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

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BREYER, J., dissenting

Institute of Medicine) reviewed 30 years of empirical evidence and concluded that it was insufficient to estab­ lish a deterrent effect and thus should “not be used to inform” discussion about the deterrent value of the death penalty. National Research Council, Deterrence and the Death Penalty 2 (D. Nagin & J. Pepper eds. 2012); accord, Baze v. Rees, 553 U. S. 35, 79 (2008) (Stevens, J., concur­ ring in judgment) (“Despite 30 years of empirical research in the area, there remains no reliable statistical evi­

dence that capital punishment in fact deters potential offenders”). I recognize that a “lack of evidence” for a proposition does not prove the contrary. See Ring, supra, at 615 (one might believe the studies “inconclusive”). But suppose that we add to these studies the fact that, today, very few of those sentenced to death are actually executed, and that even those executions occur, on average, after nearly two decades on death row. DPIC, Execution List 2014, supra. Then, does it still seem likely that the death penalty has a significant deterrent effect? Consider, for example, what actually happened to the 183 inmates sentenced to death in 1978. As of 2013 (35 years later), 38 (or 21% of them) had been executed; 132 (or 72%) had had their convictions or sentences overturned or commuted; and 7 (or 4%) had died of other (likely natu­ ral) causes. Six (or 3%) remained on death row. BJS 2013 Stats, at 19 (Table 16). The example illustrates a general trend. Of the 8,466 inmates under a death sentence at some point between 1973 and 2013, 16% were executed, 42% had their convic­ tions or sentences overturned or commuted, and 6% died by other causes; the remainder (35%) are still on death row. Id., at 20 (Table 17); see also Baumgartner & Die­ trich, Most Death Penalty Sentences Are Overturned: Here’s Why That Matters, Washington Post Blog, Monkey Cage, Mar. 17, 2015 (similar).