Page:Glossip v. Gross.pdf/67

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

17

BREYER, J., dissenting

fact robbery) receive the death penalty, while another defendant does not, despite having stabbed his wife 60 times and killed his 6-year-old daughter and 3-year-old son while they slept? See Donohue, Capital Punishment in Connecticut, 1973–2007: A Comprehensive Evaluation from 4686 Murders to One Execution, pp. 128–134 (2013), online at http://works.bepress.com/john_donohue/87. In each instance, the sentences compared were imposed in the same State at about the same time. The question raised by these examples (and the many more I could give but do not), as well as by the research to which I have referred, is the same question Justice Stew­ art, Justice Powell, and others raised over the course of several decades: The imposition and implementation of the death penalty seems capricious, random, indeed, arbi­ trary. From a defendant’s perspective, to receive that sentence, and certainly to find it implemented, is the equivalent of being struck by lightning. How then can we reconcile the death penalty with the demands of a Consti­ tution that first and foremost insists upon a rule of law? III “Cruel”—Excessive Delays The problems of reliability and unfairness almost inevi­ tably lead to a third independent constitutional problem: excessively long periods of time that individuals typically spend on death row, alive but under sentence of death. That is to say, delay is in part a problem that the Consti­ tution’s own demands create. Given the special need for reliability and fairness in death penalty cases, the Eighth Amendment does, and must, apply to the death penalty “with special force.” Roper, 543 U. S., at 568. Those who face “that most severe sanction must have a fair oppor­ tunity to show that the Constitution prohibits their execu­ tion.” Hall v. Florida, 572 U. S. ___, ___ (2014) (slip op., at 22). At the same time, the Constitution insists that “every