On February 22, 2023, the United States Supreme Court shot down what can only be described as a “Kafkaesque” scheme in Arizona that robbed defendants facing the death penalty of their right to inform the jury that a life sentence in Arizona would be without parole.
Cruz was convicted of murder and sentenced to death in 2005. At trial, Cruz wanted to present to the jury, for its consideration of whether to impose the death penalty, that a life sentence in Arizona is without parole. In so doing, Cruz asked the court to apply the Supreme Court’s opinion in Simmons v. South Carolina, 512 U. S. 154 (1994), which held that, during the penalty phase of a capital sentencing proceeding, states must inform a jury whether the defendant would be eligible for parole if they were not sentenced to death. The trial court denied his request, finding that Simmons did not apply to Arizona’s sentencing scheme.
In a line of subsequent cases, the Arizona Supreme Court serially held that Simmons did not apply in Arizona. In particular, the court found that the possibility of executive clemency meant there was an option other than a life sentence without parole. Those cases eventually reached the Supreme Court, which squarely rejected the executive clemency rationale in Lynch v. Arizona, 578 U. S. 613 (2016), finding that Simmons unequivocally applies in Arizona.
Cruz sought post-conviction relief, citing Lynch as a significant change in the law. The Arizona Supreme Court disagreed and denied relief. In particular, Arizona determined that Lynch was not a substantial change in the law because of Simmons – but rather Lynch was only a change in application of the law. The court also held that Lynch did not apply retroactively. Therefore, capital defendants in cases that were decided after Simmons but before Lynch were deprived of the right to inform juries that the alternative to the death penalty would be life without parole.
This is where Arizona went awry – as Justice Kagan said it best at oral argument –
I think Kafka would have loved this. Cruz loses his Simmons claims on direct appeal because the Arizona courts say point-blank Simmons has never applied in Arizona. And then he loses the next time around because the Arizona courts say Simmons always applied …. I mean, tails you win, heads I lose, whatever that expression is?
The majority found that the Arizona Supreme Court’s interpretation of its own rule allowing post-conviction relief for a significant change in the law was wrong, and not in keeping with Arizona’s own prior decisions, let alone the federal decisions. Arizona courts had clearly and consistent found cases that overruled binding Arizona precedent were indeed as significant change in the law – Lynch was no different.
Justice Sotomayor wrote the opinion, joined by Justices Kagan, Jackson, Kavanaugh, and Chief Justice Roberts. Justice Barrett wrote the dissent, joined by Justices Thomas, Alito, and Gorsuch. Surprisingly, Justice Kavanaugh split from the conservative justices.