REYNOLDS v. FLORIDA


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Concurrence

SUPREME COURT OF THE UNITED STATES

MICHAEL GORDON REYNOLDS v. FLORIDA

on petition for writ of certiorari to thesupreme court of florida


No. 18–5181. Decided November 13, 2018

The petition for a writ of certiorari is denied.

Statement of Justice Breyer respecting the denial of certiorari.

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 appli-cation 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. First, these cases highlight what I have previously described as a serious flaw in the death penalty system: the unconscionably long delays that capital defendants must endure as they await execution. Henry Sireci, the petitioner in one case we recently denied, was first sentenced to death in 1976. He has lived in prison under threat of execution for nearly 42 years. Unfortunately, Sireci is far from alone in having endured lengthy delays. The Court has recently denied petitions from at least 10 other capital defendants in Florida who have lived under a death sentence for more than 30 years, and from at least 50 other capital defendants who have lived under a death sentence for more than 20 years. I have previously written that lengthy delays—made inevitable by the Constitution’s procedural protections for defendants facing execution—deepen the cruelty of the death penalty and undermine its penological rationale. Glossip v. Gross, 576 U. S. ___, ___ (2015) (dissenting opinion) (slip op., at 19); see Dunn v. Madison, 583 U. S. ___, ___ (2017) (concurring opinion) (slip op., at 2); Smith v. Ryan, 581 U. S. ___, ___ (2017) (statement respecting denial of certiorari) (slip op., at 1); Sireci v. Flor-ida, 580 U. S. ___, ___ (2016) (opinion dissenting from denial of certiorari) (slip op., at 1). I remain of that view. However, because the petitioners in these cases did not squarely raise the delay issue, I do not vote to grant certiorari on that basis here.

Second, many of these cases raise the question whether the Constitution demands that Hurst be made retroactive to all cases on collateral review, not just to cases involving death sentences that became final after Ring. I believe the retroactivity analysis here is not significantly different from our analysis in Schriro v. Summerlin, 542 U. S. 348 (2004), where we held that Ring does not apply retroactively. Although I dissented in Schriro, I am bound by the majority’s holding in that case. I therefore do not dissent on that ground here.

Third, several of the cases in which we deny certiorari today, including this one, indirectly raise the question whether the Eighth Amendment requires a jury rather than a judge to make the ultimate decision to sentence a defendant to death. See Guardado v. Florida, No. 17–9284; Philmore v. Florida, No. 17–9556; Tanzi v. Florida, No. 18–5160; Franklin v. Florida, No. 18–5228; Grim v. Florida, No. 18–5518; Johnston v. Florida, No. 18–5793. In these cases, the Florida Supreme Court treated Hurst errors as harmless in significant part because the jury in each case unanimously recommended that the defendant be sentenced to death. The problem, however, is that the defendants in these cases were sentenced to death under a scheme that required the judge to make the ultimate decision to impose the death penalty, and in which the jury was repeatedly instructed that its recommended verdict would be advisory. As I have previously written, I believe that this scheme violates the Eighth Amendment. See Middleton v. Florida, 583 U. S. ___, ___ (2018) (opinion dissenting from denial of certiorari) (slip op., at 1); Hurst, supra, at ___ (opinion concurring in judgment) (slip op., at 1); Ring, supra, at 619 (same). Because juries are better suited than judges to “express the conscience of the community on the ultimate question of life or death,” the Constitution demands that jurors make, and take responsibility for, the ultimate decision to impose a death sentence. Witherspoon v. Illinois, 391 U. S. 510, 519 (1968).

Although these cases do not squarely present the general question whether the Eighth Amendment requires jury sentencing, they do present a closely related question: whether the Florida Supreme Court’s harmless-error analysis violates the Eighth Amendment because it “rest[s] a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” Caldwell v. Mississippi, 472 U. S. 320, 328–329 (1985). For the reasons set out in Justice Sotomayor’s dissent, post, at 3–7, I believe the Court should grant certiorari on that question in an appropriate case. That said, I would not grant certiorari on that question here. In many of these cases, the Florida Supreme Court did not fully consider that question, or the defendants may not have properly raised it. That may ultimately impede, or at least complicate, our review.

Nonetheless, the three issues raised by these cases draw into focus a more basic point I made in Schriro: A death sentence should reflect a jury’s “community-based judgment that the sentence constitutes proper retribution.” 542 U. S., at 360 (dissenting opinion). It seems to me that the jurors in at least some of these cases might not have made a “community-based judgment” that a death sentence was “proper retribution” had they known at the time of sentencing (1) that the death penalty might not be administered for another 40 years or more; (2) that other defendants who were sentenced years later would be entitled to resentencing based on a later-discovered error, but that the defendants in question would not be entitled to the same remedy for roughly the same error; or (3) that the jury’s death recommendation would be treated as if it were decisive, despite the judge’s instruction that the jury’s recommendation was merely advisory. Had jurors known about these issues at the time of sentencing, some might have hesitated before recommending a death sentence. At least a few might have recommended a life sentence instead. The result is that some defendants who have lived under threat of execution for decades might never have been sentenced to death in the first place.

The flaws in the current practice of capital punishment could often cast serious doubt on the death sentences imposed in these and other capital cases. Rather than attempting to address the flaws in piecemeal fashion, however, I remain of the view that “it would be wiser to reconsider the root cause of the problem—the constitutionality of the death penalty itself.” Madison, supra, at ___ (Breyer, J., concurring) (slip op., at 3).


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Dissent

SUPREME COURT OF THE UNITED STATES

MICHAEL GORDON REYNOLDS v. FLORIDA

on petition for writ of certiorari to thesupreme court of florida


No. 18–5181. Decided November 13, 2018

Justice Thomas, concurring in denial of certiorari.

On the night of July 21, 1998, petitioner Michael Gordon Reynolds murdered nearly an entire family. While the father, Danny Ray Privett, relieved himself outside the family’s camping trailer, petitioner snuck up behind him and “viciously and deliberately battered [his] skull with a piece of concrete.” Reynolds v. State, 934 So. 2d 1128, 1157 (Fla. 2006) (Reynolds I ). Petitioner would later explain: “ ‘[W]ith my record’ ”—which included aggravated robbery, aggravated assault, and aggravated battery—“ ‘I couldn’t afford to leave any witnesses.’ ” Id., at 1149, 1157. So petitioner entered the trailer, where he brutally beat, stabbed, and murdered Privett’s girlfriend, Robin Razor, and their 11-year-old daughter, Christina Razor. Robin “suffered multiple stab wounds along with multiple blows to the side of her face and a broken neck resulting in injuries to her spinal cord.” Id., at 1136. She desperately fought back, suffering “significant defensive wounds” and “torment wounds”—shallow slashes that occur when “the perpetrator tak[es] a depraved, measured approach to the infliction of the injury and tak[es] pleasure in his cruel activity.” Id., at 1136, 1153. Eleven-year-old Christina also resisted, suffering “blunt force trauma to her head, a stab wound to the base of her neck that pierced her heart, and another stab wound to her right shoulder that pierced her lung and lacerated her pulmonary artery.” Id., at 1136. Only petitioner knows whether Robin had to watch her daughter die, or whether Christina had to watch her mother die. “Regardless, in the close confines of that cramped camping trailer, Christina Razor, in great pain and fear, was forced to fight a losing battle for her life knowing that either her mother had already been killed and she was next or that after Reynolds killed her, he was sure to end her mother’s life.” Id., at 1154. “For a child to experience the fear, terror and emotional strain that accompanied Christina Razor as she fought for her life, knowing full well that she was fighting a losing battle, is unimaginable, heinous, atrocious and cruel.” Ibid. “Christina was found not wearing any underwear,” and petitioner’s DNA was matched to both a pubic hair and Christina’s underwear, both found near her body. Reynolds v. State, 99 So. 3d 459, 487–488, 501 (Fla. 2012). The sole surviving family member, Danielle, “was spared only because she was spending the night with a friend.” Stutzman, Judge Gives Killer Death Sentence, Orlando Sentinel, Sept. 20, 2003, p. B7, col. 1. Danielle was devastated; “she wished she’d been home that night” to “f[ight] the attacker and tr[y] to save her sister and parents” or “di[e] alongside them.” Ibid.

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. 1 *

Justice Breyer’s first concern is “that the death penalty might not be administered for another 40 years or more” after the jury’s verdict. Ante, at 4. That is a reason to carry out the death penalty sooner, not to decline to impose it. In any event, petitioner evidently is not bothered by delay. Petitioner has litigated all the way through the state courts and petitioned this Court for review three separate times. He can avoid “endur[ing]” an “unconscionably long dela[y],” ante, at 1–2, “by submitting to what the people of Florida have deemed him to deserve: execution.” Foster v. Florida, 537 U. S. 990, 991 (2002) (Thomas, J., concurring in denial of certiorari). “It makes ‘a mockery of our system of justice for a convicted murderer, who, through his own interminable efforts of delay has secured the almost-indefinite postponement of his sentence, to then claim that the almost-indefinite postponement renders his sentence unconstitutional.’ ” Thompson v. McNeil, 556 U. S. 1114, 1117 (2009) (Thomas, J., concurring in denial of certiorari) (alterations omitted) (quoting Turner v. Jabe, 58 F. 3d 924, 933 (CA4 1995) (Luttig, J., concurring in judgment)).

It is no mystery why it often takes decades to execute a convicted murderer. The “labyrinthine restrictions on capital punishmen[t] promulgated by this Court” have caused the delays that Justice Breyer now bemoans. Glossip v. Gross, 576 U. S. ___, ___ (2015) (Scalia, J., concurring) (slip op., at 6); see Knight v. Florida, 528 U. S. 990, 991 (1999) (Thomas, J., concurring in denial of certiorari). As “the Drum Major in this parade” of new precedents, Justice Breyer is not well positioned to complain about their inevitable consequences. Glossip, supra, at ___ (Scalia, J., concurring) (slip op., at 6).

Justice Breyer’s second concern is that petitioner’s jury might have declined to impose the death penalty if it had known that other capital defendants “would be entitled to resentencing,” while petitioner himself would not be resentenced. Ante, at 4. What this has to do with the original jury’s judgment as to “ ‘proper retribution,’ ” ibid., is beyond me. Petitioner murdered Danielle Privett’s entire family. Whether he deserves to be sentenced to death has nothing to do with whether a different person who engaged in different conduct might be entitled to be resentenced on procedural grounds. Moreover, if peti-tioner had been resentenced, and was again sentenced to death, I have little doubt that Justice Breyer would instead be fretting that the original jury failed to consider his belief that resentencing “sharpen[s]” “[d]eath row’s inevitable anxieties and uncertainties.” Foster, supra, at 993 (opinion dissenting from denial of certiorari).

Justice Breyer’s third concern is that petitioner was “sentenced to death under a scheme that required the judge to make the ultimate decision to impose the death penalty, and in which the jury was repeatedly instructed that its recommended verdict would be advisory.” Ante, at 3. Once again, petitioner did not share Justice Breyer’s concern. “After thorough consultation with his attorneys and the trial court,” petitioner waived “his right to a jury’s penalty recommendation as to the appropriate sentence” and “waived the presentation of mitigating evidence before the penalty phase jury.” Reynolds I, 934 So. 2d, at 1138, 1148. When the trial court did not allow petitioner to waive the jury’s involvement, petitioner appealed, arguing that “the trial court abused its discretion and committed reversible error when it refused to honor” his waiver. Id., at 1147–1148.

Contrary to Justice Breyer’s suggestion that the jury did not feel an adequate sense of “responsibility” for its recommendation, ante, at 3, the jury was instructed that a “ ‘human life is at stake’ ” and that the trial court could reject the jury’s recommendation “ ‘only if the facts [are] so clear and convincing that virtually no reasonable person could differ.’ ” 251 So. 3d 811, 813, 828 (Fla. 2018) ( per curiam). The jury was further instructed that its recommendation did not need to be unanimous. Id., at 815. Nonetheless, the jury returned not one but two unanimous death recommendations. Ibid.

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.


Notes

1Justice Breyer cites several other cases in which we have denied certiorari today. Ante, at 3. He need not worry about the jury’s decisions in those cases either. In Guardado v. Florida, No. 17–9284, petitioner, in need of money to “continue his recent crack cocaine binge,” went to the home of a 75-year-old woman who had given him repeated assistance, struck her over and over with a “ ‘breaker bar,’ ” and when “ ‘she would not die,’ ” “pulled [a] kitchen knife and stabbed her several times, then slashed her throat.” Guardado v. State, 965 So. 2d 108, 110–111 (Fla. 2007). In Philmore v. Florida, No. 17–9556, petitioner, in need of a getaway car for a planned bank robbery, asked the victim if he could use her phone, then pushed himself into her car, drove her to “an isolated area,” “ordered her to walk towards high vegetation,” and “shot her once in the head.” Philmore v. State, 820 So. 2d 919, 923–924 (Fla. 2002). In Tanzi v. Florida, No. 18–5160, petitioner carjacked his victim by “punch[ing] her in the face until he gained entry,” “forced [her] to perform oral sex,” then “told [her] that he was going to kill her,” put “duct tape over her mouth, nose, and eyes,” and “strangle[d her] until she died.” Tanzi v. State, 964 So. 2d 106, 110–111 (Fla. 2007). In Franklin v. Florida, No. 18–5228, petitioner stole a woman’s car after invading her home and bashing her on the head with a hammer (leaving her “unable to live on her own”), asked a security guard at a local store for driving directions, bragged that he was going to come back and “ ‘get’ ” the guard, and did just that, shooting the guard once in the back. Franklin v. State, 965 So. 2d 79, 84 (Fla. 2007). In Grim v. Florida, No. 18–5518, petitioner invited his neighbor over for coffee and then “repeatedly attacked [her] with a hammer, stabbed [her] multiple times,” “forcefully inserted [an object] into her vagina,” and dumped her body in Pensacola Bay. Grim v. State, 971 So. 2d 85, 89–90, 93 (Fla. 2007). Finally, in Johnston v. Florida, No. 18–5793, petitioner kidnaped his victim, “bea[t], raped, and manually strangled [her], then dragged her to a pond and lefther nude, floating face down.” Johnston v. State, 63 So. 3d 730, 735 (Fla. 2011).