A.R.S. §13-751(G)(1)


A.R.S. §13-751(G)(1) provides that it shall be a mitigating circumstance where “[t]he defendant’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law was significantly impaired, but not so impaired as to constitute a defense to prosecution.”

History:  This circumstance was one of the four original mitigating circumstances in the 1973 version of the capital sentencing statute.  There have been no substantive changes to this factor since its original inception.

Disjunctive:  This mitigating circumstance is written in the disjunctive so that if either the capacity to appreciate the wrongfulness of one’s conduct or the capacity to conform one’s conduct to the requirements of the law is significantly impaired, then the mitigating circumstance is proven.  State v. Stuard, 176 Ariz. 589, 863 P.2d 881 (1993).

Significantly Impaired:  Impairment of the capacity to appreciate the wrongfulness of one’s conduct is not the same as the ability to appreciate the full consequences of one’s conduct. State v. King, 180 Ariz. 268, 883 P.2d 1024 (1994). This part of the statute considers any significant deficiency in the cognitive process that is insufficient to constitute a defense.  State v. Richmond (Richmond I), 114 Ariz. 186, 560 P.2d 41 (1976).  Impairment of the capacity to conform one’s conduct to the requirements of the law looks to the volitional aspects of the human mind, Richmond I, but is not the same as impulsiveness or the unwillingness to control one’s actions.  State v. Brewer, 170 Ariz. 486, 826 P.2d 783 (1992).

The statute makes clear that to find significant impairment as a mitigating factor, the impairment need not rise to the level of a defense.  See State v. Rossi (Rossi I), 146 Ariz. 359, 706 P.2d 371 (1985).  However, when the Court sometimes uses language like “unable to conform his conduct” as opposed to “significantly impaired capacity to conform his conduct,” the standard can be confusing.

Right to Consideration as Non-Statutory Mitigator:  If the defendant shows “some impairment at the time of the offense,” he is entitled to an instruction on “substantial impairment” as a non-statutory mitigating circumstance, irrespective of whether he will or will not receive an instruction on impairment under (G)(1).  State v. Carreon, 210 Ariz. 54, 107 P.3d 900 ¶¶ 75-80 (February 24, 2005) (citing to State v. Gallego, 178 Ariz.1, 17-18, 870 P.2d 1097, 113-14 (1994).


Arizona case law is replete with the use of a “causal connection” or “nexus” test, which questions whether there is a link between the impairment, be it alcohol abuse, substance abuse or mental illness, and the murder itself.  See Kayer; Murdaugh, 209 Ariz. 19, 34 ¶74, 97 P.3d 844, 859 (2004) (“the defendant must establish a causal nexus between the drug use and the offense”); State v. Sansing, 206 Ariz. 232, 239, 77 P.3d 30, 37 (2003) (“Mere evidence of drug ingestion or intoxication is insufficient to establish statutory mitigation. The defendant must also prove a causal nexus between his drug use and the offense.”)

The United State Supreme Court cast serious doubt as to the continued viability of any causal nexus test, particularly when it is used to preclude evidence from being admitted at the sentencing phase.  In Tennard v. Dretke, 543 U.S. 274 (2004) the Court held that precluding evidence of a defendant’s low I.Q. based upon the fact that it did not “relate specifically to” the defendant’s culpability for the crime, violated the Eighth Amendment.  The Court reasoned that in Skipper v. South Carolina, 476 U.S. 1, 106 S. Ct. 1669 (1986), the Court made clear that evidence of a defendant’s good conduct in jail did not relate specifically to the defendant’s culpability for the crime that he committed, but nevertheless, there was “no question” that such evidence “would be ‘mitigating’ in the sense that [it] might serve ‘as a basis for a sentence less than death.’”  Tennard, 542 U.S. at 285 (quoting Eddings v. Oklahoma, 455 U.S. 104, 114 (1982)).  Similarly, evidence of a defendant’s low IQ could be mitigating, even though it did not contribute to the reason for the murder.

The Arizona Supreme Court recognized the importance of the Tennard opinion in State v. Frank Winfield Anderson, 210 Ariz. 327, 111 P.3d 639 ( 2005), and noted with approval the fact that the trial court did not instruct the jury that it had to find a “nexus” between the proffered mitigation evidence and the defendant’s crime.  It cited with approval the more general instruction given in that case that the jury was to consider any mitigation they found “relevant in determining whether to impose a sentence less than death.”  See Frank Anderson at 349 ¶ 94, 111 P.3d at 391.

Argument & Causal Nexus:  It is not improper to allow the State to argue that there is no causal relationship between the mitigation and the crime.  As the Arizona Supreme Court noted recently in Anderson, though various Supreme Court decisions “dictate a liberal rule of admissibility for mitigating evidence, they still leave it to the sentencer to ‘determine the weight to be given to relevant mitigating evidence.’” Anderson at ¶97 (quoting Eddings v. Oklahoma).

Instructions:  In assessing the legal sufficiency for giving instructions on this circumstance, the focus should be on how “significant” the impairment was.  Testimony from mental health experts, for example, may be conflicting as to whether the individual’s impairment was significant at the time of the murder, and therefore may not satisfy the language of the statute.  However, that same testimony may make clear that the defendant has mental disabilities that should be considered to determine if they are mitigating in some other way.

The Court has clearly rejected the notion that having a mental illness necessarily means that a person is impaired for (G)(1) purposes.  In cases where the Court has found the (G)(1) circumstance, the mental illness was a major contributing cause of the defendant’s conduct at the time of the murder.

Drug Use:  Where there is no evidence that the defendant was impaired at the time of the offense, “drug use cannot be a mitigating circumstance of any kind.” State v. Carreon, 210 Ariz. 54, 70 ¶ 79, 107 P.3d 900, 916 (2005).  This must be considered in light of the Tennard decision and not used to preclude evidence where there is any evidence of impairment.

Chronic Substance Abuse:  Impairment by use of drugs or alcohol includes not only intoxication at the time of the crime, but also chronic substance abuse.  State v. McMurtrey (McMurtrey III), 151 Ariz. 105, 726 P.2d 202 (1986).  Generally, the fact that a defendant was to some degree intoxicated is not, by itself, a mitigating circumstance.  Sansing, 206 Ariz. at 239, 77 P.3d at 37; State v. Jones, 188 Ariz. 388, 400, 937 P.2d 310, 322 (1997).

Status of Being “Mentally Ill”:  The status of being mentally ill alone is insufficient to support a (G)(1) finding.  State v. Clabourne (Clabourne II), 194 Ariz. 379, 983 P.2d 748 (1999).

Character/Personality Disorders:  A character or personality disorder usually does not qualify as an impairment under the meaning of the statute.  Richmond I;  State v. Kayer, 194 Ariz. 423, 984 P.2d 31 (1999).  However, evidence of a character or personality disorder should be evaluated to determine if it is mitigating in some other way and should be given some independent mitigating weight.  State v. McMurtrey (McMurtrey I), 136 Ariz. 93, 664 P.2d 637 (1983).  At times, the Court has found the distinction between personality disorders and mental impairments important, noting that mental impairments have a far greater mitigating effect because they may evidence an inability of the defendant to control his conductBrewer, supra

Evidence of Impairment:  Typically, the necessary evidence of impairment comes in the form of expert witness testimony.  Murdaugh, 209 Ariz. at 34, ¶74, 97 P.3d at 859.

Actions after the Murder Can Negate Factor:  “A defendant’s claim of alcohol or drug impairment fails when there is evidence that the defendant took steps to avoid prosecution shortly after the murder, or when it appears that intoxication did not overwhelm the defendant’s ability to control his physical behavior.”  Sansing, 206 Ariz.at 239, 77 P.3d at 37 (quoting State v. Reinhardt, 190 Ariz. 579, 591-92, 951 P.2d 454, 466-67 (1997).

How this Section is Divided: The annotations concerning impairment are divided into two large categories:  mental and drugs/alcohol.  The mental impairment subsection includes all references to mental disorders, personality disorders, and anything referring to mental health.  The drugs/alcohol subsection includes all references to intoxication at the time of the murder, as well as problems arising from a chronic history of substance abuse.  As the reader will note, there are many cases which appear in both subsections.