Supreme Court Hears Argument in Death Penalty Case that Could Provide States a ​“Roadmap for Defying … Criminal Law Decisions”

In 1994, the United States Supreme Court held in Simmons v. South Carolina that when the prosecution makes future dangerousness an issue in a capital case, a defendant has a due process right to inform jurors that he will not be parole eligible if he is not sentenced to death. For more than a decade, Arizona courts refused to apply that precedent. Then, in 2016, the U.S. Supreme Court summarily struck down that practice in Lynch v. Arizona, holding that the state had failed to implement clearly established case law. In response, the Arizona Supreme Court refused to allow death-row prisoners who had unsuccessfully challenged the state court’s rule at trial to obtain post-conviction relief on the issue, saying Lynch did not constitute a significant change in law.

On November 1, 2022 the U.S. Supreme Court heard oral argument in the case of John Montenegro Cruz, whom Arizona denied a life without parole instruction at trial and procedurally barred from obtaining post-conviction review. Arizona argues Cruz’s death sentence should remain in place even though he was not allowed to inform his jury that the alternative to a death sentence was life without parole. At oral argument, several justices questioned the state’s position, noting that a ruling in favor of the state would reward it for flouting Supreme Court precedent.

“I think … Kafka would have loved this,” Justice Elena Kagan said during the argument. “Cruz loses his Simmons claims on direct appeal because the Arizona courts say point-blank Simmons never applied in Arizona. And then he loses the next time around because the Arizona courts say Simmons always applies.” Nearly 30 other similarly situated people on Arizona’s death row who were unconstitutionally denied a life-without-parole instruction could be executed without reconsideration of their claims if the court rules in the state’s favor. At argument, Justice Ketanji Brown Jackson warned that such a ruling “will be giving other states essentially a roadmap for defying this Court’s criminal law decisions.”

After argument, Arizona Attorney General Mark Brnovich continued to defend the state’s position, saying that Justice Kagan was misguided and that family members of murder victims “should not have to endure endless attempts by the perpetrator to avoid responsibility for his heinous crime.”

Neal Katyal, who had argued the case on behalf of Cruz, asserted that Arizona was acting in bad faith. According to Katyal, “In the end, this is about one thing: Making sure Simmons’ rights aren’t extended to Cruz and people like him, even though we know, in this very case, from the jury foreman [knowing about Cruz’s parole ineligibility] would’ve made a massive difference.”

Cruz was sentenced to death in 2005. The state challenged Cruz’s expert witness who testified that Cruz was unlikely to be dangerous in a prison environment. The trial court denied Cruz’s requests to instruct the jury that he was parole ineligible and his request to have the chairman of the Arizona Board of Executive Clemency testify that he was parole ineligible. Instead, the court instructed the jury that the alternative to a death sentence was sentencing Cruz to “[l]ife imprisonment with a possibility of parole or release from imprisonment” after 25 years. Jurors were not instructed that Arizona law excluded from parole eligibility those who were sentenced to 25 years to life after 1994. After sentencing Cruz to death, the foreperson of the jury stated that a life without parole option would have made a difference. The foreperson said: “Many of us would rather have voted for life if there was one mitigating circumstance that warranted it. In our minds there wasn’t. We were not given an option to vote for life in prison without the possibility of parole.”

Cruz raised the issue on direct appeal, but the Arizona Supreme Court decided that Simmons did not apply. After the U.S. Supreme Court’s 2016 decision, Cruz sought state post-conviction relief. Cruz argued that he was entitled to relief based on federal principles about when a case is applied retroactively and based on Arizona’s Rule of Criminal Procedure 32.1(g) that allows post-conviction relief when “there has been a significant change in the law that, if applicable to the defendant’s case, would probably overturn the defendant’s judgment or sentence.” The Arizona Supreme Court denied post-conviction relief, holding that Lynch was not a significant change in the law.

Several groups filed amicus briefs in the case, including the Arizona Capital Representation Project, LatinoJustice PRLDEF, and the Legal Defense Fund. Lourdes M. Rosado, president and general counsel for LatinoJustice PRLDEF, noted that “the long history of racial bias in the death penalty [makes] constitutional protections all the more crucial for those who have long been discriminated by the criminal legal system.”