Supreme Court delivers rare victory for death row inmate: the chance to spend rest of his life behind bars

The Supreme Court’s ultraconservative majority has succeeded in making the court hostile territory for death row inmates. It has perfected the art of turning a blind eye to shocking injustices in capital cases or obscuring them in a dense fog of legalisms.

So it was both surprising and revealing when on Feb. 22 the court, by a 5-4 vote, granted relief to John Montenegro Cruz, an inmate on Arizona’s death row. This decision is a welcome reminder that even those who commit heinous crimes are entitled to the protections afforded by our nation’s commitment to due process and the rule of law.

Cruz’s crime was indeed heinous.

He was convicted of the 2003 murder of Tucson police officer Patrick Kent Hardesty. Hardesty had responded to a traffic accident and chased Cruz after he fled the scene. When the officer finally caught up with him, Cruz shot Hardesty four times at close range.

Cruz was sentenced to death two years later. At his sentencing trial, as the jury was considering whether to impose the death penalty or send Cruz to jail for life, his lawyer repeatedly asked the judge if he could inform the jury that his client would not be eligible for parole if he got a life sentence.

Each time the judge refused.

He did so even though, 11 years earlier, the Supreme Court had ruled, in Simmons v South Carolina, that failure to inform a jury that a life sentence meant life without parole violated a defendant’s right to due process of law. As Justice Harry Blackmun wrote at the time, failing to do so “had the effect of creating a false choice between sentencing… (the defendant) to death and sentencing him to a limited period of incarceration.”

What’s more, in 2016, in Lynch v Arizona, the Supreme Court overruled an Arizona supreme court decision that the Simmons ruling did not apply in Arizona. The court told the state in no uncertain terms that it had to comply with Simmons.

That seemed to be the end of the matter.

But not so. Five years later, Arizona’s high court ruled that under state law Cruz could only seek relief if there had been “a significant change in the law that, if applicable to the defendant’s case, would probably overturn the defendant’s judgment or sentence.” In its view, the Lynch decision did not amount to such a change.

This week the U.S. Supreme Court registered its disagreement and said that Cruz is entitled to appeal his death sentence and seek to be resentenced to life without parole.

A majority of Americans now favor life without parole sentences for people convicted of murder. A Gallup poll found that 60 percent of Americans said life without possibility of parole “is the better penalty for murder” than the death penalty.

In addition, research on juries in capital cases makes clear that they are much less likely to hand down death sentences when they are given a life without parole option. That is why in recent years death penalty opponents have consistently supported life without parole legislation.

Today every death penalty state also has life without parole.

The result, as The Marshall Project noted in a 2021 report, is that “life-without-parole sentences are steadily replacing the death penalty across the United States. Almost 56,000 people nationwide are now serving sentences that will keep them locked up until they die, an increase of 66 percent since 2003 … By comparison, only 2,500 nationally are on death row.”

The availability of life without parole also helps explain why the number of death sentences was just 20 in 2022.

In the past, when states did not offer jurors the life-without-parole option, jurors did not believe that life sentences meant that defendants would be in jail for the rest of their lives. In my own research, I found that jurors in capital cases thought that life sentences really meant that those who received them would only be behind bars for seven years.

Under these conditions, jurors may vote for death even if they do not really want the defendant to be executed. They vote for death to ensure that people convicted of capital crimes never get out of jail.

This is why the court’s decision in the Cruz case is so important. Arizona currently has approximately 100 people on its death row, and many of them might now be eligible for a new sentencing hearing.

Justice Sonia Sotomayor, writing for the five justice majority in the Cruz case, seemed to understand that more was at stake than a dispute over the semantic nicety about what does or does not count as a “significant change” in the law.

She was more than a little incredulous at the thought that anyone would dispute that “an overruling of precedent (as was done in Lynch) is a significant change in the law” that would enable Cruz to seek a resentencing.

“Before Lynch,” Sotomayor wrote, “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,” as it was during the penalty phase of Cruz’s trial.

In a subtle dig at her dissenting colleagues, she said that anyone who would offer a “straightforward application” of well recognized legal principles would conclude that “when an appellate court overrules previously binding case law … It is hard to imagine a cleaner break from the past.”

Justice Amy Coney Barrett, writing for the four dissenters, was unpersuaded.

Although during oral argument in the Cruz case she had criticized Arizona’s position and said that its insistence that Lynch had not brought about a “significant change in the law” was “hair splitting,” her opinion turned hair splitting into a fine art.

She insisted that Lynch had not made a significant change in the law, but only a change in the “application of the law.”

And, conjuring one of the conservative justices’ favorite ploys, she accused her colleagues in the majority of overreaching. In her view, the Supreme Court was “powerless” to “disturb” the Arizona supreme court decision that Cruz was not entitled to inform the jury of its power to sentence him to life without parole.

One might rightly ask whether allowing him to do so would have made a difference in his case and spared him a trip to death row?

Justice Sotomayor gives us reason to believe that it would have.

She notes that, the day after they sentenced Cruz to death, three jurors issued a press release in which they acknowledged that “they would rather have voted for life without the possibility of parole, but they were noted given that option.” And she quotes a fourth juror who said, “If I could have voted for a life sentence without parole, I would have voted for that option.”

While we can’t know whether another group of jurors will feel the same way, John Cruz is one step closer to being able to vindicate his right to have a jury know that if it sentences him to prison he would be there for the rest of his life. And all of us — not just those on Arizona’s death row — are better off because of it.

Austin Sarat (@ljstprof) is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. He is author of numerous books on America’s death penalty, including “Gruesome Spectacles: Botched Executions and America’s Death Penalty” and “Lethal Injection and the False Promise of Humane Execution.” The views expressed here do not represent Amherst College.