616
Breyer, J., concurring in judgment
science of the community on the ultimate question of life or death," Witherspoon v. Illinois, 391 U. S. 510, 519 (1968), and better able to determine in the particular case the need for retribution, namely, "an expression of the community's belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death." Gregg, supra, at 184 ( joint opinion of Stewart, Powell, and Stevens, JJ.).
Nor is the fact that some judges are democratically elected likely to change the jury's comparative advantage in this respect. Even in jurisdictions where judges are selected directly by the people, the jury remains uniquely capable of determining whether, given the community's views, capital punishment is appropriate in the particular case at hand. See Harris, 513 U. S., at 518-519 (Stevens, J., dissenting); see also J. Liebman et al., A Broken System, Part II: Why There Is So Much Error in Capital Cases, and What Can Be Done About It 405-406 (Feb. 11, 2002) (hereinafter A Broken System) (finding that judges who override jury verdicts for life are especially likely to commit serious errors); cf. Epstein & King, The Rules of Inference, 69 U. Chi. L. Rev. 1 (2002) (noting dangers in much scholarly research but generally approving of Liebman).
The importance of trying to translate a community's sense of capital punishment's appropriateness in a particular case is underscored by the continued division of opinion as to whether capital punishment is in all circumstances, as currently administered, "cruel and unusual." Those who make this claim point, among other things, to the fact that death is not reversible, and to death sentences imposed upon those whose convictions proved unreliable. See, e. g., Weinstein, The Nation's Death Penalty Foes Mark a Milestone Crime: Arizona convict freed on DNA tests is said to be the 100th known condemned U. S. prisoner to be exonerated since executions resumed, Los Angeles Times, Apr. 10, 2002, p. A16; G. Ryan, Governor of Illinois, Report of Governor's Commis-
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