                  Cite as: 586 U. S. ____ (2018)            1

                    Statement of BREYER, J.

SUPREME COURT OF THE UNITED STATES
     MICHAEL GORDON REYNOLDS v. FLORIDA
       ON PETITION FOR WRIT OF CERTIORARI TO THE

               SUPREME 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 Consti-
tution 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 defend-
ants 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
2                   REYNOLDS v. FLORIDA

                     Statement of BREYER, J.

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 defend-
ants 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 protec-
tions for defendants facing execution—deepen the cruelty
of the death penalty and undermine its penological ra-
tionale. Glossip v. Gross, 576 U. S. ___, ___ (2015) (dis-
senting 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 re-
specting 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 certi-
orari 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 retroac-
tively. 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
                 Cite as: 586 U. S. ____ (2018)           3

                   Statement of BREYER, J.

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) (opin-
ion 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 respon-
sibility for, the ultimate decision to impose a death sen-
tence. Witherspoon v. Illinois, 391 U. S. 510, 519 (1968).
   Although these cases do not squarely present the gen-
eral 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 responsibil-
ity 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
4                 REYNOLDS v. FLORIDA

                   Statement of BREYER, J.

should grant certiorari on that question in an appropriate
case. That said, I would not grant certiorari on that ques-
tion here. In many of these cases, the Florida Supreme
Court did not fully consider that question, or the defend-
ants 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 judg-
ment 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 sen-
tence 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 sen-
tence. 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 constitu-
tionality of the death penalty itself.” Madison, supra, at
___ (BREYER, J., concurring) (slip op., at 3).
                  Cite as: 586 U. S. ____ (2018)            1

                     THOMAS, J., concurring

SUPREME COURT OF THE UNITED STATES
     MICHAEL GORDON REYNOLDS v. FLORIDA
       ON PETITION FOR WRIT OF CERTIORARI TO THE

               SUPREME 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
2                     REYNOLDS v. FLORIDA

                        THOMAS, J., concurring

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. “Chris-
tina was found not wearing any underwear,” and petition-
er’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 surviv-
ing 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.*
——————
  * JUSTICE BREYER cites several other cases in which we have denied
certiorari today. Ante, at 3. He need not worry about the jury’s deci-
sions 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
                      Cite as: 586 U. S. ____ (2018)                     3

                         THOMAS, J., concurring

   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 im-
pose 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 “uncon-
scionably 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 sen-
tence, to then claim that the almost-indefinite postpone-
——————
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, shoot-
ing 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 left
her nude, floating face down.” Johnston v. State, 63 So. 3d 730, 735
(Fla. 2011).
4                   REYNOLDS v. FLORIDA

                     THOMAS, J., concurring

ment renders his sentence unconstitutional.’ ” Thompson
v. McNeil, 556 U. S. 1114, 1117 (2009) (THOMAS, J., con-
curring in denial of certiorari) (alterations omitted) (quot-
ing 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., con-
curring) (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 enti-
tled 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
                  Cite as: 586 U. S. ____ (2018)            5

                     THOMAS, J., concurring

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 recom-
mendation 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 inno-
cent victims.
                     Cite as: 586 U. S. ____ (2018)                    1

                       SOTOMAYOR, J., dissenting

SUPREME COURT OF THE UNITED STATES
      MICHAEL GORDON REYNOLDS v. FLORIDA
        ON PETITION FOR WRIT OF CERTIORARI TO THE

                SUPREME COURT OF FLORIDA

              No. 18–5181. Decided November 13, 2018 


   JUSTICE SOTOMAYOR, dissenting from denial of certiorari.
   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 de-
clared unconstitutional.1 The Florida Supreme Court has
left the petitioners’ death sentences undisturbed, reason-
ing that any sentencing error in their cases was harmless.
Petitioners challenge the Florida Supreme Court’s analy-
sis because it treats the fact of unanimous jury recom-
mendations 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.2
Petitioners’ constitutional claim is substantial and affects
numerous capital defendants. The consequence of error in
these cases is too severe to leave petitioners’ challenges
——————
  1 In addition to Reynolds’ petition, this Court denies the petitions of

Jesse Guardado, No. 17–9284; Lenard James Philmore, No. 17–9556;
Michael Anthony Tanzi, No. 18–5160; Quawn M. Franklin, No. 18–
5228; Norman Mearle Grim, No. 18–5518; and Ray Lamar Johnston,
No. 18–5793. For the reasons expressed herein, I respectfully dissent
from denial of certiorari in their cases as well.
  2 I thrice dissented because the Florida Supreme Court had failed

even to address the significant constitutional question the petitioners
raised. See Guardado v. Jones, 584 U. S. ___ (2018) (opinion dissenting
from denial of certiorari); Middleton v. Florida, 583 U. S. ___ (2018)
(same); Truehill v. Florida, 583 U. S. ___ (2017) (same). I dissented
again after the Florida Supreme Court ultimately did take up the
question, and I noted the need for a definitive resolution of the issue.
Kaczmar v. Florida, 585 U. S. ___ (2018) (same).
2                   REYNOLDS v. FLORIDA

                    SOTOMAYOR, J., dissenting

unanswered, and I therefore would grant the petitions.
                              I
   I begin by acknowledging that petitioners have been
convicted of gruesome crimes. Their victims, and the
families and communities of those victims, have suffered.
I am cognizant of their suffering. I am also mindful that it
is this Court’s duty to ensure that all defendants, even
those who have committed the most heinous crimes, re-
ceive a sentence that is the result of a fair process. It is
with that responsibility in mind that I analyze the peti-
tioners’ challenges.
                              II
  Like the petitioners described in my prior dissents, each
petitioner here was sentenced pursuant to Florida’s former
sentencing scheme. That regime involved an evidentiary
hearing before a jury, after which the jury would issue an
advisory sentence for life or death. See Hurst v. Florida,
577 U. S. ___, ___–___ (2016) (slip op., at 2–3). Next, the
judge independently decided whether aggravating and
mitigating factors existed, weighed those factors, and en-
tered a sentence of life or death. Id., at ___ (slip op., at 3).
In Hurst, this Court held that Florida’s scheme violated
the Sixth Amendment because it impermissibly allowed a
judge to increase the punishment authorized for a defend-
ant “based on her own factfinding.” Id., at ___ (slip op.,
at 6).
  Petitioners sought relief from the Florida courts after
Hurst was decided. Although the Florida Supreme Court
assumed that Hurst errors had occurred in petitioners’
cases, it concluded that any such errors were harmless—in
other words, there was “no reasonable possibility” that the
errors affected petitioners’ sentences. 251 So. 3d 811, 815
(Fla. 2018) (per curiam) (case below).
  In theory, the Florida Supreme Court’s harmless-error
                 Cite as: 586 U. S. ____ (2018)            3

                   SOTOMAYOR, J., dissenting

analysis turns on an individualized review of each case.
See id., at 816. And, indeed, in some cases the Florida
Supreme Court has considered several factors in its harmless-
error analysis. See Davis v. State, 207 So. 3d 142, 174–
175 (2016) (referring to the unanimity of the jury recom-
mendations of death as well as the “egregious facts” of the
case). In practice, however, the Florida Supreme Court’s
harmless-error approach appears to reflect a myopic focus
on one factor: whether the advisory jury’s recommendation
for death was unanimous. Because the jurors in pre-Hurst
cases were informed that they should recommend death
only if they determined that sufficient aggravating factors
existed and outweighed the mitigating factors, the Florida
Supreme Court has reasoned that a jury that unanimously
recommended death necessarily made the findings that
Hurst said are constitutionally required. See Davis, 207
So. 3d, at 174–175. By concluding that Hurst violations
are harmless because jury recommendations were unani-
mous, the Florida Supreme Court “transforms those advi-
sory jury recommendations into binding findings of fact.”
Guardado v. Jones, 584 U. S. ___, ___ (2018) (SOTOMAYOR,
J., dissenting from denial of certiorari) (slip op., at 5).
                             III

                              A

  Because the Florida Supreme Court’s harmless-error
analysis relies heavily on the fact that a purely advisory
jury rendered a unanimous decision, it raises serious
questions under this Court’s precedents.
  In Caldwell v. Mississippi, 472 U. S. 320 (1985), this
Court said it is “constitutionally impermissible to rest 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.” Id., at 328–329. Caldwell involved
misleading comments by a prosecutor who emphasized
4                  REYNOLDS v. FLORIDA

                   SOTOMAYOR, J., dissenting

that the jury’s verdict would be subject to appellate re-
view. See id., at 336. This Court concluded that the
resulting sentence did not satisfy the minimum standard
of reliability required by the Eighth Amendment because
the prosecutor’s suggestions created “an intolerable dan-
ger” that the jury would “minimize the importance of its
role.” Id., at 333. Caldwell explained that this Court has
“always premised its capital punishment decisions on the
assumption that a capital sentencing jury recognizes the
gravity of its task and proceeds with the appropriate
awareness of its ‘truly awesome responsibility.’ ” Id., at
341. Where a sentencing jury is encouraged to proceed
without that awareness, Caldwell suggests that “there are
specific reasons to fear substantial unreliability as well as
bias in favor of death sentences.” Id., at 330.
   As noted above, the sentencing scheme in place in Florida
when petitioners were sentenced placed the final respon-
sibility with the trial judge. Juries were instructed ac-
cordingly. Thus although the jury in this case was in-
structed that the court would reject a recommendation
“only if the facts [we]re so clear and convincing that virtu-
ally no reasonable person could differ” and that a “human
life [wa]s at stake,” the jury also was told that its duty was
to “advise the court” and that “the final decision as to what
punishment shall be imposed [wa]s the responsibility of
the judge.” App. D to Pet. for Cert. The jury also heard,
repeatedly, that it was to “recommend” an “advisory sen-
tence.” Ibid. Jury instructions varied across cases. For
example, the jurors in petitioner Jesse Guardado’s case
heard that “human life [wa]s at stake,” but not that the
court would reject the jury’s recommendation only in
limited circumstances. App. to Pet. for Cert. in Guardado
v. Florida, O. T. 2018, No. 17–9284, pp. 92a–105a. Like
the jurors in this case, the jurors in Guardado’s case were
instructed that it was their responsibility to “advise the
Court” as to the appropriate punishment. Id., at 92a. The
                      Cite as: 586 U. S. ____ (2018)                     5

                       SOTOMAYOR, J., dissenting

court further instructed jurors that the “[f]inal decision as
to what punishment shall be imposed rest[ed] solely with
the judge of th[e] court.” Ibid. These jurors knew that the
final decision as to whether Guardado would live or die did
not rest with them. The Court’s reasoning in Caldwell
informs how much weight, if any, to give such a purely
advisory recommendation for death.
                              B
   In the case below, the Florida Supreme Court addressed
the Caldwell issue at length. See 251 So. 3d, at 814–828.3
Two aspects of the plurality’s analysis show the need for
further engagement with this issue.
   First, the Florida Supreme Court said that its applica-
tion of the harmless-error rule does not entirely turn on
jury unanimity. See id., at 816 (“a unanimous recommen-
dation is not sufficient alone” to find harmlessness). To be
sure, in some cases the Florida Supreme Court has men-
tioned factors other than unanimity to support a finding of
harmlessness. See, e.g., Philmore v. Florida, 234 So. 3d
567, 568 (2018), cert. denied, supra, p. ___ (noting that the
defendant’s confession and the aggravation in the case, as
well as the jury’s unanimous recommendation, supported a
finding of harmlessness). But in many other cases, the
court’s analysis started and ended with the unanimity of
the jury’s recommendation. Indeed, on the very day that
the Florida Supreme Court decided this case, it treated
jury unanimity as dispositive in four other capital cases.4
——————
  3 Of the seven justices of the Florida Supreme Court, only two justices

concurred in the court’s per curiam opinion and one justice concurred
specially with an opinion. Of the remaining four justices, two dissented
and two concurred only in the result.
  4 See Tanzi v. State, 251 So. 3d 805, 806 (2018), cert. denied, supra, p.

___ (citing Davis v. State, 207 So. 3d 142, 175 (2016), for the proposition
that the unanimity of a jury’s recommendation for death ensures that
jurors have made the necessary findings of fact); Johnston v. State, 246
So. 3d 266 (2018), cert. denied, supra, p. ___ (“Johnston received a
6                      REYNOLDS v. FLORIDA

                      SOTOMAYOR, J., dissenting

In a recent opinion, the Florida Supreme Court again
stated that it “has consistently . . . den[ied] Hurst relief to
defendants who have received a unanimous jury recom-
mendation of death.” Anderson v. State, ___ So. 3d ___,
___, 2018 WL 4784075, *1 (Oct. 4, 2018) (internal quota-
tion marks omitted). To the extent the Florida Supreme
Court gives dispositive weight to the fact that an advisory
jury offered a unanimous recommendation, that action
implicates the Eighth Amendment concerns that Caldwell
addressed.
   Second, the state court dismissed Caldwell as inapplica-
ble to cases like petitioners’ because the pre-Hurst jury
instructions accurately described the advisory role as-
signed to the jury by state law at that time. 251 So. 3d, at
824–825. It is true that Caldwell’s holding invalidates
only those sentences imposed following comments that
“mislead the jury as to its role in the sentencing process.”
Romano v. Oklahoma, 512 U. S. 1, 9 (1994) (internal
quotation marks omitted; emphasis added). 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 rec-
ommendation is sufficiently reliable for a court to treat it
as legally dispositive for purposes of harmless-error re-
view. 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. See 251 So. 3d,
at 832 (Pariente, J., dissenting) (“[T]he jury [in Reynolds’
——————
unanimous jury recommendation of death and, therefore, the Hurst
error in this case is harmless beyond a reasonable doubt”); Crain v.
State, 246 So. 3d 206, 210 (2018) (“[T]his Court can rely on the jury’s
unanimous recommendation for death to conclude that the Hurst error
in Crain’s case was harmless beyond a reasonable doubt”); Taylor v.
State, 246 So. 3d 204, 206 (2018) (“[T]his Court has consistently relied
on Davis to deny Hurst relief to defendants who have received unani-
mous jury recommendations of death”).
                 Cite as: 586 U. S. ____ (2018)            7

                   SOTOMAYOR, J., dissenting

case] was repeatedly told that its sentencing recommenda-
tion between life and death was merely ‘advisory.’ . . . I
would conclude that Caldwell further supports the conclu-
sion that the Hurst error in Reynolds’ case is not harmless
beyond a reasonable doubt”).
                              IV
  “[T]his Court’s Eighth Amendment jurisprudence has
taken as a given that capital sentencers would view their
task as the serious one of determining whether a specific
human being should die at the hands of the State.” Cald-
well, 472 U. S., at 329. The jurors in petitioners’ cases
were repeatedly instructed that their role was merely
advisory, yet the Florida Supreme Court has treated their
recommendations as legally binding by way of its harmless-
error analysis. This approach raises substantial Eighth
Amendment concerns. As I continue to believe that “the
stakes in capital cases are too high to ignore such consti-
tutional challenges,” Truehill v. Florida, 583 U. S. ___, ___
(2017) (slip op., at 2), I would grant review to decide
whether the Florida Supreme Court’s harmless-error
approach is valid in light of Caldwell. This Court’s refusal
to address petitioners’ challenges signals that it is unwill-
ing to decide this issue. I respectfully dissent from the
denial of certiorari, and I will continue to note my dissent
in future cases raising the Caldwell question.
