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| Christopher Durocher |
This court has adopted an increasingly cramped interpretation of the Constitution's due process clause and the availability of habeas review for those facing execution.
That's why the court's Feb. 22 decision in Cruz v. Arizona[1] came as a pleasant surprise in its prioritization of due process over procedure and federal deference for state court proceedings.
Unfortunately, this somewhat surprising 5-4 decision also reflects how low the bar has fallen for this court in death penalty cases.
The decisions coming out of the U.S. Supreme Court, which currently has a conservative supermajority, have routinely disregarded grave constitutional concerns about the way their convictions or death sentences were secured or the potentially cruel and unusual way they would be executed.
According to one study from the Death Penalty Information Center, 72% of people executed in 2022 suffered from a significant impairment, such as traumatic brain injury, intellectual disabilities, serious mental illness or chronic childhood trauma.[2]
The study also reached the disturbing conclusion that 35% of executions attempted in 2022 were botched due to incompetence, failure to follow procedures, or deficiencies in the execution protocols, including Alabama's the execution of Joe James Jr., which took three hours to complete — the longest execution in recorded history.
In many of these cases, the U.S. Supreme Court declined to review or reverse lower court orders allowing these problematic executions to proceed.
Perhaps more troubling were the cases in which the U.S. Supreme Court summarily lifted lower court stays imposed due to those courts' concerns about the underlying conviction, death sentence, or execution method.
In some of these cases, lower courts had engaged in extensive fact-finding and concluded that a constitutional or procedural infirmity justified either a stay of execution or reversal of a death sentence.
In other cases, the lower courts had imposed a stay in order to allow time for such fact-finding, which the U.S. Supreme Court's reversal prevented. This included the attempted execution of Alan Miller, also by Alabama, that was ultimately called off when the execution team was unable to set an IV line.
This attempted execution happened just hours after the U.S. Supreme Court lifted a U.S. District Court for the Middle District of Alabama's order that would have prevented Alabama from executing Miller using lethal injection.
It was with this pro-death-penalty track record that the U.S. Supreme Court granted review of John Montenegro Cruz's case in March 2022. Cruz was convicted of first degree murder and sentenced to death in Arizona in 2005.[3]
During the penalty phase of his trial, when the jury would decide whether to sentence Cruz to death, the prosecutor argued that death was an appropriate and necessary sentence, in part because of Cruz's future dangerousness.
Cruz asked the court to allow him to inform the jury, through a witness, his attorney's closing statements, or through a jury instruction, that if the jury elected not to sentence him to death, he would serve a sentence of life without the possibility of parole.
The judge refused to allow the jury to hear this information, despite the fact that it accurately described Arizona law.
The idea that a jury should be allowed to hear an accurate description of the law relevant to their deliberations seems obvious. And the U.S. Supreme Court agreed.
In 1994, more than a decade before Cruz's trial and the same year Arizona abolished parole for all felonies, the U.S. Supreme Court held in Simmons v. South Carolina that in death penalty cases "[w]here a defendant's future dangerousness is at issue, and state law prohibits his release on parole, due process requires that the sentencing jury be informed that the defendant is parole ineligible."[4]
Despite the trial court's obvious error in Cruz's case, Arizona doubled down on that error in an effort to preserve its ability to put Cruz and others to death.
For more than a decade, Arizona prosecutors and courts, including the Arizona Supreme Court, in both direct appeals and state post-conviction proceedings, openly defied the U.S. Supreme Court, claiming that Simmons did not apply to Arizona's sentencing regime.
Finally, in 2016, the U.S. Supreme Court seemed to have had enough of Arizona's obstinance.
In Lynch v. Arizona, a case raising the exact same error that occurred in Cruz's case, the U.S. Supreme Court issued a terse, per curiam decision stating bluntly that Simmons did indeed apply to Arizona.[5]
But Arizona's next move fell somewhere between Orwellian or Kafkaesque. Relying on the Lynch decision, Cruz again sought post-conviction review of his death sentence.
Normally, Cruz, who had already sought post-conviction relief in state court, would have been barred from pursuing this successive petition, but the Arizona Rules of Criminal Procedure provide for an exception if "there has been a significant change in the law that ... would probably overturn the defendant's judgment or sentence."[6]
The Arizona Supreme Court denied Cruz relief, holding that the exception did not apply to Cruz's petition.[7] The court said, "As acknowledged in Cruz's petition to this court, '[t]he Supreme Court's Lynch decision was dictated by its earlier decision in Simmons v. South Carolina.'"
The Arizona Supreme Court reasoned that Lynch simply restated Simmons' well-established, nearly 30-year-old precedent regarding informing juries about parole ineligibility.
Therefore, it was not a significant change in the law, despite the fact that the Arizona Supreme Court repeatedly held that Simmons did not apply to Arizona.
In an argument that was too clever by half, the Arizona Supreme Court explained the exception did not apply when there was "a significant change in the application of the law," which, according to the court, was what Lynch represented.
Many, including Justice Ketanji Brown Jackson during oral arguments, expressed concern that a decision by the U.S. Supreme Court in favor of Arizona would provide a road map for other states to defy Supreme Court precedent with which they disagreed.[8]
Between the time the court decided Lynch in 2016 and heard oral arguments in Cruz last fall, the composition of the court had changed dramatically.
In addition to Justice Jackson, Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett had joined the court, resulting a shift from a 5-4 to a 6-3 conservative majority and a resulting rightward shift in the court's ideological center.
The question was whether Arizona had successfully bided its time for a more ideologically sympathetic court that would ignore its own precedent to allow Arizona to execute Cruz.
In an opinion delivered by Justice Sonia Sotomayor, and joined by Chief Justice John Roberts and Justices Jackson, Elena Kagan and Kavanaugh, the court sided with Cruz, thwarting Arizona's would-be gambit.
In reaching the decision, Justice Sotomayor's majority opinion explained that while a "state procedural ruling that is 'firmly established and regularly followed' will ordinarily 'be adequate to foreclose review of a federal claim,'" the Arizona court's decision was so egregious as to "render the state ground inadequate to stop [the U.S. Supreme Court's] consideration" of Cruz's case.
Sotomayor concluded that the Arizona Supreme Court's opinion created a Catch-22 for Cruz that "underscores the novelty of the decision and its departure from preexisting Arizona Supreme Court law," and could therefore not serve as an adequate state procedural ground.
Having dispatched with this procedural barrier that Arizona claimed barred the U.S. Supreme Court from considering the case, Sotomayor concluded that Cruz was entitled to the opportunity to establish in state court that his death sentence violated Simmons and Lynch.
There were four U.S. Supreme Court justices, however, who would have allowed Cruz's death sentence to stand. These four justices would have allowed Arizona to execute Cruz despite the violation of his constitutional due process rights, out of deference to a state court that repeatedly ignored the obvious relevance of precedent established by the court on which the four dissenting justices sit.
In a dissent written by Justice Barrett, the four justices lamented that the court was too quick to draw the conclusion that the Arizona Supreme Court's "decision [was] so disingenuous that it reveals hostility to federal rights or those asserting them."
The dissent's position would effectively prioritize deference to and respect for the state court that ignored binding U.S. Supreme Court precedent for nearly three decades and through multiple rounds of litigation, over allowing Cruz the opportunity to inform a jury that would decide whether he lives or dies that he would be ineligible for parole if they chose to let him live.
While the four dissenting justices are part of the conservative supermajority that has proven indifferent, if not hostile, to their own precedent, one would think they might have balked at deferring to a state court that had so blatantly ignored binding U.S. Supreme Court precedent.
Though the dissent's position did not win over a majority of the court, if it had, it would have served as yet another indication that ignoring U.S. Supreme Court precedent can, at times, be rewarded with a decision that dispatches with precedent in favor of the preferred position of the conservative legal movement.
Fortunately, in this case two members of the conservative supermajority voted to protect a clear and longstanding precedent — at the same time sending the message that there are in fact limits to the U.S. Supreme Court's willingness to look past violations of due process in death penalty cases.
The results in this case are a positive development for Cruz and other death row litigants in Arizona.
The U.S. Supreme Court did not overturn Cruz's death sentence, but the unequivocal language in Justice Sotomayor's opinion for the majority makes it certain that an Arizona court will, for the first time, consider Cruz's constitutional claim that being barred from informing the jury of his ineligibility for parole violated his due process rights.
Others on Arizona death row who have similar claims may now have the same opportunity.
The next challenge for Cruz and others will be convincing the Arizona Supreme Court that the trial court's refusal to allow the jury to hear that information is sufficient grounds to reverse the death sentence and allow for a new jury to decide whether to impose a death sentence.
Simmons seems clear that this error requires reversal of the death sentence, but over the long course of Cruz's litigation, the Arizona Supreme Court has repeatedly demonstrated a willingness to read U.S. Supreme Court precedent in a manner that limits the availability of relief in death penalty cases.
If Arizona again reads Simmons narrowly to deny Cruz relief — this time on the merits and not merely procedural grounds — his case may once again come before the U.S. Supreme Court.
The question is whether there will be at least five justices, including at least two from the conservative supermajority, who are interested in protecting the Simmons precedent, or whether the court will take the opportunity to dismantle or weaken due process rights, foreclosing one more avenue for those sentenced to death to prevent their unconstitutional executions.
Notwithstanding the Cruz decision, if past is prologue, the tendency of so many justices to value procedural niceties over constitutional rights and actual human life is troubling in what it portends for the future.
Christopher Wright Durocher is vice president of policy and program at the American Constitution Society.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] Cruz v. Arizona
, 598 U. S. ____ (2023), https://www.supremecourt.gov/opinions/22pdf/21-846_lkgn.pdf.[2] Death Penalty Information Center, The Death Penalty in 2022: Year End Report (2022), https://deathpenaltyinfo.org/facts-and-research/dpic-reports/dpic-year-end-reports/the-death-penalty-in-2022-year-end-report.
[3] Cruz was convicted and sentenced to death in Pima County Superior Court for the 2003 murder of a Tucson police officer. The Arizona Supreme Court affirmed Cruz's conviction and sentence in 2008. State v. Cruz, 218 Ariz. 149 (2008), https://casetext.com/case/state-v-cruz-157#p171.
[4] Simmons v. South Carolina
, 512 U.S. 154 (1994), https://supreme.justia.com/cases/federal/us/512/154/#tab-opinion-1959543.[5] Lynch v. Arizona
, 578 U. S. 613 (per curiam) https://supreme.justia.com/cases/federal/us/578/15-8366/#tab-opinion-3578668.[6] Ariz. R. Crim. P. 32.1(g), https://casetext.com/rule/arizona-court-rules/arizona-rules-of-criminal-procedure/appeal-and-other-post-conviction-relief/rule-32-post-conviction-relief-for-defendants-sentenced-following-a-trial-or-a-contested-probation-violation-hearing/rule-321-scope-of-remedy.
[7] State v. Cruz
, 251 Ariz. 203 (2021), https://casetext.com/case/state-v-cruz-2044.[8] Sarah Martinson, Justice Jackson Warns Of Roadmap For States To Defy Court, Law360 (Nov. 1, 2022), https://www.law360.com/articles/1545718/justice-jackson-warns-of-roadmap-for-states-to-defy-court.