When a prisoner on death row wins a case before this Supreme Court, the logical response is to breathe a sigh of relief. That doesn’t happen very often these days.
But read the facts of Cruz’s case, and a less cheery, more chilling, reaction seems called for: How can it be that Cruz’s life was spared by only a bare majority? Four other conservatives, in a decision written by Justice Amy Coney Barrett, would have stuck with a cramped rules-are-rules mentality to let an obviously unconstitutional death sentence stand.
How unconstitutional? Eleven years before Cruz’s trial, in Simmons v. South Carolina, the Supreme Court had ruled that when prosecutors arguing for the death penalty cite the risk of future “dangerousness,” defendants have the right to let the jury know that the alternative to a death sentence would be life without the possibility of parole.
That’s what Cruz asked for at his trial. The judge not only refused — he incorrectly instructed the jury that Cruz could be eligible for parole after 25 years. And that seemed to make a difference to the jurors in deciding whether to impose a death sentence.
“Many of us would rather have voted for life if there was one mitigating circumstance that warranted it,” the jury foreperson and two other jurors said in a statement the day after the sentence was imposed. “In our minds there wasn’t. We were not given an option to vote for life in prison without the possibility of parole.”
So Cruz sought a new trial. He lost, and lost again before the Arizona Supreme Court, which, again incorrectly, asserted that Simmons didn’t apply to Arizona’s death penalty sentencing scheme because parole was available. In 2009, the U.S. Supreme Court declined to hear the case.
But in 2016, the high court, seemingly exasperated by the Arizona courts’ repeated recalcitrance, summarily reversed the Arizona Supreme Court. Yes, the high court said in Lynch v. Arizona, Simmons did apply in Arizona.
Cruz, armed with the new ruling, went back to the Arizona state courts, and here is where, as Justice Elena Kagan observed at oral argument, his predicament became one that “Kafka would have loved.”
Cruz relied on a provision of Arizona law that allows new challenges when “there has been a significant change in the law that, if applicable to the defendant’s case, would probably overturn the defendant’s judgment or sentence.”
Sounds like a winning argument, right? Not in Arizona. Having found in 2008 that Simmons didn’t cover Cruz’s case, the Arizona Supreme Court now switched gears and asserted exactly the opposite: that Simmons had applied all along. That meant the high court’s 2016 ruling in Lynch “was not a significant change in the law,” only “a significant change in the application of the law.” Translation: tough luck.
In our federal system, the Supreme Court has the authority to review state supreme court decisions for violations of the U.S. Constitution. But in the interests of federalism, the high court has said it will not disturb rulings that rest on “adequate and independent” state grounds.
Writing for the majority, Justice Sonia Sotomayor said Arizona’s application of its rule was simply wrong — so wrong, in fact, that the Supreme Court was justified in taking the unusual step of intervening to reverse the state court.
“Before Lynch, Arizona courts held that capital defendants were not entitled to inform the jury of their parole ineligibility. After Lynch, Arizona courts recognize that capital defendants have a due process right to provide the jury with that information when future dangerousness is at issue,” she wrote. “It is hard to imagine a clearer break from the past.”
Barrett, dissenting, seemed far more worked up about the supposed injury to states’ rights. “Our job is to determine whether the Arizona Supreme Court’s decision is defensible, and we owe the utmost deference to the state court in making that judgment,” she wrote. The assertion that the Arizona court’s interpretation of its rule wasn’t adequate, she said, “is jarring, because the bar for finding inadequacy is extraordinarily high.”
Jarring, really? Jarring is executing a man who failed to receive a fair sentencing hearing by the Supreme Court’s own standards, and who raised that claim promptly. Arizona will somehow manage to survive the incursions on its sovereignty. And what is the terrible harm to the state here? That it must hold another sentencing hearing — only this time conduct it fairly? That scarcely seems too much to ask before executing someone.
Cruz v. Arizona isn’t the kind of case that makes headlines. It is technical to the point of mind-numbing. But it is the kind of case that tells us about the kind of court we have, and the character — the fundamental humanity — of the men and women who sit there.
