CRUZ V. ARIZONA

Next fall, the Supreme Court of the United States will hear arguments in a death penalty case concerning a catch-22 the Supreme Court of Arizona created when it refused to hear claims based on long-settled law.

Since 1994, those potentially eligible for a sentence of death under Arizona law have not been eligible for parole. That same year, the United States Supreme Court held that in those circumstances and where future dangerousness has been put at issue, jurors are entitled to learn that the defendant is not eligible for parole. Yet, until 2016 the Supreme Court of Arizona refused to inform the jurors of this important information. In 2016, The Supreme Court re-affirmed what it said in 1994: jurors are entitled to learn the truth about the availability of parole. Yet, even after 2016, the Arizona Supreme Court has held that those sentenced before the 2016 decision are not entitled to enforcement of the 1994 rule. First, they were too early. Now they are too late.

Attorneys for John Montenegro Cruz, who is on death row in Arizona, will ask the high Court to ensure that those sentenced before 2016 receive a day in court. Beyond the life-and-death stakes for Mr. Cruz, its resolution could affect nearly two-dozen others on Arizona’s death row.

Lead counsel for Mr. Cruz is Neal Katyal, a former Acting Solicitor General and a partner at Hogan Lovells, who has argued 45 cases before the U.S. Supreme Court. His request for the Supreme Court to hear the case explained that the Arizona Supreme Court has twice “defie[d]” the U.S. Supreme Court and that granting review is necessary to “restore the supremacy of federal law in Arizona.” (Petition at 13).

Mr. Cruz received support from LatinoJustice, represented by a team of attorneys from Stroock, Stroock, and Lavan led by Bruce Schneider, who highlighted the problems with failing to provide the jury with accurate information about parole eligibility. Their brief explained, “When jurors are misinformed about the availability of parole, they may rely on this fear, along with other subjective biases, when making their decision.” (Br. at 7). That’s particularly relevant here where, in addition to Mr. Cruz, several other of the petitioners are Latinos. As LatinoJustice’s Senior Counsel, Andrew Case put it, “John Cruz was sentenced to death by an Arizona Jury conditioned to see Latinos as criminals by media portrayals, biased television reporting, and race-baiting politicians like Joe Arpaio. The fact that Mr. Cruz’s jury was not informed that he would not be eligible for parole if sentenced to life only increased the chances that his sentence was influenced by negative stereotypes about Latinos.”

And a group of leading habeas scholars, including the co-authors of a leading treatise on criminal procedure, made the point that Arizona is a singular outlier in how it has addressed this situation. In literally every other state that has faced a similar correction from the United States Supreme Court, defendants at least get a day in court. As Orrick’s Melanie Bostwick, counsel for the scholars, said, “Usually, whether states apply long-established rules of federal constitutional law is the easy question—the answer is yes. Arizona stands alone in saying that Mr. Cruz will never get his day in court on this question of life-and-death importance.” Another one of the amici, University of Texas at Austin’s Lee Kovarsky noted how Arizona’s decision would turn the criminal justice process on its head: “States are supposed to be the sites where we enforce our rules of criminal procedure, but that assumption does not work if states are permitted to play Arizona’s shell game. You can’t refuse enforcement at one moment because a right is too new, and then refuse enforcement the next because it is too old.”

The Supreme Court of the United States will hear arguments in the case and issue a decision next term.

Case Documents:

Cruz v. Arizona, Petition for Writ of Certiorari

Burns, et al. v. Arizona, Joint Petition for a Writ of Certiorari

Cruz v. Arizona, Brief of Amici Curiae Habeas Scholars in Support of Petitioner

Cruz v. Arizona, Brief of Amicus Curiae LatinoJustice PRLDEF in Support of Petitioner

Cruz v. Arizona, Brief in Opposition

Burns, et al. v. Arizona, Brief in Opposition

Cruz v. Arizona, Reply Brief

Burns, et al. v. Arizona, Reply Brief

Arizona v. Cruz, Opinion of the Supreme Court of Arizona

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