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GLOSSIP v. GROSS BREYER, J., dissenting

dates careful scrutiny in the review of any colorable claim of error”); Kyles v. Whitley, 514 U. S. 419, 422 (1995) (“[O]ur duty to search for constitutional error with pains­ taking care is never more exacting than it is in a capital case” (internal quotation marks omitted)); Thompson, 556 U. S., at 1116 (statement of Stevens, J.) (“Judicial process takes time, but the error rate in capital cases illustrates its necessity”). Moreover, review by courts at every level helps to en­ sure reliability; if this Court had not ordered that Anthony Ray Hinton receive further hearings in state court, see Hinton v. Alabama, 571 U. S. ___, he may well have been executed rather than exonerated. In my own view, our legal system’s complexity, our federal system with its separate state and federal courts, our constitutional guar­ antees, our commitment to fair procedure, and, above all, a special need for reliability and fairness in capital cases, combine to make significant procedural “reform” unlikely in practice to reduce delays to an acceptable level. And that fact creates a dilemma: A death penalty sys­ tem that seeks procedural fairness and reliability brings with it delays that severely aggravate the cruelty of capi­ tal punishment and significantly undermine the rationale for imposing a sentence of death in the first place. See Knight, 528 U. S., at 998 (BREYER, J., dissenting from denial of certiorari) (one of the primary causes of the delay is the States’ “failure to apply constitutionally sufficient procedures at the time of initial [conviction or] sentenc­ ing”). But a death penalty system that minimizes delays would undermine the legal system’s efforts to secure relia­ bility and procedural fairness. In this world, or at least in this Nation, we can have a death penalty that at least arguably serves legitimate penological purposes or we can have a procedural system that at least arguably seeks reliability and fairness in the death penalty’s application. We cannot have both. And