Page:Glossip v. Gross.pdf/61

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

11

BREYER, J., dissenting

which Connecticut law made the defendant eligible for a death sentence. Id., at 641–643. Courts imposed a death sentence in 12 of these 205 cases, of which 9 were sus­ tained on appeal. Id., at 641. The study then measured the “egregiousness” of the murderer’s conduct in those 9 cases, developing a system of metrics designed to do so. Id., at 643–645. It then compared the egregiousness of the conduct of the 9 defendants sentenced to death with the egregiousness of the conduct of defendants in the remain­ ing 196 cases (those in which the defendant, though found guilty of a death-eligible offense, was ultimately not sen­ tenced to death). Application of the studies’ metrics made clear that only 1 of those 9 defendants was indeed the “worst of the worst” (or was, at least, within the 15% considered most “egregious”). The remaining eight were not. Their behavior was no worse than the behavior of at least 33 and as many as 170 other defendants (out of a total pool of 205) who had not been sentenced to death. Id., at 678–679. Such studies indicate that the factors that most clearly ought to affect application of the death penalty—namely, comparative egregiousness of the crime—often do not. Other studies show that circumstances that ought not to affect application of the death penalty, such as race, gen­ der, or geography, often do. Numerous studies, for example, have concluded that individuals accused of murdering white victims, as op­ posed to black or other minority victims, are more likely to receive the death penalty. See GAO, Report to the Senate and House Committees on the Judiciary: Death Penalty Sentencing 5 (GAO/GGD–90–57, 1990) (82% of the 28 studies conducted between 1972 and 1990 found that race of victim influences capital murder charge or death sen­ tence, a “finding . . . remarkably consistent across data sets, states, data collection methods, and analytic tech­ niques”); Shatz & Dalton, Challenging the Death Penalty