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GLOSSIP v. GROSS THOMAS, J., concurring

late judges and justices, reviewing only a paper record of each side’s case for life or death. There is a reason the choice between life and death, within legal limits, is left to the jurors and judges who sit through the trial, and not to legal elites (or law students).2 That reason is memorialized not once, but twice, in our Constitution: Article III guarantees that “[t]he Trial of all Crimes, except in cases of Impeachment, shall be by Jury” and that “such Trial shall be held in the State where the said Crimes shall have been committed.” Art. III, §2, cl. 3. And the Sixth Amendment promises that “[i]n all criminal prosecutions, the accused shall enjoy the right to a. . . trial, by an impartial jury of the State and district wherein the crime shall have been committed.” Those provisions ensure that capital defendants are given the option to be sentenced by a jury of their peers who, collectively, are better situated to make the moral judgment between life and death than are the products of contemporary American law schools. It should come as no surprise, then, that the primary explanation a regression analysis revealed for the gap between the egregiousness scores and the actual sentences was not the race or sex of the offender or victim, but the locality in which the crime was committed. Donohue, supra, at 640; see also post, at 12 (BREYER, J., dissenting). What is more surprising is that JUSTICE BREYER considers —————— 2 For some, a faith in the jury seems to be correlated to that institution’s likelihood of preventing imposition of the death penalty. See, e.g., Ring v. Arizona, 536 U. S. 584, 614 (2002) (BREYER, J., concurring in judgment) (arguing that “the Eighth Amendment requires that a jury, not a judge, make the decision to sentence a defendant to death”); Wainwright v. Witt, 469 U. S. 412, 440, n. 1 (1985) (Brennan, J., dissenting) (“However heinous Witt’s crime, the majority’s vivid portrait of its gruesome details has no bearing on the issue before us. It is not for this Court to decide whether Witt deserves to die. That decision must first be made by a jury of his peers”).