(dissenting) — I respectfully dissent for the reasons ably articulated by Justice Madsen in State v. Manussier, 129 Wn.2d 652, 685, 921 P.2d 473 (1996) (Madsen, J., dissenting). I will not attempt to duplicate Justice Madsen’s scholarly Manussier dissent.
The majority properly notes that the United States Constitution does not dictate the meaning of the constitutional provisions laid down by our own founding fathers. *157Instead, our national constitution lays a floor below which we may not sink. See generally Robert F. Utter, Freedom and Diversity in a Federal System: Perspectives on State Constitutions and the Washington Declaration of Rights, 7 U. Puget Sound L. Rev. 491 (1984). The Washington Constitution sets a high threshold before a sentence of life without parole may be imposed based on the fact of prior convictions.
Our own founding fathers, having more than a century of experience with the national constitution behind them, were often more protective of individual procedural rights than their earlier, national, counterparts. See City of Pasco v. Mace, 98 Wn.2d 87, 99, 653 P.2d 618 (1982) (“the right to trial by jury . . . was more extensive than that which was protected by the federal constitution when it was adopted .. . .”); see generally Utter, supra; see also Charles W. Johnson, Survey of Washington Search and Seizure Law: 1998 Update, 22 Seattle U. L. Rev. 337 (1998); accord State v. Hobble, 126 Wn.2d 283, 298, 892 P.2d 85 (1995). Accordingly, our constitution provides that the right to a jury as it existed in 1889 is to remain inviolate. Const, art. I, § 21. This is a substantive requirement of state constitutional law, and does not turn on procedures later grafted onto our criminal process. See, e.g., State v. Furth, 5 Wn.2d 1, 18-19, 104 P.2d 925 (1940).
The proper question is not whether a judge or a jury would have determined a criminal sentence in 1889. The proper question is whether a judge or a jury would have determined the fact of prior convictions in 1889. “In construing section 21, this court has said that it preserves the right as it existed at common law in the territory at the time of its adoption.” Mace, 98 Wn.2d at 96 (citing State ex rel. Mullen v. Doherty, 16 Wash. 382, 47 P. 958 (1897)); see also Manussier, 129 Wn.2d at 687-91 (Madsen, J., dissenting) (reviewing history of habitual criminal statutes).
I give far less weight to the procedural bifurcation of the guilt and penalty stages of trial than the State would have us give. That sidesteps the underlying question; whether, *158when the fact of prior convictions elevates a sentence to life in prison, the State must charge and prove the fact of the prior convictions.
We have answered this question already. “On a charge of being an habitual criminal, is the question of defendant’s prior conviction an issue of fact to be determined by the jury? The weight of authority answers that question, which is one of first impression in this state, in the affirmative.” Furth, 5 Wn.2d at 10. Further:
Where previous convictions are charged in an information for the purpose of enhancing the punishment of the defendant, such convictions must be proved beyond a reasonable doubt, since the fact of the prior convictions is to be taken as an essential element of the offense charged, at least to the extent of aggravating it and authorizing an increased punishment.
Id. at 11 (citing People v. Reese, 258 N.Y. 89, 179 N.E. 305 (1932)). That was the holding of the case. It answered the underlying question presented, then and now. It should be our holding today. Accord Manussier, 129 Wn.2d at 691 (Madsen, J., dissenting); see also State v. Holsworth, 93 Wn.2d 148, 159, 607 P.2d 845 (1980).
I readily concede that in our constitutional jurisprudence, sentencing is generally the province of the trial judge within the guidelines laid down by the legislature and the requirements of the state and federal constitutions. I agree that under our constitutions, many factual questions relevant only to the sentence need not be decided by a jury.
I also agree that, pragmatically, the jury’s role in this fact finding will be limited. See, e.g., State v. Le Pitre, 54 Wash. 166, 169-70, 103 P. 27 (1909). Essentially, the jury will hear an expert testify that the fingerprints of the offender match the fingerprints on prior judgments and sentences. In only the rarest cases will there be a meaningful dispute.
But this particular fact is often the predicate fact that must be found before a life sentence without the possibility of parole may be imposed. The task of answering this question was vested in the able hands of the Washington *159jury. Efficiency must give way to constitutional command. Accordingly, I respectfully dissent.
Johnson, Madsen, and Sanders, JJ., concur with Chambers, J.Reconsideration denied October 22, 2003.