The U.S. Supreme Court denied cert in Reynolds v. Florida and companion cases on Tuesday. Justices Breyer, Thomas, and Sotomayor wrote opinions in the case. Justice Sotomayor dissented from the denial of cert, continuing her written critique of the Florida Supreme Court’s harmless error approach. Justice Thomas wrote to “alleviate” some of Justice Breyer’s concerns about the administration of the death penalty in the cases under consideration, writing that, in light of the heinous nature of the crimes, he has “no such worry” about whether the death sentences reflected a “community-based judgment” about “proper retribution.”
But it was a short paragraph in Justice Breyer’s opinion explaining his vote to deny cert that raised our eyebrows, and shed some light on why the Court denied review in the four pre-execution cases since Hurst. We’ll first look at Justice Sotomayor’s dissent.
Justice Sotomayor dissents again
We’ve mentioned Justice Sotomayor’s ongoing correspondence with the Florida Supreme Court regarding that court’s harmless error analysis to Hurst error in light of Caldwell v. Mississippi. In her Tuesday dissent, she indicated that she will continue writing:
I respectfully dissent from the denial of certiorari, and I will continue to note my dissent in future cases raising the Caldwell question.”
Justice Sotomayor’s dissent took on the Florida Supreme Court’s reasoning in Reynolds v. State that Caldwell doesn’t apply to pre-Hurst juries because those juries weren’t misled about their role in sentencing:
But whether or not Caldwell itself makes the petitioners’ sentences unconstitutional, the reasoning in Caldwell surely informs the related question whether a purely advisory jury recommendation is sufficiently reliable for a court to treat it as legally dispositive for purposes of harmless-error review. Caldwell provides strong reasons to doubt that a jury would have reached the same decision had it been instructed that its role was not advisory.”
She concluded that the Florida Supreme Court’s “approach raises substantial Eighth Amendment concerns” and that she “would grant review to decide whether the Florida Supreme Court’s harmless-error approach is valid in light of Caldwell.”
Then she offers a glimpse into what the conference discussion might have been like: “This Court’s refusal to address petitioners’ challenges signals that it is unwilling to decide this issue.”
And that brings us to Justice Breyer’s opinion.
Not the right moment
Justice Breyer mostly agreed with Justice Sotomayor’s Caldwell analysis but didn’t join her vote:
For the reasons set out in Justice Sotomayor’s dissent, 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.
Reynolds, for instance, waived his right to present mitigation to the sentencing jury–and only 2 of 7 Florida Supreme Court justices joined the court’s opinion in full. Perhaps these were the complications in Reynolds’s case, though Breyer didn’t specifically say so. And while the Florida Supreme Court cites its decision in Reynolds for their rejection of the Caldwell attack on its harmless error approach, something about Reynolds didn’t seem quite right for Breyer’s vote.
Retroactive cutoff at Ring here to stay
But that’s not, in our view, the biggest takeaway from Justice Breyer’s opinion. We now have a clue as to how SCOTUS (or at least Justice Breyer) views the retroactive application of Hurst to sentences final after Ring v. Arizona. And that’s news.
Recall that the Florida Supreme Court has held that Hurst only applies retroactively to sentences that were final after SCOTUS released its opinion in Ring v. Arizona in June 2002. So if a 7-5 jury recommended the death penalty in a sentence that became final in 2001, Hurst will not require a new sentencing hearing, whereas an 11-1 jury recommendation in a sentence finalized in 2006 will get a new sentencing hearing.
This line in the sand struck some (including Justice Pariente, Justice Lewis, and since-retired Justice Perry) as arbitrary and perhaps an easy issue for SCOTUS intervention, especially in death warrant cases on the eve of execution. But then a few death warrant cases challenging the Ring cutoff came and went without comment from any of the justices. Does SCOTUS sanction the retroactive cutoff at Ring?
Justice Breyer indicates the answer might be yes, citing the retroactivity issue as a reason against granting cert in some of the companion cases with Reynolds:
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.
So because Schriro held that Ring wasn’t retroactive, the Florida Supreme Court’s rule applying Hurst from Ring forward is fine, at least to Justice Breyer. This at least partially explains the denials in Asay, Lambrix, Hannon (though he had a unanimous jury), and Branch‘s death warrant cases. It also might explain the denial of cert in Hitchcock v. Florida. At the very least, it might explain Justice Breyer’s vote in those cases.
Notably, the Florida Supreme Court did not rely upon Schriro in creating the Ring cutoff, mentioning the case in passing in Asay (while opting to follow its Witt and Johnson cases), and not even discussing Schriro in Hitchcock, which is now the main case it uses to reject the challenge to the Hurst retroactivity rule.
Why? In Johnson, the Florida Supreme Court explained that Schriro contains the “narrow” Teague standard, while Witt makes it easier to apply a new criminal procedure rule retroactively. The Florida court held in Johnson that Ring wasn’t retroactive under Witt. If a rule is not retroactive after applying the broader Witt–Johnson standard, it will not be retroactive under Teague–Schriro.
In other words, Justice Breyer–who routinely questions “the constitutionality of the death penalty itself” (and did so again on Tuesday)–indicated that he does not believe Hurst should be applied retroactively in light of the stricter Schriro test, which he believes is settled law. That does not bode well for death row inmates whose sentences were final before Ring v. Arizona.