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GLOSSIP v. GROSS THOMAS, J., concurring

arguments on which JUSTICE BREYER relies, as my colleagues and I have elsewhere refuted them.1 But JUSTICE BREYER’s assertion, post, at 10, that the death penalty in this country has fallen short of the aspiration that capital punishment be reserved for the “worst of the worst” —a notion itself based on an implicit proportionality principle that has long been discredited, see Harmelin v. Michigan, —————— 1 Generally: Baze v. Rees, 553 U. S. 35, 94–97 (2008) (THOMAS, J., concurring in judgment) (explaining that the Cruel and Unusual Punishments Clause does not prohibit the death penalty, but only torturous punishments); Graham v. Collins, 506 U. S. 461, 488 (1993) (THOMAS, J., concurring); Gardner v. Florida, 430 U. S. 349, 371 (1977) (Rehnquist, J., dissenting) (“The prohibition of the Eighth Amendment relates to the character of the punishment, and not to the process by which it is imposed”). On reliability: Kansas v. Marsh, 548 U. S. 163, 181 (2006) (noting that the death penalty remains constitutional despite imperfections in the criminal justice system); McGautha v. California, 402 U. S. 183, 221 (1971) (“[T]he Federal Constitution, which marks the limits of our authority in these cases, does not guarantee trial procedures that are the best of all worlds, or that accord with the most enlightened ideas of students of the infant science of criminology, or even those that measure up to the individual predilections of members of this Court”). On arbitrariness: Ring v. Arizona, 536 U. S. 584, 610 (2002) (SCALIA, J., concurring) (explaining that what compelled States to specify “ ‘aggravating factors’ ” designed to limit the death penalty to the worst of the worst was this Court’s baseless jurisprudence concerning juror discretion); McCleskey v. Kemp, 481 U. S. 279, 308–312 (1987) (noting that various procedures, including the right to a jury trial, constitute a defendant’s protection against arbitrariness in the application of the death penalty). On excessive delays: Knight v. Florida, 528 U. S. 990 (1999) (THOMAS, J., concurring in denial of certiorari) (“I am unaware of any support in the American constitutional tradition or in this Court’s precedent for the proposition that a defendant can avail himself of the panoply of appellate and collateral procedures and then complain when his execution is delayed”); see also Johnson v. Bredesen, 558 U. S. 1067, 1070 (2009) (THOMAS, J., concurring in denial of certiorari). And on the decline in use of the death penalty: Atkins v. Virginia, 536 U. S. 304, 345 (2002) (SCALIA, J., dissenting); Woodson v. North Carolina, 428 U. S. 280, 308– 310 (1976) (Rehnquist, J., dissenting).