Petition for Writ of Certiorari — Lonnie Allen Bassett, Petitioner v. Arizona
Supreme Court briefJan 31, 2024
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No. _____
IN THE
Supreme Court of the United States
LONNIE ALLEN BASSETT,
Petitioner,
v.
STATE OF ARIZONA,
Respondent.
On Petition for a Writ of Certiorari to the
Arizona Supreme Court
PETITION FOR A WRIT OF CERTIORARI
AMY E. BAIN
BAIN & LAURITANO, PLC
7149 North 57th Drive
Glendale, AZ 85301
NEAL KUMAR KATYAL
Counsel of Record
KATHERINE B. WELLINGTON
WILLIAM E. HAVEMANN
DANA A. RAPHAEL
HOGAN LOVELLS US LLP
555 Thirteenth Street, N.W.
Washington, D.C. 20004
(202) 637-5600
neal.katyal@hoganlovells.com
MATTHEW DORRITIE
RACHEL RECORD
HOGAN LOVELLS US LLP
125 High Street, Suite 2010
Boston, MA 02110
Counsel for Petitioner
QUESTION PRESENTED
This Court has repeatedly affirmed that the
Constitution “prohibits mandatory life-without-parole
sentences for murderers under 18.”
Jones v.
Mississippi, 141 S. Ct. 1307, 1312 (2021); see Miller v.
Alabama, 567 U.S. 460, 470 (2012); Montgomery v.
Louisiana, 577 U.S. 190, 195, 206 (2016). Juvenile
homicide offenders “may be sentenced to life without
parole, but only if the sentence is not mandatory and
the sentencer therefore has discretion to impose a
lesser punishment” than life without parole. Jones,
141 S. Ct. at 1311 (emphases added).
Because Arizona abolished parole in 1994, Miller
counted Arizona as one of “29 jurisdictions mandating
life without parole for children” in violation of the
Eighth Amendment. 567 U.S. at 482, 486-487 & nn.9,
13, 15. Both this Court and the Arizona Supreme
Court have repeatedly “confirmed that parole was
unavailable” under Arizona law. Lynch v. Arizona,
578 U.S. 613, 616 (2016) (per curiam). In the decision
below, the Arizona Supreme Court nevertheless
concluded that Miller, Montgomery, and Jones do not
forbid Arizona courts from imposing mandatory
sentences of life without parole.
The question presented is:
Whether the Eighth Amendment permits a
juvenile to be sentenced to life without parole under a
system that did not afford the sentencing court
discretion to choose any other option.
(i)
ii
PARTIES TO THE PROCEEDING
Petitioner in this Court is Lonnie Allen Bassett,
who was the real party in interest in the proceedings
below.
Respondent is the State of Arizona, which was the
petitioner in the proceedings below.
iii
RELATED PROCEEDINGS
Supreme Court of the United States (U.S.):
Lonnie Allen Bassett v. Arizona, No. 23A475
(Nov. 29, 2023) (granting application to extend
time to file petition for writ of certiorari)
Arizona Supreme Court (Ariz.):
State ex rel. Mitchell v. Cooper et al., No. CR-220227, 535 P.3d 3 (Sept. 18, 2023)
Arizona Court of Appeals (Ariz. Ct. App.):
State v. Bassett, No. 1 CA-SA 22-0152 (Aug. 10,
2022) (declining jurisdiction of State’s petition
for special action)
State v. Bassett, No. 2 CA-CR 2016-0151-PR,
2016 WL 3211766 (June 9, 2016) (denying
petition for postconviction relief), petition for
review denied (Ariz. Jan. 10, 2017)
State v. Bassett, No. 1 CA-CR 06-0088, 161 P.3d
1264 (July 24, 2007) (upholding convictions and
sentences on direct appeal), petition for review
denied (Ariz. Nov. 29, 2007)
Arizona Superior Court, Maricopa County (Ariz.
Super. Ct.):
State v. Bassett, No. CR2004-005097-001 DT
(May 26, 2022) (denying State’s motion for
reconsideration)
State v. Bassett, No. CR2004-005097-001 DT
(Apr. 28, 2022) (denying State’s motion to vacate
evidentiary hearing)
State v. Bassett, No. CR2004-005097-001 DT
(June 13, 2018) (ordering evidentiary hearing)
State v. Bassett, No. CR2004-005097-001 DT
(May 9, 2014) (denying postconviction relief)
iv
TABLE OF CONTENTS
Page
QUESTION PRESENTED.......................................... i
PARTIES TO THE PROCEEDING ........................... ii
RELATED PROCEEDINGS ..................................... iii
TABLE OF AUTHORITIES...................................... vi
INTRODUCTION ....................................................... 1
OPINIONS BELOW ................................................... 4
JURISDICTION ......................................................... 4
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED ........................................ 5
STATEMENT OF THE CASE ................................... 5
A. Legal Background ............................................ 5
B. Procedural Background ................................... 9
REASONS FOR GRANTING THE PETITION ....... 14
I.
THE ARIZONA SUPREME COURT’S DECISION
DEFIES THIS COURT’S PRECEDENTS.................... 14
A. Arizona’s Sentencing Laws Imposed
Mandatory Life Without Parole For
Juveniles, Violating Miller,
Montgomery, And Jones ................................ 15
B. The Arizona Supreme Court Erred In
Refusing To Apply Miller, Montgomery,
And Jones ....................................................... 18
C. The Arizona Supreme Court Made The
Same Error This Court Reversed In
Lynch .............................................................. 24
II.
THE ARIZONA SUPREME COURT’S DECISION
SPLITS WITH OTHER STATE HIGH COURTS ......... 26
v
TABLE OF CONTENTS—Continued
Page
III. THIS PETITION PROVIDES AN IDEAL VEHICLE
TO ADDRESS THIS IMPORTANT QUESTION ........... 33
CONCLUSION .......................................................... 37
APPENDIX
APPENDIX A—Arizona Supreme Court
Decision Denying Post-Conviction Relief
(Sept. 18, 2023) ................................................... 1a
APPENDIX B—Superior Court of Arizona,
Maricopa County, Ruling Denying State’s
Motion to Vacate Evidentairy Hearing and
Dismiss Petition (Apr. 28, 2022) ...................... 32a
APPENDIX C—Statutory Provisions Involved ..... 42a
vi
TABLE OF AUTHORITIES
Page(s)
CASES:
Aguilar v. Thornell,
No. 22-6023, 143 S. Ct. 1757 (2023) .................... 34
Arias v. Arizona,
No. 15-9044, 580 U.S. 951 (2016) .......................... 6
Bear Cloud v. State,
294 P.3d 36 (Wyo. 2013) ................................ 28, 29
Cruz v. Arizona,
598 U.S. 17 (2023) ............................ 3, 8, 17, 18, 25
DeShaw v. Arizona,
No. 15-9057, 580 U.S. 951 (2016) .......................... 6
Diatchenko v. Dist. Att’y for Suffolk Dist.,
1 N.E.3d 270 (Mass. 2013) ................................... 32
Ex parte Williams,
244 So. 3d 100 (Ala. 2017) ................................... 32
Horsley v. State,
160 So. 3d 393 (Fla. 2015) ................................... 33
Jackson v. Norris,
378 S.W.3d 103 (Ark. 2011) ................................. 21
Jackson v. Norris,
426 S.W.3d 906 (Ark. 2013) ................................. 32
Jackson v. State,
883 N.W.2d 272 (Minn. 2016) .............................. 32
Jessup v. Shinn,
31 F.4th 1262 (9th Cir. 2022) .............................. 33
Jessup v. Thornell,
No. 22-5889, 143 S. Ct. 1755 (2023) .................... 34
vii
TABLE OF AUTHORITIES—Continued
Page(s)
Jones v. Mississippi,
141 S. Ct. 1307 (2021) .... 1-3, 6-8, 13-23, 28, 33, 36
Lynch v. Arizona,
578 U.S. 613 (2016) ...................... 3, 4, 8, 18, 25, 26
Miller v. Alabama,
567 U.S. 460 (2012) .. 1-2, 5-6, 14-16, 18, 21, 23, 26
Montgomery v. Louisiana,
577 U.S. 190 (2016) ............................ 1, 6, 9, 15, 16
Najar v. Arizona,
No. 15-8878, 580 U.S. 951 (2016) .......................... 6
Parker v. State,
119 So. 3d 987 (Miss. 2013) ................. 7, 17, 27, 28
People v. Boykin,
987 N.W.2d 58 (Mich. 2022) ................................ 32
People v. Davis,
6 N.E.3d 709 (Ill. 2014) ........................................ 32
Petition of State,
103 A.3d 227 (N.H. 2014)..................................... 32
Purcell v. Arizona,
No. 15-8842, 580 U.S. 953 (2016) .......................... 6
Rojas v. Thornell,
No. 22-5961, 143 S. Ct. 1757 (2023) .................... 34
Roper v. Simmons,
543 U.S. 551 (2005) .............................................. 10
Rue v. Thornell,
No. 22-6027, 143 S. Ct. 1758 (2023) .................... 34
Simmons v. South Carolina,
512 U.S. 154 (1994) .............................................. 25
viii
TABLE OF AUTHORITIES—Continued
Page(s)
State v. Arias,
No. 1 CA-CR 22-0064 PRPC, 2022 WL
3973488 (Ariz. Ct. App. Sept. 1, 2022) ................ 12
State v. Cabanas,
No. 1 CA-CR 21-0534 PRPC, 2022 WL
2205273 (Ariz. Ct. App. June 21, 2022) .............. 12
State ex rel. Carr v. Wallace,
527 S.W.3d 55 (Mo. 2017) (en banc) .................... 32
State v. Castaneda.
842 N.W.2d 740 (Neb. 2014) .......................... 29, 30
State v. Cruz,
487 P.3d 991 (Ariz. 2021)......................... 3, 8, 9, 18
State v. Jensen,
894 N.W.2d 397 (S.D. 2017)................................. 32
State v. Lynch,
357 P.3d 119 (Ariz. 2015)....................................... 3
State v. McCleese,
215 A.3d 1154 (Conn. 2019) ................................. 32
State v. Montgomery,
194 So. 3d 606 (La. 2016) (per curiam) ............... 33
State v. Odom,
No. 1 CA-CR 21-0537 PRPC, 2022 WL
4242815 (Ariz. Ct. App. Sept. 15, 2022) .............. 12
State v. Ragland,
836 N.W.2d 107 (Iowa 2013).......................... 31, 32
State v. Thieszen,
887 N.W.2d 871 (2016)......................................... 30
State v. Valencia,
386 P.3d 392 (Ariz. 2016)................................. 9, 10
ix
TABLE OF AUTHORITIES—Continued
Page(s)
State v. Wagner,
510 P.3d 1083 (Ariz. Ct. App. 2022) .............. 11, 20
State v. Young,
794 S.E.2d 274 (N.C. 2016) ............................ 30, 31
Tatum v. Arizona,
No. 15-8850, 580 U.S. 952 (2016) .......................... 6
CONSTITUTIONAL PROVISIONS:
U.S. Const. amend. VIII .............................................. 5
U.S. Const. amend. XIV .............................................. 5
U.S. Const. art. VI, para. 2 ......................................... 5
STATUTES:
28 U.S.C. § 1257(a) ...................................................... 4
Ala. Code § 15-22-36(a) (1983) .................................. 21
Ariz. Rev. Stat. § 13-703(A) (2003) ................. 8, 10, 17
Ariz. Rev. Stat. § 13-703.01(A) (2003) .................. 8, 17
Ariz. Rev. Stat. § 13-716 (2014) .................................. 9
Ariz. Rev. Stat. § 13-1105(C) (2002) ..................... 8, 17
Ariz. Rev. Stat. § 41-1604.09(I) (1994) ....................... 8
Ariz. Rev. Stat. § 41-1604.09(I)(2) (2014) ................... 9
Ark. Code § 5-4-606 (1975) ........................................ 21
Miss. Code § 97-3-21(1) (2007) .................................. 27
Miss. Code § 97-3-21(3) (2006) .................................. 27
Wyo. Stat. § 6-2-101(b) (2009)................................... 28
RULES:
Ariz. R. Crim. P. 32.1(g) ............................................ 10
Ariz. R. Crim. P. 32.8 (2017) ....................................... 9
IN THE
Supreme Court of the United States
No. _____
LONNIE ALLEN BASSETT,
Petitioner,
v.
STATE OF ARIZONA,
Respondent.
On Petition for a Writ of Certiorari to the
Arizona Supreme Court
PETITION FOR A WRIT OF CERTIORARI
Petitioner Lonnie Allen Bassett respectfully
petitions for a writ of certiorari to review the
judgment of the Arizona Supreme Court.
INTRODUCTION
This petition is brought by a defendant sentenced
as a juvenile to mandatory life without parole in
Arizona, even though this Court’s precedents dictate
that mandatory life-without-parole sentences for
juveniles violate the Eighth Amendment.
This Court has made clear that the Constitution
“prohibits mandatory life-without-parole sentences
for murderers under 18.” Jones v. Mississippi, 141 S.
Ct. 1307, 1312 (2021); see Miller v. Alabama, 567 U.S.
460, 470 (2012); Montgomery v. Louisiana, 577 U.S.
190, 195, 206 (2016). The Constitution permits a life(1)
2
without-parole sentence “only if ” state law affords the
sentencer “discretion to impose a lesser sentence than
life without parole.” Jones, 141 S. Ct. at 1311, 1318.
“[A] State’s discretionary sentencing system is both
constitutionally necessary and constitutionally
sufficient.” Id. at 1313.
The
logic
underpinning
that
rule
is
straightforward: “children are constitutionally
different from adults for purposes of sentencing.”
Miller, 567 U.S. at 471. A discretionary sentencing
procedure ensures that the sentencer considers the
defendant’s youth in deciding whether the defendant
should spend the rest of his life in prison without any
possibility of parole.
And data bears out the
conclusion that “a discretionary sentencing
procedure” makes “life-without-parole sentences
relatively rare.” Jones, 141 S. Ct. at 1318.
This Court recognized in Miller that Arizona was
one of “29 jurisdictions” with sentencing laws that
unconstitutionally “mandat[ed] life without parole for
children.” 567 U.S. at 482, 486-487 & nn.9, 13, 15.
The Arizona Supreme Court therefore initially
responded to Miller and Montgomery by ordering
hearings to determine whether defendants given
mandatory life-without-parole sentences were
entitled to relief.
After this Court decided Jones, however, the
Arizona Supreme Court overruled its precedent and
concluded it was not obligated to provide relief from
mandatory life-without-parole sentences after all.
Although this Court in Jones made clear—
repeatedly—that it did “not overrule Miller or
Montgomery,” 141 S. Ct. at 1321, the Arizona
Supreme Court treated Jones as doing just that.
3
Notwithstanding Jones’s holding that juvenile lifewithout-parole sentences are permissible only if the
sentencer “has discretion to impose a lesser
punishment,” id. at 1311, the Arizona Supreme Court
has now blessed juvenile life-without-parole sentences
even though it is undisputed that the sentencer lacked
discretion to impose a lesser punishment.
This petition arises from the Arizona Supreme
Court’s published decision announcing its new
interpretation of this Court’s opinion in Jones.
Petitioner Lonnie Allen Bassett was sentenced to life
without parole under a system that did not afford the
sentencing court discretion to choose any other option.
It is undisputed that Arizona had abolished parole for
homicide defendants during the relevant period. And
it is undisputed that the “only alternative sentence to
death” in Arizona “was life imprisonment without
parole.” Lynch v. Arizona, 578 U.S. 613, 614 (2016)
(per curiam). In the decision below, the Arizona
Supreme Court nonetheless refused to apply Jones,
Miller, and Montgomery, and declined to order relief
from Bassett’s unconstitutional sentence.
In a decision reminiscent of the Arizona Supreme
Court’s other recent refusals to apply this Court’s
precedent in State v. Lynch, 357 P.3d 119 (Ariz. 2015),
rev’d, 578 U.S. 613 (2016) (per curiam), and State v.
Cruz, 487 P.3d 991 (Ariz. 2021), rev’d, 598 U.S. 17
(2023), the Arizona Supreme Court’s opinion below
flouts this Court’s precedents and defies this Court’s
assurance that Jones did not overrule Miller and
Montgomery. Worse, the Arizona Supreme Court’s
decision—which conflates the availability of parole
with the availability of executive clemency—repeats
the very same error this Court already summarily
4
reversed in Lynch. See 578 U.S. at 614. In refusing
to follow this Court’s precedents, the decision below
diverges from the decisions of state high courts in
Mississippi, Wyoming, Nebraska, North Carolina,
and Iowa—all of which have concluded that their
similar sentencing schemes imposed mandatory life
without parole and were thus unconstitutional.
The Arizona Supreme Court’s refusal to follow the
same approach here creates a square conflict on an
important constitutional issue with enormous stakes
for Bassett, for other defendants whose Miller claims
Arizona courts have since rejected, and for still other
defendants with Miller claims pending in Arizona.
Just as in Lynch and Cruz, Arizona once again stands
alone in its refusal to grant the relief dictated by this
Court’s precedents.
This Court should grant the petition.
OPINIONS BELOW
The Arizona Supreme Court’s decision denying
Bassett’s petition for postconviction relief is reported
at 535 P.3d 3. Pet. App. 1a-31a. The Arizona trial
court’s decision denying the State’s motion to dismiss
the petition is unpublished. Id. at 32a-41a.
JURISDICTION
The Arizona Supreme Court entered judgment
against Bassett on September 18, 2023. Pet. App. 1a,
31a. This Court granted Bassett’s timely application
to extend the time to file a petition for a writ of
certiorari to January 31, 2024. No. 23A475 (Nov. 29,
2023). This Court’s jurisdiction is invoked under 28
U.S.C. § 1257(a).
5
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Eighth Amendment, U.S. Const. amend. VIII,
provides:
Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and
unusual punishments inflicted.
The Fourteenth Amendment, U.S. Const. amend.
XIV, provides in relevant part:
No state shall * * * deprive any person of life,
liberty, or property, without due process of
law.
The Supremacy Clause, U.S. Const. art. VI, para.
2, provides in relevant part:
This Constitution, and the Laws of the
United States which shall be made in
Pursuance thereof * * * shall be the supreme
Law of the Land; and the Judges in every
State shall be bound thereby, any Thing in
the Constitution or Laws of any State to the
Contrary notwithstanding.
Pertinent statutory provisions are set out in the
Petition Appendix. Pet. App. 42a-43a.
STATEMENT OF THE CASE
A. Legal Background
1. In Miller v. Alabama, this Court held that
“mandatory
life-without-parole
sentences
for
juveniles violate the Eighth Amendment.” 567 U.S. at
470.
As the Court explained, “children are
constitutionally different from adults for purposes of
sentencing.” Id. at 471. The Constitution thus
requires that the sentencing authority have
6
“discretion to impose a different punishment.” Id. at
465. And although “[a] State is not required to
guarantee eventual freedom,” its sentencing scheme
at least “must provide some meaningful opportunity
to obtain release.” Id. at 479 (citation and quotation
marks omitted).
Miller identified “29 jurisdictions mandating life
without parole for children”—including Arizona. Id.
at 482, 486-487 & nn.9, 13, 15. Miller “overrule[d]”
those sentencing schemes. Id. at 514 (Alito, J.,
dissenting).
2. In Montgomery v. Louisiana, this Court
reiterated Miller’s holding that “mandatory life
without parole for juvenile homicide offenders violates
the Eighth Amendment’s prohibition on cruel and
unusual punishments” and held that Miller applied
retroactively in cases on collateral review. 577 U.S. at
195, 206 (citation and quotation marks omitted). This
Court subsequently vacated several Arizona court
orders dismissing claims for postconviction relief
under Miller, ordering further consideration in light
of Montgomery. See Tatum v. Arizona, No. 15-8850,
580 U.S. 952 (2016); Arias v. Arizona, No. 15-9044,
580 U.S. 951 (2016); DeShaw v. Arizona, No. 15-9057,
580 U.S. 951 (2016); Najar v. Arizona, No. 15-8878,
580 U.S. 951 (2016); Purcell v. Arizona, No. 15-8842,
580 U.S. 953 (2016).
3. In Jones v. Mississippi, this Court yet again
explained that “an individual who commits a homicide
when he or she is under 18 may be sentenced to life
without parole, but only if the sentence is not
mandatory and the sentencer therefore has discretion
to impose a lesser punishment.” 141 S. Ct. at 1311
(emphasis added).
The Constitution “prohibits
7
mandatory
life-without-parole
sentences
for
murderers under 18, but * * * allow[s] discretionary
life-without-parole sentences for those offenders.” Id.
at 1312.
Jones highlighted the difference between
(impermissible)
mandatory
and
(permissible)
discretionary life-without-parole sentencing schemes.
When the defendant in Jones was first sentenced, the
punishment for homicide under Mississippi law was
“imprisonment for life.” Parker v. State, 119 So. 3d
987, 996 (Miss. 2013). And although that statute did
“not carry a specific sentence of life without parole,” a
separate statute eliminated parole for homicide
offenders.
Id. at 996-997.
Those “legislative
mandates, when read together, [were] tantamount to
life without parole” such that Mississippi’s “statutory
scheme * * * contravene[d] the dictates of Miller.” Id.
at 997.
This Court thus agreed that “[u]nder
Mississippi law at the time, murder carried a
mandatory sentence of life without parole.” Jones,
141 S. Ct. at 1312.
But “[i]n the wake of Miller, the Mississippi
Supreme Court * * * ordered a new sentencing
hearing where the sentencing judge could consider [a
juvenile defendant’s] youth and exercise discretion in
selecting an appropriate sentence.” Id. at 1312-13.
This Court held that this revised “discretionary
sentencing system [wa]s both constitutionally
necessary and constitutionally sufficient,” and
rejected any additional fact-finding requirement. Id.
at 1313. This Court’s decision “carefully follow[ed]
both Miller and Montgomery” and emphasized
repeatedly that it did “not overrule” either case. Id. at
1321. “Miller held that a State may not impose a
8
mandatory life-without-parole sentence on a
murderer under 18,” and Jones did “not disturb that
holding.” Id.
4. During the period relevant here, Arizona
provided two alternatives to death for defendants
convicted of first-degree murder—“natural life,”
under which a defendant was categorically ineligible
for “commutation, parole, * * * or release from
confinement on any basis,” and “life,” which required
a defendant to serve at least 25 years before he could
be eligible for “release[ ] on any basis.” Ariz. Rev. Stat.
§ 13-703(A) (2003); see id. §§ 13-703.01(A) (2003),
13-1105(C) (2002). As in Mississippi, a separate
provision of Arizona law abolished parole for felons as
of January 1, 1994. Id. § 41-1604.09(I) (1994). Thus,
“the only ‘release’ available under Arizona law is
executive clemency, not parole.” Cruz v. Arizona, 598
U.S. 17, 23 (2023). And so, although Arizona’s
sentencing statute “continued to list two alternatives
to death,” id. at 21, Arizona has repeatedly
“acknowledged that [the] only alternative sentence to
death was life imprisonment without parole,” Lynch,
578 U.S. at 614 (emphasis added); see also Cruz, 487
P.3d at 994 (recognizing that “defendants were thus
essentially sentenced to life without the possibility of
parole”). Indeed, Arizona told this Court in an amicus
brief filed in Miller that its laws “make the
punishment mandatory.” States Amicus Br. 1, Miller
v. Alabama, Nos. 10-9646, 10-9647 (Feb. 21, 2012); see
Alabama Br. 16-19, Miller v. Alabama, No. 10-9646
(Feb. 14, 2012) (listing Arizona as among the
“jurisdictions requir[ing], at a minimum, a sentence of
life without parole”); Arkansas Br. App. C, Jackson v.
Hobbs, No. 10-9647 (Feb. 14, 2012) (same).
9
5. After Miller, Arizona reinstated parole for some
juvenile offenders—those who had received life
sentences with possible release after 25 years. Ariz.
Rev. Stat. §§ 13-716 (2014), 41-1604.09(I)(2) (2014); cf.
Montgomery, 577 U.S. at 212 (“A State may remedy a
Miller violation by permitting juvenile homicide
offenders to be considered for parole, rather than by
resentencing them.”). As for juveniles who had
received natural life sentences, the Arizona Supreme
Court held they were entitled to evidentiary hearings
to determine if resentencing was required. See State
v. Valencia, 386 P.3d 392, 396 (Ariz. 2016); Ariz. R.
Crim. P. 32.8 (2017). The court acknowledged that
Arizona law “did amount to sentences of life without
the possibility of parole.” Valencia, 386 P.3d at 394;
see also Cruz, 487 P.3d at 994 (noting that “the law in
place at the time [juvenile] defendants were sentenced
permitted what Miller later precluded”).
That
remained the law in Arizona until the decision below,
which overruled Valencia.
B. Procedural Background
1. Petitioner Lonnie Allen Bassett had a horrific
childhood. As a young child, Bassett was abandoned
by his mother, kidnapped and abused by his father,
and was kept in a closet with just one meal a day. See
Pet. App. 5a-6a; see also Bassett Sentencing Mem. Ex.
E, 02/13/2002 Psych. Eval.
Bassett was later
diagnosed with posttraumatic stress disorder and
prescribed medication. In 2004, at the age of 16, and
during a period when he had stopped taking his
medication, Bassett fatally shot two people. The
State’s notice of intent to seek the death penalty was
struck after this Court held that “the Eighth
Amendment prohibit[s] the imposition of the death
10
penalty on juveniles.” Roper v. Simmons, 543 U.S.
551, 570-571 (2005). Bassett was convicted of two
counts of first-degree murder. Pet. App. 33a.
When Bassett was sentenced in 2006, the
sentencing judge “did not have discretion” to choose a
sentence that would have allowed for parole.
Pet. App. 33a-34a & n.2; see id. at 11a. Arizona law
at that time “abolished parole” for homicide offenders.
Id. at 33a n.1, 11a. The trial court sentenced Bassett
to “natural life,” rendering him categorically ineligible
for “commutation, parole, * * * or release from
confinement on any basis.”
Ariz. Rev. Stat.
§ 13-703(A) (2003); see Pet. App. 10a, 33a. The trial
court also imposed an additional consecutive life
sentence with the possibility of “ ‘release’ after twentyfive years through the executive clemency process.”
Pet. App. 11a; see id. at 33a & n.1. Both convictions
and sentences were affirmed on appeal, and the
Arizona Supreme Court denied review. Id. at 11a.
Bassett’s subsequent petitions for postconviction
review were denied. Id. at 12a, 33a-34a.
2. In 2017, Bassett sought postconviction relief on
the ground that Miller and Montgomery constituted a
“significant change in the law” entitling him to relief
and resentencing. Id. at 12a-13a, 33a-34a; see Ariz. R.
Crim. P. 32.1(g). The State initially agreed that
Bassett was entitled to an evidentiary hearing under
the Arizona Supreme Court’s decision in Valencia.
Pet. App. 13a, 35a; Valencia, 386 P.3d at 396.
After this Court decided Jones, however, the State
claimed that Jones had revoked Bassett’s entitlement
to relief. The State argued that the scheme under
which Bassett was sentenced was not “mandatory”
under Miller because the court could have imposed a
11
punishment other than natural life—even though
parole was not an option and the only form of “release”
available was executive clemency. Pet. App. 35a, 38a.
The trial court rejected the State’s argument,
concluding that “Bassett was sentenced under a
mandatory natural life sentencing scheme that Miller
and Jones found to be unconstitutional,” as “the law
did not allow the sentencing judge to consider life with
the possibility of parole as an alternative to a sentence
of natural life.” Id. at 38a, 40a-41a. The trial court
explained that “executive clemency (or commutation)
is not a constitutionally adequate substitute for the
possibility of parole,” and Miller had already
“recognized the distinction” when it “counted Arizona
as one of 29 jurisdictions with mandatory LWP
sentences for juvenile homicide offenders, despite the
court’s ability to order life with possible release.” Id.
at 38a-39a. Because “[t]he sentencing laws under
which Mr. Bassett was sentenced did not allow for the
discretion – i.e. a sentence with the possibility of
parole – that Miller requires for a constitutionally
sound sentencing,” the trial court concluded that
Bassett was entitled to relief. Id. at 39a.
The Arizona Court of Appeals soon reached the
same conclusion in another case, holding that “[i]t
matters not whether the superior court had
‘discretion’ to impose alternative non-parole-eligible
penalties or whether the court considered the
defendant’s youth in exercising that discretion”;
“because the superior court had no discretion to
sentence [the defendant] to a parole-eligible term, his
sentence is encompassed by Miller.” State v. Wagner,
510 P.3d 1083, 1087 (Ariz. Ct. App. 2022), review
continued (Sept. 12, 2023). The Court of Appeals
12
subsequently granted relief in other cases involving
juveniles sentenced to mandatory life without parole.1
The State appealed the trial court’s decision in
Bassett’s case. Pet. App. 13a-14a. The Court of
Appeals declined jurisdiction, but the Arizona
Supreme Court granted review. Id. at 14a.
3. The Arizona Supreme Court reversed the trial
court and dismissed Bassett’s petition for
postconviction relief. The court acknowledged that
“Bassett was actually ineligible for parole” because
“the Arizona Legislature eliminated parole for all
offenses committed on or after January 1, 1994,”
meaning that “Bassett’s only option would have been
‘release’ after twenty-five years through the executive
clemency process.” Id. at 11a. The court nevertheless
held that Arizona’s sentencing scheme was “not
mandatory under Miller” because sentencing courts
had “a choice between two sentencing options”:
natural life, or life with possible “release” after 25
years—even though such “release” did not include
parole. In the Arizona Supreme Court’s view, the
possibility of executive clemency or a later change in
the law to create a system of parole sufficed because—
according to the court—“Miller and its progeny do not
specifically require the availability of parole when
sentencing a juvenile offender.” Id. at 19a, 23a.
1
See State v. Cabanas, No. 1 CA-CR 21-0534 PRPC, 2022 WL
2205273, at *1 (Ariz. Ct. App. June 21, 2022), review continued
(Sept. 12, 2023); State v. Arias, No. 1 CA-CR 22-0064 PRPC, 2022
WL 3973488, at *1 (Ariz. Ct. App. Sept. 1, 2022), review
continued (Sept. 12, 2023); State v. Odom, No. 1 CA-CR 21-0537
PRPC, 2022 WL 4242815, at *1 (Ariz. Ct. App. Sept. 15, 2022),
review continued (Sept. 12, 2023); cf. State v. Aston, No. 1 CA-SA
22-0068 (Ariz. Ct. App. May 19, 2022) (declining jurisdiction).
13
The Arizona Supreme Court also disputed this
Court’s categorization of Arizona in Miller as among
“29 jurisdictions mandating life without parole for
children” because Arizona law lists age as a statutory
mitigating factor that the sentencer must consider in
deciding whether to sentence a person convicted of
murder to death, natural life, or life with possible
release (through executive clemency) after 25 years.
Id. at 22a. But “even if an issue remained with
Arizona’s sentencing scheme,” the Arizona Supreme
Court claimed that the state legislature had
“remedied” the problem by reinstating parole for some
juveniles—even though the Arizona Supreme Court
admitted that this subsequent statutory change did
not apply to Bassett. Pet. App. 22a.
Despite this Court’s repeated statements in Jones
that it was not overruling Miller or Montgomery, see
141 S. Ct. at 1321, 1317 n.4, the Arizona Supreme
Court held that “Jones refuted the premise” for its
understanding that Miller and Montgomery required
relief, see Pet. App. 24a. The Arizona Supreme Court
accordingly dismissed Bassett’s petition for
postconviction relief.2
This petition follows.
2
Following its decision in Bassett, the Arizona Supreme Court
reversed and remanded numerous decisions in which the Arizona
Court of Appeals had granted relief under Miller to juvenile
defendants. The Court of Appeals has since reversed its earlier
decisions. See State v. Arias, No. 1 CA-CR 22-0064 PRPC (Ariz.
Ct. App. Sept. 25, 2023); State v. Odom, No. 1 CA-CR 21-0537
PRPC (Ariz. Ct. App. Sept. 25, 2023); State v. Cabanas, No. 1 CACR 21-0534 PRPC (Ariz. Ct. App. Dec. 6, 2023); State v. Wagner,
No. 1 CA-CR 21-0492 PRPC (Ariz. Ct. App. Dec. 20, 2023); State
v. Aston, No. 1 CA-SA 22-0068 (Ariz. Ct. App. Jan. 3, 2024).
14
REASONS FOR GRANTING THE PETITION
This Court in Miller counted Arizona as among the
“29 jurisdictions mandating life without parole for
children.” 567 U.S. at 482, 486-487 & nn.9, 13, 15.
And although this Court in Jones was clear that its
decision “does not overrule Miller or Montgomery,”
141 S. Ct. at 1321, the Arizona Supreme Court has
nevertheless effectively held that Miller and
Montgomery no longer apply in Arizona.
The decision below is wrong. Miller, Montgomery,
and Jones concluded that the Constitution prohibits
mandatory life-without-parole sentences for juveniles.
To comply with the Constitution, the sentencing
authority must have discretion to impose a lesser
punishment. Nothing in Jones relieved Arizona of its
obligation to correct the unconstitutional sentences
meted out prior to Miller pursuant to the State’s
mandatory life-without-parole sentencing scheme.
The Arizona Supreme Court’s refusal to abide by this
Court’s precedents creates a square split by departing
from the approach that at least five other state high
courts have taken in similar circumstances.
This petition is an ideal vehicle for addressing the
Arizona Supreme Court’s error, and it presents a
question of profound importance for Bassett, for other
prisoners given mandatory life-without-parole
sentences as juveniles whose claims have been
summarily denied since the decision below issued, and
for at least 20 other prisoners with similar claims.
I.
THE ARIZONA SUPREME COURT’S DECISION
DEFIES THIS COURT’S PRECEDENTS.
This Court’s precedents should have led the
Arizona Supreme Court to the straightforward
15
conclusion that Arizona’s sentencing laws violated the
Eighth Amendment by imposing mandatory lifewithout-parole sentences on juveniles.
A. Arizona’s Sentencing Laws Imposed
Mandatory Life Without Parole For
Juveniles, Violating Miller, Montgomery,
And Jones.
1. Miller was clear: “mandatory life-withoutparole sentences for juveniles violate the Eighth
Amendment.” 567 U.S. at 470. This Court reaffirmed
that holding in Montgomery, 577 U.S. at 195
(“mandatory life without parole for juvenile homicide
offenders violates the Eighth Amendment[ ]”), and
again in Jones, 141 S. Ct. at 1312 (“[t]he Eighth
Amendment prohibits mandatory life-without-parole
sentences for murderers under 18”).
Although mandatory life-without-parole sentences
for juveniles violate the Constitution, this Court has
also been clear that discretionary life-without-parole
sentences do not.
A “discretionary sentencing
procedure” is one “where the sentencer can consider
the defendant’s youth and has discretion to impose a
lesser sentence than life without parole.” Jones, 141
S. Ct. at 1318. To avoid the constitutional bar on
mandatory
life-without-parole
sentences,
the
sentencing authority therefore “must have ‘discretion
to impose a different punishment’ than life without
parole.” Id. at 1316 (quoting Miller, 567 U.S. at 465)
(emphasis added).
This Court in Jones explained why “a State’s
discretionary
sentencing
system
is
both
constitutionally necessary and constitutionally
sufficient.”
141 S. Ct. at 1313.
“States with
discretionary sentencing regimes” honor the “key
16
assumption of both Miller and Montgomery,” which
“was that discretionary sentencing allows the
sentencer to consider the defendant’s youth, and
thereby helps ensure that life-without-parole
sentences are imposed only in cases where that
sentence is appropriate in light of the defendant’s
age.” Id. at 1318. Indeed, Miller “relied on data, not
speculation,” “in concluding that a discretionary
sentencing procedure would help make life-withoutparole sentences relatively rare.” Id. And Jones
observed that “Miller’s discretionary sentencing
procedure has resulted in numerous sentences less
than life without parole for defendants who otherwise
would have received mandatory life-without-parole
sentences.” Id. at 1322. Jones highlighted that in
Mississippi—which once mandated life-withoutparole
sentences—“Miller
resentencings”
had
“reduced life-without-parole sentences for murderers
under 18 by about 75 percent.” Id. at 1322, 1312.
Because
the
Constitution
“require[s]
a
discretionary sentencing procedure,” id. at 1322, this
Court held that the two sentencing schemes before it
in Miller—those of Arkansas and Alabama—were
unconstitutional “mandatory-sentencing schemes,”
567 U.S. at 466, 469, 489. Those two States were
among the “29 jurisdictions mandating life without
parole for children”—a list that this Court noted also
included Louisiana, Mississippi, and Arizona. Miller,
567 U.S. at 482, 486-487 & nn.9, 13, 15; Miller,
Alabama Br. 17-18. In Montgomery, this Court held
that Miller applied retroactivity to invalidate
mandatory
life-without-parole
sentences
in
Louisiana. 577 U.S. at 194, 213. The Mississippi
Supreme Court, meanwhile, acknowledged that its
mandatory-life-without-parole scheme “contravene[d]
17
the dictates of Miller” and ordered resentencing
hearings in which the judge was permitted to “enter a
sentence of life imprisonment with eligibility for
parole.” Parker, 119 So. 3d at 997, 999 (quotation
marks omitted). This Court accordingly upheld a lifewithout-parole sentence in Jones precisely because
Mississippi sentencing courts now “had discretion
under Miller to impose a sentence less than life
without parole.” Jones, 141 S. Ct. at 1313.
This Court’s decisions in Miller, Montgomery, and
Jones thus establish that discretionary sentencing—
the sentencer’s ability “to impose a lesser sentence
than life without parole”—is “constitutionally
necessary” for juvenile homicide defendants. Id. at
1313, 1318.
2. During the period relevant here, Arizona law
provided two alternatives to a death sentence for
defendants convicted of first-degree murder: “natural
life,” under which a defendant was categorically
ineligible for “commutation, parole, * * * or release
from confinement on any basis,” and “life,” which
required a defendant to serve at least 25 years before
he could be eligible for “release[ ] on any basis.” Ariz.
Rev. Stat. § 13-703(A) (2003); see id. §§ 13-703.01(A)
(2003), 13-1105(C) (2002). But because a separate
provision of Arizona law abolished parole for felons as
of 1994, “the only ‘release’ available under Arizona
law [wa]s executive clemency, not parole.” Cruz, 598
U.S. at 23.
As a result of these statutes, Arizona “sentencing
court[s] did not have discretion to order life with
parole because the State abolished parole.” Pet. App.
33a-34a n.2. And as this Court has made clear,
although Arizona law “[n]evertheless” “continued to
18
list two alternatives to death,” Cruz, 598 U.S. at 21,
the “only alternative sentence to death was life
imprisonment without parole,” Lynch, 578 U.S. at 614
(emphasis added); see also Cruz, 487 P.3d at 994
(recognizing that under Arizona law, “defendants
were thus essentially sentenced to life without the
possibility of parole”). Indeed, Arizona told this Court
in an amicus brief filed in Miller that its laws made
life-without-parole
sentences
“mandatory”
for
juveniles convicted of first-degree murder. See Miller
States Amicus Br. 1; see also Miller, Alabama Br.
16-19; Jackson, Arkansas Br. App. C. And this Court
in Miller listed Arizona as among the 29 jurisdictions
that subjected juveniles to unconstitutional
mandatory life-without-parole sentences. 567 U.S. at
482, 486-487 & nn.9, 13, 15.
Because the only sentence available under Arizona
law at the time of Bassett’s sentencing was “life
imprisonment without parole,” Lynch, 578 U.S. at
614, sentencing courts in Arizona lacked “discretion to
impose a lesser sentence than life without parole,”
Jones, 141 S. Ct. at 1318. That makes Arizona’s
sentencing
scheme
“mandatory”—and
thus
unconstitutional for juvenile defendants.
B. The Arizona Supreme Court Erred In
Refusing To Apply Miller, Montgomery,
And Jones.
Despite this Court’s precedents, and despite
acknowledging that juveniles were “actually ineligible
for parole” because “the Arizona Legislature
eliminated parole,” the Arizona Supreme Court
nevertheless concluded that the State’s sentencing
scheme “was not mandatory under Miller.” Pet. App.
11a, 23a. It reached that conclusion by relying on the
19
fact that Arizona’s sentencing scheme included two
nominal alternatives to death: natural life and life
with possible “release” after 25 years. According to
the Arizona Supreme Court, it was enough that
sentencing courts could “ma[ke] a choice between two
sentencing options”—even though neither “option”
included parole. Pet. App. 23a. That Arizona had
“eliminated parole” did not matter, the court
reasoned, because “Miller and its progeny do not
specifically require the availability of parole when
sentencing a juvenile offender.” Pet. App. 11a, 19a.
That conclusion cannot be reconciled with this
Court’s precedents. As this Court has made clear, a
sentencer must have “discretion to impose a lesser
sentence than life without parole.” Jones, 141 S. Ct. at
1318 (emphasis added).
It is constitutionally
irrelevant whether a sentencing statute provides
multiple sentencing options if each option dictates life
without parole.
The Arizona Supreme Court cited four arguments
in support of its conclusion that there was no
constitutional defect in Arizona’s sentencing scheme.
The Arizona Supreme Court is wrong on all four
counts.
First, the Arizona Supreme Court concluded that a
choice between two life-without-parole sentences was
sufficient because, according to the court, “the
availability of parole” is “not specifically require[d]” to
comply with Miller. Pet. App. 19a. The Arizona
Supreme Court cited Jones for that point, but Jones
says the opposite. In Jones, this Court held that a
juvenile homicide offender “may be sentenced to life
without parole, but only if the sentence is not
mandatory,” meaning that “the sentencer therefore
20
has discretion to impose a lesser punishment” than
life without parole. 141 S. Ct. at 1311 (emphases
added). This Court “firmly” reiterated that “Miller
held that a State may not impose a mandatory lifewithout-parole sentence on a murderer under 18” and
that “[t]oday’s decision does not disturb that holding.”
Id. at 1321. Thus, the availability of parole at the
time of sentencing is precisely what makes a sentence
of life without parole discretionary.
The facts of Jones confirm that conclusion. When
the defendant in that case was originally sentenced,
“[u]nder Mississippi law at the time, murder carried a
mandatory sentence of life without parole.” Id. at
1312 (emphases altered). But the defendant was
afforded a “Miller resentencing[ ]” in which “the
sentencing judge acknowledged that he had discretion
under Miller to impose a sentence less than life
without parole.” Id. at 1313, 1322 (emphasis added).
That the sentencing judge had direction to choose a
sentence with parole, but nevertheless chose a
sentence of life without parole, is “the discretionary
sentencing procedure” necessary to satisfy Miller. Id.
at 1311.
The Arizona Court of Appeals understood that
premise when it concluded in another case that
“Miller’s use of ‘mandatory’—as well as the
understanding of its counterpart, ‘discretionary’—
must be read in the context of whether a paroleeligible sentence is available.” Wagner, 510 P.3d at
1087 (emphasis added). So did the postconviction trial
court in this case when it concluded that Bassett was
entitled to relief because “the sentencing court could
not have legally imposed a sentence that included the
possibility of parole.” Pet. App. 39a. The Arizona
21
Supreme Court’s contrary conclusion conflicts with
Miller, Montgomery, and Jones.
Second, the Arizona Supreme Court suggested
that a choice between two life-without-parole
sentences suffices to meet Miller’s requirements
because one of those sentences included the possibility
of executive clemency. Pet. App. 11a, 23a.
This Court’s decisions in Miller, Montgomery, and
Jones all refute the contention that the possibility of
executive clemency—without the possibility of
parole—satisfies Miller. All three States in those
cases provided for the possibility of executive
clemency for juvenile offenders, yet that possibility
did not make their mandatory life-without-parole
sentencing schemes any less mandatory (or any less
unconstitutional). See Ark. Code § 5-4-606 (1975);
Jackson v. Norris, 378 S.W.3d 103, 107 (Ark. 2011)
(Brown, J., concurring) (juvenile’s “only remedy to
avoid spending the rest of his life in prison after the
conviction for capital murder is executive clemency
from the governor”), rev’d, Miller, 567 U.S. 460; Ala.
Code § 15-22-36(a) (1983); Miller, Alabama Br. 61
(arguing that “executive or legislative clemency * * *
provide means for the State to account for the
defendant’s youth” (citation omitted)); Louisiana Br.
2, Montgomery v. Louisiana, No. 14-280 (Aug. 24,
2015) (juvenile’s “mandatory sentence of life without
possibility of parole” could be “commuted” (citing La.
Rev. Stat. § 15:574.4(B)(1) (1969))).
The same was true in Jones. This Court upheld
Mississippi’s revised sentencing scheme because the
Mississippi Supreme Court had ruled, in the wake of
Miller, that state judges must be afforded “discretion
to impose a sentence less than life without parole.”
22
141 S. Ct. at 1312-13.
After concluding that
Mississippi’s revised sentencing scheme complied
with the Eighth Amendment because it made lifewithout-parole sentences discretionary, this Court
observed that its decision was “far from the last word”
on whether the defendant would obtain relief because
other “state avenues for sentencing relief remain
open,” including petitioning “the state legislature,
state courts, or Governor.” Id. at 1323. If the
availability of executive clemency had sufficed, this
Court would have started and ended its opinion with
that fact.
This Court’s precedents thus make clear that the
possibility of release by executive clemency does not
transform a mandatory life-without-parole sentencing
regime into a discretionary system.
Third, the Arizona Supreme Court maintained
that Miller was satisfied because Arizona’s firstdegree murder statute lists age as one of several
mitigating factors to be considered when choosing
between a sentence of natural life (with no possibility
of executive clemency) and a sentence of life (with the
possibility of executive clemency), and because the
court said there was some consideration of Bassett’s
age in making this choice. Pet. App. 21a-22a.
According to the Arizona Supreme Court, that means
the sentencing scheme complied with Miller,
Montgomery, and Jones. See id.
Again, this Court’s precedents refute that
contention. To comply with Miller, the sentencing
judge was required to take into account Bassett’s age
when deciding whether to impose a lesser punishment
than life with parole—which the sentencing judge
could not do here. As this Court explained in Miller,
23
when a State offers no possible penalty other than life
without parole, the sentence remains impermissibly
mandatory because consideration of age “could not
change the sentence; whatever [is] said in mitigation,
the mandatory life-without-parole prison term would
kick in.” Miller, 567 U.S. at 488. This Court
reiterated the same conclusion in Jones, emphasizing
that the Eighth Amendment permits life-withoutparole sentences “only so long as the sentence is not
mandatory—that is, only so long as the sentencer has
discretion to consider the mitigating qualities of youth
and impose a lesser punishment.” 141 S. Ct. at 1314
(citation and quotation marks omitted) (emphasis
added).
Under this Court’s precedents, it is not sufficient
that the sentencer have discretion to consider age as
a mitigator; the sentencer must have authority to
implement that discretion by imposing a lesser,
parole-eligible punishment.
In this case, the
sentencing judge “did not have discretion to order life
with parole.”
Pet. App. 33a-34a n.2.
Any
consideration of age thus “could not change” Bassett’s
“mandatory life-without-parole prison term.” See
Miller, 567 U.S. at 488.
Jones makes clear that a State’s compliance with
the Eighth Amendment turns on whether a State’s
“sentencing regime[ ]” imposes “mandatory lifewithout-parole sentences,” 141 S. Ct. at 1312, 1318
(emphasis omitted), not on the nature of a state
judge’s “on-the-record sentencing explanation” in a
particular case, id. at 1320-21. It is “a State’s
discretionary sentencing system” that “is both
constitutionally necessary and constitutionally
sufficient.” Id. at 1313 (emphasis added). Otherwise,
24
the constitutionality of a state’s sentencing regime
would shift and spring depending on how much a
sentencing judge said about youth in each case—
exactly the result this Court in Jones sought to avoid.
Fourth, the Arizona Supreme Court concluded that
the possibility of some subsequent legal change
excused it from complying with Miller and
Montgomery. The Arizona legislature reinstated
parole in 2014 for certain juveniles, which the Arizona
Supreme Court concluded “remedied” any “issue * * *
with Arizona’s sentencing scheme,” “[r]egardless of
whether parole was available at th[e] time” Bassett
was sentenced. Pet. App. 22a.
But the Arizona Supreme Court did not dispute—
and in fact agreed—that “Bassett was actually
ineligible for parole” at the time he was sentenced
because “[i]n 1993, the Arizona Legislature
eliminated parole for all offenses committed on or
after January 1, 1994.” Pet. App. 11a. The court
likewise agreed that Bassett’s natural life sentence
meant that the Arizona Legislature’s 2014
amendments to its sentencing scheme did not apply to
him. Id. at 22a. Because the 2014 statutory
amendments do not provide relief to Bassett, this
subsequent legal change could not possibly cure the
constitutional violation in Bassett’s sentence.
C. The Arizona Supreme Court Made The
Same Error This Court Reversed In Lynch.
The decision below is not the first time the Arizona
Supreme Court has attempted to evade a
constitutional right that turns on the availability of
parole.
In a “series of cases,” the Arizona Supreme Court
held that “Arizona’s sentencing and parole scheme did
25
not trigger application” of this Court’s decision in
Simmons v. South Carolina, 512 U.S. 154 (1994).
Cruz, 598 U.S. at 20. Under Simmons, when “a
capital defendant’s future dangerousness is at issue,
and the only sentencing alternative to death available
to the jury is life imprisonment without possibility of
parole, due process entitles the defendant to inform
the jury of his parole ineligibility.” Id. at 21 (citation,
quotation marks, and brackets omitted).
In Lynch, this Court reviewed a decision of the
Arizona Supreme Court refusing to apply Simmons on
the ground that the defendant “could have received a
life sentence that would have made him eligible for
‘release’ after 25 years,” even though “the only kind of
release for which [the defendant] would have been
eligible—as the State does not contest—is executive
clemency.” Lynch, 578 U.S. at 615. This Court
summarily reversed. The Court held that “it was
fundamental error to conclude that Simmons ‘did not
apply’ in Arizona.” Cruz, 598 U.S. at 20 (quoting
Lynch, 578 U.S. at 615). In Lynch, this Court flatly
“rejected the argument that the possibility of
clemency diminishes a capital defendant’s right to
inform a jury of his parole ineligibility.” 578 U.S. at
615. And this Court squarely rejected the State’s
argument that “the potential for future ‘legislative
reform’ ” could justify refusing to inform the jury that
a defendant was parole ineligible. Id. at 616. “If it
were otherwise,” this Court explained, “a State could
always argue that its legislature might pass a law
rendering the defendant parole eligible” and thus
evade Simmons. Id.
The Arizona Supreme Court’s decision in this case
involves the same basic error—just in the context of a
26
different constitutional right. Like the due process
right in Simmons, the Eighth Amendment right in
Miller is triggered when the only available sentence is
life without parole. In both Lynch and the decision
below, “the Arizona Supreme Court confirmed that
parole was unavailable to [the defendant] under its
law.” Id.; see Pet. App. 11a, 33a-34a & nn.1-2. In both
contexts, a nominal choice between two life-withoutparole sentences does not render “Arizona’s
sentencing law sufficiently different from the others
this Court ha[s] considered” such that the
constitutional right at issue does “not apply.” Lynch,
578 U.S. at 615.
II.
THE ARIZONA SUPREME COURT’S DECISION
SPLITS WITH OTHER STATE HIGH COURTS.
In Miller, this Court identified “29 jurisdictions”
that unconstitutionally “mandat[ed] life without
parole for children.” 567 U.S. at 482, 486-487 & nn.9,
13, 15. Many of these States have since acknowledged
that their sentencing schemes were unconstitutional
and remedied the defect. The Arizona Supreme
Court’s refusal to do the same conflicts with those
decisions.
1. Five of these 29 jurisdictions argued after Miller
that
their
sentencing
schemes
were
not
unconstitutionally mandatory because they contained
some elements of discretion, even though judges
lacked discretion to impose parole-eligible sentences.
The high courts in all five of these States—
Mississippi, Wyoming, Nebraska, North Carolina,
and Iowa—rejected this argument. The Arizona
Supreme Court’s refusal to reach the same conclusion
makes it an extreme outlier.
27
Mississippi: In Parker v. State, the Mississippi
Supreme Court held that the state sentencing scheme
“contravene[d] the dictates of Miller.” 119 So. 3d at
997.
Mississippi law provided two alternative
sentences to death for capital murder: “imprisonment
for life * * * without parole,” or “imprisonment for
life * * * with eligibility for parole.” Miss. Code § 973-21(3) (2006). For non-capital first-degree murder,
the penalty was “imprisonment for life.” Id. § 97-321(1) (2007). As in Arizona, a separate provision of
Mississippi law eliminated parole for those convicted
of both capital and first-degree homicide, although
certain homicide offenders were permitted to apply for
conditional release at age 65. Parker, 119 So. 3d at
997.
The Mississippi Supreme Court concluded that
these “legislative mandates, when read together, are
tantamount to life without parole” and thus
“contravene[ ] the dictates of Miller.” Id. The court
rejected the State’s argument that the sentencing
scheme was not “mandatory” under Miller because
defendants convicted of first-degree murder were
eligible for conditional release. Id. at 995, 997. The
court explained that under state law, “[c]onditional
release is more akin to clemency, which the Supreme
Court has held ‘[a]s a matter of law’ to be different
from parole ‘despite some surface similarities.’ ” Id. at
997 (quoting Solem v. Helm, 463 U.S. 277, 300 (1983)).
Because juvenile defendants “would not be eligible for
parole” under state law, the court concluded that the
state’s sentencing scheme violated Miller. Id.
The Mississippi Supreme Court accordingly
vacated the defendant’s sentence and remanded for
resentencing. Id. at 998. The court specified that “if
28
the trial court should determine, after consideration
of all circumstances set forth in Miller, that [the
defendant] should be eligible for parole, the court
shall enter a sentence of ‘life imprisonment with
eligibility for parole.’ ” Id. at 999. Such discretion
thus “allow[ed] the trial courts of [Mississippi] to
comport with the requirements established by the
United States Supreme Court.” Id.
In Jones, the defendant appealed from a courtordered “Miller resentencing[ ]” in Mississippi, in
which “the sentencing judge * * * had discretion under
Miller to impose a sentence less than life without
parole.” Jones, 141 S. Ct. at 1313, 1322. This Court
held that Mississippi’s approach was permissible
under Miller. Although “[u]nder Mississippi law at
the time, murder carried a mandatory sentence of life
without parole,” the Mississippi Supreme Court’s
judicial fix meant that Mississippi had since joined
the States with “discretionary sentencing system[s],”
which this Court held was “both constitutionally
necessary and constitutionally sufficient.” Id. at
1312-13; see also id. at 1318, 1322.
Wyoming: In Bear Cloud v. State, the Wyoming
Supreme Court likewise held that its first-degree
murder statute violated Miller. 294 P.3d 36, 44-45
(Wyo. 2013). Like Arizona, Wyoming law offered two
alternatives to death for first-degree murder: “life
imprisonment without parole” or “life imprisonment
according to law.” Wyo. Stat. § 6-2-101(b) (2009). And
like Arizona law, separate provisions of Wyoming law
“prohibit[ed] parole for any person serving a life
sentence of either sort.” Bear Cloud, 294 P.3d at 44.
“Taking these * * * statutes together,” the
Wyoming Supreme Court concluded that “both
29
possible sentences for first-degree murder in
Wyoming violate[d] Miller’s prohibition against
mandatory sentences of life without the possibility of
parole for juveniles.” Id. at 45. Because “both
exclude[d] any real possibility of parole,” they “fail[ed]
to provide a sentencing court the discretion to
determine whether a juvenile homicide offender
should be eligible for parole at some point in the
future.” Id. at 45-46. The fact that trial courts had a
nominal choice between two sentences—one of which
left open the “the possibility of executive clemency”—
did not address the constitutional flaw in the
defendant’s sentence, because the “hope of executive
clemency” was no substitute for “the realistic
possibility of parole.” Id. And because neither of the
two non-death sentences permitted parole, Wyoming’s
sentencing regime “effectively mandate[d] a sentence
of life in prison without the possibility of parole for
juvenile offenders.” Id.
The Wyoming Supreme Court accordingly vacated
the defendant’s sentence and remanded for
resentencing, in which the sentencing court would be
afforded discretion “to order a sentence that includes
the possibility of parole.” Id. at 47.
Nebraska: In State v. Castaneda, the Nebraska
Supreme Court held that a sentence of life
imprisonment was “effectively life imprisonment
without parole” and thus unconstitutional under
Miller. 842 N.W.2d 740, 758 (Neb. 2014). Although
Nebraska’s sentencing statute imposing “life
imprisonment” for first-degree murder “did not
expressly contain the qualifier ‘without parole,’” a
separate provision of Nebraska law made clear that
“an offender sentenced to life imprisonment in
30
Nebraska for first degree murder is not eligible for
parole.” Id. at 757. The State argued that Nebraska’s
scheme did “not violate Miller” because defendants
could apply for “executive clemency in the form of
sentence commutation,” and “parole is possible in
Nebraska if the sentence is commuted to a term of
years.” Id. at 757-758.
The Nebraska Supreme Court rejected the State’s
argument that “the mere existence of a remote
possibility of parole”—one that hinged entirely on “the
availability of executive clemency”—could “keep
Nebraska’s sentencing scheme from falling within the
dictates of Miller.” Id. Rather, it sufficed that a
“sentence of life imprisonment is effectively life
imprisonment without parole.” Id. at 758. The
Nebraska Supreme Court ordered resentencing to
allow consideration of a parole-eligible sentence. Id.
at 762; see also State v. Thieszen, 887 N.W.2d 871, 876
(2016) (applying Castaneda on state collateral
review).
North Carolina: In State v. Young, the North
Carolina Supreme Court rejected a similar argument
that the possibility of executive clemency could save a
mandatory life-without-parole sentencing scheme.
794 S.E.2d 274, 276-280 (N.C. 2016). At the time of
the juvenile defendant’s conviction, “North Carolina
law required the mandatory imposition of life
imprisonment without parole for all offenders
convicted of first-degree murder.” Id. at 275-276
(citation omitted).
“Nevertheless, the State
contend[ed] that defendant [wa]s not entitled to
resentencing based upon Miller and Montgomery”
because, according to the State, the defendant’s
sentence was “not really life imprisonment without
31
parole because defendant may be able to obtain
release” through commutation. Id. at 276, 278
(citation and quotations marks omitted).
The North Carolina Supreme Court rejected this
“possibility of alteration or commutation” as sufficient
under Miller, concluding that it did “not reduce to any
meaningful degree the severity of a sentence of life
imprisonment without the possibility of parole.” Id.
at 279. Rather, because the juvenile defendant was
sentenced to “life without parole pursuant to a North
Carolina statute that did not permit the sentencing
court to consider a lesser punishment,” the sentence
was “prohibited by the Eighth Amendment.” Id.
(citation and quotation marks omitted). The North
Carolina Supreme Court ordered that the case be
remanded for resentencing. Id. at 279-280.
Iowa: In State v. Ragland, the Iowa Supreme
Court likewise confirmed that the State’s sentencing
scheme violated Miller, despite the possibility of
commutation. 836 N.W.2d 107, 118-122 (Iowa 2013).
Before Miller, the “only sentence” for first-degree
murder under Iowa law was for “the offender to be
committed to the department of corrections ‘for the
rest of the defendant’s life’ ”; the “sentencing court
ha[d] no power to defer the judgment, defer the
sentence, suspend the sentence, or reconsider the
sentence.” Id. at 118-119. “Clearly, the original
sentence imposed * * * was a mandatory sentence,”
the Iowa Supreme Court concluded, despite the
possibility that the Governor could “commute[ ] the
sentence to a term of years.” Id. at 119. “The mere
possibility of commutation or clemency is
fundamentally distinct from the eligibility for parole
and does not leave a juvenile offender a meaningful
32
opportunity to avoid a lifetime of incarceration.” Id.
at 120. The Iowa Supreme Court accordingly ordered
resentencing in which the trial court could choose
between “a life-without-parole sentence” and “a
sentence far less than life without parole.” Id. at 122.
2. In addition to the five state high courts that
have rejected arguments much like the position
adopted by the Arizona Supreme Court below, many
of the other 29 jurisdictions identified in Miller as
mandating life without parole for juveniles have
adopted judicial or legislative fixes to remedy their
mandatory life-without-parole sentencing regimes.
Many state high courts responded to Miller and
Montgomery by ordering resentencing in which the
sentencer was afforded discretion to choose a lesser
sentence than life without parole.3 Other state high
courts ordered that juveniles sentenced to mandatory
life without parole be considered for parole.4 Other
state legislatures established a retroactive parole
system 5 or required resentencing. 6 And other state
high courts applied similar legislative fixes
3
See, e.g., Ex parte Williams, 244 So. 3d 100, 101 (Ala. 2017);
Jackson v. Norris, 426 S.W.3d 906, 909-911 (Ark. 2013); People
v. Davis, 6 N.E.3d 709, 723 (Ill. 2014); State ex rel. Carr v.
Wallace, 527 S.W.3d 55, 62-63 (Mo. 2017) (en banc); Petition of
State, 103 A.3d 227, 230, 233 (N.H. 2014); State v. Jensen, 894
N.W.2d 397, 399 (S.D. 2017).
4
See, e.g., Diatchenko v. Dist. Att’y for Suffolk Dist., 1 N.E.3d
270, 282, 285-287 (Mass. 2013); Jackson v. State, 883 N.W.2d
272, 275 (Minn. 2016).
5
See, e.g., State v. McCleese, 215 A.3d 1154, 1161 (Conn. 2019)
(statute “retroactively provided parole eligibility to juvenile
offenders sentenced to more than ten years in prison”).
6
See, e.g., People v. Boykin, 987 N.W.2d 58, 62 n.2 (Mich.
2022).
33
retroactively.7 As this Court observed in Jones, these
changes mean that, “[b]y now, most offenders” have
already “received new discretionary sentences under
Miller.” 141 S. Ct. at 1317 n.4. These States
underscore Arizona’s position as an extreme outlier in
refusing to grant relief to defendants like Bassett
sentenced to life without parole as juveniles.
III. THIS PETITION PROVIDES AN IDEAL VEHICLE
TO ADDRESS THIS IMPORTANT QUESTION.
In Jones, this Court observed that “[b]y now, most
offenders who could seek collateral review as a result
of Montgomery have done so and, if eligible, have
received new discretionary sentences under Miller.”
141 S. Ct. at 1317 n.4. While that may be true for
most of the country, Arizona remains steadfast in its
refusal to correct mandatory life-without-parole
sentences, warranting this Court’s intervention.
1. This petition is an excellent vehicle to address
the Arizona Supreme Court’s refusal to grant the
relief required by Miller, Montgomery, and Jones. The
question presented was preserved in the proceedings
below and conclusively resolved by the Arizona
Supreme Court in a published opinion. Because the
Arizona Supreme Court’s review is discretionary, the
court is unlikely to revisit the issue in future cases,
making this case the ideal vehicle for addressing the
important question posed by this petition.
This Court has declined to review other petitions
raising the question presented on federal habeas
review. See, e.g., Jessup v. Shinn, 31 F.4th 1262 (9th
7
See, e.g., Horsley v. State, 160 So. 3d 393, 396, 405, 408 (Fla.
2015); State v. Montgomery, 194 So. 3d 606, 606-609 (La. 2016)
(per curiam).
34
Cir. 2022), cert. denied sub. nom., Jessup v. Thornell,
No. 22-5889, 143 S. Ct. 1755 (2023); Rojas v. Thornell,
No. 22-5961, 143 S. Ct. 1757 (2023); Rue v. Thornell,
No. 22-6027, 143 S. Ct. 1758 (2023); Aguilar v.
Thornell, No. 22-6023, 143 S. Ct. 1757 (2023). Unlike
those petitions, this Court’s review would not be
complicated by application of AEDPA’s deferential
standard. Indeed, this Court in recent years has
repeatedly granted certiorari to review the decisions
of state high courts on collateral review rather than
awaiting those cases on federal habeas.
Both
Montgomery and one of the consolidated cases in
Miller arose in this posture, and Jones addressed a
resentencing granted on collateral review. This
Court’s decision last Term in Cruz likewise arose on
collateral review from the Arizona Supreme Court.
2. This petition presents a question of profound
importance—for Bassett, for the defendants whose
Miller and Montgomery claims Arizona courts have
since rejected, and for other defendants with similar
claims pending in Arizona. As the Arizona Supreme
Court acknowledged below, “this case presents
recurring issues of statewide importance.”
See
Pet. App. 14a.
From 1994 to 2014, juveniles convicted of firstdegree murder in Arizona were sentenced to life
without parole under a sentencing scheme that
offered no other option. Other States with similar
mandatory-sentencing regimes have long since
implemented
discretionary
resentencing
or
reinstituted parole to comply with this Court’s
decisions in Miller, Montgomery, and Jones. Arizona
stands alone among its peer States in concluding that
35
Miller and Montgomery simply do not apply to
mandatory life-without-parole sentences.
After deciding Bassett’s case, the Arizona Supreme
Court reversed and remanded numerous cases
presenting the same issue. And, citing Bassett, the
Arizona Court of Appeals has since denied relief. See
supra nn.1 & 2. There are at least 15 other defendants
with comparable claims pending in Arizona on
collateral review. Because the Arizona Supreme
Court issued a published opinion in Bassett’s case,
Bassett’s case is the most appropriate vehicle for
addressing the question presented.
3. In addition to the immense importance of this
issue for Bassett, this case presents exceptionally
significant questions about gamesmanship and the
supremacy of federal law. When Arizona was among
the States urging this Court to permit mandatory lifewithout-parole sentences for juveniles convicted of
homicide, Arizona freely admitted in a filing with this
Court that its sentencing scheme made life without
parole mandatory. See supra pp. 8, 18. Only after
Arizona found itself on the losing side of that
argument did it adopt the position that the same
sentencing scheme was not mandatory. And while
most of the 29 jurisdictions imposing mandatory lifewithout-parole sentences on juveniles have since
ordered discretionary resentencing or adopted other
mechanisms to implement this Court’s decision in
Miller, Arizona stands alone in its refusal to apply
Miller, Montgomery, and Jones. Instead, more than
two dozen defendants sentenced as juveniles remain
in prison in Arizona under mandatory life-withoutparole sentences. Arizona’s disagreement with the
36
decisions of this Court cannot excuse the State’s
compliance with those precedents.
Granting relief would not extend this Court’s
precedents one bit. The question presented requires
straightforward application of this Court’s repeated
admonition that mandatory life-without-parole
sentences for juveniles are unconstitutional. And
because other state high courts have applied Miller
and Montgomery in comparable circumstances,
granting relief would not affect collateral review
procedures outside of Arizona.
***
If this Court rules in Bassett’s favor, it will not be
deciding whether Bassett is entitled to be released
from prison. As this Court explained in Jones,
“[d]etermining the proper sentence in such a case
raises profound questions of morality and social
policy,” and it is for “state sentencing judges and
juries” to “determine the proper sentence in individual
cases in light of the facts and circumstances of the
offense, and the background of the offender.” 141 S.
Ct. at 1322. Ruling for Bassett would not prevent him
from being resentenced to life without parole.
Bassett instead seeks only what Miller,
Montgomery, and Jones guarantee: a resentencing
proceeding in which the sentencer has “discretion to
impose a sentence less than life without parole.”
Jones, 141 S. Ct. at 1311. Bassett seeks the very same
relief that Mississippi implemented in Jones, and
which this Court described as “both constitutionally
necessary and constitutionally sufficient.” Id. at 1313.
This Court’s review is urgently needed to ensure that
Bassett is entitled to the same.
37
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
AMY E. BAIN
BAIN & LAURITANO, PLC
7149 North 57th Drive
Glendale, AZ 85301
NEAL KUMAR KATYAL
Counsel of Record
KATHERINE B. WELLINGTON
WILLIAM E. HAVEMANN
DANA A. RAPHAEL
HOGAN LOVELLS US LLP
555 Thirteenth Street, N.W.
Washington, D.C. 20004
(202) 637-5600
neal.katyal@hoganlovells.com
MATTHEW DORRITIE
RACHEL RECORD
HOGAN LOVELLS US LLP
125 High Street, Suite 2010
Boston, MA 02110
Counsel for Petitioner
JANUARY 2024
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