Pennsylvania-based death penalty defense lawyer Marc Bookman currently serves as the Executive Director of the Atlantic Center for Capital Representation, a nonprofit organization providing capital case defense for those facing a possible death penalty sentence and state execution. Before that he advocated for defendants as part of the Defender Association of Philadelphia’s Homicide Unit.

Marc Bookman is also a longstanding, well-respected essayist with published work delving into various death penalty issues appearing in The Atlantic, Mother Jones, VICE, and Slate.

In May 2021, his latest contribution to the fight against capital punishment in this country will be published by The New Press, entitled A Descending Spiral: Exposing the Death Penalty in 12 Essays.

It is also available for pre-order at with a current giveaway promotion ending April 28, 2021, on Goodreads. provides the following editorial reviews:

“Essays from one of America’s most prominent death penalty abolitionists. . . . Bookman creates a clear, comprehensive portrait of a broken system, and the cases he highlights make for fascinating reading.”
Kirkus Reviews

“With lucid prose and a firm grasp of history and legal precedent, Bookman makes a persuasive argument that these dozen cases are just the tip of the iceberg when it comes to death penalty injustices. This is a cogent and harrowing primer on what’s wrong with capital punishment.”
Publishers Weekly

“No one covers the defects of our nation’s criminal justice system more forcefully or eloquently than Marc Bookman.”
Robert Atwan, series editor of The Best American Essays

“In these remarkable essays, Bookman achieves a dispassion that is more incisive and compelling than any overt advocacy. His gift for exquisite irony and his spare, trenchant prose are the perfect tools for exposing the injustices of a legal system that kills haphazardly. Sharpest writing on the death penalty since Koestler and Camus.”
Anthony Amsterdam, university professor emeritus at New York University School of Law

“Bookman’s essays eloquently condemn capital punishment in America. They expose the cruelty and injustice that it imposes on the soul of America and point us toward a healing for which our country yearns.”
Alfre Woodard, actress, producer, and political activist

“Marc Bookman has been writing exquisitely about the cruelty and absurdity of our criminal justice system for years. In this moving series of essays, he weaves in the context and history of our barbaric capital punishment regime and the ways discrimination and bigotry have upheld the system that exists today. A devastating and illuminating book.”
Josie Duffy Rice, president, The Appeal

“As one of America’s premier capital defense attorneys, Bookman has dedicated his life to celebrating the humanity of those citizens we most want to forget. Here, he weaves an unflinching portrait of twelve cases that illustrate in painful detail why the death penalty remains one of the greatest stains on the moral fabric of our society. These essays will make your blood run cold.”
Tony Goldwyn, actor, director, and producer

It is a recommended read.

The March 2021 issue of National Geographic may have Mars on the cover, but its article on the death penalty is what drew us to the magazine this month.  Entitled “Sentenced to death, but innocent: These are stories of justice gone wrong,” and written by Phillip Morris, it delves into the shocking realities of innocent people who are nevertheless arrested, charged, convicted, and sentenced to death.  Great photography is included by Martin Schoeller.

Accompanying this work is an explanation from the Nat Geo editor, “Why We Reported on Death Row for the Exonerated,” but this is available only to magazine subscribers.  The Morris piece is free for you to read online.

It’s a recommended read.

We’ve discussed the importance of scientific study and analysis of brain disorders and brain damage in death penalty defense many times before. 

In fact, you may know Terence Lenamon as one of the pioneers in using QEEG as part of a death penalty defense.  For more on Terry’s experience with QEEG in the courtroom, check out:

Recommended Read:  The Brain Defense by Kevin Davis

Hopefully, the national spotlight on this vital issue will grow with the publication of a new book by journalist Kevin Davis, entitled The Brain Defense: Murder in Manhattan and the Dawn of Neuroscience in America’s Courtrooms.

Of particular note is an entire chapter of the book dedicated to neuroscience and capital punishment in America today.  Davis interviewed Terence Lenamon for the book and its chapter on brain science in death penalty cases.

Lenamon Discusses QEEG and Grady Nelson Case in The Brain Defense

Of particular note to readers is Terry Lenamon’s in-depth discussion of his defense of Grady Nelson and his defense reasoning and strategy in both the guilt and sentencing phases of that trial. 

QEEG was an important factor in the Florida death penalty trial of Grady Nelson.  Terry discusses how it impacted that result (death was denied) as well as how vital QEEG is to the future of death penalty defense. 

You can get the book on Amazon as well as read an excerpt from the book and its growing number of positive reviews there:



Jeffrey Deskovic has a unique story, and with it comes a perspective that can help us all understand the American criminal justice system a bit better than before. You see, Mr. Deskovic spent 16 years in prison for a murder and rape for which he was innocent.

Arrested when he was only 16 years old, the police coerced a false confession from the teenager after 7.5 hours of interrogation. Using that conviction, Deskovic was convicted and sentenced to 15 years to life, even though: (1) DNA evidence showed that semen inside of the victim; and (2) hair found on the victim were not a match for Deskovic, supporting his claims of innocence.

It was only through the efforts of the Innocence Project that Jeff Deskovic was freed – and this was not due to the courts reversing his case on appeal. No.

The only way that Mr. Deskovic was freed was because the Innocence Project collected the DNA evidence, compared the DNA to the state database, and discovered the real evildoer. Once again, thank God for the Innocence Project.

Now that he’s fully exonerated, Jeffrey Deskovic devotes his time to fighting against wrongful convictions in this country. One of the ways that he does this is via the internet, and at his website, you can read about:

1. Mr. Deskovic’s speechmaking around the country, including his national fight against the death penalty (he points out that if he had been 18 and not 16 when was convicted, he may well have been executed before he could have been exonerated under the current death row timelines);

2. Mr. Deskovic’s articles that published in various media across the country, urging the repeal of the death penalty in various states as well as on the federal level;

3. Forum discussions where site members (membership is free) discuss topics of interest, such as the position of Judge Sotomayor on the death penalty (FYI, Jeff Deskovic is against Sotomayor being appointed to the U.S. Supreme Court).

VISIT Recommended Website: Jeffrey Deskovic Speaks.

The Death Penalty Information Center has released the annual year-end report: it’s a recommended read.

In the 2020 Year End Report from the Death Penalty Information Center, perhaps the most shocking revelation is its tally of ten (10) executions within a five (5) month time period by the federal government. These are civilian executions, not involving the military.  For more on that distinction read our earlier post, 10 Things to Know About U.S. Death Penalty in First Half 2020.
The Report points out that in 2020, for the first time in our nation’s history, the federal government executed more people than all the states — combined.
  • Every prisoner executed this year was age 21 or younger at the offense or had at least one of the following impairments: significant evidence of mental illness (8); evidence of brain injury, developmental brain damage, or an IQ in the intellectually disabled range (6); chronic serious childhood trauma, neglect, and/or abuse (14).
  • Five people were exonerated from death row in 2020, bringing the number of people exonerated from death row to 172 since 1973. In each of the five cases, prosecutorial misconduct contributed to the wrongful conviction.
  • With Colorado abolishing capital punishment this year, more than two-thirds of states (34) have either repealed the death penalty or not carried out an execution in 10 years. According to Gallup, the 43 percent of people who opposed the death penalty in 2020 is the highest level of opposition since 1966.
  • Candidates pledging systemic reforms, including reduced use or abandonment of the death penalty, won prosecutor races in several jurisdictions that have historically produced a large number of death sentences: Los Angeles County (CA), Travis County (Austin, TX), Orange-Osceola counties (Orlando, FL), and Franklin County (Columbus, OH). Across the county, reform prosecutors took the helm in counties comprising more than 12 percent of the nation’s death-row population.

For previous recommended reads, go here.

We’ve recommended John Grisham’s work before, as a whole, in no small part due to his focus upon aspects of criminal defense in death penalty matters. See, “Book Recommendation: John Grisham’s Novels on Death Row and Capital Punishment.”

book cover of A Time for Mercy linked to AmazonThis fall, Mr. Grisham has released another novel, the third in his Jake Brigance series (as played by Matthew McConaughey in the movie version of Grisham’s first book, A Time to Kill).

It’s entitled A Time for Mercy, and it’s a recommended read.

The story deals with death penalty defense – and spans a time frame from the initial killing through arrest and trial to jury verdict.

A theme running through the book is something dovetailing one of Terry’s passions:  spotlighting the realities of financial support in indigent capital case defense.  In A Time for Mercy, the defense lawyer is not only facing of criticism  and ridicule because of the case, but he’s got financial woes as an added burden while he has the fiscall responsibilities of defending a death penalty case where the client is indigent.

It’s another good read from John Grisham, and a welcomed respite in these turbulent times.

Click on the image to visit and read more details on the book and its 12,688 ratings (4.8 stars).

How the race of the accused impacts not only the likelihood of his or her arrest, but the chance of conviction and the severity of punishment is a critical and vital component to any defense of a death penalty case, as exemplified in the current pre-trial motions being filed in the Markeith Loyd matter by Terence Lenamon we have shared in previous posts.

New DPIC Report on Racial Discrimination in Death Penalty Cases

This month, the Death Penalty Information Center (DPIC) published a new report entitled, “Enduring Injustice: the Persistence of Racial Discrimination in the U.S. Death Penalty.”  (Click on the image of its cover to read the report online in its entirety.)

It’s a recommended read.

From the DPIC press release the author of the new report, DPIC’s Senior Director of Research and Special Projects Ngozi Ndulue, explains:

“We have seen more explicit reference to the continued racial discrimination in the death penalty in the last few months.  This is a moment that advocates are really looking for concrete changes and what we’re trying to do with this report — the bulk of it was written before the deaths of Ahmaud Arbery, Breonna Taylor, George Floyd — ties really into the moment of reckoning of racial justice the country is having right now.”

Also note the following data from the new DPIC publication (emphasis added):

  • A 2015 meta-analysis of 30 studies showing that the killers of white people were more likely than the killers of Black people to face a capital prosecution.
  • A study in North Carolina showing that qualified Black jurors were struck from juries at more than twice the rate of qualified white jurors. As of 2010, 20 percent of those on the state’s death row were sentenced to death by all-white juries.
  • Data showing that since executions resumed in 1977, 295 African-American defendants have been executed for interracial murders of white victims, while only 21 white defendants have been executed for interracial murders of African Americans.
  • A 2014 mock jury study of more than 500 Californians that found white jurors were more likely to sentence poor Latinx defendants to death than poor white defendants.
  • Data showing that exonerations of African Americans for murder convictions are 22 percent more likely to be linked to police misconduct.

The Death Penalty Information Center has released its annual Year End analysis of the state of capital punishment in this country.  Go here to read the entire report, “The Death Penalty in 2018: Year End Report.”


Jurisdictions that imposed the death penalty during the year 2018. Graphic: DPIC


2018: Death Penalty in Florida

Of course, the State of Florida is included in this yearly recap on both death sentences and executions, as well as exonerations for those living on Florida’s Death Row.  What were the major events insofar as capital punishment in Florida during the past twelve months?

  1.  Seven Death Sentences

Last year, Florida tied with Texas as having the most death sentences imposed during 2018.  Both states saw seven (7) individuals sentenced to death.  Together with California and Ohio, these four states were responsible for over half of all death sentences last year (57%).

From the DPIC 2018 Report, page 4:

Fourteen states and the federal government imposed death sentences in 2018, but 57% of those sentences came from just four states: Texas and Florida (both with seven) and California and Ohio (both with five). Even as the backlog of cases from two years of uncertainty about the constitutionality of Florida’s sentencing procedures increased the number of capital trials in the state, the new law barring judges from imposing the death penalty without a unanimous jury recommendation for death resulted in at least four life sentences that might previously have produced death verdicts.

2.  One Exoneration: Clemente Javier Aguirre

Florida saw one Florida Death Row Inmate freed during the year 2018.  Mr. Clemente Javier Aguire left prison in November, after being sentenced to death 12 years earlier.  Key appellate arguments  here included challenges to DNA evidence as well as credibility of one of the state’s key witness.

From the DPIC 2018 Report, page 7:

Clemente Javier Aguirre was exonerated from Florida’s death row on November 5, after jury selection for his retrial had already begun. He was the 28th death-row prisoner exonerated in Florida. Aguirre was convicted and sentenced to death in 2006 of the murder of two neighbors–an elderly woman and her adult daughter–in 2004. He steadfastly maintained his innocence, saying he had discovered the women after they had been killed. He did not report the murders to authorities, he said, because he was an undocumented immigrant and feared deportation. The prosecution’s chief witness against Aguirre was Samantha Williams, the mentally ill daughter and granddaughter of the victims. During the post-conviction process, Aguirre’s lawyers discovered that Williams had confessed to at least five different people that she had killed her relatives. None of the DNA found on the 84 items from the crime scene that were tested matched Aguirre. Most blood samples matched the two victims, and Samantha Williams’s DNA was found on eight bloodstains collected from four different rooms. As with more than 90% of Florida’s death-row exonerees, Aguirre had been sentenced to death by non-unanimous jury recommendations under Florida’s unconstitutional capital sentencing scheme.

3.  Execution of Eric Branch Despite Non-Unanimous Jury and SCOTUS Ruling in Hurst

The Supreme Court of the United States found the Florida statute that allowed for non-unanimous juries to impose death sentences was unconstitutional.  SCOTUS held that every single jury member must agree upon capital punishment before death is imposed.  However, the Florida Supreme Court later ruled that it would draw a line on the calendar insofar as when Hurst would apply to Florida’s Death Row inmates:  if the case was final before June 2002, when the SCOTUS decision in Ring v. Arizona came down, then Hurst would not be applied and the non-unanimous jury death sentence would stand.

The result?  Eric Branch was executed by the State of Florida in 2018, despite his jury voting 10-2 for the death penalty.

From the DPIC Report, page 12:

Two men, Eric Branch in Florida and Walter Moody in Alabama, were executed after non-unanimous juries recommended death sentences. Branch, who was only 21 at the time of his crime, received a 10-2 jury recommendation for death, an outcome that could not produce a death sentence today. In 2016, in Hurst v. Florida, the U.S. Supreme Court struck down the Florida sentencing scheme under which Branch was tried and condemned. Branch was one of 200 prisoners sentenced under Florida’s unconstitutional statute who still face execution as a result of a Florida Supreme Court ruling that it will enforce Hurst only in cases finalized after June 2002, when the U.S. Supreme Court decided a related case, Ring v. Arizona. In 2018, the U.S. Supreme Court declined to review 84 Florida cases in which defendants had been sentenced to death under the unconstitutional statute. Alabama law still allows non-unanimous jury recommendations for death, as long as at least 10 jurors agree, but Moody’s 11-1 jury recommendation would result in a life sentence in nearly every other death-penalty state.

For more on Hurst, see:

This week, seven Florida capital cases were decided by the United States Supreme Court (SCOTUS) as the High Court issued its orders denying future consideration of requests made by Florida Death Row inmates.

All of these cases ask SCOTUS to review decisions made by the Florida Supreme Court as it applies the SCOTUS decision in Hurst v. Florida.

We’ve discussed Hurst before; in sum, SCOTUS found the Florida death penalty statute was unconstitutional because juries did not decide whether or not there were sufficient aggravating factors to impose death (under the law, the judge decided on capital punishment).  When Hurst came down, it meant that Florida Death Row inmates who were sentenced to death under an unconstitutional process were due new sentencing trials.  They began filing appeals, among them these seven whose writs were denied this Tuesday.


Seven Florida Petitions Based Upon Hurst Denied by SCOTUS This Week

Specifically, the seven Florida capital cases are as follows (linked to their respective SCOTUS Docket pages):

Franklin v. Florida, 18-5228

11-13-18 Order:  Petition DENIED. Justice Thomas, concurring in the denial of certiorari: I concur for the reasons set out in Reynolds v. Florida, 586 U. S. ___ (2018) (Thomas, J., concurring). Justice Sotomayor, dissenting from the denial of certiorari: I dissent for the reasons set out in Reynolds v. Florida, 586 U. S. ___ (2018) (Sotomayor, J., dissenting).

Grim v. Florida, 18-5518

11-13-18 Order:  Petition DENIED. Justice Thomas, concurring in the denial of certiorari: I concur for the reasons set out in Reynolds v. Florida, 586 U. S. ___ (2018) (Thomas, J., concurring). Justice Sotomayor, dissenting from the denial of certiorari: I dissent for the reasons set out in Reynolds v. Florida, 586 U. S. ___ (2018) (Sotomayor, J., dissenting).

Guardado v. Florida, 17-9284

11-13-18 Order:  Petition DENIED. Justice Thomas, concurring in the denial of certiorari: I concur for the reasons set out in Reynolds v. Florida, 586 U. S. ___ (2018) (Thomas, J., concurring). Justice Sotomayor, dissenting from the denial of certiorari: I dissent for the reasons set out in Reynolds v. Florida, 586 U. S. ___ (2018) (Sotomayor, J., dissenting).

Johnston v. Florida, 18-5793

11-13-18 Order:  Petition DENIED. Justice Thomas, concurring in the denial of certiorari: I concur for the reasons set out in Reynolds v. Florida, 586 U. S. ___ (2018) (Thomas, J., concurring). Justice Sotomayor, dissenting from the denial of certiorari: I dissent for the reasons set out in Reynolds v. Florida, 586 U. S. ___ (2018) (Sotomayor, J., dissenting).

Philmore v. Florida, 17-9556

11-13-18 Order:  Petition DENIED. Justice Thomas, concurring in the denial of certiorari: I concur for the reasons set out in Reynolds v. Florida, 586 U. S. ___ (2018) (Thomas, J., concurring). Justice Sotomayor, dissenting from the denial of certiorari: I dissent for the reasons set out in Reynolds v. Florida, 586 U. S. ___ (2018) (Sotomayor, J., dissenting).

Reynolds v. Florida, 18-5181

11-13-18 Order:  Petition DENIED. Statement of Justice Breyer respecting the denial of certiorari. (Detached). Justice Thomas, concurring in the denial of certiorari. (Detached Opinion). Justice Sotomayor, dissenting from denial of certiorari. (Detached Opinion).

Tanzi v. Florida, 18-5160

11-13-18 Order:  Petition DENIED. Justice Thomas, concurring in the denial of certiorari: I concur for the reasons set out in Reynolds v. Florida, 586 U. S. ___ (2018) (Thomas, J., concurring). Justice Sotomayor, dissenting from the denial of certiorari: I dissent for the reasons set out in Reynolds v. Florida, 586 U. S. ___ (2018) (Sotomayor, J., dissenting).

Revelation of Three Justices’ Viewpoints on Death Penalty

Most of the Justices simply agreed with the order denying writ; however, three felt passionately enough about the issue to write on the subject.  Sotomayor dissented; both Thomas and Breyer concurred.

1.  Sotomayor Dissent

Once again, Justice Sotomayor dissented in these death penalty cases arguing that the petitions for writ of certiorari should have been granted.  She writes that while each of the seven petitions deal with “gruesome crimes” there should be consideration of the constitutional issues raised by the Death Row Inmates.

From  Justice Sotomayor’s Dissent in Reynolds:

“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.

“[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.” Caldwell, 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 harmlesserror 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 constitutional 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 unwilling 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.”

2.  Thomas Concurrence

Justice Thomas concurred with the decision to deny these petitions; he is clear it has already been decided the Eighth Amendment (against cruel and unusual punishment) is not violated by the death penalty.

From the Reynolds concurrence by Justice Thomas:

“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.”

3. Breyer Concurrence

There is also a concurrence from Justice Breyer, where he explains his position on these denials. He does express concerns about capital punishment in this country – not on the act itself, but in how long it is taking to execute those sentenced to death.  He calls the delays “unconscionable.”  He also has concerns about the retroactive application of Hurst and how judges and juries make the decision to sentence the accused to death (in Florida and elsewhere).

From  Justice Breyer’s concurrence:

“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.”

Two more petitions for a writ of certiorari were denied on Monday by the Supreme Court of the United States in capital cases coming out of Florida. 

They are dealing with review of current Florida Death Row inmates’ sentences where they were sentenced to die under a statutory scheme deemed unconstitutional by the High Court. 

Florida Death Row Sentences Under Unconstitutional System Denied SCOTUS Review

Without more, let us all consider the words of Justice Sotomayor in her dissent published in the cases of Guardado v. Jones and Cozzie v. Florida: 

JUSTICE SOTOMAYOR, dissenting from the denial of certiorari.

Twice now this Court has declined to vacate and remand to the Florida Supreme Court in cases where that court failed to address a substantial Eighth Amendment challenge to capital defendants’ sentences, and twice I have dissented from that inaction. See Truehill v. Florida, 583 U. S. ___, ___ (2017); Middleton v. Florida, 583 U. S. ___, ___ (2018). Four petitioners were involved in those cases.

Today we add two more to the list, for a total of at least six capital defendants who now face execution by the State without having received full consideration of their claims.

It should not be necessary for me to explain again why petitioners’ challenges are substantial, why the Florida Supreme Court should have addressed those challenges, or why this Court has an obligation to intervene. Nevertheless, recent developments at the Florida Supreme Court compel me to dissent in full once again.

As a reminder, like the petitioners in Truehill and Middleton, Jesse Guardado and Steven Cozzie challenge their death sentences pursuant to Caldwell v. Mississippi, 472 U.S. 320 (1985). I summarized those challenges in Middleton as follows:

[Petitioners] were sentenced to death under a Florida capital sentencing scheme that this Court has since declared unconstitutional. See Hurst v. Florida, 577 U. S. ___ (2016). Relying on the unanimity of the juries’ recommendations of death, the Florida Supreme Court post-Hurst declined to disturb the petitioners’ death sentences, reasoning that the unanimity ensured that jurors had made the necessary findings of fact under Hurst. By doing so, the Florida Supreme Court effectively transformed the pre-Hurst jury recommendations into binding findings of fact with respect to petitioners’ death sentences. 583 U. S., at ___-___ (slip op., at 1-2) (dissenting from denial of certiorari).
Reliance on those pre-Hurst recommendations, rendered after the juries repeatedly were instructed that their role was merely advisory, implicates Caldwell, where this Court recognized that "the uncorrected suggestion that the responsibility for any ultimate determination of death will rest with others presents an intolerable danger that the jury will in fact choose to minimize the importance of its role," in contravention of the Eighth Amendment. 472 U. S., at 333.

Following the dissent from the denial of certiorari in Truehill, the Florida Supreme Court has on at least two occasions taken the position that it has, in fact, considered and rejected petitioners’ Caldwell-based challenges.1 In Franklin v. State, ___ So. 3d ___, 2018 WL 897427 (Feb. 15, 2018) (per curiam), the Florida Supreme Court stated that, "prior to Hurst, [it] repeatedly rejected Caldwell challenges to the standard jury instructions." Id., at *3. The decisions it cited in support of that pre-Hurst precedent rely on one fact: "Informing the jury that its recommended sentence is `advisory’ is a correct statement of Florida law and does not violate Caldwell." Rigterink v. State, 66 So.3d 866, 897 (Fla. 2011) (per curiam); Globe v. State, 877 So.2d 663, 673-674 (Fla. 2004) (per curiam) (stating that it has rejected Caldwell challenges to the standard jury instructions, citing cases that similarly rely on the fact that the instructions accurately reflect the advisory nature of the jurors’ role). But of course, "the rationale underlying [this] previous rejection of the Caldwell challenge [has] now [been] undermined by this Court in Hurst," Truehill, 583 U. S., at ___ (slip op., at 2), and the Florida Supreme Court must therefore "grapple with the Eighth Amendment implications of [its subsequent post-Hurst] holding" that "then-advisory jury findings are now binding and sufficient to satisfy Hurst," Middleton, 583 U. S., at ___ (slip op., at 2). Its pre-Hurst precedent thus does not absolve the Florida Supreme Court from addressing petitioners’ new post-Hurst Caldwell-based challenges.

The Florida Supreme Court in Franklin did not stop there, however. It went on to state that it had "also rejected Caldwell-related Hurst claims" more recently, citing Truehill v. State, 211 So.3d 930 (Fla. 2017) (per curiam), and Oliver v. State, 214 So.3d 606 (Fla. 2017) (per curiam), noting that "the defendants in Oliver and Truehill petitioned the United States Supreme Court for a writ of certiorari to review their Caldwell claims, which the Court denied." Franklin, 2018 WL 897427, *3. This is a surprising statement, because Quentin Truehill and Terence Oliver were the two petitioners whose claims were at issue in my dissent in Truehill. Franklin did not discuss that dissent, joined by two other Justices, which specifically noted that "the Florida Supreme Court has failed to address" the important Caldwell-based challenge. Truehill, 583 U. S., at ___ (slip op., at 1). Earlier this month, in rejecting a motion to vacate a sentence brought by petitioner Jesse Guardado, the Florida Supreme Court again held that it had "considered and rejected" post-Hurst Caldwell-based challenges, citing Franklin, 2018 WL 897427, and Truehill, 211 So.3d 930. Guardado v. State, ___ So. 3d ___, 2018 WL 1193196, *2 (Mar. 8, 2018).2

It is hard to understand how the Florida Supreme Court "considered and rejected" these Caldwell-based challenges based on its decisions in Truehill and Oliver. Those cases did not mention or discuss Caldwell. Nor did they mention or discuss the fundamental Eighth Amendment principle it announced: "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." Caldwell, 472 U. S., at 328-329. In neither Truehill nor Oliver did the Florida Supreme Court discuss the grave Eighth Amendment concerns implicated by its finding that the Hurst violations in those cases are harmless, a conclusion that transforms those advisory jury recommendations into binding findings of fact. Although the Florida Supreme Court noted in Truehill that the defendant in that case "contends that he is entitled to relief pursuant to Hurst v. Florida because the jury in his case was repeatedly instructed regarding the non-binding nature of its verdict," 211 So. 3d, at 955, that was the first and last reference to that argument. There was absolutely no reference to the argument in Oliver. 214 So.3d 606.3

Therefore, the Florida Supreme Court has (again)4 failed to address an important and substantial Eighth Amendment challenge to capital defendants’ sentences post-Hurst. Nothing in its pre-Hurst precedent, nor in its opinions in Truehill and Oliver, addresses or resolves these substantial Caldwell-based challenges. This Court can and should intervene in the face of this troubling situation.

I dissent.

Foot Notes

1. The cases in which the Florida Supreme Court has taken this position, i.e., that it has considered and rejected the Caldwell-based claims discussed herein, are not the ones currently under review before our Court in these petitions.

2. As petitioner Guardado explained in his supplemental brief, in addition to the postconviction motion that forms the basis of the petition currently before our Court, he also filed a motion to vacate his sentence. See Supp. Brief for Petitioner 1. It was with respect to that motion that the Florida Supreme Court issued the opinion stating that it had "considered and rejected" the Caldwell-based challenge. No mention of the Caldwell-based claim was made in the Florida Supreme Court opinion directly under review in this petition. 226 So.3d 213 (2017). In fact, petitioner Guardado filed a motion with the Florida Supreme Court for rehearing and clarification of the denial of his postconviction motion, noting, inter alia, that the opinion "unreasonably omitted any consideration or discussion of [his] arguments regarding the interplay between Caldwell and Hurst." App. to Pet. for Cert. in No. 17-7171, p. 68a. The Florida Supreme Court denied the motion in an unreasoned one-line order. See id., at 7a. Petitioner Steven Cozzie also moved for rehearing below, similarly arguing in part that the Florida Supreme Court "overlooked the effect of instructing [his] jury many times that its recommendation was advisory only," citing Caldwell. App. to Pet. for Cert. in No. 17-7545, p. 66a. The Florida Supreme Court also denied the motion in an unreasoned one-line order. See id., at 43a.

3. Tellingly, in neither Franklin nor Guardado did the Florida Supreme Court supply a pincite for its "consider[ation] and reject[ion]" in Truehill and Oliver of these Caldwell-based claims.

4. "Toutes choses sont dites déjà; mais comme personne n’écoute, il faut toujours recommencer." Gide, Le Traité du Narcisse 8 (1892), in Le Traité du Narcisse 104 (R. Robidoux ed. 1978) ("Everything has been said already; but as no one listens, we must always begin again").