Page:Glossip v. Gross.pdf/45

 Cite as: 576 U. S. ____ (2015)

5

THOMAS, J., concurring

this factor to be evidence of arbitrariness. See ibid. The constitutional provisions just quoted, which place such decisions in the hands of jurors and trial courts located where “the crime shall have been committed,” seem deliberately designed to introduce that factor. In any event, the results of these studies are inherently unreliable because they purport to control for egregiousness by quantifying moral depravity in a process that is itself arbitrary, not to mention dehumanizing. One such study’s explanation of how the author assigned “depravity points” to identify the “worst of the worst” murderers proves the point well. McCord, Lightning Still Strikes, 71 Brooklyn L. Rev. 797, 833–834 (2005). Each aggravating factor received a point value based on the “blameworth[iness]” of the action associated with it. Id., at 830. Killing a prison guard, for instance, earned a defendant three “depravity points” because it improved the case for complete incapacitation, while killing a police officer merited only two, because, “considered dispassionately,” such acts do “not seem be a sine qua non of the worst criminals.” Id., at 834–836. (Do not worry, the author reassures us, “many killers of police officers accrue depravity points in other ways that clearly put them among the worst criminals.” Id., at 836.) Killing a child under the age of 12 was worth two depravity points, because such an act “seems particularly heartless,” but killing someone over the age of 70 earned the murderer only one, for although “elderly victims tug at our hearts,” they do so “less” than children “because the promise of a long life is less.” Id., at 836, 838. Killing to make a political statement was worth three depravity points; killing out of racial hatred, only two. Id., at 835, 837. It goes on, but this small sample of the moral judgments on which this study rested shows just how unsuitable this evidence is to serve as a basis for a judicial decision declaring unconstitutional a punishment duly enacted in more than 30