May 24, 2024

“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.