Ring v. Arizona, 536 U.S. 584, 32 (2002)

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Cite as: 536 U. S. 584 (2002)

Breyer, J., concurring in judgment

incapacitate offenders, or to rehabilitate criminals. Studies of deterrence are, at most, inconclusive. See, e. g., Sorensen, Wrinkle, Brewer, & Marquart, Capital Punishment and Deterrence: Examining the Effect of Executions on Murder in Texas, 45 Crime & Delinquency 481 (1999) (no evidence of a deterrent effect); Bonner & Fessenden, Absence of Executions: A special report, States With No Death Penalty Share Lower Homicide Rates, N. Y. Times, Sept. 22, 2000, p. A1 (during last 20 years, homicide rate in death penalty States has been 48% to 101% higher than in non-death-penalty States); see also Radelet & Akers, Deterrence and the Death Penalty: The Views of the Experts, 87 J. Crim. L. & C. 1, 8 (1996) (over 80% of criminologists believe existing research fails to support deterrence justification).

As to incapacitation, few offenders sentenced to life without parole (as an alternative to death) commit further crimes. See, e. g., Sorensen & Pilgrim, An Actuarial Risk Assessment of Violence Posed by Capital Murder Defendants, 90 J. Crim. L. & C. 1251, 1256 (2000) (studies find average repeat murder rate of .002% among murderers whose death sentences were commuted); Marquart & Sorensen, A National Study of the Furman-Commuted Inmates: Assessing the Threat to Society from Capital Offenders, 23 Loyola (LA) L. Rev. 5, 26 (1989) (98% did not kill again either in prison or in free society). But see Roberts v. Louisiana, 428 U. S. 325, 354 (1976) (White, J., dissenting) ("[D]eath finally forecloses the possibility that a prisoner will commit further crimes, whereas life imprisonment does not"). And rehabilitation, obviously, is beside the point.

In respect to retribution, jurors possess an important comparative advantage over judges. In principle, they are more attuned to "the community's moral sensibility," Spaziano, 468 U. S., at 481 (Stevens, J., concurring in part and dissenting in part), because they "reflect more accurately the composition and experiences of the community as a whole," id., at 486. Hence they are more likely to "express the con-


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