Page:Glossip v. Gross.pdf/81

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

31

BREYER, J., dissenting

present to the sentencing judge or jury all mitigating circumstances, Lockett v. Ohio, 438 U. S. 586; that the State provide guidance adequate to reserve the application of the death penalty to particularly serious murders, Gregg, 428 U. S. 153; that the State provide adequate counsel and, where warranted, adequate expert assis­ tance, Powell v. Alabama, 287 U. S. 45 (1932); Wiggins v. Smith, 539 U. S. 510 (2003); Ake v. Oklahoma, 470 U. S. 68 (1985); or that a jury must find the aggravating factors necessary to impose the death penalty, Ring, 536 U. S. 584; see also id., at 614 (BREYER, J., concurring in judg­ ment)? Should we no longer ensure that the State does not execute those who are seriously intellectually disabled, Atkins, 536 U. S. 304? Should we eliminate the require­ ment that the manner of execution be constitutional, Baze, 553 U. S. 35, or the requirement that the inmate be men­ tally competent at the time of his execution, Ford v. Wainwright, 477 U. S. 399 (1986)? Or should we get rid of the criminal protections that all criminal defendants receive—for instance, that defendants claiming violation of constitutional guarantees (say “due process of law”) may seek a writ of habeas corpus in federal courts? See, e.g., O’Neal v. McAninch, 513 U. S. 432 (1995). My answer to these questions is “surely not.” But see ante, at 5–7 (SCALIA, J., concurring). One might, of course, argue that courts, particularly federal courts providing additional layers of review, apply these and other requirements too strictly, and that causes delay. But, it is difficult for judges, as it would be difficult for anyone, not to apply legal requirements punctiliously when the consequence of failing to do so may well be death, particularly the death of an innocent person. See, e.g., Zant v. Stephens, 462 U. S. 862, 885 (1983) (“[A]lthough not every imperfection in the deliberative process is sufficient, even in a capital case, to set aside a state-court judgment, the severity of the sentence man­