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GLOSSIP v. GROSS BREYER, J., dissenting

can make a difference. See Woodward v. Alabama, 571 U. S. ___, ___ (2013) (SOTOMAYOR, J., dissenting from denial of certiorari) (slip op., at 7) (noting that empirical evidence suggests that, when Alabama judges reverse jury recommendations, these “judges, who are elected in parti­ san proceedings, appear to have succumbed to electoral pressures”); Harris v. Alabama, 513 U. S. 504, 519 (1995) (Stevens, J., dissenting) (similar); Gelman, 1 J. Empirical L. Studies, at 247 (elected state judges are less likely to reverse flawed verdicts in capital cases in small towns than in larger communities). Thus, whether one looks at research indicating that irrelevant or improper factors—such as race, gender, local geography, and resources—do significantly determine who receives the death penalty, or whether one looks at re­ search indicating that proper factors—such as “egregious­ ness”—do not determine who receives the death penalty, the legal conclusion must be the same: The research strongly suggests that the death penalty is imposed arbitrarily. JUSTICE THOMAS catalogues the tragic details of various capital cases, ante, at 6–10 (concurring opinion), but this misses my point. Every murder is tragic, but unless we return to the mandatory death penalty struck down in Woodson, 428 U. S., at 304–305, the constitutionality of capital punishment rests on its limited application to the worst of the worst, supra, at 9–10. And this extensive body of evidence suggests that it is not so limited. Four decades ago, the Court believed it possible to in­ terpret the Eighth Amendment in ways that would signifi­ cantly limit the arbitrary application of the death sen­ tence. See Gregg, 428 U. S., at 195 (joint opinion of Stewart, Powell, and Stevens, JJ.) (“[T]he concerns ex­ pressed in Furman that the penalty of death not be im­ posed in an arbitrary or capricious manner can be met”). But that no longer seems likely.