Page:Glossip v. Gross.pdf/65

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

15

BREYER, J., dissenting

The Constitution does not prohibit the use of prosecuto­ rial discretion. Id., at 199, and n. 50 (joint opinion of Stewart, Powell, and Stevens, JJ.); McCleskey v. Kemp, 481 U. S. 279, 307–308, and n. 28, 311–312 (1987). It has not proved possible to increase capital defense funding significantly. Smith, The Supreme Court and the Politics of Death, 94 Va. L. Rev. 283, 355 (2008) (“Capital defend­ ers are notoriously underfunded, particularly in states . . . that lead the nation in executions”); American Bar Assn. (ABA) Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, Guideline 9.1, Commentary (rev. ed. Feb. 2003), in 31 Hofstra L. Rev. 913, 985 (2003) (“[C]ompensation of attorneys for death penalty representation remains notoriously inadequate”). And courts cannot easily inquire into judicial motivation. See, e.g., Harris, supra. Moreover, racial and gender biases may, unfortunately, reflect deeply rooted community biases (conscious or un­ conscious), which, despite their legal irrelevance, may affect a jury’s evaluation of mitigating evidence, see Callins v. Collins, 510 U. S. 1141, 1153 (1994) (Blackmun, J., dissenting from denial of certiorari) (“Perhaps it should not be surprising that the biases and prejudices that infect society generally would influence the determination of who is sentenced to death”). Nevertheless, it remains the jury’s task to make the individualized assessment of whether the defendant’s mitigation evidence entitles him to mercy. See, e.g., Penry v. Lynaugh, 492 U. S. 302, 319 (1989); Lockett v. Ohio, 438 U. S. 586, 604–605 (1978) (opinion of Burger, C. J.); Woodson, 428 U. S., at 304–305 (plurality opinion). Finally, since this Court held that comparative propor­ tionality review is not constitutionally required, Pulley v. Harris, 465 U. S. 37 (1984), it seems unlikely that appeals can prevent the arbitrariness I have described. See Kaufman-Osborn, Capital Punishment, Proportionality