Amicus Curiae Brief — John Montenegro Cruz, Petitioner v. Arizona

No. 21-846

In the

Supreme Court of the United States

JOHN MONTENEGRO CRUZ,

Petitioner,

v.

ARIZONA,

Respondent.

On Petition for a Writ of Certiorari to the

Supreme court of Arizona

BRIEF OF AMICUS CURIAE LATINOJUSTICE

PRLDEF IN SUPPORT OF PETITIONER

Lourdes Rosado

President and General

Counsel

A ndrew Case

Senior Counsel

LatinoJustice PRLDEF

475 Riverside Drive, Suite 1901

New York, NY 10115

Bruce H. Schneider

Counsel of Record

Christine E. Ellice

Emily L. Kuznick

John F. Iaffaldano

Paul Y. Lisbon

Stroock & Stroock

& Lavan LLP

180 Maiden Lane

New York, NY 10038

(212) 806-5800

bschneider@stroock.com

Counsel for Amicus Curiae

309734

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii

INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

I.

Perceived Future Dangerousness, an

Important Factor in Capital Case Jurors’

Consideration of a Death Sentence, Is a

Subjective Inquiry Necessarily Informed

by Jurors’ Implicit Biases . . . . . . . . . . . . . . . . . . . 2

A. Future Dangerousness Is One of the

Most Important Factors Juries Consider

in Imposing a Death Sentence . . . . . . . . . . . 5

B. Jurors’ Misunderstanding of the

Availability of Parole Has a Major

Impact on Jurors’ Concerns about the

Defendant’s Future Dangerousness . . . . . . 7

II. Popular Culture and Media Contribute

to Jurors’ Heightened Fea rs of the

Dangerousness of Black and Latino

Defendants, Making Those Defendants

More Vulnerable to a Death Sentence

without a Simmons Instruction . . . . . . . . . . . . . 11

ii

Table of Contents

Page

A. Jurors Possess an Implicit Bias that

Latino Males Are More Dangerous

and Pose a Greater Threat of Future

Criminality . . . . . . . . . . . . . . . . . . . . . . . . . . 11

B. The Media Disproportionately Portrays

Latinos as Violent Criminals in the

Media . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

C. Latinos Were Maligned in Public

Affairs in Arizona and California in

the Period Around Cruz’s Trial and

Death Sentence . . . . . . . . . . . . . . . . . . . . . . . 15

D. Without a Simmons Charge, Jurors’

Misperceptions of Dangerousness and

Mistaken Views on the Availability

of Parole Combine to Heighten the

Risk of a Death Sentence for Latinos

and Other Minority Defendants . . . . . . . . . 18

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

iii

TABLE OF CITED AUTHORITIES

Page

CASES

Buck v. Davis,

137 S. Ct. 759 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Jurek v. Texas,

428 U.S. 262 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Parker v. Randolph,

442 U.S. 62 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Simmons v. South Carolina,

512 U.S. 154 (1994) . . . . . . . . . . . . . . . . . . . . . . . passim

Turner v. Murray,

476 U.S. 28 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4

STATUTES AND OTHER AUTHORITIES

ABA, Evaluating Fairness and Accuracy in State

Death Penalty Systems: The Pennsylvania Death

Penalty Assessment Report (Oct. 2007) . . . . . . . . . . 9

ABA, Evaluating Fairness and Accuracy in State

Death Penalty Systems: The Georgia Death

Penalty Assessment Report (Jan. 2006) . . . . . . . . . . 9

ABA, Evaluating Fairness and Accuracy in State

Death Penalty Systems: The Arizona Death

Penalty Assessment Report (July 2006) . . . . . . . . . 10

iv

Cited Authorities

Page

Andrew Davis, Georgia man who received 12

life sentences released on parole, WRIC

(Dec. 18, 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

AP Poll: US majority have prejudice against

blacks, USA Today (Oct. 27, 2012) . . . . . . . . . . . . . . . 11

A riz. Rev. Stat. A nn. § 13-703(A) . . . . . . . . . . . . . . . . . 10

A riz. Rev. Stat. A nn. § 46-140.01 . . . . . . . . . . . . . . . . . . 17

Blanche Bong Cook, Death-Dealing Imaginations:

Racial Profiling, Criminality, and Black

Innocence, 63 Wayne L. Rev. 9 (2017) . . . . . . . . . . . . 6

Coramae Richey Mann et al., Images of Color,

Images of Crime: Readings (Oxford U. Press

3d ed. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Dana E. Mastro & Elizabeth Behm-Morawitz,

La tin o Rep resent a ti o n o n Pr im etim e

Television, 82 J&MC Q. 110 (2005) . . . . . . . . . . . . . . 13

David C. Baldus & George Woodworth, R ace

Discrimination and the Death Penalty: A n

Empirical and Legal Overview (James R. Acker

et al. 2d rev. ed. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . 4

David C. Baldus et al., Equal Justice and the

D eath P ena lt y : A L ega l a nd E mpirica l

A nalysis (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

v

Cited Authorities

Page

Dr. Stacy L. Smith et al., Latinos in Film:

Erasure on Screen & Behind the Camera

Across 1,200 Popular Movies, Aug. 2019 . . . . . . . . . 14

Elizabeth Monk-Turner et al., The Portrayal

of Ra c i a l Min o r iti es o n Pr im e Tim e

Television: A Replication of the Mastro

and G reenberg Study a Deca de Later,

32 Studies in Popular Culture 101 (2010) . . . . . . . 14

Ernie Thomson, Research Note: Discrimination

and the Death Penalty in Arizona, 22 Crim.

Just. Rev. 65 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Jenna L. St. Cyr, The Folk Devil Reacts: Gangs

and Moral Panic, 28 C rim . Just. R ev. 26

(2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

John H. Blume et al., Future Dangerousness

in Capital Cases: Always “At Issue,” 86

Cornell L. Rev. 397 (2001) . . . . . . . . . . . . . . . . . . . . . 6

Justin D. Levinson et al., Deadly “Toxins”: A

National Empirical Study of Racial Bias and

Future Dangerousness Determinations, 56

Ga. L. Rev. 1 (Forthcoming 2021) . . . . . . . . . . . . . . . 12

K a t h er i n e B ec k et t & T h e od or e S a ss on ,

T h e P ol i t ic s of I nj u s t ic e : C r i m e a n d

Punishment in A merica (2d ed. 2003) . . . . . . . . . . . 13

vi

Cited Authorities

Page

K e l l y We l c h e t a l . , T h e T y p i f i c a t i o n

of Hispanics as criminals and Suppor t

for Punitive Crime Control Policies, 40

Soc. Sci. Rsch. 822 (2011) . . . . . . . . . . . . . . . . . . . 19, 20

Lisa A . Kor t -But ler & Kel ley J. Sittner

H a r t s hor n , Wa t chin g t h e De t e c tiv e s:

Crime Programming, Fear of Crime, and

Attitudes About the Criminal Justice System,

52 The Sociological Q. 36 (2011) . . . . . . . . . . . . . . . 15

Louis Sahagun, Phoenix spreading new type

of police line, L.A. Times (June 12, 1997) . . . . . . . . 17

M alcolm D. Holmes & Brad W. Smith, R ace

and Police Brutality : R oots of an Urban

Dilemma (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Malcolm D. Holmes et al., Minority Threat,

Cr im e Co n tr ol , a n d Poli c e Re s o u r c e

Allocation in the Southwester n United

States, 54 Crime & Delinquency 128 (2008) . . . . . . 12

Marjorie S. Zatz, Chicano youth gangs and

cr ime: the creation of a moral panic,

11 Contemp. Crises 129 (1987) . . . . . . . . . . . . . . . . . . 16

Mark K. Matthews, Arizona Lashes Out at Illegal

Immigration, Stateline (Aug. 31, 2005) . . . . . . . . . 18

vii

Cited Authorities

Page

M a r y R ome r o, St a t e Vi ol e n c e , a n d t h e

Social and Legal Construction of Latino

Criminality: From El Bandido to Gang

Member, 78 Denv. U. L. Rev. 1081 (2001) . . . . . . . . .13

Radical Attitudes Sur vey, T he A ssoci at ed

Press, Conducted by GfK (Oct. 29, 2012) . . . . . . . . . 11

Scott E. Sundby, The Jury as Critic: An Empirical

Look at How Capital Jurors Perceive Expert

and Lay Testimony, 83 Va . L. R ev. 1109

(1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

S cott E. Su ndby, War an d Pea ce in th e

Jury Room: How Capital Jur ies Reach

Unanimity, 62 Hastings L.J. 103 (2010) . . . . . . . . . . 7

Sha r i S eidma n Dia mond, Instr u ctin g o n

Death: Psychologists, Juries, and Judges,

48 A m. Psychologist 423 (1993) . . . . . . . . . . . . . . . . . . 8

Sheri Lynn Johnson, The Influence of Latino

Ethnicity on the Imposition of the Death

Penalty, 16 A nn. Rev. L. and Soc. Sci. 421

(2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 20

Stephen P. Garvey & Paul Marcus, Virginia’s

Capital Jurors, 44 Wm. & Mary L. Rev. 2063

(2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6

viii

Cited Authorities

Page

Ta r a L . M it chel l et a l., Ra c i a l Bi a s in

Mock Juror Decision-Making: A MetaAnalytic Review of Defendant Treatment,

29 L. & Human Behav. 621 (2005) . . . . . . . . . . . . . . . 18

Ted Chiricos & Sarah Eschholz, The Racial

and Ethnic Typification of Crime and the

Criminal Typification of Race and Ethnicity

in Local Television News, 39 J. of Research in

Crime & Delinquency 400 (2002) . . . . . . . . . . . . . . . 15

Ted Chiricos et al., Perceived Racial and Ethnic

Composition of Neighborhood and Perceived

Risk of Crime, 48 Soc. Problems 322 (2001) . . . . . . 12

T erry Greene Sterling & Jude Joffe-Block ,

Driving While Brown: Sheriff Joe A rpaio

versus The Latino Resistance (2021) . . . . . . . . . . . 17

Theodore Eisenberg & Martin T. Wells, Deadly

Confusion: Juror Instruction in Capital

Cases, 79 Cornell L. Rev. 1 (1993) . . . . . . . . . . . . . . . 5

Theodore Eisenberg et al., Forecasting Life

and Death: Juror Race, Religion , and

Attitude Toward the Death Penalty, 30

J. Legal Stud. 277 (2001) . . . . . . . . . . . . . . . . . . . . . . . 6

Travis L. Dixon & Daniel Linz, Television

News, Prejudicial Pretrial Publicity, and

the Depiction of Race, 46 J. of Broadcasting

& Electronic Media 112 (2002) . . . . . . . . . . . . . . . . 15

ix

Cited Authorities

Page

Urban Institute: The Alarming Lack of Data

on Latinos in the Criminal Justice System

(2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Voter Information Guide for 1994, General

Election, U.C. Hastings Scholarship Repository

(1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Wanda D. Foglia, They know not what they

do: Unguided and misguided discretion in

Pennsylvania capital cases, 20 Just. Q. 187

(2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

William J. Bowers & Benjamin D. Steiner, Death

by Default: An Empirical Demonstration

of False and Forced Choices in Capital

Sentencing, 77 Tex. L. Rev. 605 (1999) . . . . . . . . . . . 5

W i l l i a m W. Ho o d I I I , T h e Me a ni n g of

“Life” for Virginia Jurors and its Effect

o n Reliability in Capit al Sent en cin g,

75 Va. L. Rev. 1605 (1989) . . . . . . . . . . . . . . . . . . . . . . . 7

1

INTEREST OF AMICUS CURIAE1

LatinoJustice PRLDEF, founded in 1972 as the Puerto

Rican Legal Defense and Education Fund, is a national

not-for-profit civil rights organization that advocates for

and defends the constitutional rights of Latinos under

the law. LatinoJustice has challenged discriminatory

practices in the areas of criminal justice by suing police

departments and correctional institutions. During its

nearly fifty-year history, LatinoJustice has brought impact

litigation to address discrimination against Latinos in

education, employment, fair housing, immigrants’ rights,

language rights, redistricting, and voting rights.

SUMMARY OF ARGUMENT

Because of the importance that capital jurors

attach to the defendant’s “future dangerousness,” it is

constitutionally mandated that they must be given clear

instructions about alternatives to the death sentence.

More specifically, when a state has an alternative sentence

of “life imprisonment without parole,” the trial court must

inform the jury that the defendant would be ineligible for

parole and would spend the rest of his or her life in prison.

By this charge, trial courts can cure an underestimation

that the jurors might otherwise make about the time the

defendant would serve and, therefore, the danger the

defendant may pose in the future.

1. Amicus affirms that no counsel for a party authored this

brief in whole or in part, and no party other than amicus or its counsel

made a monetary contribution to the preparation or submission of

this brief. All parties received timely notice of the filing of this brief.

Petitioner and Respondent both consented to the filing of this brief.

2

But preconceived notions about the nature of a life

sentence are not the only misconceptions that are brought

to the jury room. Decades 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. When a jury may perceive a defendant as more

dangerous based on his race, a Simmons charge is still

more crucial. 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. Thus, the bare

constitutional minimum of a Simmons charge carries even

greater importance with a Latino defendant. The Arizona

courts denied Mr. Cruz his due process right to have the

jury properly informed that he was ineligible for parole.

ARGUMENT

I.

Perceived Future Dangerousness, an Important

Factor in Capital Case Jurors’ Consideration of a

Death Sentence, Is a Subjective Inquiry Necessarily

Informed by Jurors’ Implicit Biases.

Determining a defendant’s future dangerousness

is inherently subjective—a juror must guess at both a

defendant’s propensity towards future criminal conduct

and a likelihood that he or she will commit dangerous

acts in the future. Yet, as this Court has recognized, “a

defendant’s future dangerousness bears on all sentencing

determinations made in our criminal justice system.”

3

Simmons v. South Carolina, 512 U.S. 154, 162 (1994)

(citing Jurek v. Texas, 428 U.S. 262, 275 (1976) (joint

opinion of Stewart, Powell, and Stevens, JJ.). Jurors

necessarily bring to this guesswork a host of personal

opinions and preconceived notions, including racial biases.

And as the Court has noted, “[b]ecause of the range of

discretion entrusted to a jury in a capital sentencing

hearing, there is a unique opportunity for racial prejudice

to operate but remain undetected.” Turner v. Murray,

476 U.S. 28, 35 (1986).

Because no one is immune to harboring implicit

biases, when a defendant is a member of a racial or

ethnic group that is consistently portrayed as dangerous

in news, entertainment, and political campaigns, jurors

are even more likely to perceive that person as more

“dangerous” even without consciously expressing racial

animus. The Court also has recognized that jurors may

bring preconceived notions about the parole process

premised on inaccurate or outdated information.

Recognizing the potential injustice that could result, this

Court, in Simmons, explained that “[i]n assessing future

dangerousness, the actual duration of the defendant’s

prison sentence is indisputably relevant. Holding all

other factors constant, it is entirely reasonable for a

sentencing jury to view a defendant who is eligible for

parole as a greater threat to society than a defendant

who is not. Indeed, there may be no greater assurance

of a defendant’s future nondangerousness to the public

than the fact that he never will be released on parole.”

512 U.S. at 163–64. The Court recognized that jurors

holding subjective impressions of the defendant’s “future

dangerousness” might be more likely to impose a death

sentence when a sentence of life imprisonment without

4

parole would equally address a juror’s desire to eliminate

the possibility of a repeated criminal harm to society,

and, therefore, found that, when a prosecutor has placed

“future dangerousness” at issue, a failure to inform a

sentencing jury of a capital defendant’s parole ineligibility

was sufficiently grave that it amounted to a denial of

due process of law. Id. at 156. This due process right is

an even more precious safeguard to a defendant against

whom jurors may already hold some biased prediction of

violence or criminality.

Indeed, as numerous research studies and articles have

established, the race of a capital defendant bears directly

on the severity of the punishment chosen, suggesting that,

at a minimum, implicit biases about dangerousness based

on race play a factor in sentencing. See, e.g., David C.

Baldus & George Woodworth, Race Discrimination and

the Death Penalty: A n Empirical and Legal O verview,

(James R. Acker et al. 2d rev. ed. 2003). And because

“[t]he risk of racial prejudice infecting a capital sentencing

proceeding is especially serious in light of the complete

finality of the death sentence,” any error that increases

this risk is particularly troubling. Turner, 476 U.S. at 35.

Thus, this case presents a “perfect storm” of elements

that may lead a jury to misjudge future dangerousness:

the lack of a Simmons instruction, preconceived notions

that parole is always available, and a Latino defendant

tried during a time and place where messages about

Latino dangerousness were rampant. The Cour t

recently described race-based allegations of a propensity

towards violence as “a particularly noxious strain of

racial prejudice,” that was especially problematic when

it “coincided precisely with the central question at

sentencing.” Buck v. Davis, 137 S. Ct. 759, 776 (2017).

5

A.

Future Dangerousness Is One of the Most

Important Factors Juries Consider in Imposing

a Death Sentence.

Often, a capital defendant’s best opportunity to avoid a

death sentence is convincing a jury at the penalty phase to

accept an alternative penalty of life imprisonment. Studies

of capital jurors have found that, in considering whether

to impose the death penalty, “[o]ther than facts about the

crime, questions related to the defendant’s dangerousness

if ever back in society are the issues that jurors discuss

most” and that “dangerousness exceeds discussion of the

defendant’s criminal past, the defendant’s background

or upbringing, the defendant’s IQ or intelligence, and the

defendant’s remorse or lack of it.” Theodore Eisenberg &

Martin T. Wells, Deadly Confusion: Juror Instruction

in Capital Cases, 79 Cornell L. Rev. 1, 6 (1993). Their

research confirmed that “the more jurors agree [that the

defendant poses a future danger,] the more likely they

are to impose a death sentence.” Id. at 7. See also William

J. Bowers & Benjamin D. Steiner, Death by Default: An

Empirical Demonstration of False and Forced Choices

in Capital Sentencing, 77 Tex. L. Rev. 605 (1999) (using

nationwide Capital Juror Project data to examine Stephen

P. Garvey & Paul Marcus, Virginia’s Capital Jurors, 44

Wm. & M ary L. Rev. 2063, 2089–93 (2003) (using Virginia

data)); Wanda D. Foglia, They know not what they do:

Unguided and misguided discretion in Pennsylvania

capital cases, 20 Just. Q. 187, 197 (2003) (Pennsylvania);

Scott E. Sundby, The Jury as Critic: An Empirical

Look at How Capital Jurors Perceive Expert and Lay

Testimony, 83 Va. L. Rev. 1109, 1166 (1997) (California).

Even where jurors reported that the prosecutor had not

explicitly argued that the defendant would pose a danger

6

to the public, the topic of future dangerousness remained

a centerpiece of the jury’s deliberations. John H. Blume et

al., Future Dangerousness in Capital Cases: Always “At

Issue,” 86 Cornell L. Rev. 397, 406–07 (2001) (noting that

seven out of every 10 jurors in such cases reported that

concerns over future dangerousness was either a “very”

(43%) or “fairly” (26%) important consideration in their

penalty decision).

Jurors who inaccurately believe that a life sentence

will allow parole are therefore more likely to impose a

death sentence when they operate under the mistaken

assumption that no other option will sufficiently prevent

recurrence of criminal behavior by the defendant.

Theodore Eisenberg et al., Forecasting Life and Death:

Juror Race, Religion, and Attitude Toward the Death

Penalty, 30 J. L egal S tud. 277, 300–01 tbl.6 (2001)

(Interviews with South Carolina jurors found that the less

time a juror believed the defendant would remain in prison

unless sentenced to death, the more likely the juror was

to cast his or her first vote for death); Garvey & Marcus,

supra at 2089–93 (using Virginia data).

The impulse to impose the death penalty purportedly

to prevent a defendant from committing another crime is

reinforced by popular culture and the media portrayals of

the criminal justice system as a “revolving door.” Take, for

example, the notorious “Willie Horton” commercials that

seared into the minds of American voters the image of a

Black prisoner getting released early from prison and then

committing a heinous, second crime. See Blanche Bong

Cook, Death-Dealing Imaginations: Racial Profiling,

Criminality, and Black Innocence, 63 Wayne L. Rev. 9

(2017). A fear that sparing someone the death penalty may

7

leave that person free to commit another violent crime can

drive jurors to vote for death. See Scott E. Sundby, War

and Peace in the Jury Room: How Capital Juries Reach

Unanimity, 62 Hastings L.J. 103, 117 (2010). When jurors

are misinformed about the availability of parole, they may

rely on this fear, along with other subjective biases, when

making their decision.

B. Jurors’ Misunderstanding of the Availability of

Parole Has a Major Impact on Jurors’ Concerns

about the Defendant’s Future Dangerousness.

“A crucial assumption underlying [the] system [of trial

by jury] is that juries will follow the instructions given

them by the trial judge.” Parker v. Randolph, 442 U.S.

62, 73, (1979). Writing for the plurality of the Court in

Simmons, Justice Blackmun observed that “[i]t can hardly

be questioned that most juries lack accurate information

about the precise meaning of ‘life imprisonment’….”

Simmons, 512 U.S. at 169. In a concurring opinion, Justice

O’Connor, writing for Chief Justice Rehnquist and Justice

Kennedy, similarly observed that “common sense tells us

that many jurors might not know whether a life sentence

carries with it the possibility of parole.” Id. at 177–78.

Confusion as to the meaning of “life imprisonment”

is common among capital jurors. Many jurors’ knowledge

of parole practices derives from information presented

by the media which is often distorted by politics or

sensationalism. William W. Hood III, The Meaning of

“Life” for Virginia Jurors and its Effect on Reliability

in Capital Sentencing, 75 Va. L. Rev. 1605, 1621 (1989).

Stories such as that of a Georgia defendant who was

sentenced to 12 life terms plus 115 years in prison but

8

was released less than 25 years later take on mythic

status in the public imagination. Andrew Davis, Georgia

man who received 12 life sentences released on parole,

WRIC (Dec. 18, 2019) (Richmond, VA), https://www.wric.

com/news/georgia-man-who-received-12-life-sentencesreleased-on-parole/.

Such sensationalism may cause some portion of the

public to believe that parole is available for a sentence of

life imprisonment. In fact, in a study of juries that were

informed that “the judge would sentence the defendant

to life in prison without the possibility of parole,” half of

the jurors surveyed stated that the defendant would be

released. Shari Seidman Diamond, Instructing on Death:

Psychologists, Juries, and Judges, 48 A m. Psychologist

423, 429 (1993). The same study also found that “[j]urors

who believed that the defendant eventually would be

released were twice as likely to sentence him to death as

those who believed he would die in prison.” Id. Thus, the

mistaken belief that capital defendants will be released

to return to the community can drive jurors toward a

sentence of death, rather than life imprisonment.

Juror studies since Simmons continue to show that

many jurors continue to believe that life imprisonment

does not eliminate the possibility of parole and significantly

underestimate how long the defendant will actually spend

in prison. In 2006-07, the American Bar Association

undertook an assessment of the death penalty in eight

states. One finding of these studies confirmed that large

numbers of capital jurors vastly underestimated the

time the defendants would actually serve and continued

to believe that defendants who were sentenced to life

imprisonment eventually would be paroled. See, e.g.,

9

ABA, Evaluating Fairness and Accuracy in State Death

Penalty Systems: The Pennsylvania Death Penalty

Assessment Report, p. 216 (Oct. 2007), https://www.

americanbar.org/content/dam/aba/administrative/crsj/

deathpenalty/pennsylvania-finalreport.pdf, (82.8% of

Pennsylvania capital jurors did not believe “that a life

sentence really meant life in prison,” and 21.6% believed

that if a defendant was not sentenced to death, s/he

would be released from prison in nine years or less);

ABA, Evaluating Fairness and Accuracy in State Death

Penalty Systems: The Georgia Death Penalty Assessment

Report, pp. 257–58 (Jan. 2006), https://www.americanbar.

org/content/dam/aba/administrative/crsj/deathpenalty/

georgia_report.pdf, (49.3% of interviewed capital jurors

believed that capital murderers who were not sentenced

to death would be paroled in seven years).

These misperceptions about life imprisonment do not

take place in a vacuum. Rather, they operate in tandem

with associations of certain racial groups—including

Blacks and Latinos in particular—with dangerousness.

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 ABA assessment of Arizona’s death penalty

practices found them deficient with respect to jury

instructions because, even after this Court’s decision

in Simmons, Arizona failed to explain the various life

imprisonment sentences offered as alternatives under

Arizona law:

10

Under section 13-703(A) of the A.R.S., a

defendant convicted of a capital offense may

be sentenced to death, imprisonment for life,

or imprisonment for natural life. Arizona law

does not require a court to instruct the jury

on the definitions of “imprisonment for life” or

“imprisonment for natural life”…

*************

In order to enable capital jurors to make

informed sentencing decisions, the State of

Arizona should ensure that the pattern jury

instructions include and define “imprisonment

for life” as well as “imprisonment for natural

life,” and permit parole testimony when

necessary to clarify a jury’s understanding of

these alternative sentences.

ABA, Evaluating Fairness and Accuracy in State Death

Penalty Systems: The Arizona Death Penalty Assessment

Report, pp. 249 – 50 (July 2006), w w w.americanbar.

org/content/dam/aba/administrative/crsj/deathpenalty/

arizona_report.pdf. Cruz’s trial suffered from this very

deficiency.

11

II. Popular Culture and Media Contribute to Jurors’

Heightened Fears of the Dangerousness of Black

and Latino Defendants, Making Those Defendants

More Vulnerable to a Death Sentence without a

Simmons Instruction.

A.

Jurors Possess an Implicit Bias that Latino

Males Are More Dangerous and Pose a Greater

Threat of Future Criminality.

Like Black men, Latino men in particular are perceived

as more prone to violence and criminality and more of a

danger to society. In 2012, a survey conducted by the

Associated Press in conjunction with Stanford University,

the University of Michigan, and NORC (National Opinion

Research) at the University of Chicago found that 58% of

respondents answered that the word “violent” described

Hispanic 2 people slightly or moderately well, closely

comparable to the 62% of respondents who said the word

“violent” described Black people slightly or moderately

well. Radical Attitudes Survey, The A ssociated Press,

Conducted by Gf K (Oct. 29, 2012), http://sur veys.

associatedpress.com/data/GfK/AP_Racial_Attitudes_

Topline_09182012.pdf; see also AP Poll: US majority

have prejudice against blacks, USA Today (Oct. 27, 2012),

https://www.usatoday.com/story/news/politics/2012/10/27/

poll-black-prejudice-america/1662067/.

Similarly, studies have shown that whites report

higher perceptions of criminal threat when Latinos live

2. Citations to social science research will use terminology

(for example “Hispanic” or “Latino”) that the authors of the cited

study use.

12

nearby in greater numbers. Ted Chiricos et al., Perceived

Racial and Ethnic Composition of Neighborhood

and Perceived Risk of Crime, 48 Soc. Problems, 322,

335 (2001). Researchers 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. Justin D. Levinson et al., Deadly

“Toxins”: A National Empirical Study of Racial Bias

and Future Dangerousness Determinations, 56 Ga. L.

Rev. 1, 37 (Forthcoming 2021).

These attitudes may have been shaped by the negative

portrayals of Latinos as prone to violence in news

coverage, in the entertainment media, and in political

and legislative campaigns. In the late 1990s and early

2000s (when Mr. Cruz was sentenced to death) local

news disproportionately portrayed Latinos as criminals,

Hollywood films trafficked in anti-Latino stereotypes,

and anti-Latino imagery and rhetoric were prevalent in

legislative initiatives in Arizona and California.

B. The Media Disproportionately Portrays

Latinos as Violent Criminals in the Media.

Anti-Latino attitudes, particularly in the American

Southwest, are nothing new; research on “the social

evolution of stereotypes of Mexican criminality” dates the

development of these stereotypes to the early nineteenth

century. Malcolm D. Holmes et al., Minority Threat,

Crime Control, and Police Resource Allocation in the

Southwestern United States, 54 Crime & Delinquency

128, 137 (2008). Indeed, American popular culture has

long relied on negative stereotypes of Latinos, including

13

those portraying them as prone towards violence and

crime. Historically, Latino men in popular culture have

been portrayed through stereotypes such as the “Bandido”

and the “tough hombre,” and as part of a hyper-masculine

“macho” culture. See generally Mary Romero, State

Violence, and the Social and Legal Construction of

Latino Criminality: From El Bandido to Gang Member,

78 Denv. U. L. Rev. 1081, 1096 (2001).

Researchers have established that Latinos in America

have been associated with “innate criminality.” M alcolm

D. Holmes & Brad W. Smith, Race and Police Brutality:

Roots of an Urban Dilemma, 68 (2008). Others have noted

that Latinos are and typified as “dangerous” and still more

have emphasized that Latinos are portrayed as “violenceprone.” K atherine Beckett & Theodore Sasson, The

Politics of Injustice: Crime and Punishment in A merica

(2d ed. 2003). See also Coramae Richey M ann et al.,

Images of Color, Images of Crime: Readings, (Oxford U.

Press 3d ed. 2006).

In the entertainment industry, Latinos have long

been underrepresented and subject to erasure. When

they are depicted, “Latinos have historically been

confined to a narrow set of stereotypic, often-times

negative, characterizations” including the criminal, the

Latin lover, and the comic buffoon. Dana E. Mastro &

Elizabeth Behm-Morawitz, Latino Representation on

Primetime Television, 82 J&MC Q. 110, 111 (2005).

In studying a composite of prime-time programming

across five broadcast networks over a six-week period in

October and November 2002, Mastro found that Latino

men were over-represented as less intelligent, least

articulate, and most hot tempered. Id. at 126. In 2010,

14

another study found that Latinos were nine times more

likely to be portrayed as immoral as white characters in

prime-time television shows. Elizabeth Monk-Turner et

al., The Portrayal of Racial Minorities on Prime Time

Television: A Replication of the Mastro and Greenberg

Study a Decade Later, 32 Studies in Popular Culture

101, 108 (2010).

A 2018 study by the Opportunity Agenda found 50%

of the Latino immigrant characters in a sample of 2014–16

programming were depicted as committing a crime. (The

Opportunity Agenda, Executive Summary, https://www.

opportunityagenda.org/explore/resources-publications/

power-pop/executive-summary). And an even more

comprehensive review of 1,200 films by USC Annenberg

found that Latinos are underrepresented on the whole

and overrepresented as criminals, noting that one quarter

of Latinos in film were portrayed as criminal, and that

more than half of those were associated with organized

crime. Dr. Stacy L. Smith et al., Latinos in Film: Erasure

on Screen & Behind the Camera Across 1,200 Popular

Movies, Aug. 2019 (https://assets.uscannenberg.org/docs/

aii-study-latinos-in-film-2019.pdf).

News coverage likewise overrepresents Latino men

as criminal, which has been shown to drive support for

punitive criminal measures. A 2002 study of local crime

coverage in Orlando found that “Hispanics were the most

overrepresented as violent crime suspects in relation to

their proportion in the Orlando population,” and expressed

concern that “the frequency with which the news shows

Hispanic crime suspects in threatening contexts could

well reinforce, if not amplify, whatever social threat comes

to be associated with that group.” Ted Chiricos & Sarah

15

Eschholz, The Racial and Ethnic Typification of Crime

and the Criminal Typification of Race and Ethnicity in

Local Television News, 39 J. of Research in Crime &

Delinquency 400, 410, 417 (2002).

In a 2002 study of local news broadcasts in Los

Angeles, researchers found that crime stories featuring

Latino defendants were twice as likely to contain

prejudicial information about the defendant, and that

“Latinos who victimized Whites were almost three times

as likely as Whites to be associated with prejudicial

information.” Travis L. Dixon & Daniel Linz, Television

News, Prejudicial Pretrial Publicity, and the Depiction

of Race, 46 J. of Broadcasting & Electronic M edia

112, 129 (2002). Repeatedly suggesting, through news

and media, that Latinos are prone to crime and violence

has policy consequences. For example, a study of the

relationship between viewing television programming

related to crime (local news and television crime dramas)

and support for the death penalty found that “the more

often people watched crime dramas, the more likely they

were to support the death penalty.” Lisa A. Kort-Butler

& Kelley J. Sittner Hartshorn, Watching the Detectives:

Crime Programming, Fear of Crime, and Attitudes About

the Criminal Justice System, 52 The Sociological Q. 36,

48 (2011). Moreover, as discussed below, attitudes about

race and crime reinforced, if not developed, by the cultural

climate can drive a jury to vote for harsher punishment.

C.

Latinos Were Maligned in Public Affairs in

Arizona and California in the Period Around

Cruz’s Trial and Death Sentence.

In the years leading up to Petitioner’s trial, the police,

public officials, and others in Arizona and California

16

portrayed Latino men as criminal. Tellingly, in 1987 the

Phoenix Police Department manufactured a Chicano gang

problem by using the media to attribute random criminal

acts to alleged “gang members” in order to acquire

additional federal funds. Marjorie S. Zatz, Chicano

youth gangs and crime: the creation of a moral panic, 11

Contemp. Crises 129, 129–30 (1987). A study of the ruse

concluded that despite higher arrest and charging rates

for Chicano gang members, Chicano gang members were

no more threatening to the outside world than non-gang

Chicano youth. Id. at 143. By constructing an image of

dangerous Chicano gang members, the police fueled fear

and created the impression of a gang problem when none

was justified, and relying specifically on describing the

gang as Chicano to drive public fear and attention: “[T]he

images produced by the police and media brought about

an intense urgency for increased social control over the

youth gang problem, and thus the threat was legitimized.”

Jenna L. St. Cyr, The Folk Devil Reacts: Gangs and Moral

Panic, 28 Crim. Just. Rev. 26, 32 (2003); see also Zatz,

supra, at 130–33.

Similarly, in 1994, California voters promoted a

ballot initiative, Proposition 187 (also known as the “Save

Our State (SOS)” initiative). Among other things, that

initiative would have required local police departments

to notify the Immigration and Naturalization Service of

anyone who is arrested and whom they “suspect” is in the

United States in violation of federal immigration laws.

See Voter Information Guide for 1994, General Election,

U.C. Hastings Scholarship Repository (1994), https://

repository.uchastings.edu/ca_ballot_props/1091. It also

would have established a state-run citizenship screening

system and prohibited undocumented immigrants from

17

using non-emergency health care, public education, and

other services in California.

In 1997, 16-year old Julian Valerio was shot 25 times

by Phoenix police officers, killing him. The department’s

response to this and other fatal shootings was not to

implement any reforms, but to create a marketing team

to defend the pro-police position, so that, according to the

department’s spokesperson, “people will no longer have

to rely on the media to pose questions for them—or on

community activists who are just loud.” Louis Sahagun,

Phoenix spreading new type of police line, L.A. Times

(June 12, 1997), https://www.latimes.com/archives/laxpm-1997-06-12-mn-2739-story.html. A spokesman for

the Arizona Branch of the NAACP cautioned that this

strategy could backfire and “will only continue to build

their myth of it being an ‘us vs. them’ world.” Id.

In 2004, Russell Pearce, former deputy to Sheriff

Joe Arpaio and a state senator at the time, championed

Proposition 200, the first in a series of state initiatives and

laws that were hostile to Latinos. Terry Greene Sterling

& Jude Joffe-Block, Driving While Brown: Sheriff Joe

A rpaio versus The Latino Resistance, 45 (2021). This

initiative was approved by 56% of Arizona voters and

enacted into law. A riz. Rev. Stat. A nn. § 46-140.01. That

law required individuals to provide proof of citizenship

when registering to vote or to receive public benefits.

The proposition also made it a misdemeanor for public

officials to fail to report violations of U.S. immigration

law by applicants for those public benefits and permitted

private lawsuits by any resident to enforce its provisions

related to public benefits. The campaign over Proposition

200 reached a fever pitch and featured anti-Latino

18

rhetoric. Reporters noted that during the campaign,

businesses put up “[h]omemade street signs tell[ing] day

laborers to keep moving,” eerily reminiscent of Jim Crow

vagrancy laws. See Mark K. Matthews, Arizona Lashes

Out at Illegal Immigration, Stateline (Aug. 31, 2005),

https://w w w.pewtrusts.org/en/researchandanalysis/

blogs/stateline/2005/08/31/arizona-lashes-out-at-illegalimmigration.

D.

Wi t h o u t a S im m o n s C h a r g e , Ju r o r s ’

Misperceptions of Dangerousness and Mistaken

Views on the Availability of Parole Combine

to Heighten the Risk of a Death Sentence for

Latinos and Other Minority Defendants.

Racial disparities between Black and white defendants

in capital sentencing are well established, and there is a

strong scholarly consensus that racial bias against Black

defendants is one cause. See generally David C. Baldus et

al., Equal Justice and the Death Penalty: A Legal and

Empirical A nalysis (1990). These disparities have been

replicated under control conditions using mock juries; a

meta-analysis of mock jury studies found that “research on

this issue indicates a small, but significant, effect for racial

bias in both verdict and sentencing.” Tara L. Mitchell

et al., Racial Bias in Mock Juror Decision-Making: A

Meta-Analytic Review of Defendant Treatment, 29 L. &

Human Behav. 621, 625 (2005).

More recent scholarship has demonstrated the

likelihood of a less drastic but still notable bias against

Latino defendants3 as well. See Sheri Lynn Johnson, The

3. Any criminal justice research regarding the Latino

population is hampered by the fact that data on Latinos in the

19

Influence of Latino Ethnicity on the Imposition of the

Death Penalty, 16 A nn. Rev. L. and Soc. Sci. 421 (2020).

These biases may help explain the racial disparities in

sentencing of Latinos generally and in capital cases in

particular.4 For example, one of the first studies on racial

disparities in death sentencing in which “Hispanics and

African-Americans, were analyzed separately” looked

at Arizona, and found that the well-established racial

disparities regarding Black defendants and white victims

was replicated with Latinos. Ernie Thomson, Research

Note: Discrimination and the Death Penalty in Arizona,

22 Crim. Just. Rev. 65, 74 (1997).

A 2010 study explored the link between “ethnic threat

linked to Hispanics” and “harsher crime control” and

found that perceptions of Hispanics as criminals results in

an increase in support for punitive crime control measures.

See Kelly Welch et al., The Typification of Hispanics

as criminals and Support for Punitive Crime Control

Policies, 40 Soc. Sci. Rsch. 822 (2011). The Welch study

extended to Hispanics the then-existing research that

explored whether measures of social control intensify

in proportion to an increase in minority, and specifically

Black, populations. Id. at 823. As the Hispanic population

grows in the United States, this hypothesis becomes all

criminal justice system is underreported and often mis-reported,

resulting in what is commonly referred to as the “Latino data gap.”

See Urban Institute: The Alarming Lack of Data on Latinos in the

Criminal Justice System (2016), https://apps.urban.org/features/

latino-criminal-justice-data/.

4. Sentencing disparities of Latinos is not limited to capital

cases. As of 2018, the incarceration rate for Latinos was 3.1 times

higher than the incarceration rate for whites.

20

the more relevant. Indeed, the Welch study noted that

the substantial growth of the Hispanic population in the

United States coincided with a “proliferation of threat

related stereotypes linking Hispanics with crime in new

and compelling ways. . . . hav[ing] clear parallels with

long established stereotypes frequently applied to African

American males.” Id. The Welch study concluded that

individuals who typify Latinos as violent criminals are

more supportive of punitive crime control policies. Id. at

832. These crime control policies include executing more

murderers. Id. at 826, Table 1.

Of the 538 federal death penalty cases authorized

by the U.S. Attorney General, 28% of the defendants

were white, 49% Black, 18% Latino, and 5% other

minorities. Levinson, supra at 18. In these cases, future

dangerousness has been alleged against Latino defendants

at a disproportionate rate in federal capital charges—

higher than against Black, white, or other minority

defendants. Id. Specifically, there has been an allegation

of future dangerousness against 80 of the 99 (81%) Latino

defendants authorized for the federal death penalty. Id.

These statistics are borne out by an empirical study in

which the researchers developed an Implicit Association

Test, a recognized test used to examine implicit bias. Id.

at 23–27. In this test, mock jurors were presented with

crime vignettes: a control group was not provided racially

identifying information, while the experimental group was

provided names that suggested a race of white, Black, or

Latino. Id. The results indicated that jury-eligible citizens

hold similar dangerousness stereotypes for Latino men

as they do for Black men. Id. Therefore, as with Black

capital defendants, Latino capital defendants also are

disproportionately vulnerable to a jury finding of future

dangerousness and a greater risk of the jurors rejecting

an alternative to a death sentence. See Johnson, supra.

21

Therefore, a Latino defendant such as Mr. Cruz

bears a much higher risk than a non-Black or non-Latino

defendant of being perceived by a jury as inherently

dangerous or criminal. This heightened perception

correlates to more severe punishment. Failure to give a

Simmons charge against this backdrop 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 (where such fear of

a repeated crime may be disproportionately heightened

due to the typification of Latino men as criminal). This

pernicious combination deprives a Latino defendant of

due process of law.

CONCLUSION

Amicus LatinoJustice respectfully submits that the

petition for a writ of certiorari should be granted.

Dated: January 6, 2022

Respectfully submitted,

Lourdes Rosado

President and General

Counsel

A ndrew Case

Senior Counsel

LatinoJustice PRLDEF

475 Riverside Drive, Suite 1901

New York, NY 10115

Bruce H. Schneider

Counsel of Record

Christine E. Ellice

Emily L. Kuznick

John F. Iaffaldano

Paul Y. Lisbon

Stroock & Stroock

& Lavan LLP

180 Maiden Lane

New York, NY 10038

(212) 806-5800

bschneider@stroock.com

Counsel for Amicus Curiae