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November 13, 2018

Usual Justices make their usual death penalty points in statements accompanying Florida capital case cert denials

In this post last week, I noted that the Supreme Court had relisted a slew of older Florida death penalty cases in which a death sentence had been imposed using procedures that the Supreme Court in the 2016 Hurst decision said violated the Sixth Amendment's requirement that a jury rather than a judge must find all facts necessary to sentence a defendant to death.  This morning, via this new order list, the Supreme Court appears to have denied cert in all of these Florida cases, and three Justices with well-earned reputations for having a lot to say in capital cases all had something to say about this decision through statements in the case of Reynolds v. Florida.

Justice Breyer authored a four-page statement regarding the denial of cert that sets the tone starting this way:

This case, along with 83 others in which the Court has denied certiorari in recent weeks, asks us to decide whether the Florida Supreme Court erred in its application of this Court’s decision in Hurst v. Florida, 577 U. S. ___ (2016).  In Hurst, this Court concluded that Florida’s death penalty scheme violated the Constitution because it required a judge rather than a jury to find the aggravating circumstances necessary to impose a death sentence.  The Florida Supreme Court now applies Hurst retroactively to capital defendants whose sentences became final after this Court’s earlier decision in Ring v. Arizona, 536 U. S. 584 (2002), which similarly held that the death penalty scheme of a different State, Arizona, violated the Constitution because it required a judge rather than a jury to find the aggravating circumstances necessary to impose a death sentence.  The Florida Supreme Court has declined, however, to apply Hurst retroactively to capital defendants whose sentences became final before Ring.  Hitchcock v. State, 226 So. 3d 216, 217 (2017).  As a result, capital defendants whose sentences became final before 2002 cannot prevail on a “Hurst-is-retroactive” claim.

Many of the Florida death penalty cases in which we have denied certiorari in recent weeks involve — directly or indirectly — three important issues regarding the death penalty as it is currently administered.

Folks who follow the Supreme Court's modern capital punishment discussions can probably guess what Justice Breyer considers the "three important issues" raised by these Florida cases. Similarly, SCOTUS followers likely can also imagine what Justice Thomas had to say when concurring in the denial of cert in Reynolds.  His opinion runs five pages and here are two key paragraphs:

JUSTICE BREYER worries that the jurors here “might not have made a ‘community-based judgment’ that a death sentence was ‘proper retribution’ had they known” of his concerns with the death penalty. Ante, at 4 (statement respecting denial of certiorari). In light of petitioner’s actions, I have no such worry, and I write separately to alleviate JUSTICE BREYER’s concerns....

JUSTICE BREYER’s final (and actual) concern is with the “‘death penalty itself.’” Ante, at 4. As I have elsewhere explained, “it is clear that the Eighth Amendment does not prohibit the death penalty.” Baze v. Rees, 553 U. S 35, 94 (2008) (opinion concurring in judgment); see Glossip, supra, at ___–___, and n. 1 (THOMAS, J., concurring) (slip op., at 1–2, and n. 1). The only thing “cruel and unusual” in this case was petitioner’s brutal murder of three innocent victims.

Last but certainly not least, Justice Sotomayor needs seven pages to explain why she dissents from the denial of certiorari, and here opinion starts this way:

Today, this Court denies the petitions of seven capital defendants, each of whom was sentenced to death under a capital sentencing scheme that this Court has since declared unconstitutional.  The Florida Supreme Court has left the petitioners’ death sentences undisturbed, reasoning that any sentencing error in their cases was harmless.  Petitioners challenge the Florida Supreme Court’s analysis because it treats the fact of unanimous jury recommendations in their cases as highly significant, or legally dispositive, even though those juries were told repeatedly that their verdicts were merely advisory.  I have dissented before from this Court’s failure to intervene on this issue.  Petitioners’ constitutional claim is substantial and affects numerous capital defendants.  The consequence of error in these cases is too severe to leave petitioners’ challenges unanswered, and I therefore would grant the petitions.

November 13, 2018 at 10:11 AM | Permalink

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https://www.courthousenews.com/wp-content/uploads/2018/11/reynolds-fla.pdf

Posted by: Claudio Giusti | Nov 14, 2018 2:06:45 PM

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