Twelve years ago, the Supreme Court abolished mandatory life-without-parole sentences for juvenile offenders. Seven years ago, the justices applied that ruling retroactively. Somehow, Arizona didn’t get the memo.
A prisoner who was sentenced to die in prison for a crime he committed as a 16-year-old is asking the Supreme Court to bring the Grand Canyon State into compliance with the Eighth Amendment. The case, Bassett v. Arizona, is an opportunity for the court to clarify what counts as “cruel and unusual punishment” for juvenile offenders nowadays—and to potentially reward Arizona’s noncompliance.
The defendant, Lonnie Allen Bassett, did not have anything resembling an ordinary childhood. “As a young child, Bassett was abandoned by his mother, kidnapped and abused by his father, and was kept in a closet with just one meal a day,” his lawyers told the justices in their petition for review. In 2004, while off medication he took for post-traumatic stress disorder, Bassett shot and killed his friend and his friend’s girlfriend. He was arrested and charged with two counts of first-degree murder.
The Supreme Court has spent most of the twenty-first century limiting how juvenile offenders can be punished. In 2005, the justices held in Roper v. Simmons that the Eighth Amendment forbids the execution of defendants for offenses committed before they turned 18 years old. Five years later, in Graham v. Florida, the court abolished life-without-parole sentences for juvenile offenders for crimes other than murder.
Leading the charge in these cases was Justice Anthony Kennedy, the court’s swing vote at the time. Kennedy, who was generally a moderate conservative, expanded the Eighth Amendment’s protections in multiple spheres. He took particular interest in defendants who committed crimes when they were children, writing that they deserved the chance for rehabilitation in all but the most extreme circumstances.
“By denying the defendant the right to reenter the community, the State makes an irrevocable judgment about that person’s value and place in society,” he wrote in his opinion for the court in Graham. “This judgment is not appropriate in light of a juvenile non-homicide offender’s capacity for change and limited moral culpability.”
Arizona prosecutors initially sought the death penalty against Bassett but abandoned that effort after the court’s decision in Roper. They then sought a life-without-parole sentence instead. Indeed, they had no alternative: The Arizona legislature had abolished parole for prisoners convicted of murder about a decade earlier. The trial judge acknowledged he had no choice and sentenced Bassett to a prison sentence that encompassed his “natural life.”
The Supreme Court’s rulings would later unsettle this sentence as well. In the 2012 case Miller v. Alabama, Kennedy and his colleagues began to take aim at mandatory life-without-parole sentences for juvenile offenders. Since the court had already eliminated the death penalty for them in Roper, mandatory life without parole became the harshest sentence that could be given to a juvenile defendant.
“Such a scheme prevents those meting out punishment from considering a juvenile’s ‘lessened culpability’ and greater ‘capacity for change,’ and runs afoul of our cases’ requirement of individualized sentencing for defendants facing the most serious penalties,” Justice Elena Kagan wrote for the majority, quoting from the court’s ruling in Graham. Kennedy provided the fifth vote for the 5–4 ruling, which otherwise fell along the usual ideological lines.
The Miller court stated that juvenile offenders could still be sentenced to life without parole, but that such a sentence could not be handed down unless the sentencing judge weighed the offender’s youth and immaturity before reaching that decision. “Although we do not foreclose a sentencer’s ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison,” Kagan wrote.
In 2016, the Supreme Court held that the Miller ruling applied retroactively to prisoners like Bassett. Bassett accordingly asked the courts to resentence him in light of the justices’ ruling. But Arizona pushed back against that effort after the post-Kennedy court made it easier for states to hand down life-without-parole sentences in the 2021 case Jones v. Mississippi. They argued that Arizona’s sentencing scheme didn’t conflict with Miller because it was actually discretionary.
On one hand, the state said, a defendant could be sentenced to a “natural life” term that required him to die in prison. Alternatively, they could be sentenced to “life” with the “possibility of release” after serving 25 years in prison. (Bassett received the former.) Since Arizona had abolished parole, however, the only chance for release was clemency by the state’s governor. The state argued that because Bassett could have theoretically been sentenced to something other than absolute life without parole, the state’s scheme did not count as a “mandatory” sentence under Miller.
There are some significant weaknesses to this argument. For one, as Bassett’s lawyers noted in their petition, the states that were on the other side of Miller, Montgomery, and Jones all had some form of executive clemency when the Supreme Court heard those cases. Clemency’s existence did not dissuade the justices from concluding that the sentences violated the Eighth Amendment. In Jones, the court even directly acknowledged the possibility of clemency when handing down its ruling. “If the availability of executive clemency had sufficed, [the Supreme] Court would have started and ended its opinion with that fact,” Bassett’s lawyers noted.
The Arizona Supreme Court nonetheless sided with state prosecutors to deny Bassett’s request for resentencing. It concluded that the two sentencing options—life without parole and life without parole but with the possibility that the governor might one day grant clemency—were different enough that the trial court had genuine discretion over whether Bassett received a life-without-parole sentence.
“The court was not required to sentence Bassett to natural life, as evidenced by its decision to sentence him to ‘life with the possibility of parole after 25 years’ for the murder underlying count two,” the state Supreme Court wrote. “The trial court deliberately made a choice between two sentencing options based upon the requisite factors, noting there was ‘no presumptive sentence’ and that it would ‘approach this with an open mind.’” (Emphasis theirs.)
This is too clever by half. If this choice counts as discretion, then Arizona’s sentencing scheme is actually harsher than what the states in Miller, Montgomery, and Jones had. As noted earlier, defendants in those three states—Alabama, Louisiana, and Mississippi—always had the option of executive clemency with their mandatory life-without-parole sentences. Arizona’s system offers a choice between that and a “natural life” sentence in which clemency is not possible. It is hard to square that choice with what Miller commands.
Whether the Supreme Court agrees with Bassett, who is now in his mid-thirties, will depend on how much stock it still places in Miller. Kennedy retired from the court in 2018, and the court’s ideological shifts since then have made it far less inclined to adopt his approach to the Eighth Amendment. Jones reflected that post-Kennedy turn: The court’s conservative supermajority ruled that trial courts didn’t need to make a factual finding that a juvenile defendant was beyond the possibility of rehabilitation. Instead, the mere possibility of discretion in sentencing sufficed for Eighth Amendment purposes.
The court’s ruling in Jones also emphasized that Miller and Montgomery remained in force and hadn’t been overturned. But if Arizona’s system prevails, that might not matter. Replacing mandatory life-without-parole sentences for juvenile offenders with a choice between a Miller-equivalent sentence and a worse-than-Miller sentence defies the underlying principle of those rulings: that it is cruel and unusual to deny juvenile offenders at least some meaningful chance to show that they can be rehabilitated. The court will likely announce before the end of June whether it will take up the case.
