614
Breyer, J., concurring in judgment
ante, at 569 (opinion concurring in part and concurring in judgment), I cannot join the Court's opinion. I concur in the judgment, however, because I believe that jury sentencing in capital cases is mandated by the Eighth Amendment.
II
This Court has held that the Eighth Amendment requires States to apply special procedural safeguards when they seek the death penalty. Gregg v. Georgia, 428 U. S. 153 (1976). Otherwise, the constitutional prohibition against "cruel and unusual punishments" would forbid its use. Furman v. Georgia, 408 U. S. 238 (1972) (per curiam). Justice Stevens has written that those safeguards include a requirement that a jury impose any sentence of death. Harris v. Alabama, 513 U. S. 504, 515-526 (1995) (dissenting opinion); Spaziano v. Florida, 468 U. S. 447, 467-490 (1984) (Stevens, J., joined by Brennan and Marshall, JJ., concurring in part and dissenting in part). Although I joined the majority in Harris v. Alabama, I have come to agree with the dissenting view, and with the related views of others upon which it in part relies, see Gregg, supra, at 190 ( joint opinion of Stewart, Powell, and Stevens, JJ.). Cf. Henslee v. Union Planters Nat. Bank & Trust Co., 335 U. S. 595, 600 (1949) (Frankfurter, J., dissenting) ("Wisdom too often never comes, and so one ought not to reject it merely because it comes late"). I therefore conclude that the Eighth Amendment requires that a jury, not a judge, make the decision to sentence a defendant to death.
I am convinced by the reasons that Justice Stevens has given. These include (1) his belief that retribution provides the main justification for capital punishment, and (2) his assessment of the jury's comparative advantage in determining, in a particular case, whether capital punishment will serve that end.
As to the first, I note the continued difficulty of justifying capital punishment in terms of its ability to deter crime, to
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