The Arizona Supreme Court recently issued opinions in two appeals of capital sentences in which the jury found that the murder was especially cruel. Although the two opinions were issued within one week of each other, they utilized different standards of review pursuant to statutory changes adopted in Arizona in 2002. In *State v. Chappell*, where the defendant drowned a two-year-old in a swimming pool, the court—using an abuse of discretion standard—determined that there was sufficient evidence presented at trial for the jury to find that the cruelty prong of the (F)(6) aggravator had been established and to impose a death sentence. In *State v. Snelling*, where the defendant strangled a woman with an electrical cord, the court—reviewing the record de novo because the murder predated the statutory changes—found the cruelty prong unproven and vacated the death sentence.
Taken together, *Chappell* and *Snelling* raise concerns about whether the abuse of discretion standard of review permits the Arizona Supreme Court to adequately remedy death sentences that appear arbitrary. Particularly because the jury instructions employed to narrow the cruelty prong of the (F)(6) aggravator may be both inconsistent and overbroad, the safeguard of de novo review could be important to guard against the arbitrary imposition of the death penalty.