the terms "relish" or "gratuitous violence"; for the most part, they simply recounted the facts of the case and then concluded that the murder was "especially cruel . . . or depraved." Prior to the decision in Gretzler, Jeffers had no notice that the Gretzler factors would be accorded any particular significance in determining whether the (F)(6) factor had been established.