Amicus Curiae Brief — Lonnie Allen Bassett, Petitioner v. Arizona

No. 23-830

IN THE

Supreme Court of the United States

LONNIE ALLEN BASSETT,

Petitioner,

vs.

STATE OF ARIZONA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ARIZONA

BRIEF OF AMICI CURIAE NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE

LAWYERS, ARIZONA ATTORNEYS FOR

CRIMINAL JUSTICE, ARIZONA CAPITAL

REPRESENTATION PROJECT, ARIZONA

JUSTICE PROJECT, AND THE FEDERAL

PUBLIC DEFENDER FOR THE DISTRICT OF

ARIZONA IN SUPPORT OF PETITIONER

KEITH J. HILZENDEGER

Counsel of Record

Assistant Federal Public Defender

850 West Adams Street, Suite 201

Phoenix, Arizona 85007

(602) 382-2700 voice

keith_hilzendeger@fd.org

Counsel for Amici Curiae

Additional Counsel Listed in Signature Block

I

TABLE OF CONTENTS

Table of Authorities .......................................................... iii

Interests of Amici Curiae ................................................. 1

Introduction and Summary of Argument ........................ 3

Argument ............................................................................. 5

1. At the time of Mr. Bassett’s trial and sentencing

hearing, Arizona had a mandatory life-withoutparole sentencing scheme, which is

unconstitutional as applied to juveniles under

Miller. ...................................................................... 5

A. At the time Mr. Bassett was sentenced,

Arizona law did not allow him to be sentenced

to anything other than life without the

possibility of parole. .......................................... 5

B. The availability of clemency—the only type of

“release” that was legally available at the time

Mr. Bassett was sentenced—is not

constitutionally equivalent to the possibility of

parole. ................................................................. 7

2. Mr. Bassett and other similarly situated juvenile

offenders in Arizona sentenced to life without

parole have never received a Miller-compliant

sentencing, and the court’s decision below will

prevent them from ever having their capacity

for rehabilitation reviewed. ................................... 9

A. Because Arizona’s sentencing scheme did not

allow for a parole-eligible sentence, juvenile

offenders in Arizona like Mr. Bassett did

not have Miller-compliant sentencing

hearings. ............................................................ 9

II

B. Arizona’s sentencing procedures did not

sufficiently narrow the class of juvenile

offenders for whom natural life is an

appropriate sentence. ..................................... 11

C. The vast majority of juveniles in Arizona

unconstitutionally sentenced to life without

parole have not received any type of relief

since Miller. ..................................................... 13

D. The lower Arizona courts are relying on the

decision below to permanently deny relief and

any possibility of release to other similarly

situated defendants. ....................................... 14

Conclusion .......................................................................... 18

III

TABLE OF AUTHORITIES

Cases:

Chaparro v. Shinn, 459 P.3d 50 (Ariz. 2020) ............. 6

Cruz v. Arizona, 598 U.S. 17 (2023) .................... 14, 15

Graham v. Florida, 560 U.S. 48 (2010) ....................... 7

Jones v. Mississippi,

593 U.S. 98 (2021) ................................ 1, 4, 9–10, 12–17

Lynch v. Arizona,

578 U.S. 613 (2016) (per curiam) ............................. 6–8

Miller v. Alabama,

567 U.S. 460 (2012) ................................ 1, 3–6, 8–15, 17

Montgomery v. Louisiana,

577 U.S. 190 (2016) .......................... 1, 3–4, 9–10, 12–15

Roper v. Simmons,

543 U.S. 551 (2005) ................................................ 10, 11

Solem v. Helm, 463 U.S. 277 (1983) ............................ 7

State ex rel. Mitchell v. Cooper,

535 P.3d 3 (Ariz. 2023) ................................................ 15

State v. Arias, No. 1 CA-CR 22-0064 PRPC

(Ariz. Ct. App. Sept. 25, 2023) ................................... 15

State v. Aston, No. 1 CA-SA 22-0068

(Ariz. Ct. App. Jan. 3, 2024) ....................................... 15

State v. Bosquez, No. 1 CA-CR 22-0360 PRPC

(Ariz. Ct. App. Feb. 6, 2024) ...................................... 15

State v. Cabanas, No. 1 CA-CR 21-0534 PRPC

(Ariz. Ct. App. Dec. 6, 2023) ...................................... 15

State v. Conley, No. 1 CA-CR 22-0266 PRPC

(Ariz. Ct. App. Feb. 6, 2024) ...................................... 15

IV

State v. Dansdill,

443 P.3d 990 (Ariz. Ct. App. 2019) ............................... 8

State v. McLeod, No. 1 CA-SA 22-0196

(Ariz. Ct. App. Oct. 13, 2023) ..................................... 15

State v. Odom, No. 1 CA-CR 21-0537 PRPC

(Ariz. Ct. App. Sept. 25, 2023) ................................... 15

State v. Pierce, No. 2 CA-CR 22-0160 PR

(Ariz. Ct. App. Nov. 16, 2023) .................................... 15

State v. Valencia, 386 P.3d 392 (Ariz. 2016) ........... 4, 5

State v. Vera, 334 P.3d 754 (Ariz. Ct. App. 2014) ...... 5

State v. Wagner, No. 1 CA-CR 21-0492 PRPC

(Ariz. Ct. App. Dec. 20, 2023) .................................... 15

Tatum v. Arizona, 580 U.S. 952 (2016) .................... 13

Viramontes v. Attorney General of Arizona, No.

4:16-cv-151-TUC-RM, 2021 WL 977170

(D. Ariz. Mar. 16, 2021) ............................................ 7, 8

Constitution, statutes, and rules:

U.S. Const. amend. VIII .............................................. 1

18 U.S.C. § 3006A ......................................................... 3

18 U.S.C. § 3599 ............................................................ 3

28 U.S.C. § 2254 ...................................................... 3, 16

Ariz. Rev. Stat. § 13-751 ............................................. 16

Ariz. Rev. Stat. § 13-752 ............................................... 5

Ariz. Rev. Stat. § 41-1604.09 ........................................ 5

Ariz. R. Crim. P. 32.1 ............................................ 14, 15

Miscellaneous:

Brief in Opposition, Rue v. Thornell, No. 22-6027

(U.S. Mar. 7, 2023) ...................................................... 16

V

Brief of Amicus Curiae Arizona Attorneys for

Criminal Justice, State v. Valencia,

No. CR-16-0156-PR (Ariz. Jul. 15, 2016) .................. 12

Defendant’s Motion for Certification or Dismissal,

Chaparro v. Shinn, No. 2:19-cv-650-PHX-DWL (D.

Ariz. Mar. 27, 2019) ....................................................... 6

Supplemental Merits Brief of Plaintiff-Appellant,

Shinn v. Board of Executive Clemency, No. CV-210275-PR (Ariz. May 24, 2022) ...................................... 6

1

INTERESTS OF AMICI CURIAE

Amici are 1 the National Association of Criminal

Defense Lawyers, Arizona Attorneys for Criminal

Justice, the Arizona Capital Representation Project, the

Arizona Justice Project, and the Federal Public Defender

for the District of Arizona. Amici have a strong interest

in the consistent and reliable application of the Eighth

Amendment’s prohibition on disproportionate punishment, as interpreted in Miller v. Alabama, 567 U.S. 460

(2012), Montgomery v. Louisiana, 577 U.S. 190 (2016),

and Jones v. Mississippi, 593 U.S. 98 (2021), and in

ensuring that juvenile life-without-parole sentences are

imposed only in the rare case where that harsh sentence

is constitutional.

The National Association of Criminal Defense

Lawyers (NACDL) is a nonprofit voluntary professional

bar association that works on behalf of criminal defense

attorneys to ensure justice and due process for those

accused of crime or misconduct. NACDL was founded in

1958. It has a nationwide membership of many thousands

of direct members, with up to 40,000 more in its affiliates.

NACDL’s members include private criminal defense

lawyers, public defenders, military defense counsel, law

professors, and judges. NACDL is the only nationwide

professional bar association for public defenders and

private criminal defense lawyers. NACDL is dedicated to

advancing the proper, efficient, and just administration of

Pursuant to Rule 37.2, amici have informed counsel of record

for all parties of their intention to file this brief more than 10 days

before its due date. Pursuant to Rule 37.6, amici affirm that no

counsel for a party authored this brief in whole or in part, and that no

person or entity other than amici, their members, and their counsel

made a monetary contribution intended to fund the preparation or

submission of this brief.

1

2

justice. NACDL files numerous amicus briefs each year

in the U.S. Supreme Court and other federal and state

courts, seeking to provide assistance in cases that present

issues of broad importance to criminal defendants,

criminal defense lawyers, and the criminal justice system

as a whole.

Arizona Attorneys for Criminal Justice (AACJ), the

Arizona state affiliate of NACDL, 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.

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. ACRP also

represents several individuals sentenced to life without

parole for offenses committed when juveniles.

The Arizona Justice Project (AJP) is a non-profit

organization dedicated to preventing and overturning

wrongful convictions and other manifest injustices, such

as excessive or unconstitutional sentences. Since its

founding in 1998, AJP has received several thousands of

requests for assistance from individuals incarcerated in

Arizona prisons and has represented numerous

individuals before courts of law and the Arizona Board of

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Executive Clemency, including many juvenile offenders

who have been successfully rehabilitated. AJP has a

compelling interest in ensuring affected juvenile

defendants receive sentences that comply with the Eighth

Amendment’s prohibition on cruel and unusual

punishment.

The Federal Public Defender for the District of

Arizona (FPD) is the organization established under the

Criminal Justice Act of 1964, 18 U.S.C. § 3006A(g), to

provide representation of indigent criminal defendants

before the federal trial and appellate courts covering

Arizona. Under 18 U.S.C. §§ 3006A(a)(2)(B) and

3599(a)(2), the FPD also represents Arizona state

prisoners seeking relief in federal court under 28 U.S.C.

§ 2254 from their unconstitutional sentences of either

incarceration or death. The FPD has represented

numerous individuals in federal habeas proceedings

challenging the constitutionality of their life-withoutparole sentences following this Court’s decisions in Miller

and Montgomery.

Amici have a particular and informed perspective on

the operation of Arizona’s first-degree murder sentencing

scheme and Arizona’s response to this Court’s decision in

Miller declaring mandatory life-without-parole sentences

for juvenile offenders unconstitutional.

INTRODUCTION AND SUMMARY OF ARGUMENT

Dozens of juvenile offenders in Arizona—like

petitioner Lonnie Bassett—were sentenced to life

imprisonment without the opportunity for any type of

release for crimes they committed as teenagers. Because

the Arizona Legislature eliminated parole for all felonies

committed after 1993, juvenile offenders sentenced

between 1994 and 2014 in Arizona were sentenced under

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a scheme in which judges had no discretion to grant a

parole-eligible sentence.

Despite this Court’s clear directive in Miller v.

Alabama, 567 U.S. 460 (2012), reaffirmed and made

retroactive in Montgomery v. Louisiana, 577 U.S. 190

(2016), that a sentencing scheme that requires a sentence

of life without the possibility of parole for a juvenile

offender constitutes cruel and unusual punishment in

violation of the Eighth Amendment, the State of Arizona

has repeatedly refused to allow individuals who received

these unconstitutional sentences to be resentenced. While

this Court recently reaffirmed in Jones v. Mississippi

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,” 593 U.S. 98, 100 (2021), the State of Arizona

interpreted that decision to foreclose any further relief to

Arizona juvenile offenders unconstitutionally sentenced

to mandatory life without parole.

In the wake of Montgomery, the Arizona Supreme

Court held that individuals like Mr. Bassett were entitled

to postconviction evidentiary hearings at which they could

prove that their sentences did not reflect “irreparable

corruption” so as to warrant a life-without-parole

sentence. State v. Valencia, 386 P.3d 392, 395–96 (Ariz.

2016) (quoting Miller, 567 U.S. at 479–80). But here, the

Arizona Supreme Court reversed course, holding that

juvenile offenders in Arizona are not eligible for such

hearings even though their life-without-parole sentences

were mandatory at the time they were imposed. 2 The

The Valencia court resisted characterizing the sentences as

mandatory, even as it acknowledged a sentencing judge’s lack of

discretion to impose a parole-eligible sentence. Against the backdrop

of the aggravating and mitigating factors for first-degree murder, see

2

5

Arizona Supreme Court once again has demonstrated its

unique inability to follow this Court’s straightforward

holdings. As a result of the Arizona Supreme Court’s

decision in Mr. Bassett’s case, dozens of juvenile offenders

who were unconstitutionally sentenced to mandatory lifewithout-parole sentences will lose their chance to ever

have a Miller-compliant re-sentencing hearing.

ARGUMENT

1. At the time of Mr. Bassett’s trial and sentencing

hearing, Arizona had a mandatory life-withoutparole sentencing scheme, which is unconstitutional as applied to juveniles under Miller.

A. At the time Mr. Bassett was sentenced, Arizona

law did not allow him to be sentenced to

anything other than life without the possibility

of parole.

In Miller, this Court properly identified Arizona as a

jurisdiction with a mandatory life-without-parole

sentencing scheme. See 567 U.S. at 482, 486–487 & nn.9,

13, 15. Effective January 1, 1994, the Arizona legislature

prospectively eliminated the state’s parole scheme. Ariz.

Rev. Stat. § 41-1604.09; see also State v. Vera, 334 P.3d

754, 758 (Ariz. App. 2014) (“Because the Arizona

legislature had eliminated parole for all offenders who

committed offenses after January 1, 1994…, [a

defendant’s] only possibilities for release would be

Ariz. Rev. Stat. § 13-752(F), (G), the court said that the “natural life

sentences at issue… were not mandatory but did amount to sentences

of life without parole” because the “system of ‘earned release

credits,’” which replaced the parole scheme, “did not by its terms

apply to natural life sentences.” 386 P.3d at 394 (citing State v. Vera,

334 P.3d 754, 758–59 (Ariz. Ct. App. 2014)).

6

through a pardon or commutation by the governor.”)

(cleaned up). Accordingly, when Mr. Bassett was

sentenced in 2006, no sentence the judge could have

legally imposed would have allowed for the possibility of

parole. See Lynch v. Arizona, 578 U.S. 613, 615 (2016) (per

curiam) (“But under state law, the only kind of release for

which Lynch would have been eligible—as the State does

not contest—is executive clemency.”).

The state argued below that some Arizona courts’

mistaken belief that parole was still available after 1994

somehow converts Arizona’s sentencing scheme into one

that did not mandatorily impose life without parole for

first-degree murder. But the Arizona Supreme Court

itself has explained that a parole-eligible sentence was not

legally available when Mr. Bassett was sentenced. See

Chaparro v. Shinn, 459 P.3d 50, 52, 54 (Ariz. 2020)

(characterizing a sentence that “include[s] parole

eligibility after he has served 25 years,” as “illegally

lenient”). As Mr. Bassett explains in his petition, the state

previously argued that Arizona did have mandatory lifewithout-parole sentencing before Miller. (Pet. 8.) And the

state has continued to argue in other cases, as recently as

2022, that Arizona’s sentencing scheme unambiguously

barred parole eligibility and that judges understood that

parole was not available, even where, as in Mr. Bassett’s

case, parole was referenced during sentencing

proceedings. See Defendant’s Motion for Certification or

Dismissal at 2, 12–13, Chaparro v. Ryan, No. 2:19-cv-650DWL (D. Ariz. Mar. 27, 2019); Supplemental Merits Brief

of Plaintiff-Appellant at 5, Shinn v. Board of Executive

Clemency, No. CV-21-0275-PR (Ariz. May 24, 2022) (“[I]n

1994, first-degree murderers… were not statutorily

eligible for parole; they were eligible only for ‘release,’ i.e.

commutation or pardon.”).

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B. The availability of clemency—the only type of

“release” that was legally available at the time

Mr. Bassett was sentenced—is not constitutionally equivalent to the possibility of parole.

If an Arizona defendant convicted of first-degree

murder after 1993 received a sentence carrying the

possibility of “release after 25 years,” the “only kind of

release” for which that defendant was statutorily eligible

was executive clemency. Lynch, 578 U.S. at 615. Yet in the

decision below, the Arizona Supreme Court ignored this

Court’s directive in Lynch: executive clemency is not

constitutionally equivalent to parole. 578 U.S. at 615–16;

see also Solem v. Helm, 463 U.S. 277, 303 (1983)

(“Recognition of such a bare possibility [of executive

clemency] would make judicial review under the Eighth

Amendment meaningless.”).

In Graham v. Florida, this Court explicitly held that

“the remote possibility” of executive clemency is not a

constitutionally adequate substitute for parole. 560 U.S.

48, 70 (2010). Graham considered a scheme analogous to

Arizona’s: Florida had abolished its parole system, leaving

executive clemency as the only available form of release.

Id. at 57 (“Because Florida has abolished its parole

system… a life sentence gives a defendant no possibility

of release unless he is granted executive clemency.”). This

Court concluded that, in the case of juveniles, Florida’s

sentencing scheme providing for executive clemency was

not constitutionally interchangeable with one providing

for parole. Id. at 70.

The Eighth Amendment distinguishes parole, which

represents a meaningful opportunity for release, from

executive clemency, which—in Arizona especially—

amounts to a de facto natural life sentence. See

Viramontes v. Att’y Gen. of Arizona, No. 4:16-cv-151-

8

TUC-RM, 2021 WL 977170, at *2 (D. Ariz. March 16,

2021) (“Unlike parole, the chances of obtaining release

through executive clemency are slim.”); id. at *2 n.2

(citing statistics from 2013 in which parole was granted in

approximately 24% of cases, while commutation was

granted in only 0.005% of cases); see also State v.

Dansdill, 443 P.3d 990, 1000 n.10 (Ariz. Ct. App. 2019)

(“[I]n Arizona, the possibility that a life sentence may

allow for release after twenty-five years is more

theoretical than practical. Parole was eliminated for all

offenses committed after January 1, 1994, leaving

commutation or pardon as the only possibilities for

release…. The likelihood of either is so remote that the

mandatory noncapital life sentence for felony murder is

constitutionally indistinct from the mandatory noncapital

natural life sentence for premeditated murder.”) (cleaned

up). The possibility of clemency is particularly illusory in

Arizona: amici who track clemency proceedings in

Arizona are not aware of a single instance in which an

individual convicted of first-degree murder since Arizona

eliminated parole in 1994 has received a grant of executive

clemency (i.e., commutation of sentence or pardon), which

requires a recommendation from the Board of Executive

Clemency and approval by the Governor.

As in Lynch, the Arizona Supreme Court in the

decision below has once again failed to acknowledge the

constitutionally significant difference between the only

type of release Mr. Bassett’s sentencing judge could

lawfully permit—executive clemency—and the type of

release Miller requires a judge to have discretion to

impose—parole.

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2. Mr. Bassett and other similarly situated juvenile

offenders in Arizona sentenced to life without

parole have never received a Miller-compliant

sentencing, and the court’s decision below will

prevent them from ever having their capacity for

rehabilitation reviewed.

A. Because Arizona’s sentencing scheme did not

allow for a parole-eligible sentence, juvenile

offenders in Arizona like Mr. Bassett did not

have Miller-compliant sentencing hearings.

This Court has repeatedly held that “the Eighth

Amendment forbids a sentencing scheme that mandates

life in prison without possibility of parole for juvenile

offenders.” Miller, 567 U.S. at 479; see also Jones, 593

U.S. at 118 (“Today’s decision does not disturb [the]

holding” of Miller “that a State may not impose a

mandatory life-without-parole sentence on a murderer

under 18.”). Despite these clear precedents, the court

below held that “Miller and its progeny do not specifically

require the availability of parole when sentencing a

juvenile offender.” (Pet. App. 19a.) That is the opposite of

what this Court held in Miller, Montgomery, and, most

recently, Jones: “[A]n 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.” Jones, 593 U.S. at 100 (emphasis

added).

As explained above—and as acknowledged by the

court below—Arizona courts sentencing offenders like

Mr. Bassett between 1994 and 2014 did not have

discretion to impose a life sentence that carried the

possibility of parole. Sentences that are more severe were

available, including natural life with no eligibility for any

10

kind of executive clemency, and death. But Miller’s

prohibition on mandatory sentencing requires a sentencer

to have discretion to impose a sentence of life with the

possibility of parole or a less severe sentence than those

two. See 567 U.S. at 474–76.

Indeed, many of the individuals now sentenced to

natural life for crimes committed as juveniles were

sentenced at a time when death was an available sentence.

While Mr. Bassett’s case was pending trial, this Court

held in Roper v. Simmons that executing a person for a

crime committed during childhood violates the Eighth

Amendment. 543 U.S. 551 (2005). Prior to Simmons,

Arizona law allowed certain offenders younger than 18 to

be sentenced to death. Of the 29 individuals throughout

Arizona currently serving natural life for crimes

committed when they were children, 19 were sentenced

before Simmons was decided. This timing matters for two

reasons. First, Simmons marked the beginning of a

paradigm shift—continued in this Court’s later

jurisprudence through Miller and its progeny—in how

juvenile crime and punishment are understood under the

Eighth Amendment. While judges may have considered

youth as a chronological fact in pre-Simmons cases, they

could not have appreciated the constitutional significance

of “youth and its attendant characteristics” that this

Court has since held must factor into sentencing. Jones,

593 U.S. at 111 (quoting Montgomery, 577 U.S. at 210).

Second, because death was an alternative available

punishment, the fact that these individuals received a less

severe sentence—natural life—indicates that they are not

among the “rarest of children, those whose crimes reflect

‘irreparable corruption.’” Montgomery, 577 U.S. at 195

(quoting Miller, 567 U.S. at 479–80).

Under Arizona’s pre-Simmons scheme, a natural-life

sentence does not reliably indicate that an individual falls

11

within the class of juveniles for whom a life-without-parole

sentence is constitutionally permissible. To the contrary,

in these cases, a natural life sentence reflects either a

prosecutorial or judicial determination that an individual

is not one of the “worst of the worst” for whom the

harshest possible penalty—life without the possibility of

parole—is appropriate.

B. Arizona’s sentencing procedures did not

sufficiently narrow the class of juvenile

offenders for whom natural life is an

appropriate sentence.

Simmons marked the beginning of a dramatic shift in

how juvenile offenders are treated under the Eighth

Amendment––a shift that this Court has continued to bear

out and expand in the two decades since. Simmons

described the meaningful differences between child and

adult offenders and acknowledged that these differences

are of constitutional import. 543 U.S. at 569–71. In

Simmons the Court concluded that, given juveniles’

“diminished culpability,” the “penological justifications”

for the most severe penalty “apply to them with lesser

force than to adults.” Id. at 571. Accordingly, in Miller,

this Court stated that “given all we have said in Roper,

Graham, and this decision about children’s diminished

culpability and heightened capacity for change, we think

appropriate occasions for sentencing juveniles to this

harshest possible penalty [i.e., life without the possibility

of parole] will be uncommon.” 567 U.S. at 479. While the

Court stopped short of outlawing life-without-parole

sentences for juveniles, it mandated that sentencers “take

into account how children are different, and how those

differences counsel against irrevocably sentencing them

to a lifetime in prison.” Id. at 480.

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A few years later in Montgomery, this Court explained

that under Miller, “a lifetime in prison is a disproportionate sentence for all but the rarest of children, those

whose crimes reflect irreparable corruption.” 577 U.S. at

195 (cleaned up). This Court then affirmed in Jones the

outcome-driven policy behind Montgomery and Miller

that a discretionary sentencing scheme in which youth

and its attendant characteristics must be considered will

“help[] ensure that life-without-parole sentences are

imposed only in cases where that sentence is appropriate

in light of the defendant’s age,” 593 U.S. at 111–12, and

that these procedures themselves “would make lifewithout-parole sentences ‘relatively rare’ for juvenile

offenders.” Id. at 112–13. In Jones, this Court assumed

that Miller’s promise had come true, and that “when given

the choice, sentencers impose life without parole on

children relatively rarely.” Id. (quoting Miller, 567 U.S. at

483 n.10).

Unfortunately, in Arizona, Miller’s promise has not

proven true. Even assuming there was a meaningful

difference between life with the possibility of release and

natural life sentences, Arizona sentencing courts impose

natural life on juvenile offenders at an alarmingly high

rate. See Brief of Amicus Curiae Arizona Attorneys for

Criminal Justice at 11 and Appx. A, State v. Valencia, No.

CR-16-0156-PR (Ariz. July 15, 2016) (collecting data

demonstrating that more than 30% of juvenile offenders

convicted of first-degree murder in Arizona are sentenced

to natural life). This is hardly reconcilable with Jones’s

assumption that “when given the choice, sentencers

impose life without parole on children relatively rarely,”

593 U.S. at 112, and thus is more evidence that Arizona’s

scheme at the time of Mr. Bassett’s sentencing did not

comply with Miller’s directives.

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C. The vast majority of juveniles in Arizona

unconstitutionally sentenced to life without

parole have not received any type of relief since

Miller.

In Jones, this Court assumed 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.” Jones, 593

U.S. at 110 n.4. But this assumption also has not proven

true in Arizona. The State of Arizona has successfully

fought to prevent re-sentencing hearings from occurring

in almost all cases. Immediately after Miller, the state

argued that Miller was not retroactive and did not provide

a basis for postconviction relief under Arizona law—a

position this Court rejected in Montgomery. Following

Montgomery, this Court vacated and remanded several

Arizona cases, finding that the Arizona courts had not

properly “take[n] into account how children are different,

and how those differences counsel against irrevocably

sentencing them to a lifetime in prison.” Tatum v.

Arizona, 580 U.S. 952, 952 (2016) (Sotomayor, J.,

concurring) (quoting Miller, 567 U.S. at 480). While a

handful of defendants were resentenced following

Montgomery and Tatum, most were not. In Maricopa

County—Arizona’s most populous county, where the vast

majority of natural life sentences in Arizona were

imposed—not a single one of the 25 juvenile offenders who

received natural life sentences has been resentenced since

Miller. This was not consistent with the Court’s

assumption when it decided Jones. Yet the State of

Arizona has continued to argue juveniles are not entitled

to any hearings on the constitutionality of their lifewithout-parole sentences, most recently relying on this

Court’s decision in Jones to argue to Arizona courts that

Miller is meaningless in Arizona and to convince them to

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vacate pending

proceedings.

re-sentencing

and

postconviction

Unlike the defendant in Jones, whose life-withoutparole sentence was upheld following a post-Miller resentencing hearing, Mr. Bassett and similarly situated

juveniles sentenced to mandatory life without parole in

Arizona have never received a re-sentencing hearing.

These individuals have never had the discretionary

sentencing at which a judge would consider a child’s

“‘diminished culpability and heightened capacity for

change’ before condemning him or her to die in prison.”

Montgomery, 577 U.S. at 195 (quoting Miller, 567 U.S at

479). As a result, Arizona’s procedures have failed to

distinguish between the “rarest” children whose crimes

reflect permanent incorrigibility—for whom life without

parole may be a permissible sentence—and the majority

of children whose crimes reflect transient immaturity—

for whom such a sentence is disproportionate under the

Eighth Amendment. Jones, 593 U.S. at 106 n.2 (quoting

Montgomery, 577 U.S. at 211).

D. The lower Arizona courts are relying on the

decision below to permanently deny relief and

any possibility of release to other similarly

situated defendants.

Despite the faulty logic of the Arizona Supreme

Court’s decision below, lower courts have found their

hands tied by the decision. Bound by the decision below,

lower courts in Arizona have denied review to all other

juvenile offenders in Arizona who had pending claims that

they are entitled to postconviction relief because Miller is

a change in the law that would likely make their sentences

unconstitutional. Notably, such claims arose under

Arizona Rule of Criminal Procedure 32.1(g), the same

state rule at issue in Cruz v. Arizona, 598 U.S. 17 (2023).

15

Under the decision below, lower courts are dismissing

pending postconviction proceedings and finding that all

juvenile lifers in Arizona are categorically not entitled to

relief, without individualized consideration of each case.

See, e.g., State v. Wagner, No. 1 CA-CR 21-0492 PRPC

(Ariz. Ct. App. Dec. 20, 2023) (denying relief because

“under the Arizona Supreme Court’s holding in [State ex

rel. Mitchell v. Cooper (Bassett), 256 Ariz. 1 (2023)],”

Miller is not a “significant change in the law that, if

applied to Wagner’s case, would probably overturn his

sentence, [and therefore] Wagner is not entitled to relief

under Arizona Criminal Rule of Procedure 32.1(g)”); see

also State v. Arias, No. 1 CA-CR 22-0064 PRPC (Ariz. Ct.

App. Sept. 25, 2023) (denying relief to defendant following

the Arizona Supreme Court’s decision in State v. Hon.

Cooper/Bassett); State v. Odom, No. 1 CA-CR 21-0537

PRPC (Ariz. Ct. App. Sept. 25, 2023) (same); State v.

McLeod, No. 1 CA-SA 22-0196 (Ariz. Ct. App. Oct. 13,

2023) (same); State v. Pierce, No. 2 CA-CR 22-0160 PR

(Ariz. Ct. App. Nov. 16, 2023) (same); State v. Cabanas,

No. 1 CA-CR 21-0534 PRPC (Ariz. Ct. App. Dec. 6, 2023)

(same); State v. Aston, No. 1 CA-SA 22-0068 (Ariz. Ct.

App. Jan. 3, 2024) (same); State v. Conley, No. 1 CA-CR

22-0266 PRPC (Ariz. Ct. App. Feb. 6, 2024) (same); State

v. Bosquez, No. 1 CA-CR 22-0360 PRPC (Ariz. Ct. App.

Feb. 6, 2024) (same). While several other cases are still

pending in the Arizona courts, these results furnish no

reason to believe that they will depart from the Arizona

Supreme Court’s holding here. Thus, the decision below

represents a bar to all Arizona juveniles challenging their

mandatory life-without-parole sentences as unconstitutional under Miller—a perverse result given this

Court’s rulings in Montgomery, Tatum, Jones, and Cruz.

This Court should grant review to correct the Arizona

Supreme Court’s error and allow these cases to proceed

to litigation on the merits of the individuals’ constitutional

16

claims challenging their sentences in the Arizona state

courts. The Arizona Attorney General’s Office has

previously asked this Court to deny review in similar

cases seeking certiorari review from the Ninth Circuit,

requesting this Court to delay review while Mr. Bassett’s

case was pending in the Arizona Supreme Court because

it was possible that there would be a state remedy that

would moot any federal claims. See, e.g., Brief in

Opposition at 27‒28, Rue v. Thornell, No. 22-6027 (Mar. 7,

2023). The State further argued that instead of using a

habeas case subject to the limitation on relief in 28 U.S.C.

§ 2254(d), “the better vehicle [for this Court] to address

the constitutionality of Arizona [sentencing] statutes

would be a decision from the Arizona Supreme Court

interpreting and analyzing those statutes.” Id. at 28. The

opportunity the State of Arizona asked this Court to wait

for in Rue is now here. The Court should not allow the

State of Arizona to continue to ignore this Court’s

precedents, to disavow its own previous arguments, and

to deny individuals with potentially meritorious

constitutional claims their day in court.

Finally, this Court in Jones concluded its analysis by

stating that the Court’s decision was “far from the last

word on whether Jones will receive relief from his

sentence” because the Court’s decision allowed him to

present his “moral and policy arguments for why he

should not be forced to spend the rest of his life in prison”

to “the state officials authorized to act on them.” Jones,

593 U.S. at 121. Unfortunately, no such opportunity exists

for juveniles like Mr. Bassett sentenced to natural life in

Arizona. Under Arizona law, a natural life sentence

prevents an individual from ever seeking review of his

sentence through any form of executive clemency and

denies him any opportunity to present evidence of his

rehabilitation. See Ariz. Rev. Stat. § 13-751(A)(1) (“A

defendant who is sentenced to natural life is not eligible

17

for commutation, parole, work furlough, work release or

release from confinement on any basis.”). As explained

above, the natural life sentence imposed on Mr. Bassett

and other juvenile offenders in Arizona is even harsher

than the life-without-parole sentences this Court

considered in Miller and Jones. If the Court allows the

decision of the Arizona Supreme Court below to stand, it

will truly shut the prison gates forever for impacted

juvenile offenders in Arizona.

18

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

JON M. SANDS

Federal Public Defender

KEITH J. HILZENDEGER

Counsel of Record

Assistant Federal Public Defender

850 West Adams Street, Suite 201

Phoenix, Arizona 85007

(602) 382-2700 voice

keith_hilzendeger@fd.org

Additional counsel:

JEFFREY T. GREEN

Co-Chair, Amicus Committee

National Association of

Criminal Defense Lawyers

1660 L Street NW

Washington, DC 20036

AMY ARMSTRONG

SAM KOOISTRA

Arizona Capital

Representation Project

25 South Grande Avenue

Tucson, Arizona 85745

KAREN S. SMITH

LILIAN NIMLO

Arizona Justice Project

4001 North 3rd Street,

Suite 401

Phoenix, Arizona 85012

DAVID J. EUCHNER

Co-Chair, Amicus Committee

Arizona Attorneys for

Criminal Justice

33 North Stone Avenue,

21st Floor

Tucson, Arizona 85701