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GLOSSIP v. GROSS SCALIA, J., concurring

no easy answers that we rely on juries to make judgments about the people and crimes before them. The fact that these judgments may vary across cases is an inevitable consequence of the jury trial, that cornerstone of AngloAmerican judicial procedure. But when a punishment is authorized by law—if you kill you are subject to death— the fact that some defendants receive mercy from their jury no more renders the underlying punishment “cruel” than does the fact that some guilty individuals are never apprehended, are never tried, are acquitted, or are pardoned. JUSTICE BREYER’s third reason that the death penalty is cruel is that it entails delay, thereby (1) subjecting inmates to long periods on death row and (2) undermining the penological justifications of the death penalty. The first point is nonsense. Life without parole is an even lengthier period than the wait on death row; and if the objection is that death row is a more confining environment, the solution should be modifying the environment rather than abolishing the death penalty. As for the argument that delay undermines the penological rationales for the death penalty: In insisting that “the major alternative to capital punishment—namely, life in prison without possibility of parole—also incapacitates,” post, at 24, JUSTICE BREYER apparently forgets that one of the plaintiffs in this very case was already in prison when he committed the murder that landed him on death row. JUSTICE BREYER further asserts that “whatever interest in retribution might be served by the death penalty as currently administered, that interest can be served almost as well by a sentence of life in prison without parole,” post, at 27. My goodness. If he thinks the death penalty not much more harsh (and hence not much more retributive), why is he so keen to get rid of it? With all due respect, whether the death penalty and life imprisonment constitute moreor-less equivalent retribution is a question far above the