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.”