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U.S. Supreme Court Case Challenges Arizona’s Refusal to Hear Claims



Press Release
January 7, 2022

 Press Contacts:
Sarai Bejarano | Manager of Traditional & Digital Media | [email protected] | 212-739-7581


U.S. Supreme Court Case Challenges Arizona’s Refusal to Hear Claims
Arizona first fails to provide an important protection, then, after SCOTUS intervenes, forecloses all review of cases where the defendant was deprived of that right

(Washington, D.C.) - The Supreme Court of Arizona has created a catch-22. Since 1994, those potentially eligible for a sentence of death 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, are asking the high court to accept Mr. Cruz’s case and give those defendants a day in court.

Mr. Cruz’s petition and other case related materials can be viewed at

Beyond the life-and-death stakes for Mr. Cruz, its resolution could determine whether any of the others on Arizona’s death row since before 2016 get a day in court. Indeed, a simultaneously filed petition on behalf of six others on Arizona’s death row asks the Court to answer precisely the same question presented in Cruz: “Whether this Court’s decision in [2016 in] Lynch [v. Arizona, 136 S. Ct. 1818 (2016) (per curiam)] applied a settled rule of federal law that must be applied to cases pending on collateral review in Arizona.” (Petition at i). Nearly two dozen others in Arizona are in similar circumstances. (Petition at 3).

Lead counsel for both Mr. Cruz and the six others 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. The petition explains 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).

A brief from LatinoJustice, in partnership with pro bono co-counsel at Stroock, Stroock, and Lavan’s Bruce Schneider, highlights the problems with failing to provide the jury with accurate information about parole eligibility. Their amicus (friend of the court) brief explains “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 explains, “John Cruz was sentenced to death by an Arizona Jury conditioned to see Latinos as criminals by media portrayals, biased television reporting, and race[1]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, makes 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, put it, ““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 notes 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 State’s Response is due on February 7, and the Court will rule on the petition this term.


Additional Information:
- Brief can be viewed here


About LatinoJustice
LatinoJustice PRLDEF works to create a more just society by using and challenging the rule of law to secure transformative, equitable and accessible justice, by empowering our community and by fostering leadership through advocacy and education. For more information about LatinoJustice, visit