respectfully dissenting:
I agree with most of Chief Justice Rovi-ra’s dissent relating to the validity of the death penalty statute. I write separately to set forth the reasons I believe the Colorado Constitution does not afford broader rights than the United States Constitution, *857and to state why this appeal should be treated as an interlocutory appeal rather than as an original proceeding under C.A.R. 21.
The plurality holds that Colorado’s death penalty scheme, as amended in 1988, is unconstitutional since it does not ensure that a sentence of death is both certain and reliable, in violation of article II, section 20, and article II, section 25, of the Colorado Constitution. In addition, the plurality treats this appeal as an original proceeding under C.A.R. 21. Because I disagree with characterizing this case as an original proceeding, and with the plurality’s conclusion that the death penalty statute is unconstitutional, I respectfully dissent.
I
Although the prosecution filed this case as an appeal of the district court’s ruling that the death penalty statute was unconstitutional, the plurality today discharges a “rule” to show cause that has never been issued. The plurality’s analysis in treating this as an original proceeding hinges on the importance of the case and our discretion, under C.A.R. 2, to suspend the normal rules of appellate jurisdiction. While I agree with the plurality that it is within our jurisdiction to suspend appellate rules and to treat this as an original proceeding, I do not share the view that it is wise to take such an extraordinary action when it is possible to review the district court’s decision under normal appellate procedures.
Section 16-12-102(1), 8A C.R.S. (1986), imposes a duty on the prosecution to appeal a trial court decision adjudging any act of the General Assembly “inoperative or unconstitutional in any criminal case,” unless the same issue of constitutionality is pending before another reviewing court. Pursuant to C.A.R. 1, only “final judgments” of a district court may be appealed. People v. Jefferson, 748 P.2d 1223, 1224 (Colo. 1988). In Jefferson, we held that a district court’s order dismissing two counts of extreme indifference murder against the defendant, after ruling that the extreme indifference murder statute was unconstitutional, was a final judgment for purposes of review. Id.
[I]t is appropriate to analogize the dismissal of a charge to a final judgment. A dismissal of a charge is not interlocutory, in a sense that it represents one or more steps toward the resolution of a given charge against a particular defendant. Nor is it like a motion for new trial in the case of juror misconduct prior to conviction, where the court can order the defendant tried again on the same charge. Instead, the dismissal of a charge against the defendant, absent a right of immediate appeal, disposes of the opportunity to try that defendant on that particular charge at the same time other charges are pending before the trial court.
Id. at 1225 (emphasis added) (citations omitted).
We recently distinguished Jefferson in People v. Romero, 801 P.2d 1192 (Colo.1990). In Romero, the prosecution claimed that the defendant’s Crim.P. 35(c) motion was precluded by section 16-5-402(3), 8A C.R.S. (1986), which limits collateral attacks on criminal convictions. Id. at 1193. We dismissed the prosecution’s appeal, brought under section 16-12-102(1), because the district court’s ruling that section 16-5-402(3) was unconstitutional was not a final judgment. Id. at 1194. We said that while the court’s decision to dismiss criminal counts in Jefferson precluded the state from prosecuting the defendant on those counts, thereby amounting to a final judgment, if the trial court granted Romero’s rule 35(c) motion, “the People may appeal and challenge the merits of the court’s decision as well as the court’s prehearing ruling on the statute’s unconstitutionality.” Id.
Unlike the circumstances in Romero, if the prosecution were not allowed to appeal the district court’s decision that the death penalty statute was unconstitutional, although it could continue to prosecute first-degree murder charges, it would be precluded from bringing this case as a capital case, regardless of a later appellate decision. Plur. op. at 839; People v. Drake, *858748 P.2d 1237 (Colo.1988). That circumstance, it seems to me, is no less daunting than a trial court’s decision to dismiss charges, as in Jefferson.
On the other hand, we have consistently maintained that our exercise of original jurisdiction under C.A.R. 21 is limited to reviewing whether a trial court exceeded its jurisdiction or seriously abused its discretion, coupled with no adequate remedy on appeal. Bye v. District Court, 701 P.2d 56 (Colo.1985); Toll v. City & County of Denver, 189 Colo. 462, 340 P.2d 862 (1959); see also Colo. Const, art. VI, § 3. There is no dispute that the district court judge had both the jurisdiction and the discretion to find that the death penalty statute was unconstitutional, regardless of whether that finding is erroneous. The fact that this is an important case of first impression should not be dispositive.
Therefore, I would not treat this as an original proceeding, but rather as an appeal under section 16-12-102(1), based on our holding in Jefferson.
II
The plurality’s holding is premised on the notion that the Due Process and Cruel and Unusual Punishment Clauses of the Colorado Constitution afford more protection to defendants charged with capital crimes than do their federal equivalents in the eighth and fourteenth amendments. Plur. op. at 17-19.
Except between 1897 and 1901, and the period in the 1970s when the death penalty was found unconstitutional in People v. District Court, 196 Colo. 401, 586 P.2d 31 (1978), Colorado has had a death penalty since 1861. People v. Davis, 794 P.2d 159, 171 n. 3 (Colo.1990). In all of that time, we have never said that the Colorado Constitution affords greater protection than the federal Constitution from violations of due process rights or from cruel and unusual punishment when reviewing a sentence of death. In People v. District Court, we struck down Colorado’s death penalty scheme as it then existed solely on the grounds that it violated the federal Constitution as interpreted by the United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and its progeny, particularly Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). 196 Colo. at 405, 586 P.2d at 33. We specifically declined to express a view about the limits placed on punishment under the Colorado Constitution. Id. at n. 2.
People v. Durre, 690 P.2d 165 (Colo.1984), was the first case in which we reviewed a sentence of death brought under section 16-11-103, 8 C.R.S. (1983 Supp.), as amended by the General Assembly in response to People v. District Court. The death penalty scheme in Durre mandated a sentence of death if the jury did not find the existence of any statutory mitigating factors or additional mitigating factors sufficient to justify a life sentence, and did find, beyond a reasonable doubt, the existence of at least one statutory aggravating factor. Section 16-11-103(4). Although we did not state whether we were analyzing Durre’s sentence of death under the state or federal constitution, we held that the requirement of certainty and reliability mandated that, under the sentencing scheme, the jury be instructed on the effects of its verdicts regarding mitigating, additional mitigating, and aggravating factors. 690 P.2d at 174. In Durre, we again relied almost exclusively on federal cases construing the United States Constitution, and nowhere intimated that Colorado’s constitution would provide additional protections. Then, in People v. Drake, 748 P.2d at 1237, when reversing a death sentence because the jury had not been properly instructed, we once again relied on federal cases and Durre. Justice Rovira, Justice Vollack, and I all wrote separately to express our view that the death penalty scheme was constitutional, and Justices Ro-vira and Vollack specifically rejected the defendant’s contention that it was unconstitutional under our state constitution notwithstanding United States Supreme Court opinions to the contrary. Id. at 1260 (Erickson, J., specially concurring); id. (Rovira, J., concurring in part and dissenting in part); id. at 1270 (Vollack J., concurring in *859part and dissenting in part). Justice Vol-lack expressed the view that, while states are free to consider constitutional challenges based on their own state statutes, independent of United States Supreme Court opinions, this court had “expanded constitutional protections primarily regarding search and seizure issues. These cases do not seem to suggest that the constitution of this state would be construed in a different fashion as regards capital sentencing.” Id. at 1275 n. 3.
In People v. Davis, we once again faced a challenge to the death penalty based on provisions of the state constitution, and, once again, we rejected a distinction between the standards applied to the federal Constitution and the state constitution. 794 P.2d at 170-71. In Davis, we reviewed People v. Tenneson, 788 P.2d 786 (Colo.1990), and said that
although not directly addressing the question of capital punishment under the state constitution, this court reviewed the present statute under the standards developed by the United States Supreme Court in Gregg [v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976),] and more recent cases. Using the federal capital punishment jurisprudence as our guide, we interpreted several aspects of our death sentencing scheme. See Tenneson, 788 P.2d at 794.
Id. at 170. We then said:
Implicit in the Tenneson decision is the assumption that there exists no independent basis under the state constitutional provision forbidding cruel and unusual punishment on which to base a per se challenge to capital punishment.
Further, in other contexts we have not adopted an analysis of our constitutional provision forbidding cruel and unusual punishment which differs from that followed by the United States Supreme Court with respect to the Eighth Amendment.
Id.; see People v. Gutierrez, 622 P.2d 547, 556 (Colo.1981) (rejecting argument that article II, section 20, provided greater protection than the federal eighth amendment). Nor have we applied anything but federal standards in our subsequent death penalty cases. People v. O’Neill, 803 P.2d 164 (Colo.1990) (reversing sentence of death); People v. Rodriguez, 794 P.2d 965, 986 (Colo.1990) (upholding sentence of death: “In the context of capital punishment, we have not interpreted the state Constitution to provide broader protection than the federal Constitution.”).
The plurality does not explain why, after nearly a century of jurisprudence, our state constitution provides more protection in capital cases than does the eighth or fourteenth amendments. In People ex rel. Juhan v. District Court, 165 Colo. 253, 439 P.2d 741 (1968), we held that the state Due Process Clause required the prosecution to prove the mental capacity to commit a crime beyond a reasonable doubt, even though the United States Supreme Court had previously upheld an apposite statute, because the “long line of [Colorado] decisions established a ‘principle of justice so rooted in the traditions and conscience of our people as to be ranked fundamental’ ” that the state bore the burden of proving a defendant was not insane at the time the offense was committed. Id. at 262, 439 P.2d at 746. In addition, in People v. Hoinville, 191 Colo. 357, 360, 553 P.2d 777, 780 (1976), we said that states were free to impose greater restrictions on police than the federal Constitution required “if its citizens either by their constitution or their legislature so determine.” Since then, our expansion of constitutional rights under Colorado’s constitution has been limited almost exclusively to the search and seizure arena. There is no indication, either from the plurality today, or from any other source, that the framers of the Colorado Constitution intended any thing other than to offer the same protections for a defendant sentenced to death that are offered by the United States Constitution. In fact, Justice Rovira pointed out in Drake, when rejecting the defendant’s argument that the “standard of decency” in Colorado found the death penalty cruel and unusual punishment, that “[t]he citizens of Colorado, directly and through their elected representatives, have repeatedly declared their support [for] the death penalty.” 748 P.2d *860at 1262-63. Such support hardly weighs in favor of the notion that Colorado’s constitution offers more protection than its federal counterpart is a “principle of justice so rooted in the traditions and conscience of our people as to be ranked fundamental,” or, as the plurality maintains, is brought about by “the concerns of our own citizens and tailored to our unique regional location.” Plur. op. at 843.
Finally, the plurality belies its own argument when it argues for independent state constitutional review, but then proceeds to analyze the death penalty scheme under its interpretation of federal cases. It may be that the United States Supreme Court would, after applying the eighth and fourteenth amendments, find our death penalty scheme constitutional, although such a holding is hardly assured given that the Court has not specifically addressed an equipoise situation such as ours. Even so, simply because we as judges may or may not agree with that outcome does not give us the power to turn our back on the intentions of the framers of the state constitution and render a different decision more to our liking. Nor does precluding the United States Supreme Court from reviewing our decision justify an independent state grounds. The Cruel and Unusual Punishment and Due Process Clauses of Colorado’s constitution are worded identically to those found in the eighth and fourteenth amendments to the United States Constitution. Without any evidence that the drafters of the Colorado Constitution meant for us to analyze those clauses differently, I would follow the United States Supreme Court's precedent to determine whether Colorado’s death penalty scheme is unconstitutional under the state constitution.1
Ill
In People v. Tenneson, we reviewed the pre-1988 death penalty statute and concluded that the “beyond a reasonable doubt” standard was applicable to the jury’s finding that no mitigating circumstances outweighed the proven aggravating factors in step three, and that death was the appropriate penalty in step four. 788 P.2d at 795-96. We based those conclusions on the “heightened need for sentencing reliability in capital cases.” Id. at 791 (citing Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988); Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988); California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983); Lockett v. Ohio, 438 U.S. at 604, 98 S.Ct. at 2964; Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976)).
Our holding, that the jury be instructed that its finding of no mitigating circumstances outweighed the proven aggravating factors must be beyond a reasonable doubt, was premised on the conclusion that such a requirement satisfied the required reliability in death sentence cases. We said that “[a]n instruction to the jury that [it] must be convinced beyond a reasonable doubt that any mitigating factors do not outweigh the proven statutory factors before a sentence of death can be imposed adequately and appropriately communicates the degree of reliability that must inhere in the balancing process.” 788 P.2d at 792 (emphasis added). We then said that “the term ‘beyond a reasonable doubt’ serves well to communicate to the jurors the degree of certainty that they must possess that any mitigating factors do not outweigh the proven statutory aggravating factors before arriving at the ultimate judgment that death is the appropriate penalty,” and that “the beyond a reasonable doubt standard as applied to the weighing of aggravating and mitigating factors serves to assure the degree of reliability necessary to support a verdict of death in a sentencing proceeding.” Id. at 794 (emphasis added). Our express holding *861in Tenneson that the heightened need for reliability in death penalty cases is satisfied by a “beyond a reasonable doubt” instruction in the weighing phase of jury deliberations is in no way predicated on the separate existence of the pre-1988 fourth step. See Davis, 794 P.2d at 192 (“In making the profoundly moral decision of whether to impose a sentence of death, [the jury] must consider all the facts and circumstances of the crime, the defendant’s background and character and any mitigating factors raised by the defendant.”)
The plurality maintains there is no legislative history shedding light on the purpose of eliminating the fourth step. Plur. op. at 842. The intent, in my view, is plainly indicated by virtue of the elimination itself. The General Assembly concluded that all defendants convicted of capital crimes should be sentenced to death once the jury determines that the prosecution has proven, beyond a reasonable doubt, at least one statutory aggravating factor, and that there are no mitigating factors that outweigh the aggravating factor or factors. The legislature, then, decided to remove the discretion from the jury to decide that a life sentence is more appropriate even though mitigating factors do not outweigh aggravating factors. Unless that discretion, i.e., the fourth step, is constitutionally required, it is within the province of the legislature to make such a determination, as long as “the discretion of the sentencer [is] suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action” and the sentencing body is allowed to consider any relevant mitigating evidence regarding the defendant’s character and background and the circumstances of the offense. Tenneson, 788 P.2d at 790 (citations omitted).
A
The death penalty scheme as amended is now more akin to the former Colorado death penalty scheme that we examined in Durre, which mandated a sentence of death if there was at least one statutory aggravating factor, and the jury did not find either statutory mitigating factors or additional mitigating factors “sufficient to justify a sentence of life imprisonment.” Durre, 690 P.2d at 171. As in this case, the death penalty statute, as it existed at the time Durre was announced, did not have a final step that gave the jury ultimate discretion to impose life notwithstanding its findings regarding aggravating and mitigating factors. The difference between the statute then and the death penalty scheme we review today is the highly unlikely possibility of equipoise — a finding by the jury that the mitigating factors equal exactly whatever aggravating factors have been proven. Assuming for the moment that true equipoise is anything more than a theoretical possibility, the question becomes whether Colorado’s constitution requires a further discretionary step by the jury to determine whether death is the appropriate penalty.
B
In Furman v. Georgia, 408 U.S. at 240, 92 S.Ct. at 2727, the Supreme Court held that imposition of the death penalty in the two cases before it constituted cruel and unusual punishment in violation of the eighth and fourteenth amendments. While Furman produced one per curiam opinion and nine other separate opinions, it is generally agreed that at a minimum the case stands for the proposition that “the penalty of death may not be imposed under sentencing procedures that create a substantial risk that the punishment will be inflicted in an arbitrary and capricious manner.” Godfrey v. Georgia, 446 U.S. 420, 427, 100 S.Ct. 1759, 1764, 64 L.Ed.2d 398 (1980). The result of Furman was a wide variety of death penalty schemes drafted to satisfy the constitutional requisites of the eighth and fourteenth amendments. That, in turn, led the Court to announce five cases in July 1976, setting forth the minimum procedural requirements of the Constitution in death penalty cases. Gregg v. Georgia, 428 U.S. at 153, 96 S.Ct. at 2915; Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d *862929 (1976); Woodson v. North Carolina, 428 U.S. at 280, 96 S.Ct. at 2979; Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976).
In Gregg v. Georgia, 428 U.S. at 176-78, 96 S.Ct. at 2926-27, the Court held that imposition of the death penalty was not per se cruel and unusual punishment. A plurality concluded that “Furman mandates that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk or wholly arbitrary and capricious action.” Id. at 189, 96 S.Ct. at 2932 (emphasis added). “The concerns expressed in Furman ... can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance.” Id. at 195, 96 S.Ct. at 2935. The death penalty scheme upheld in Gregg allowed the jury to recommend death in murder cases if it found at least one statutory aggravating factor, and the jury was authorized to consider any other appropriate aggravating or mitigating circumstances. Id. at 196-97, 96 S.Ct. at 2936. The statute also provided for automatic appellate review. Id.
In Proffitt v. Florida, the Court upheld Florida’s death penalty statute, which, according to the three-justice concurrence, mandated death if the statutory aggravating factors outweighed the mitigating factors. 428 U.S. at 260-61, 96 S.Ct. at 2970.
Under Florida law, the sentencing judge is required to impose the death penalty on all first-degree murderers as to whom the statutory aggravating factors outweigh the mitigating factors. There is good reason to anticipate, then, that as to certain categories of murderers, the penalty will not be imposed freakishly or rarely but will be imposed with regularity....
Id. (White, J., concurring). Proffitt also held that the defendant did not have a constitutional right to be sentenced by a jury. Id. at 252, 96 S.Ct. at 2966. In Jurek v. Texas, the Court upheld a death penalty scheme that, while structured differently from the ones in Gregg and Prof-fitt, still in essence required the jury to focus on the particularized nature of the crime, and thus guided and focused the jury’s objective consideration. 428 U.S. at 268-76, 96 S.Ct. at 2954-58. Once again, the Texas sentencing scheme mandated death if the jury found that the defendant had committed deliberate murder, there was a probability the defendant would constitute a continuing threat to society, and, if raised by the evidence, the defendant had acted unreasonably in response to provocation. Id. at 277-78, 96 S.Ct. at 2958-59 (White, J., concurring).
Thus, both the Texas and Florida statutes upheld by the Court divested discretion from the sentencing authority once certain prerequisites were established. On the other hand, the statutes struck down in Woodson and Roberts both lacked standards to guide the jury in individualizing the case before them.
The plurality’s holding assumes that the jury must determine whether death is the appropriate penalty if the aggravating and mitigating factors are in balance. Plur. op. at 844-845. The Supreme Court has not indicated that there is any constitutional prohibition against a legislature mandating death sentences once a sentencing authority, be it judge or jury, weighs the individual circumstances of the crime and the defendant. Once that weighing process is performed, the eighth and fourteenth amendments’ certainty and reliability requirements are met. If the jury is suitably directed and limited in that balancing process, which it is under step three of section 16-11-103(2), nothing more is required.
In Blystone v. Pennsylvania, 494 U.S. 299, 110 S.Ct. 1078, 108 L.Ed.2d 255 (1990), the Court upheld a statute mandating the death penalty if the jury found at least one aggravating circumstance and no mitigating circumstance. A majority of the Court rejected the defendant’s argument that the mandatory nature of the death penalty scheme rendered that scheme unconstitutional since it restricted the individualized sentencing required by the eighth amendment in death penalty cases. Id. 110 S.Ct. *863at 1083. “The presence of aggravating circumstances serves the purpose of limiting the class of death-eligible defendants, and the Eighth Amendment does not require that these aggravating circumstances be further refined or weighted by a jury.” Id.; see Lowenfield v. Phelps, 484 U.S. at 244, 108 S.Ct. at 554. The Court’s decision was not premised on the aggravating factors outweighing the mitigating factors, if any, but rather on the mere presence of the aggravating factors as a limitation on the jury. “The requirement of individualized sentencing in capital cases is satisfied by allowing the jury to consider all relevant mitigating evidence.” Id. (footnote omitted). The Court reaffirmed that holding in Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990), in which it upheld a California statute mandating the death penalty if the aggravating circumstances outweighed the mitigating circumstances. Once again, the Court rejected the petitioner’s argument that the jury must be free to impose a sentence of life even if the aggravating factors outweighed the mitigating factors. Id. 110 S.Ct. at 1196.
Finally, in Walton v. Arizona, — U.S. -, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), the Court upheld an Arizona statute mandating a death sentence if the trial court found one or more aggravating factors and “no mitigating circumstances sufficiently substantial to call for leniency,” even though, as pointed out by the dissent, there existed the possibility of equipoise. Id. 110 S.Ct. at 3056, 3075 (Blackmun, J., dissenting). The Walton plurality expressly noted that “ ‘there is no ... constitutional requirement of unfettered sentencing discretion in the jury, and States are free to structure and shape consideration of mitigating evidence “in an effort to achieve a more rational and equitable administration of the death penalty.” ’ ” Id. at 3056 (quoting Boyde, 110 S.Ct. at 1196 and Franklin v. Lynaugh, 487 U.S. 164, 181, 108 S.Ct. 2320, 2331, 101 L.Ed.2d 155 (1988) (plurality opinion).2
The foregoing cases taken together amount to the inescapable conclusion that heightened need for certainty and reliability mandated by the eighth and fourteenth amendments in death penalty cases is satisfied by a statutory scheme such as Colorado’s that directs and limits the jury’s discretion by setting forth specific aggravating factors that must be proved beyond a reasonable doubt, and allowing the jury to consider any relevant mitigating factors, even if the statute then mandates the death penalty in the event there are no mitigating factors that outweigh the aggravating factors. See, e.g., McCleskey v. Kemp, 481 U.S. 279, 305-06, 107 S.Ct. 1756, 1774-75, 95 L.Ed.2d 262 (1987). In my view, Colorado’s constitution demands no more. Because the weighing process incorporated in section 16-11-103 satisfies the need for certainty and reliability of a sentence of death, as required under Colorado Constitution article II, section 20, and article II, section 25, I would reverse the district court and hold the death penalty scheme constitutional.
For the foregoing reasons, I respectfully dissent.
VOLLACK, J., joins in this dissent.
. I agree with the majority that, because the district court found the death penalty scheme unconstitutional solely on state grounds, it is inappropriate for us to review this case under the eighth and fourteenth amendments. As I have said, however, a conclusion that the death penalty scheme passes federal constitutional muster would, in my view, lead to the same conclusion under the Colorado Constitution.
. In Walton, four justices held that the mandatory nature of the Arizona death penalty statute was consistent with Furman and Lockett, whereas Justice Scalia concurred with the judgment but wrote separately to state that he would no longer feel bound by Lockett since, in his view, it was irreconcilable with Furman. 110 S.Ct. at 3058.