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GLOSSIP v. GROSS BREYER, J., dissenting

and Stevens, JJ.); Proffitt v. Florida, 428 U. S. 242, 247 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.); Jurek v. Texas, 428 U. S. 262, 268 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.); but cf. Woodson v. North Carolina, 428 U. S. 280, 303 (1976) (plurality opin­ ion) (striking down mandatory death penalty); Roberts v. Louisiana, 428 U. S. 325, 331 (1976) (plurality opinion) (similar). The circumstances and the evidence of the death penalty’s application have changed radically since then. Given those changes, I believe that it is now time to reopen the question. In 1976, the Court thought that the constitutional in­ firmities in the death penalty could be healed; the Court in effect delegated significant responsibility to the States to develop procedures that would protect against those con­ stitutional problems. Almost 40 years of studies, surveys, and experience strongly indicate, however, that this effort has failed. Today’s administration of the death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use. I shall describe each of these considerations, emphasiz­ ing changes that have occurred during the past four dec­ ades. For it is those changes, taken together with my own 20 years of experience on this Court, that lead me to be­ lieve that the death penalty, in and of itself, now likely constitutes a legally prohibited “cruel and unusual pun­ ishmen[t].” U. S. Const., Amdt. 8. I “Cruel”—Lack of Reliability This Court has specified that the finality of death cre­ ates a “qualitative difference” between the death penalty