(dissenting) — Proportionality review is vital to the capital process because arbitrary or discriminatory imposition of the death penalty is repugnant to the Eighth Amendment to the United States Constitution and article I, section 14, of the Washington Constitution. In re Pers. Restraint of Rupe, 115 Wn.2d 379, 393-94, 798 P.2d 780 (1990). These provisions set forth the minimally acceptable constitutional floor which our legislature may exceed by statute. This, I argue, is exactly what RCW 10.95.130(2)(b) accomplished. That statute requires us to consider:
Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
RCW 10.95.130(2)(b).
*88Notwithstanding this plain language our statutorily required review has degenerated through numerous iterations6 into the current “wanton and freakish” standard, finally becoming little more than lip service to the important protection proportionality review was originally intended to offer. I posit this subverts the statute contrary to the appropriate function of the judiciary.
Ordinarily we do not subject unambiguous statutes to the canons of judicial construction. See Enter. Leasing, Inc. v. City of Tacoma, 139 Wn.2d 546, 552, 988 P.2d 961 (1999) (“When words in a statute are plain and unambiguous, statutory construction is not necessary, and this court must apply the statute as written unless the statute evidences an intent to the contrary.”). Therefore let us initially focus on the plain meaning of the words.
“Excessive” is defined as “exceeding the usual, proper, or normal.” Webster’s Third New International Dictionary 792 (1981). “Disproportionate” means “out of proportion,” id. at 655, where “proportional” is defined as “corresponding in size, degree, or intensity,” id. at 1819. Thus, the clear language of the statute requires us to consider whether the sentence of death exceeds the usual sentence imposed for similar conduct. If so, it is disproportionate.
However, rather than determine whether death was generally imposed in similar cases, the majority now begins with the premise the defendant is “qualified” for the death penalty so long as it is not “wantonly and freakishly” imposed, notwithstanding how many others may have engaged in similar conduct who were not executed. State v. Elmore, 139 Wn.2d 250, 308, 985 P.2d 289 (1999) (“If the facts of [the defendant’s] case are similar to some of the facts taken from cases in which the death penalty was upheld, the proportionality review is satisfied.”); State v. Brett, 126 Wn.2d 136, 210-11, 892 P.2d 29 (1995) (“[T]he legislative guidelines contained in RCW 10.95 within which *89the jury must exercise its discretion ensure proportionality and eliminate the ability of the jury, in all but the most aberrant case, to impose the death sentence in a wanton and freakish manner. Thus, our review, to be constitutionally sufficient, need only find that aberrant or ‘disproportionate’ case.”).
As Justice Utter so eloquently stated:
What that opinion characterizes as “an increasingly broad approach” to defining “similar cases” is more aptly described as the gradual degeneration of judicial review in capital cases, a process which reaches its low point with the introduction into our proportionality analysis of a new, and curiously elusive, concept: all murders falling within the purview of RCW 10.95 are, ipso facto, proportionate — except when they are not....
Id. at 227 (Utter, J., dissenting).7 Perpetuating this illusory “proportionality” standard, the majority now asks only whether the sentence was wanton, “marked by or manifesting heedless disregard of justice or of the rights ... of others,” Webster’s Third New International Dictionary at 2575, and freakish, “being or befitting a freak: markedly odd or abnormal,” id. at 904. I posit this new standard is, itself, “wanton and freakish” in its disregard for the plain language and intent of our mandatory proportionality review under RCW 10.95.130(2)(b). I challenge the majority to find any accepted definition of any term used in the proportionality statute which incorporates “wanton” or “freakish.” Rather it is plain these terms were lifted from Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), which described the minimum process due under the Fourteenth Amendment, not that process due under our statute. See State v. Harris, 106 Wn.2d 784, 797-98, 725 P.2d 975 (1986) (citing Furman, 408 U.S. at 310 (Stewart, J., concurring)).
Even if the mandatory language of RCW 10.95.130 were *90ambiguous, which it is not, the rule of lenity would require this criminal statute to be strictly construed against the State, resolving all ambiguities in favor of the accused. State v. McGee, 122 Wn.2d 783, 787, 864 P.2d 912 (1993). The proposition that “our review, to be constitutionally sufficient, need only find [a single] aberrant or ‘disproportionate’ case” is a far cry from lenity, especially in this, the most critical of contexts. Brett, 126 Wn.2d at 211.
I also take exception to the majority’s continuing erroneous consideration for proportionality review purposes cases in which the death penalty was ultimately vacated. Although this practice impermissibly skews the database review in favor of death, the majority dismisses the issue in a mere footnote, defending its position “so long as the penalty determination was not overturned on the basis of the penalty being disproportionately imposed.” Majority at 79 n.5. This approach is utter nonsense since the proportionality statute instructs us to consider the penalty actually “imposed” in similar cases, not the penalty “proposed.”
Prior death cases are cited in the majority’s proportionality review only to justify the death sentence in the present case, and only because death was proposed in the prior case, without regard to whether a death sentence in the instant case is generally proportional, i.e., the same as, the penalty imposed in all other cases involving like conduct. See, e.g., Elmore, 139 Wn.2d at 308-11; State v. Davis, 141 Wn.2d 798, 882-84, 10 P.3d 977 (2000). When the death sentence is reversed, and is never imposed, the case must be considered as one where the death penalty wasn’t imposed, not one where it was — Brett, for example. See In re Pers. Restraint of Brett, 142 Wn.2d 868, 16 P.3d 601 (2001); Stephanie Thomson, Guilty Plea Brings Life Without Parole, The Columbian (Vancouver, Wash.), Mar. 23, 2001, at 1.
Nonetheless, the majority summarily rejects these arguments and would apparently allow cases in which death was never imposed at all to support imposition of death in later cases.
Beyond that, the proportionality database is itself flawed *91because it (1) does not contain any cases in which first degree aggravated murder could have been charged but was not; (2) is not updated to reflect the subsequent reversal of the cases it contains; and (3) is missing a staggering number of cases required by RCW 10.95.130 in which defendants were convicted of aggravated first degree murder but no death penalty was imposed. Even if the court were to consider whether death was generally imposed in similar cases (which it no longer apparently does), the universe of cases we are supposed to consider is markedly skewed by these factors against the defendant, in favor of imposing death, and contrary to the statute.
Absent any demonstration in the instant case that the death sentence is imposed more often than not for similar conduct, I dissent.
See, e.g., State v. Lord, 117 Wn.2d 829, 911, 822 P.2d 177 (1991) (suggesting a “family resemblances” approach); State v. Benn, 120 Wn.2d 631, 680-93, 845 P.2d 289 (1993) (suggesting a statistically based approach).
See also Benn, 120 Wn.2d at 697-98 (Utter, J., dissenting); Lord, 117 Wn.2d at 939 (Utter, J., dissenting); In re Pers. Restraint of Jeffries, 114 Wn.2d 485, 505, 789 P.2d 731 (1990) (Utter, J., concurring in part, dissenting in part).