Amicus Curiae Brief — John Montenegro Cruz, Petitioner v. Arizona
Supreme Court briefJun 21, 2022
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No. 21-846
IN THE
Supreme Court of the United States
_________
JOHN MONTENEGRO CRUZ,
Petitioner,
v.
STATE OF ARIZONA,
_________
Respondent.
On Writ of Certiorari to the
Arizona Supreme Court
_________
BRIEF OF THE ARIZONA CAPITAL
REPRESENTATION PROJECT AND ARIZONA
ATTORNEYS FOR CRIMINAL JUSTICE AS
AMICI CURIAE IN SUPPORT OF PETITIONER
_________
Elizabeth G. Bentley
Counsel of Record
CIVIL RIGHTS APPELLATE CLINIC
UNIVERSITY OF MINNESOTA
LAW SCHOOL
229 19th Ave. S.
Minneapolis, MN 55455
(612) 625-7809
ebentley@umn.edu
Counsel for Amici Curiae
i
TABLE OF CONTENTS
TABLE OF CONTENTS .......................................... i
TABLE OF AUTHORITIES ................................... iii
INTEREST OF AMICI CURIAE..............................1
INTRODUCTION AND SUMMARY OF
ARGUMENT .............................................................2
ARGUMENT .............................................................5
I.
For Years, Arizona Courts Repeatedly and
Unjustifiably Refused to Apply Simmons to
Arizona’s Sentencing Scheme. .........................5
A. The Arizona Supreme Court Relied on
Misstatements of Arizona Law. ..................5
B. The Arizona Supreme Court Invoked
Reasoning Rejected in Simmons. ................8
C. The Arizona Supreme Court Rejected
Defendants’ Efforts to Waive Release in
Exchange for a Proper Instruction. ..........10
D. The Lower Courts Echoed the Arizona
Supreme Court’s Hostility Towards Federal
Law……. ....................................................10
II.
After Lynch, Arizona Continues to
Discriminate Against Federal Law by Erecting
New Barriers to Relief ....................................12
A. Arizona Courts Refuse to Apply Lynch on
Post-Conviction Review.............................12
ii
1. Arizona Courts Embrace Contradictory
Reasoning to Hold that Lynch Is Not a
“Significant Change in the Law” Under
Rule 32.1(g) and to Deny Retroactive
Relief. ...................................................13
2. The Arizona Courts Apply Similarly
Contradictory Reasoning in Denying
Ineffective Assistance of Counsel
Claims...................................................17
3. Arizona Post-Conviction Courts Hold
that Standalone Constitutional Claims
Raising Lynch and Simmons Are
Precluded, Even If Preserved on
Appeal.… ..............................................19
B. Even in Cases on Direct Appeal After
Lynch, Few Capital Defendants Have Been
Granted Relief. ..........................................21
III. When Jurors Are Provided with Accurate
Information About Parole Eligibility, They Are
More Likely to Return Life Verdicts ..............23
CONCLUSION .......................................................28
iii
TABLE OF AUTHORITIES
Cases
Baze v. Rees,
553 U.S. 35 (2008) ............................................. 26
Beard v. Kindler,
558 U.S. 53 (2009) ............................................... 2
Coleman v. Thompson,
501 U.S. 722 (1991) ............................................. 2
Kelly v. South Carolina,
534 U.S. 246 (2002) ..................................... 21, 22
Lynch v. Arizona,
578 U.S. 613 (2016) ..................................... 2, 5, 8
Miller v. Alabama,
567 U.S. 460 (2012) ............................................. 6
Padilla v. Kentucky,
559 U.S. 356 (2010) ........................................... 14
Parker v. Illinois,
333 U.S. 571 (1948) ............................................. 4
Ring v. Arizona,
536 U.S. 584 (2002) ....................................... 5, 14
iv
Roper v. Simmons,
543 U.S. 551 (2005) ............................................. 6
Simmons v. South Carolina,
512 U.S. 154 (1994) ............................... 2, 8, 9, 20
State v. Benson,
307 P.3d 19 (Ariz. 2013) ..................................... 7
State v. Boyston,
298 P.3d 887 (Ariz. 2013) ................................... 9
State v. Burns,
344 P.3d 303 (Ariz. 2015) ................................. 20
State v. Burns,
CR2007-106833, Maricopa County, Ruling (Apr. 4,
2019) ............................................................ 18, 19
State v. Burns,
CR2007-106833-001, Maricopa County, Ruling
(Oct. 27, 2010) ............................................. 11, 15
State v. Carlson,
CR2009-3544, Pima County (docket) ............... 13
State v. Champagne,
447 P.3d 297 (Ariz. 2019) ................................. 22
v
State v. Chappell,
236 P.3d 1176 (Ariz. 2010) ..................... 8, 10, 18
State v. Cota,
272 P.3d 1027 (Ariz. 2012) ................................. 9
State v. Cromwell,
CR-22-0068-PC, Arizona Supreme Court (docket)
........................................................................... 13
State v. Cruz (Cruz I),
181 P.3d 196 (Ariz. 2008) ....................... 5, 7, 8, 9
State v. Cruz (Cruz II),
487 P.3d 991 (Ariz. 2021) ............................. 3, 16
State v. Cruz,
CR20031740, Pima County, Ruling (Aug. 24, 2017)
................................................................. 3, 14, 15
State v. Dann,
207 P.3d 604 (Ariz. 2009) ............................. 9, 10
State v. Escalante-Orozco,
386 P.3d 798 (Ariz. 2017) ........................... 12, 21
State v. Garcia,
226 P.3d 370 (Ariz. 2010) ............................. 7, 18
vi
State v. Garza,
CR1999-017624, Maricopa County, Ruling (Mar.
21, 2018) ...................................................... 15, 19
State v. Gomez,
CR2000-090114, Maricopa County, Ruling (Dec. 3,
2018) ............................................................ 18, 19
State v. Hardy,
283 P.3d 12 (Ariz. 2012) ..................................... 8
State v. Hargrave,
234 P.3d 569 (Ariz. 2010) ............................. 8, 18
State v. Hargrave,
CR2002-009759, Maricopa County (docket) .... 13
State v. Hernandez,
CR2008-124043, Maricopa County (docket) .... 13
State v. Hulsey,
408 P.3d 408 (Ariz. 2018) ................................. 21
State v. Johnson,
447 P.3d 783 (Ariz. 2019) ................................. 22
State v. Joseph,
CR2005-014235, Maricopa County (docket) .... 13
vii
State v. Lynch,
357 P.3d 119 (Ariz. 2015) ................................... 9
State v. Naranjo,
CR2007-119504, Maricopa County (docket) .... 13
State v. Nelson,
CR2006-0904, Mohave County (docket) ........... 13
State v. Newell,
CR2001-009124, Maricopa County, Ruling (Jun.
29, 2018) ............................................................ 15
State v. Nordstrom, CR55947, Pima County, Ruling
(Jul. 14, 2017) ................................................... 18
State v. Ovante,
CR2008-144114, Maricopa Superior Court, Ruling
(Jun. 10, 2019) .................................................. 19
State v. Prince,
250 P.3d 1145 (Ariz. 2011) ............................... 10
State v. Prince,
CR1998-004885, Maricopa County (docket) ........
..................................................................... 13, 19
State v. Reeves,
310 P.3d 970 (Ariz. 2013) ..................... 11, 19, 20
viii
State v. Reeves,
CR2007-135527-001, Maricopa County, Ruling
(Feb. 7, 2011)..................................................... 11
State v. Reeves, CR2007-135527, Maricopa County,
Ruling (Mar. 21, 2019) ................................ 15, 16
State v. Robinson,
No. CR-18-0284-AP, 2022 WL 1634771 (Ariz. May
24, 2022) ............................................................ 22
State v. Rose, CR-20-0299-PC, Arizona Supreme
Court, Letter (Nov. 3, 2021) ............................. 17
State v. Rose,
CR2007-149013-002, Maricopa County, Ruling
(Aug. 17, 2020) ............................................ 13, 17
State v. Rushing,
404 P.3d 240 (Ariz. 2017) ................................. 21
State v. Sanders,
425 P.3d 1056 (Ariz. 2018) ......................... 21, 22
State v. Shrum,
203 P.3d 1175 (Ariz. 2009) ............................... 14
State v. Vera,
334 P.3d 754 (Ariz. Ct. App. 2014) ..................... 6
ix
State v. Womble,
235 P.3d 244, 254 (Ariz. 2010) ......................... 20
State v. Womble,
CR2002-010926B, Maricopa Superior Court,
Ruling (Sep. 28, 2017)........................... 16, 18, 19
Strickland v. Washington,
466 U.S. 668 (1984) ........................................... 17
Walker v. Martin,
562 U.S. 307 (2011) ....................................... 2, 13
Statutes
Ariz. Rev. Stat. §13-703(A) (1993) ........................ 6
Ariz. Rev. Stat. §13-703(A) (1994) ........................ 6
Ariz. Rev. Stat. §13-751 ......................................... 7
Ariz. Rev. Stat. §41-1604.09 .................................. 6
Ariz. Rev. Stat. tit. 31, ch. 3 .................................. 6
2012 Ariz. Legis. Serv. Ch. 207 (H.B.
2373) .................................................................... 6
Ariz. Legis. Serv. Ch. 255 (S.B. 1049) ............... 6, 7
Other Authorities
John H. Blume, Stephen P. Garvey &
Sheri
Lynn
Johnson, Future
Dangerousness in Capital Cases:
Always “At Issue”, 86 Cornell L. Rev.
397 (2001) .......................................................... 25
x
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) ....................................... 24, 25
Ankur Desai & Brandon L. Garrett, The
State of the Death Penalty, 94 Notre
Dame L. Rev. 1255 (2019) .......................... 24, 26
William W. Hood, III, Note, The Meaning
of “Life” for Virginia Jurors and Its
Effect on Reliability in Capital
Sentencing, 75 Va. L. Rev. 1605 (1989)...... 24, 25
J. Mark Lane, “Is There Life Without
Parole?”: A Capital Defendant’s Right to
a Meaningful Alternative Sentence, 26
Loy. L.A. L. Rev. 327 (1993) ............................. 25
Note, A Matter of Life and Death: The
Effect of Life-Without-Parole Statutes on
Capital Punishment, 119 Harv. L. Rev.
1838 (2006) .................................................. 25, 26
Benjamin D. Steiner, William J. Bowers
& Austin Sarat, Folk Knowledge as
Legal Action: Death Penalty Judgments
and the Tenet of Early Release in a
Culture of Mistrust and Punitiveness, 33
Law & Soc’y Rev. 461 (1999) ............................ 24
xi
State v. Burns, CR2007-106833-001,
Amended PCR Petition, Ex. 108 (Dec.
14, 2017) ............................................................ 11
State v. Garza, CR1999-017624, Maricopa
County, RT 5/27/04, RT 6/14/04, RT
6/16/04, RT 6/17/04 ........................................... 12
State v. Newell, CR2001-9124, Maricopa
County, RT 2/23/04 a.m., RT 2/24/04 ......... 11, 12
State v. Womble, CR2002-010926B,
Maricopa County, RT 3/12/07, RT
3/15/07 ............................................................... 12
Rules
Ariz. R. Crim. P., Rule 32.1(g)......................passim
Ariz. R. Crim. P., Rule 32.2(a) ...................... 19, 20
Sup. Ct. Rule 37.3 .................................................. 1
Sup. Ct. Rule 37.6 .................................................. 1
1
INTEREST OF AMICI CURIAE1
The Arizona Capital Representation Project
(ACRP) is a statewide non-profit legal services
organization that assists indigent persons facing the
death
penalty
in
Arizona
through
direct
representation, pro bono training and consulting
services, and education. ACRP tracks and monitors
all capital prosecutions in Arizona.
Arizona Attorneys for Criminal Justice (AACJ),
the Arizona state affiliate of the National Association
of Criminal Defense Lawyers, was founded in 1986, in
order to give a voice to the rights of the criminally
accused and to those attorneys who defend the
accused. AACJ is a statewide non-profit membership
organization of criminal defense lawyers, law
students, and associated professionals, who are
dedicated to protecting the rights of the accused in the
courts and in the legislature, to promoting excellence
in the practice of criminal law through education,
training, and mutual assistance, and to fostering
public awareness of citizens’ rights, the criminal
justice system, and the role of the defense lawyer.
Amici have a particularized and informed
perspective on the operation of the death penalty in
the United States and in the state of Arizona during
the relevant time period.
1 Pursuant to Rule 37.6, counsel for amici curiae states that no
counsel for any party authored this brief in whole or in part and
that no person or entity other than amici curiae or their counsel
made a monetary contribution to the preparation or submission
of this brief. The parties both granted blanket consent to amicus
curiae briefs in accordance with Rule 37.3(a).
2
INTRODUCTION AND
SUMMARY OF ARGUMENT
For two decades, the Arizona courts have defied
this Court’s ruling that “fundamental notions of due
process” entitle a capital defendant to inform the jury
of parole ineligibility when the defendant’s future
dangerousness is at issue at sentencing. Simmons v.
South Carolina, 512 U.S. 154, 164 (1994) (plurality).
This Court already stepped in once to instruct Arizona
to comply with Simmons, in Lynch v. Arizona, 578
U.S. 613 (2016). The Arizona Supreme Court now
again denies defendants the opportunity to benefit
from Simmons’s constitutional protection by refusing
to apply Lynch.
The Arizona Supreme Court
characterizes its ruling as one based on a state rule of
criminal procedure, but it represents just the latest
attempt of the Arizona courts to evade this Court’s
precedent and deny capital defendants the relief that
Simmons guaranteed. The result is detrimental to
capital defendants in Arizona, many of whom face
execution having never had the chance to inform a
jury of their parole ineligibility. That knowledge may
very well have changed the jurors’ minds.
A state procedural rule, such as the one at issue in
this case, Arizona Rule of Criminal Procedure 32.1(g),
only strips this Court of jurisdiction over questions of
federal law if the rule is “adequate to support the
judgment” and “independent of the federal question.”
Coleman v. Thompson, 501 U.S. 722, 729 (1991). A
state law ground is not “adequate” where it operates
to discriminate against federal law, and, in particular,
where its application reflects a “purpose or pattern to
evade constitutional guarantees.” Walker v. Martin,
562 U.S. 307, 321 (2011) (quoting Beard v. Kindler,
558 U.S. 53, 65 (2009) (Kennedy, J., concurring)).
3
Arizona’s application of Rule 32.1(g) here reflects a
long history of hostility toward Simmons claims and a
pattern of discrimination against the important
federal due process right articulated in Simmons and
reaffirmed in Lynch.
Before this Court intervened in Lynch and
confirmed that Simmons applies the same in Arizona
as it does throughout the nation, the Arizona courts
attempted to distinguish Simmons on a variety of
grounds—none of which held water. In the Arizona
Supreme Court’s first decision applying Simmons (in
the direct appeal in Petitioner’s very own case), it
made a complete misstatement of law when sidelining
Simmons. Other Arizona decisions denied the claims
with reasoning that this Court had already expressly
rejected.
After this Court ordered Arizona in the Lynch
decision to comply with Simmons, Arizona courts have
bent over backwards to avoid applying Lynch on postconviction review. In denying relief under Rule
32.1(g), for example, the Arizona Supreme Court in
the decision below held that Lynch “does not amount
to a significant change in the law.” State v. Cruz (Cruz
II), 487 P.3d 991, 994 (Ariz. 2021). But in the same
case (and in others), the Arizona courts took the
opposite position—that Lynch does amount to a
change in the law for retroactivity purposes because
Simmons was “not a well-established constitutional
principle” in Arizona before Lynch. State v. Cruz,
CR20031740, Pima County, Ruling (Aug. 24, 2017).
In a similarly mind-boggling way, Arizona postconviction
courts
have
denied
standalone
constitutional claims under Simmons and Lynch, on
the basis that the claims were not raised at trial or on
4
direct appeal, see infra, § II.A.3, while simultaneously
denying ineffective assistance of counsel claims on the
basis that it was reasonable before Lynch for counsel
not to seek a Simmons instruction, see infra, § II.A.2.
Even in cases that were not final before Lynch,
Arizona courts have granted Simmons relief only a
few times, often finding other questionable bases to
deny the claims.
Having foreclosed the chance to present a
Simmons claim at every turn, Arizona has deprived
the vast majority of its capital defendants of “a
reasonable opportunity” to assert their due process
right. Parker v. Illinois, 333 U.S. 571, 574 (1948). The
Arizona courts will have, in effect, nullified a federal
constitutional right and supplanted it with state law
in violation of the Supremacy Clause.
That result is dire for capital defendants in
Arizona. As this Court recognized in Simmons, and
numerous studies confirm, the knowledge that a
capital defendant will not be released has a significant
effect on jurors’ decisions whether to sentence that
person to death. Juror statements in Petitioner’s own
case support that fact, as several of them indicated
that they would have chosen life without parole if it
had been an option—which it actually was.
Because of Arizona’s continued disfavor towards
Simmons, there is a real possibility that individuals
in Arizona will be executed even though jurors with a
full understanding of the sentencing options would
have chosen life. This Court should not tolerate that
perverse result.
5
ARGUMENT
I.
FOR YEARS, ARIZONA COURTS REPEATEDLY AND
UNJUSTIFIABLY REFUSED TO APPLY SIMMONS
TO ARIZONA’S SENTENCING SCHEME.
Until this Court stepped in to reaffirm that
Simmons applies the same to the State of Arizona as
it does to other states, in Lynch v. Arizona, 578 U.S.
613 (2016), the Arizona courts refused to apply
Simmons in capital sentencing proceedings. The
Arizona Supreme Court attempted to distinguish
Simmons on various grounds, ranging from
misstatements of Arizona law to reasoning that was
expressly rejected by this Court in Simmons. This
history reflects a longstanding hostility toward
Simmons claims that continues today.
A.
The Arizona Supreme Court Relied on
Misstatements of Arizona Law.
The Arizona Supreme Court’s refusal to apply
Simmons began with a flat misstatement of Arizona
law in the direct appeal in Petitioner’s very own case,
State v. Cruz (Cruz I), 181 P.3d 196 (Ariz. 2008). The
Arizona courts had begun only recently to confront
Simmons claims because the ruling had no relevance
in Arizona until the Court decided Ring v. Arizona,
536 U.S. 584 (2002), and Arizona juries began
sentencing capital defendants. In Cruz I, the Arizona
Supreme Court held that Simmons did not apply
because, as compared to the South Carolina law
considered in Simmons, “[n]o state law would have
prohibited Cruz’s release on parole after serving
twenty-five years, had he been given a life sentence.”
Cruz I, 181 P.3d at 207. As it turns out, that was just
wrong.
6
The availability of parole or other release as an
option in capital sentencing proceedings in Arizona
depends on the date and type of the offense. Only for
offenses committed on or before December 31, 1993, is
life with the possibility of parole after 25 years (or 35
years in the case of a child victim under the age of 15)
an available alternative sentence to death. Ariz. Rev.
Stat. §13-703(A) (1993); Ariz. Rev. Stat. §411604.09(I)(1) (parole eligibility applies to felony
offenses committed before January 1, 1994).
For offenses committed between January 1, 1994,
and August 1, 2012 (including the offense at issue in
this case), Arizona law states that the non-death
sentences available are natural life and life with the
possibility of release after 25 years (or 35 years in the
case of a child victim under the age of 15). Ariz. Rev.
Stat. §13-703(A) (1994); 2012 Ariz. Legis. Serv. Ch.
207 (H.B. 2373).
But the Arizona legislature
abolished parole entirely beginning January 1, 1994,
rendering any possibility of release subject to the
whim of the executive clemency process. See Ariz.
Legis. Serv. Ch. 255 (S.B. 1049) (eliminating parole
eligible sentences from Arizona’s criminal code,
effective January 1, 1994); Ariz. Rev. Stat. §411604.09(I)(1); Ariz. Rev. Stat. tit. 31, ch. 3 (executive
clemency).2
2 In
response to Miller v. Alabama, 567 U.S. 460 (2012), the
Arizona legislature created an exception to this rule for juveniles
who receive life sentences. See State v. Vera, 334 P.3d 754, 756,
759 (Ariz. Ct. App. 2014) (describing legislative enactment and
applicability to juveniles). Because juveniles are also ineligible
for the death penalty under Roper v. Simmons, 543 U.S. 551
(2005), that exception is inapplicable here.
7
For offenses committed on or after August 2, 2012,
the sentencing options depend on the theory of firstdegree murder, but still render capital defendants
parole ineligible. For first-degree murder based on
premeditation or on the intentional or knowing
murder of a law enforcement officer, the Arizona
legislature removed any reference to the possibility of
release, leaving natural life as the only non-death
sentence available. Ariz. Rev. Stat. §13-751(A)(1).
For a conviction based on a felony murder theory, a
sentence of life with the possibility of release through
executive clemency is still available as an alternative
to natural life. Ariz. Rev. Stat. §13-751(A)(3).
The Arizona Supreme Court’s statement that “[n]o
state law would have prohibited Cruz’s release on
parole after serving twenty-five years,” Cruz I, 181
P.3d at 207, was, therefore, inaccurate. The relevant
offense took place in 2003, at which time a separate
provision of law abolished release on parole. Id. at
155; Ariz. Legis. Serv. Ch. 255 (S.B. 1049). The
Arizona Supreme Court relied on that misstatement
of law in depriving Petitioner of his due process right.
In subsequent cases, the court perpetuated this
misstatement when rejecting Simmons claims. See,
e.g., State v. Benson, 307 P.3d 19, 32 (Ariz. 2013)
(“Arizona law does not make Benson ineligible for
parole.”); State v. Garcia, 226 P.3d 370, 387 (Ariz.
2010) (“Garcia was not technically ineligible for
parole.”). And even when the court used the correct
statutory language, noting the possibility of “release”
after 25 or 35 years, it still furthered the
misperception that the chance of release under the
Arizona statutes was meaningful, rather than just a
remote possibility of executive clemency.
8
In State v. Hargrave, for example, the court stated:
“Unlike Simmons, Hargrave was eligible for release
after twenty-five years, as the jury instruction
correctly stated.” 234 P.3d 569, 583 (Ariz. 2010).
Relying in part on Cruz I, the court opined that “[t]he
jury instructions correctly stated the law, [and] did
not mislead the jurors about Hargrave’s possible
penalties.” Id.; see also State v. Chappell, 236 P.3d
1176, 1187 (Ariz. 2010) (“The instructions
… accurately described the statutory sentencing
options.”); State v. Hardy, 283 P.3d 12, 24 (Ariz. 2012)
(relying on Chappell to hold the same); State v.
Hausner, 280 P.3d 604, 634 (Ariz. 2012) (listing the
Simmons claim in an appendix of previously rejected
claims and citing Hargrave as a basis for the
rejection).
B.
The Arizona Supreme Court Invoked
Reasoning Rejected in Simmons.
The Arizona Supreme Court repeatedly relied on
the possibility of release under executive clemency in
refusing to apply Simmons to capital defendants
sentenced for an offense committed after January 1,
1994—despite the fact that the Simmons Court
“expressly rejected the argument that the possibility
of clemency diminishes a capital defendant’s right to
inform a jury of his parole ineligibility.” Lynch, 578
U.S. at 615; Simmons, 512 U.S. at 166 (dismissing the
argument that “future exigencies such as legislative
reform, commutation, clemency, and escape might
allow petitioner to be released into society” as
“misplaced”).
In the Arizona Supreme Court decision that was
the subject of Lynch v. Arizona, for example, the court
held that “[e]ven if parole remained unavailable,
9
Lynch could have received another form of
release, such as executive clemency.” State v. Lynch,
357 P.3d 119, 138–39 (Ariz. 2015), rev’d, 578 U.S. 613.
Likewise, in State v. Cota, the court rejected the
defendant’s request for a Simmons instruction on the
basis “that Cota would have been eligible for other
forms of release, such as executive clemency, if
sentenced to life with the possibility of release.” 272
P.3d 1027, 1042 (Ariz. 2012); see also State v. Boyston,
298 P.3d 887, 900-01 (Ariz. 2013) (same).
Making matters worse, the Arizona Supreme
Court not only refused to provide a Simmons
instruction because there was a far-flung chance of
clemency, but it also refused to let capital defendants
inform the jury just how unlikely any such release
would be. In Cruz I, for example, the court rejected
Petitioner’s request to admit testimony regarding his
chances of release by the Arizona Board of Executive
Clemency, noting that “[t]he witness would have been
asked to speculate about what the Board might do in
twenty-five years.” 181 P.3d at 207; see also State v.
Dann, 207 P.3d 604, 626 (Ariz. 2009) (rejecting
speculation regarding “a future decision of the
Arizona Board of Executive Clemency”). As a result,
juries heard that, if they did not sentence an
individual to death, one alternative sentence was life
with a possibility of release after 25 years—with no
additional information regarding the extreme
unlikelihood that such release would ever occur. Just
as in Simmons, jurors were “left to speculate about
[capital defendants’] parole eligibility when
evaluating … future dangerousness,” in violation of
due process. Simmons, 512 U.S. at 165. The Arizona
Supreme Court looked the other way.
10
C.
The Arizona Supreme Court Rejected
Defendants’ Efforts to Waive Release in
Exchange for a Proper Instruction.
In response to the Arizona Supreme Court’s
refusal to follow Simmons based on Arizona law, some
defendants took it upon themselves to render the
possibility of release a nullity, by waiving any right to
release in exchange for a Simmons instruction. This
too was rejected by the Arizona courts. In State v.
Dann, for instance, the Arizona Supreme Court found
it would be “speculation” to think that a “waiver would
have any effect on a future decision of the Arizona
Board of Executive Clemency.” 207 P.3d at 626;
Chappell, 236 P.3d at 1187 n.10 (relying on Dann to
reject the same argument); State v. Prince, 250 P.3d
1145, 1173 (Ariz. 2011) (issue raised in Appendix to
preserve federal review). That is, the Court refused to
provide a Simmons instruction not only where the
only possibility of release was executive clemency, but
even in the more remote circumstance where the
possibility of release depended on the Board granting
clemency over a defendant’s prior waiver of any right
to release. Simmons could not reasonably have been
read to depend on such a narrow conception of release.
D.
The Lower Courts Echoed the Arizona
Supreme Court’s Hostility Towards
Federal Law.
The Arizona Supreme Court’s hostility toward
Simmons claims reverberated throughout the Arizona
court system. Consistent with the Arizona Supreme
Court decision in Cruz I, trial courts repeatedly
denied requests to inform juries that capital
defendants were parole ineligible and often
erroneously instructed juries that defendants may
11
receive a sentence of life with the possibility of parole
after 25 or 35 years. For example, in State v. Burns,
the trial judge dismissed Burns’s objection to the
mention of the possibility of parole as “semantics,”
rejected Burns’s proposed jury instructions, and
erroneously informed the jury that Burns could be
paroled in 25 years unless he was sentenced to death.
CR2007-106833-001, Maricopa County, Ruling at 5
(Oct. 27, 2010) (citing Hargrave and Cruz I); State v.
Burns, CR2007-106833-001, Amended PCR Petition,
Ex. 108 (Dec. 14, 2017).
During the trial in State v. Reeves, the judge
similarly refused to allow defense counsel to present
testimony regarding parole ineligibility. See State v.
Reeves, 310 P.3d 970, 974 (Ariz. 2013). In rejecting
Reeves’s argument that the state’s presentation of
evidence of future dangerousness violated due process
absent an instruction as to Reeves’s parole
ineligibility, the court held that such evidence would
only invite “speculation” and would “provide no
meaningful mitigation information,” particularly
because Reeves could be released through executive
clemency.
State v. Reeves, CR2007-135527-001,
Maricopa County, Ruling at 2 (Feb. 7, 2011). The
judge then instructed the jury that Reeves could be
sentenced “to life imprisonment with the possibility of
parole after 25 years” unless he was executed. Id.,
Ruling at 15 (Mar. 21, 2019) (emphasis added).
Likewise, during the trial in State v. Newell,
notwithstanding counsel’s argument that “we all
know legally that there’s no possibility that he would
ever be released during his lifetime,” the judge
misinformed the jury that Newell could be eligible for
parole unless he was executed. CR2001-9124,
Maricopa County, RT 2/23/04 a.m. at 5, RT 2/24/04 at
12
51; see also, e.g., State v. Garza, CR1999-017624,
Maricopa County, RT 5/27/04 at 127, RT 6/14/04 at
109-11, RT 6/16/04 at 76-77, RT 6/17/04 at 45-46
(court, defense counsel and prosecution referring to
life-with-parole sentence); State v. Womble, CR2002010926B, Maricopa County, RT 3/12/07 at 23, 25, 27,
RT 3/15/07 at 36, 38 (court referring to possible
sentence of life with the possibility of parole).
*
*
*
Ultimately, in Lynch, this Court overruled
Arizona’s Simmons case law and held that Arizona
capital defendants are in fact entitled to Simmons
protections.
The Arizona Supreme Court later
recognized that its prior Simmons case law had been
incorrect. State v. Escalante-Orozco, 386 P.3d 798,
828-29 (Ariz. 2017). Despite that admission, however,
the Arizona courts have continued to deprive
defendants of Simmons relief.
II.
AFTER LYNCH, ARIZONA CONTINUES
DISCRIMINATE AGAINST FEDERAL LAW
ERECTING NEW BARRIERS TO RELIEF.
A.
TO
BY
Arizona Courts Refuse to Apply Lynch
on Post-Conviction Review.
After years of denying capital defendants their
constitutional right to the protections of Simmons, the
Arizona courts are now tying themselves in knots to
avoid granting post-conviction relief under Simmons
to individuals who were sentenced to death and whose
direct appeals became final before this Court decided
Lynch. Post-conviction capital defendants have raised
their Lynch claims most frequently as: (1) a
significant change in Arizona law, warranting postconviction relief under Rule 32.1(g) (as in this case);
13
(2) as ineffective assistance of counsel claims—both
trial and appellate; and (3) as standalone
constitutional violations. The Arizona courts have
denied relief in each context.
Together, these decisions show the length to which
the Arizona courts will go to avoid granting Simmons
relief. They reveal a continued pattern of evading the
constitutional guarantees in Simmons and they signal
discrimination against federal law. See Martin, 562
U.S. at 321.3
1. Arizona Courts Embrace Contradictory
Reasoning to Hold that Lynch Is Not a
“Significant Change in the Law” Under
Rule 32.1(g) and to Deny Retroactive
Relief.
In considering Lynch claims on post-conviction
review, the Arizona courts have discarded
longstanding precedent defining a “significant change
in the law” and rely on novel theories in a blatant
effort to foreclose relief.
Under Arizona Rule of Criminal Procedure 32.1(g),
a defendant may receive post-conviction relief on the
basis that “there has been a significant change in the
law that, if applicable to the defendant’s case, would
3 There are at least nine cases with Lynch/Simmons claims still
pending on post-conviction review. State v. Prince, CR1998004885, Maricopa County; State v. Nelson, CR2006-0904,
Mohave County; State v. Joseph, CR2005-014235, Maricopa
County; State v. Naranjo, CR2007-119504, Maricopa County;
State v. Carlson, CR2009-3544, Pima County; State v. Hargrave,
CR2002-009759, Maricopa County; State v. Hernandez, CR2008124043, Maricopa County; State v. Rose, CR2007-149013,
Maricopa County; State v. Cromwell, CR-22-0068-PC, Arizona
Supreme Court.
14
probably overturn the defendant’s judgment or
sentence.” Arizona case law has long provided that
the “archetype” of such a significant change in the law
“occurs when an appellate court overrules previously
binding case law.” State v. Shrum, 203 P.3d 1175,
1178 (Ariz. 2009). That is precisely what happened
here. This Court overruled previously binding case
law in Arizona that had held that Simmons is
inapplicable in that state.
And yet, from the get-go after Lynch was decided,
Arizona trial courts channeled the Arizona Supreme
Court’s hostility toward Simmons claims and refused
to afford relief. Employing tortured reasoning, courts
simultaneously declared (1) that Lynch does not
represent a significant change in the law for purposes
of Rule 32.1(g)—focusing only on whether it was a
change in federal law—and (2) that Lynch in fact does
reflect a change in Arizona law for purposes of
retroactivity, i.e., Lynch’s holding was not a wellestablished constitutional rule in Arizona warranting
retroactive application.
In the trial court’s post-conviction ruling in this
case, for example, the court held that the decision in
Lynch “is not a ‘transformative event’ on par with
Ring v. Arizona, 536 U.S. 584 (2002) or Padilla v.
Kentucky, 559 U.S. 356 (2010), which have been found
to constitute significant changes in the law.” State v.
Cruz, CR20031740, Pima County, Ruling at 2 (Aug.
24, 2017). In so holding, the court focused only on
whether Lynch realized a change in federal law,
noting that Lynch “did not declare any change in the
law representing a clear break from the past” because
Lynch “was dictated by [this Court’s] earlier decision
in Simmons.” Id. The court completely ignored—for
purposes of Rule 32.1(g)—that the Lynch decision
15
commanded a clear break in binding Arizona law,
which previously instructed that capital defendants
had no due process right to inform the jury of parole
ineligibility under Arizona’s capital sentencing
scheme.4
Then, in contradiction to its Rule 32.1(g) holding,
the post-conviction court proceeded to hold for
purposes of retroactivity that Lynch reflected a
change in Arizona law. State v. Cruz, CR20031740,
Pima County, Ruling at 2-3 (Aug. 24, 2017). It
described the holding in Lynch as “not a wellestablished constitutional principle” in Arizona
because “[i]n the years between Simmons and Lynch,
no court determined that defendants facing the death
penalty in Arizona were entitled to a Simmons
instruction,” and “[t]he Arizona Supreme Court
consistently held otherwise in at least nine opinions.”
Id. at 2; see also State v. Garza, CR1999-017624,
Maricopa County, Ruling at 5 (Mar. 21, 2018) (same).5
4 See also, e.g., State v. Reeves, CR2007-135527, Maricopa
County, Ruling at 16 (Mar. 21, 2019) (holding that because Lynch
“is based exclusively on Simmons, the Supreme Court decision in
Lynch is not a ‘new rule’ and it does not represent a significant
change in the law”).
Arizona courts frequently misapplied federal retroactivity
principles, discussed at Pet. Br. 19-27, when reaching decisions
on Lynch retroactivity. Some post-conviction courts held that
Lynch was not a well-established rule because it simply applied
Simmons. See, e.g., State v. Newell, CR2001-009124, Maricopa
County, Ruling at 4 (Jun. 29, 2018) (holding Lynch is not
retroactive because it “simply applies the rule announced in
Simmons v. South Carolina, and so, is neither a ‘well-established
constitutional principle’ nor a ‘watershed rule of criminal
procedure,’ but is a procedural, non-retroactive rule”); State v.
Burns, CR2007-106833, Maricopa County, Ruling at 52 (Apr. 4,
5
16
In other words, Lynch was not a change in the law for
purposes of Rule 32.1(g), but it was a change in the
law for purposes of retroactivity.
The Arizona Supreme Court ultimately adopted
this faulty reasoning, concluding in the decision below
that Lynch “does not represent a significant change in
the law for purposes of Rule 32.1(g)” because Lynch
merely “relied upon” Simmons, which “was clearly
established at the time of Cruz’s trial, sentencing, and
direct appeal.” Cruz II, 487 P.3d at 994. Perhaps
recognizing the dramatic shift with its prior holdings,
the court added an additional, novel explanation that
Lynch was merely “a significant change in the
application of the law,” not a change in the law itself.
Id. at 995. This distinction is intellectually dishonest
and has no basis in Arizona law. The theory serves
only to discriminate against federal law. See Pet. Br.
31 (“Where the Arizona Supreme Court overrules
Arizona precedent, its decision satisfies Rule 32.1(g),
2019) (“Lynch v. Arizona, simply applies the rule announced in
Simmons v. South Carolina, and so, is neither a ‘well-established
constitutional principle’ nor a ‘watershed rule of criminal
procedure,’ but is a procedural, non-retroactive rule.”). Other
courts have held that Lynch does not apply retroactively because
Simmons did not apply retroactively. See, e.g., State v. Reeves,
CR2007-135527, Maricopa County, Ruling at 16 (Mar. 21, 2019)
(“[E]ven if Lynch were a significant change in the law, it would
not apply retroactively because it relies on Simmons.”); State v.
Womble, CR2002-010926B, Maricopa Superior Court, Ruling at
3 (Sep. 28, 2017) (holding that Lynch “merely applies Simmons
in Arizona,” and therefore “is a non-retroactive procedural rule
and not applicable to Womble’s case”). Of course, by the time
Lynch was decided, Simmons was already well-established
federal law.
17
but where this Court overrules Arizona precedent, its
decision does not”).6
2. The Arizona Courts Apply Similarly
Contradictory Reasoning in Denying
Ineffective
Assistance
of
Counsel
Claims.
In addition to foreclosing relief under Rule 32.1(g),
Arizona courts have applied similarly contradictory
reasoning in denying ineffective assistance of counsel
claims based on trial or appellate counsel’s failure to
request a Simmons instruction.
After Lynch, capital defendants in Arizona whose
counsel had not requested a Simmons instruction
(because of binding Arizona law) have asserted
ineffective assistance of counsel claims on postconviction review in an attempt to vindicate their due
process right. In at least three cases, post-conviction
courts denied such claims under Strickland’s
reasonableness prong 7 on the basis that it was not
unreasonable for trial and appellate counsel to ignore
Simmons.
In State v. Gomez, for example, the post-conviction
court held that, “[a]t the time of Defendant’s 2010 trial
6 To amici’s knowledge, only one post-conviction court has held
that Lynch was a significant change in the law and granted relief. See State v. Rose, CR2007-149013-002, Maricopa County,
Ruling at 20, 27 (Aug. 17, 2020). The State sought review and
the Arizona Supreme Court remanded for further proceedings in
light of Cruz II. State v. Rose, CR-20-0299-PC, Arizona Supreme
Court, Letter (Nov. 3, 2021).
7 See Strickland v. Washington, 466 U.S. 668, 688 (1984) (holding
defendants must show that “counsel’s representation fell below
an objective standard of reasonableness”).
18
and his appeal decided in 2012, long-established
Arizona precedent held that Arizona defendants were
not entitled to parole unavailability instructions.
… Accordingly, any request for a Simmons
instruction would fail, and counsel was not ineffective
for failing to make a futile request.” CR2000-090114,
Maricopa County, Ruling at 5 (Dec. 3, 2018) (citing
Chappell, 236 P.3d at 1187; Garcia, 226 P.3d at 387;
Hargrave, 234 P.3d at 582; Cruz I, 181 P.3d at 207);
see also, e.g., State v. Nordstrom, CR55947, Pima
County, Ruling at 36 (Jul. 14, 2017) (holding that
counsel was not ineffective for failing to request a
Simmons instruction because the law in Arizona
would have required the trial court to deny that
request); State v. Womble, CR2002-010926B,
Maricopa Superior Court, Ruling at 6 (Sep. 28, 2017)
(“Counsel’s performance is evaluated based upon the
law at the time of appeal and not in hindsight. At the
time Defendant’s appeal was decided in 2010, Arizona
precedent held that Arizona defendants were not
entitled to parole unavailability instructions.”
(footnote omitted)); State v. Burns, CR2007-106833,
Maricopa County, Ruling at 53 (Apr. 4, 2019) (citing
Chappell, 236 P.3d at 1187; Garcia, 226 P.3d at 387;
Hargrave, 234 P.3d at 582; Cruz I, 181 P.3d at 207)
(same).
This, yet again, puts capital defendants between a
rock and a hard place: they have no recourse through
Rule 32.1(g) because the Arizona Supreme Court says
that Lynch did not change the law, implying that they
should have raised the claim earlier; but they have no
recourse through ineffective assistance of counsel
claims to obtain relief for the failure to raise a
Simmons claim, because Lynch did change the law
that was in effect at the time of the representation.
19
3. Arizona Post-Conviction Courts Hold
that Standalone Constitutional Claims
Raising Lynch and Simmons Are
Precluded, Even If Preserved on Appeal.
Finally, and further reflecting hostility towards
Simmons relief, post-conviction courts have denied
defendants’ standalone constitutional claims under
Lynch because Simmons claims could have been—and
sometimes even were—raised on direct appeal.
Under Arizona Rule of Criminal Procedure 32.2(a),
constitutional claims that could have been raised, or
were raised, at trial or on appeal are precluded from
consideration on post-conviction review. Arizona
courts have invoked this provision to deny standalone
Lynch/Simmons claims on post-conviction review, on
the basis that they could have been raised on direct
appeal under Simmons and were not. See State v.
Gomez, CR2000-090114, Maricopa County, Ruling
(Dec. 3, 2018); State v. Garza, CR1999-017624,
Maricopa County, Ruling at 8 (Mar. 21, 2018); State v.
Ovante, CR2008-144114, Maricopa Superior Court,
Ruling at 6 (Jun. 10, 2019); State v. Womble, CR2002010926B, Maricopa Superior Court, Ruling at 2 (Sep.
28, 2017); State v. Prince, CR1998-004885, Maricopa
County, Ruling at 2 (Aug. 28, 2017).
Even when defendants preserved Simmons claims
on direct appeal, post-conviction courts still have
found Lynch/Simmons claims precluded under Rule
32.2(a). See State v. Burns, CR2007-106833, Maricopa
County, Ruling at 49 (Apr. 4, 2019) (“This claim was
raised on appeal … . [I]t is therefore, precluded by
Rule 32.2(a)(3).”); State v. Womble, CR2002-010926B,
Maricopa Superior Court, Ruling at 2 (Sep. 28, 2017)
(“The
Court
finds
that
[the
standalone
20
Lynch/Simmons claim] is also precluded pursuant to
Rule 32.2(a)(2) as Womble raised an aspect of the
parole/release argument on appeal, and the Court
considered it.”).
These decisions fail to consider the impact that
Lynch had on the law relating to Simmons claims in
Arizona. Even if it is technically true that a Simmons
claim could have been raised on direct appeal before
Lynch, the Arizona Supreme Court promptly denied
those claims. See, e.g., State v. Burns, 344 P.3d 303,
337 (Ariz. 2015); Reeves, 310 P.3d at 974 (“Reeves’s
arguments are foreclosed.”); State v. Womble, 235 P.3d
244, 254 (Ariz. 2010). It was not until Lynch that
defendants had a firm basis to demand relief under
Simmons. A post-Lynch Simmons claim is therefore
distinct from a pre-Lynch claim. Treating them the
same for purposes of Rule 32.2(a) serves no purpose
other than to perpetuate the injustice of the Arizona
Supreme Court’s prior holdings.
*
*
*
With no recourse under Rule 32.1(g), no recourse
through ineffective assistance of counsel claims, and
no recourse as a standalone constitutional claim, any
capital defendant who faced a jury sentencing, and
whose direct appeal was final prior to 2016, is
completely foreclosed from obtaining the fundamental
due process protections set forth in Simmons and
Lynch. There is simply no pathway under Arizona’s
current procedures to assert a claim under Lynch
regardless of whether, how, or when defense counsel
raised the Simmons issue. This is not a random or
accidental result. It is the product of deliberate
discrimination against a federal right that this Court
should not tolerate.
21
B.
Even in Cases on Direct Appeal After
Lynch, Few Capital Defendants Have
Been Granted Relief.
The only cases in which the Arizona Supreme
Court has accepted that Simmons and Lynch apply
are capital direct appeals that were not final by
2016—some 14 years after Arizona began jury
sentencings in capital cases. However, the Arizona
courts’ disposition of these cases continues to disfavor
Simmons relief, and in most of them, the courts have
found other unsubstantiated ways to deny relief.
Of the nine capital direct appeals raising Simmons
claims in which the Arizona Supreme Court has
issued an opinion since Lynch, only three have
resulted in relief. Escalante-Orozco, 386 P.3d 798;
State v. Rushing, 404 P.3d 240 (Ariz. 2017); State v.
Hulsey, 408 P.3d 408 (Ariz. 2018).
In one case denying relief, the Arizona Supreme
Court repeated the same error that the South
Carolina Supreme Court made in Kelly v. South
Carolina, 534 U.S. 246 (2002). See State v. Sanders,
425 P.3d 1056, 1067 (Ariz. 2018). In Kelly, this Court
held that future dangerousness is at issue in a case
where the government presents evidence of the
“defendant’s demonstrated propensity for violence,”
even if it does not expressly state that the defendant
would be a “future danger if released from prison.”
534 U.S. at 253 (internal quotation marks omitted).
In State v. Sanders, the Arizona Supreme Court held
that future dangerousness was not at issue, even
though the jury heard evidence that Sanders had been
previously investigated for rape and the state
described the brutality of the murder and Sanders’s
conduct as “horrific,” “cold,” “ruthless,” “callous,” and
22
“mean.” 425 P.3d at 1067. Just as in Kelly, this
“strong implication of generalized … future
dangerousness” warranted a Simmons instruction.
534 U.S. at 253.
In another case, the defendant was denied relief
because the Arizona Supreme Court erroneously
found that the instruction was sufficient under
Simmons. See State v. Johnson, 447 P.3d 783, 801
(Ariz. 2019). In Johnson, the trial was already
underway when Lynch was issued. Prior to Lynch, the
trial court had instructed the jury that Johnson was
eligible for parole after 25 years. Id. Lynch issued on
the second day of Johnson’s penalty phase and the
trial court subsequently instructed the jury that
“Arizona law does not provide for parole.” Id. By that
point, however, the damage had been done and the
court should have granted Johnson’s motion for a
mistrial.8
In two cases, State v. Bush, 423 P.3d 370 (Ariz.
2018), and State v. Riley, 459 P.3d 66 (Ariz. 2020), the
Arizona Supreme Court denied Simmons relief on the
basis that defense counsel should have raised the
issue at trial—even though Lynch had not yet been
decided and under the Arizona courts’ ineffective
assistance of counsel rulings, counsel had no
obligation to request a Simmons instruction, see
supra, § II.A.2. In these cases, the court adopted a
“narrow interpretation of Simmons,” and held that
relief under Simmons “is foreclosed by [the
8 In
two other cases, the Arizona Supreme Court reasonably
concluded that the instructions satisfied Simmons and denied
relief on that basis. State v. Champagne, 447 P.3d 297, 311-12
(Ariz. 2019); State v. Robinson, No. CR-18-0284-AP, 2022 WL
1634771, *14-15 (Ariz. May 24, 2022).
23
defendant’s] failure to request a parole ineligibility
instruction at trial.” Bush, 423 P.3d at 388. As a
result, these defendants (like those asserting postconviction standalone constitutional claims) will
likely have no avenue for relief on direct appeal or on
post-conviction review.
In all, Arizona has made it exceedingly difficult, if
not impossible, for capital defendants who went to
trial pre-Lynch to receive the benefit of Simmons.
Relief is available only if: (1) they are still in direct
appeal proceedings; (2) future dangerousness was
expressly put at issue, not just inferred; and (3) trial
counsel made the request at trial, despite Arizona
case law holding that Simmons did not apply and that
it was not ineffective under Arizona law at the time if
they did not.
III. WHEN JURORS ARE PROVIDED WITH ACCURATE
INFORMATION ABOUT PAROLE ELIGIBILITY,
THEY ARE MORE LIKELY TO RETURN LIFE
VERDICTS.
Substantial research into jury decision-making
demonstrates that, where jurors are uninformed
about death sentence alternatives, they drastically
underestimate the length of time a defendant
sentenced to life will serve, thereby increasing the
likelihood that they will return a death sentence.
Research by the Capital Jury Project 9 (CJP)
“shows that capital jurors believe murderers are back
9 The CJP is a long-term research project that began in 1991 with
support from the National Science Foundation. Over the last 25
years, the CJP has conducted 1198 in-depth interviews with
jurors from 353 capital trials in 14 states, with the goal of
examining “how receptive capital jurors are to evidence and
24
on the streets ‘far too soon.’” 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, 645-46 (1999).
Typically, capital jurors believe that defendants not
sentenced to death will be released in approximately
15 years. Id.; see also Benjamin D. Steiner, William
J. Bowers & Austin Sarat, Folk Knowledge as Legal
Action: Death Penalty Judgments and the Tenet of
Early Release in a Culture of Mistrust and
Punitiveness, 33 Law & Soc’y Rev. 461, 476 (1999)
(“Across states, jurors seem to have roughly similar
ideas about how long [capital defendants not
sentenced to death] usually spend in prison, quite
apart from the wide variation in statutory minimums
for parole eligibility in their states. For the five states
that have mandatory minimums of 20 to 40 years and
the four life-without-parole states, the median
estimates of years usually served all fall within the
range 15-20 years.”).
These mistaken beliefs about parole eligibility
have a real impact on the sentences that juries
impose, as “[j]ury research suggests that jurors in
capital cases are significantly influenced by the
potential that a convicted defendant could ultimately
be released on parole.” Ankur Desai & Brandon L.
Garrett, The State of the Death Penalty, 94 Notre
Dame L. Rev. 1255, 1275 (2019) (citing William W.
arguments of mitigation when making their life or death
punishment decisions.” University at Albany, State University
of New York, William J. Bowers, James R. Acker—Capital Jury
Project and Capital Punishment Research Initiative,
https://www.albany.edu/hindelang/capital-punishmentresearch.php (last visited 6/16/2022).
25
Hood, III, Note, The Meaning of “Life” for Virginia
Jurors and Its Effect on Reliability in Capital
Sentencing, 75 Va. L. Rev. 1605, 1624–25 (1989); Note,
A Matter of Life and Death: The Effect of Life-WithoutParole Statutes on Capital Punishment, 119 Harv. L.
Rev. 1838, 1838 (2006) (“The existence of parole has
certainly led more juries to sentence defendants to
death.”)). In fact, a CJP study in Georgia showed that
between 1973 and 1990, 25% of juries deliberating at
the capital-sentencing phase asked the judge
questions about parole. Bowers & Steiner, supra, at
629. Up to 32% of surveyed CJP jurors report that
penalty-phase deliberations “focused ‘a great deal’ on
a variety of topics related to worries about the
defendant’s future dangerousness” and up to 66%
“report that the jury’s discussions focused at least a
‘fair amount’ on topics related to the defendant’s
future dangerousness.” John H. Blume, Stephen P.
Garvey & Sheri Lynn Johnson, Future Dangerousness
in
Capital
Cases:
Always
“At
Issue”,
86 Cornell L. Rev. 397, 406-07 (2001).
It follows that, if a juror mistakenly thinks that a
defendant will be released, the juror is more likely to
vote to impose a death sentence. Bowers & Steiner,
supra, at 660 (noting that “mistaken estimates of
early release appear to be decisive in the decisionmaking of jurors who have not made up their minds
before deliberations begin or by the time of the jury’s
first vote on punishment”); see also J. Mark Lane, “Is
There Life Without Parole?”: A Capital Defendant’s
Right to a Meaningful Alternative Sentence, 26 Loy.
L.A. L. Rev. 327, 334 (1993) (“Juries frequently choose
death, not because they think it is the appropriate
sentence, but because they do not believe that the lifesentence alternative will adequately ensure the
26
defendant’s incarceration.”); Baze v. Rees, 553 U.S. 35,
79 (2008) (Stevens, J., concurring) (“The available
sociological evidence suggests that juries are less
likely to impose the death penalty when life without
parole is available as a sentence.”).
As further evidence of this effect, data shows that
in some states with large death row populations, the
enactment of life without parole statutes is “strongly
associated” with an increase in life sentences. Desai
& Garrett, supra, at 1275. In states that showed a
weaker correlation between the enactment of life
without parole statutes and life sentences, scholars
note that the smaller effect may be attributed, in part,
to “the fact that key death penalty states still do not
fully instruct jurors on the nature or availability of a
noncapital life without parole sentencing option.” Id.
at 1276 (comparing data in Florida, Ohio, Oklahoma,
Missouri, Louisiana, Texas, and Virgina; not
discussing Arizona).
Juror statements following the sentencing
proceedings in Petitioner’s own case support these
research findings. Three jurors stated in a letter to
the press after sentencing that, “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.” JA143-144
(emphasis added); Pet. Br. 11. One juror attested
that, if she had known about an option of “a life
sentence without parole,” she “would have voted for
that option.” JA269.
The CJP research also affirms the reasoning
underlying the Supreme Court’s decision in Simmons.
Justice Blackmun, writing for the plurality,
27
recognized that “[f]or much of our country’s history,
parole was a mainstay of state and federal sentencing
regimes.” Simmons, 512 U.S. at 169. Thus, the jury
in Simmons was likely to mistakenly believe that the
defendant could be released on parole if not sentenced
to death. Justice Blackmun relied on a South
Carolina public opinion survey conducted before
Simmons’s trial, which showed only 7.1% of South
Carolina residents eligible to serve on a jury believed
that a capital defendant sentenced to life
imprisonment would actually remain in prison for life.
Id. at 159. Further, Justice Blackmun noted:
More than 75 percent of those surveyed
indicated that if they were called upon to make
a capital sentencing decision as jurors, the
amount of time the convicted murderer actually
would have to spend in prison would be an
‘extremely important’ or a ‘very important’
factor in choosing between life and death.
Id. Jurors laboring under a mistaken belief that a
capital defendant has a real possibility of release face
the “false choice between sentencing [a defendant] to
death and sentencing him to a limited period of
incarceration.” Id. at 161.
The sociological research undertaken in the 28
years since Simmons affirms and extends this
concern—that jurors will sentence a person to death
when they otherwise would not have, had they been
given complete information about the possibility of
release. This Court should again reaffirm Simmons
and safeguard against such an injustice.
28
CONCLUSION
The Court should vacate the judgment of the
Arizona Supreme Court and remand the case for
consideration of Petitioner’s claim under Simmons
and Lynch.
Respectfully submitted,
Elizabeth G. Bentley
Counsel of Record
CIVIL RIGHTS APPELLATE CLINIC
UNIVERSITY OF MINNESOTA
LAW SCHOOL
229 19th Ave. S.
Minneapolis, MN 55455
(612) 625-7809
ebentley@umn.edu
JUNE 2022
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.