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GLOSSIP v. GROSS BREYER, J., BREYER, J.,dissenting dissenting

cost as one of the reasons why Nebraska legislators re­ cently repealed the death penalty in that State); cf. Cali­ fornia Commission on the Fair Administration of Justice, Report and Recommendations on the Administration of the Death Penalty in California 117 (June 30, 2008) (death penalty costs California $137 million per year; a compara­ ble system of life imprisonment without parole would cost $11.5 million per year), online at http://www.ccfaj.org/rr­ dp-official.html; Dáte, The High Price of Killing Killers, Palm Beach Post, Jan. 4, 2000, p. 1A (cost of each execu­ tion is $23 million above cost of life imprisonment without parole in Florida). The answer is that the matters I have discussed, such as lack of reliability, the arbitrary application of a serious and irreversible punishment, individual suffering caused by long delays, and lack of penological purpose are quin­ tessentially judicial matters. They concern the infliction— indeed the unfair, cruel, and unusual infliction—of a serious punishment upon an individual. I recognize that in 1972 this Court, in a sense, turned to Congress and the state legislatures in its search for standards that would increase the fairness and reliability of imposing a death penalty. The legislatures responded. But, in the last four decades, considerable evidence has accumulated that those responses have not worked. Thus we are left with a judicial responsibility. The Eighth Amendment sets forth the relevant law, and we must interpret that law. See Marbury v. Madison, 1 Cranch 137, 177 (1803); Hall, 572 U. S., at ___ (slip op., at 19) (“That exercise of independent judgment is the Court’s judicial duty”). We have made clear that “ ‘the Constitu­ tion contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.’ ” Id., at ___ (slip op., at 19) (quoting Coker v. Georgia, 433 U. S. 584, 597 (1977) (plurality opinion)); see also Thompson v.