Advocacy Group Tells Supreme Court that Negative Stereotypes Distort Perception that Latinos in Death-Penalty Cases Pose Future Danger to Society

An ami­cus brief filed in the U.S. Supreme Court in sup­port of Arizona death-row pris­on­er John Montenegro Cruz presents evi­dence that Latinx defen­dants are par­tic­u­lar­ly vul­ner­a­ble to juror bias regard­ing deter­mi­na­tions of future dangerousness.

LatinoJustice PRLDEF, a civ­il rights orga­ni­za­tion that ​“advo­cates for and defends the con­sti­tu­tion­al rights of Latinos under the law,” filed an ami­cus brief in the case of Cruz v. Arizona sup­port­ing Cruz’s argu­ment that Arizona vio­lat­ed his right to due process when his tri­al judge refused to inform the jury that he would be inel­i­gi­ble for parole if sen­tenced to life in prison. The brief explains that the tri­al court’s fail­ure was par­tic­u­lar­ly prej­u­di­cial to Cruz, a Latino man, because of wide­spread neg­a­tive stereo­types of Latinos as dan­ger­ous. ​“A jury already mak­ing a sub­jec­tive deci­sion about future dan­ger­ous­ness — one that has enor­mous poten­tial to be influ­enced by racial bias — is all the more dis­ad­van­taged when it does not have accu­rate infor­ma­tion about alter­na­tives to a death sen­tence,” LatinoJustice wrote.

In an order issued March 28, 2021, the Court grant­ed Cruz’s peti­tion to hear his case, but lim­it­ed its review to the ques­tion of whether the pro­ce­dur­al rule applied by the Arizona courts to refuse to con­sid­er Cruz’s claim is grounds to also bar him from receiv­ing review of his claim in federal court.

The crux of LatinoJustice’s argu­ment is that fail­ing to tell juries about the unavail­abil­i­ty of parole ​“deprives a Latino defen­dant of due process of law” because this prac­tice ​“allows jurors to act upon their uncor­rect­ed belief that impo­si­tion of the death penal­ty is the only way to pro­tect their com­mu­ni­ty from the dan­ger of a repeat­ed crime.” LatinoJustice cites research demon­strat­ing that Latinx defen­dants are dis­pro­por­tion­ate­ly harmed by future dan­ger­ous­ness deci­sions, includ­ing a 2010 study that found ​“per­cep­tions of Hispanics as crim­i­nals results in an increase in sup­port for puni­tive crime control measures.”

According to the brief, future dan­ger­ous­ness is used against Latinx defen­dants in fed­er­al cap­i­tal tri­als at a high­er rate than Black defen­dants, white defen­dants, and oth­er minor­i­ty groups. The brief cit­ed a study of 538 fed­er­al death penal­ty tri­als that found future dan­ger­ous­ness had been alleged at a dis­pro­por­tion­ate rate against Latinx defen­dants in cap­i­tal charg­ing prac­tices. The study found that ​“there has been an alle­ga­tion of future dan­ger­ous­ness against 80 of the 99 (81%) Latino defen­dants autho­rized for the fed­er­al death penalty.”

The brief focused on bias in juror assump­tions about the future dan­ger­ous­ness of defen­dants of col­or, explain­ing that “[d]ecades of stud­ies have shown that juries — even mock juries in con­trolled exper­i­ments— per­ceive Black defen­dants as more dan­ger­ous than white ones, and that harsh­er sen­tences are the result. More recent research has demon­strat­ed wide­spread belief that Latinos, too, are more prone to crime and vio­lence than whites.” The brief cit­ed a 2012 sur­vey that found 58% of respon­dents thought ​“vio­lent” described Hispanic indi­vid­u­als slight­ly or mod­er­ate­ly well. Further, Amici stat­ed that “[r]esearchers have found that jury-eli­gi­ble par­tic­i­pants strong­ly asso­ci­at­ed Latino men with ​“Danger” and white men with ​“Safety,” and that they held sim­i­lar dan­ger­ous­ness stereo­types for Latino men as they do for Black men.” This poten­tial for bias to influ­ence jury deci­sion-mak­ing ren­ders accu­rate instruc­tions about future dan­ger­ous­ness even more impor­tant for Black and Latino defendants.

In their brief, Amici wrote that jurors have an implic­it bias that Latino males are more dan­ger­ous and pose a greater risk of future crim­i­nal­i­ty. They argue this is due to dis­pro­por­tion­ate media por­tray­als of Latinx indi­vid­u­als as crim­i­nals and wide­spread den­i­gra­tion of Latinx indi­vid­u­als in pub­lic affairs and polit­i­cal cam­paign­ing. However, juries are also large­ly unaware of the unavail­abil­i­ty of release for defen­dants sen­tenced to life. The brief went on to say that these mis­con­cep­tions about avail­abil­i­ty of release are exac­er­bat­ed when racial minori­ties, like Latinx indi­vid­u­als, are involved: ​“A juror who (mis­tak­en­ly) believes a dis­fa­vored defen­dant will be paroled if sen­tenced to life in prison, and who has been taught to think of that defen­dant as more dan­ger­ous based on his race, will be more like­ly to sen­tence that defen­dant to death over a (mis­tak­en) belief that he pos­es a future dan­ger to society.”

The con­sid­er­a­tion of future dan­ger­ous­ness in cap­i­tal sen­tenc­ing has gone to the Supreme Court before. In 1994, in Simmons v. South Carolina, the Court held that when future dan­ger­ous­ness is placed at issue, the defen­dant has the right to rebut the infer­ence, for exam­ple, by inform­ing the jury on the actu­al unavail­abil­i­ty of release. Further, the Court has recent­ly heard the issue of racial bias in future dan­ger­ous­ness eval­u­a­tions. Duane Buck, a for­mer Texas death-row pris­on­er, was sen­tenced to death when a psy­chi­a­trist pre­sent­ed by his own lawyer said he posed a greater poten­tial dan­ger to soci­ety because he is Black. In an Amicus Brief in sup­port of Buck, the American Psychiatric Association wrote: “[t]he unre­li­a­bil­i­ty of psy­chi­atric pre­dic­tions of long-term future dan­ger­ous­ness is by now an estab­lished fact with­in the pro­fes­sion.” On February 22, 2017, the Supreme Court over­turned Buck’s death sen­tence, say­ing “[o]ur law pun­ish­es peo­ple for what they do, not who they are.” In the Buck deci­sion, the Court called race-based deter­mi­na­tions of future dan­ger­ous­ness a ​“par­tic­u­lar­ly nox­ious strain of racial prejudice.”

Ultimately, LatinoJustice referred to Cruz’s case as ​“a per­fect storm of ele­ments that may lead a jury to mis­judge future dan­ger­ous­ness” because of ​“the lack of a Simmons instruc­tion, pre­con­ceived notions that parole is always avail­able, and [Cruz was] Latino defen­dant tried dur­ing a time and place where mes­sages about Latino dan­ger­ous­ness were rampant.”