Bowen v. Arkansas
In Bowen v. Arkansas, 322 Ark. 483, 911 S.W.2d 555 (Ark. 1995), the issue was whether the State could rely on the aggravator that "the capital murder was committed in an especially cruel or depraved manner," which had not been enacted at the time the crime was committed. 911 S.W.2d at 562.
In noting that an "aggravating circumstance . . . is a 'standard' to guide the jury in its selection of punishment," 911 S.W.2d at 563 (citing Poland v. Arizona 476 U.S. 147 (1986)), the Supreme Court of Arkansas focused on the nature and the effect of the new aggravator:
"While the addition of an aggravating circumstance to be considered in determining whether the sentence will be death or life without parole does not guarantee the harsher sentence, it may have a direct effect on the decision and thus result in a harsher sentence than might have been imposed were that aggravating circumstance not available. We can hardly say that a "standard" for application of the death penalty is merely procedural. We regard it as a substantive provision that cannot be applied retroactively. It was error to do so, thus we must remand the case for resentencing." (911 S.W.2d at 563-64.)