Justice Breyer’s statement on Tuesday regarding the denial of certiorari in a death-penalty case (Reynolds v. Florida) elicited a noteworthy response from Justice Thomas.

In his statement, Justice Breyer repeated several concerns that he has expressed before. I’ll highlight three of them here: (1) 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”; (2) that the jurors (in this or other cases in which the Court has recently denied review) might not have had sufficient information to “have made a ‘community-based judgment’ that a death sentence was ‘proper retribution’”; and (3) that the constitutionality of the death penalty should be reconsidered.

Here is what Justice Thomas had to say in response (some citations and quotations marks omitted):

[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. 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]” [Breyer’s words] by submitting to what the people of Florida have deemed him to deserve: execution. 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.

It is no mystery why it often takes decades to execute a convicted murderer. The labyrinthine restrictions on capital punishment promulgated by this Court have caused the delays that Justice Breyer now bemoans. As “the Drum Major in this parade” of new precedents [quoting Justice Scalia in Glossip v. Gross], Justice Breyer is not well positioned to complain about their inevitable consequences.

[2] 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.” 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.’” 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.” 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.” 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.” 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.” “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.” “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….

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. In light of petitioner’s actions, I have no such worry, and I write separately to alleviate Justice Breyer’s concerns.

[3] Justice Breyer final (and actual) concern is with the death penalty itself. As I have elsewhere explained, it is clear that the Eighth Amendment does not prohibit the death penalty. The only thing “cruel and unusual” in this case was petitioner’s brutal murder of three innocent victims.