Page:United States Reports, Volume 542.djvu/405

366 By contrast, this case involves only a small subclass of defendants deprived of jury trial rights, the relevant harm within that subclass is more widespread, the administration of justice problem is far less serious, and the reliance interest less weighty. For these reasons, I believe the DeStefano Court would have come out differently had it been considering Ring ' s rule. Insofar as DeStefano has any relevance here, it highlights the importance, when making retroactivity decisions, of taking account of the considerations that underlie Teague ' s categorical rules. And, as shown above, those considerations argue in favor of retroactivity in this case. See supra, at 362–365.

As I have pointed out, the majority does not deny that Ring ' s rule makes some contribution to greater accuracy. It simply is unable to say "conﬁdently" that the absence of Ring ' s rule creates an "'"impermissibly large risk"'" that the death penalty was improperly imposed. Ante, at 356. For the reasons stated, I believe that the risk is one that the law need not and should not tolerate. Judged in light of Teague ' s basic purpose, Ring ' ss requirement that a jury, and not a judge, must apply the death sentence aggravators announces a watershed rule of criminal procedure that should be applied retroactively in habeas proceedings.

I respectfully dissent.