concurring in part and dissenting in part:
The plurality1 holds that H.B. 91S2-1038,2 which authorizes the death penalty to be imposed as punishment for crimes committed before that statute was enacted, is consistent with the provisions of the Colorado and United States Constitutions prohibiting the enactment of ex post facto laws. See Colo. Const, art. II, § 11; U.S. Const, art. I, § 10, cl. 1. I respectfully dissent, placing reliance principally on the Colorado Constitution.3
Lest technical legal analysis obscure the nature and gravity of the controversy, it is important to keep in sharp focus the salient facts and the central holding of the plurality opinion. The defendant, Allen Thomas, Jr., is charged with the commission of the crime of first-degree murder based on events that transpired in February of 1991. At that time no constitutional death penalty statute existed in Colorado.4 The General Assembly enacted H.B. 91S2-1038 in October of 1991, almost eight months after the date the alleged crime was committed. H.B. 91S2-1038 purports to authorize imposition of the death penalty as a sentence for crimes of first-degree murder committed on or after July 1, 1988, and prior to September 20, 1991, a period that includes the date of the crime with which Thomas is charged. The plurality opinion concedes that in absence of H.B. 91S2-1038, the death penalty could not be imposed on Thomas.5 Thus, only through the retroactive application of the new statute can the State subject Thomas to the ultimate sanction of death.
The plurality holds that the constitution permits the retroactive application of the new death penalty statute. In addition, the plurality concludes that certain changes in the statutes applicable to capital sentencing effected by H.B. 91S2-1038 do not violate ex post facto prohibitions. These changes alter the definition of one of the aggravating factors relevant to capital sentencing and also provide that a defendant who receives a life sentence will later become eligible for parole. For the reasons that follow, I cannot square the plurality’s conclusions with the traditional understanding of the ex post facto clause of the Colorado Constitution. Moreover, I question whether the ex post facto clause of the United States Constitution will tolerate the appli*214cation of the death penalty under the facts of the present case, but I do not find it necessary to resolve that question definitively.
In explaining my fundamental disagreement with the plurality’s ex post facto analysis, I first trace the development of Colorado’s ex post facto doctrine and summarize the principles reflected in the doctrine. I then set forth the reasons that persuade me that adoption of the “fair warning” standard of Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), the principal case upon which the plurality relies, would be inconsistent with the “substantial protections” principle that we have long recognized as encompassed within the protections of Colorado’s ex post facto clause. I conclude that there are especially compelling reasons not to adopt the “fair warning” standard under the circumstances present here, in which the General Assembly appears to have targeted particular individuals for application of H.B. 91S2-1038, the retroactively applicable death penalty statute. I then consider whether the specific changes in the availability of parole and the definition of a statutory aggravating factor made by H.B. 91S2-1038 can be retroactively applied under the Dobbert standards, which condition retroactivity on a conclusion that the changes are procedural or ameliorative in their effect on a defendant. I conclude that the changes do not meet the Dobbert standards and in any event do not satisfy the more demanding “substantial protections” standard under the Colorado Constitution. Finally, I consider whether retroactive application of H.B. 91S2-1038 to defendant Thomas is consistent with due process of law under the Colorado Constitution and conclude that it is not.
I.
I shall begin with a review of ex post facto law as it has developed in Colorado. Article II, section 11, of the Colorado Constitution provides:
No ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges, franchises or immunities, shall be passed by the general assembly.
The Colorado provision varies textually from the federal counterpart, which contains no prohibition against a law “retrospective in its operation.” See U.S. Const, art. I, § 10, cl. I.6 Our early cases recognize that the more comprehensive language in the Colorado Constitution encompasses cases not covered by the federal ex post facto clause. French v. Deane, 19 Colo. 504, 512, 36 P. 609, 612 (1894);7 Denver, South Park & Pacific Ry. Co. v. Woodward, 4 Colo. 162, 164 (1878).8 For example, the Colorado Constitution prohibits the legislature from passing civil laws that operate retroactively. Zaragoza v. Director of Dept, of Revenue, 702 P.2d 274 (Colo. *2151985); French, 19 Colo, at 512-13, 36 P. at 612. In contrast, the federal ex post facto clause does not prohibit the passage of retroactive civil laws, as first established by the early ease of Calder v. Bull, 3 U.S. (3 Dali.) 386, 390, 1 L.Ed. 648 (1798). Accord Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715, 2718-19, 111 L.Ed.2d 30 (1990); Harisiades v. Shaughnessy, 342 U.S. 580, 594, 72 S.Ct. 512, 521, 96 L.Ed. 586 (1952); Johannessen v. United States, 225 U.S. 227, 242, 32 S.Ct. 613, 617, 56 L.Ed. 1066 (1912); Carpenter v. Pennsylvania, 58 U.S. (17 How.) 456, 462, 15 L.Ed. 127 (1854); Woodward, 4 Colo, at 163.
In the seminal Colorado case interpreting the ex post facto clause, Garvey v. People, 6 Colo. 559 (1883), we adopted the definition of an ex post facto law first enunciated in the leading United States Supreme Court case of Calder v. Bull:
First. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action.
Second. Every law that aggravates a crime and makes it greater than it was when committed.
Third. Every law that changes the punishment, ■ and inflicts a greater punishment than the law annexed to the crime when committed.
Fourth. Every law that alters the legal rules of evidence and receives less or different testimony than the law required at the time of the commission of the offense in order to convict the offender.
Garvey, 6 Colo, at 565-66 (emphasis in text of Third provision added). Further, we stated that a law that is passed after the commission of an offense and that alters the situation of a party to his disadvantage in relation to that offense is ex post facto under both the federal and state constitutions.9 Garvey, 6 Colo, at 570-71.
In Garvey we considered a statutory change that altered the applicability of the death penalty. Under the law in existence at the time the defendant committed his offense, an individual could plead guilty to the crime of murder and by so doing escape all hazard of a death sentence. A court considering a guilty plea would enter a conviction for the lower grade of murder, which was punishable by imprisonment only. The legislature then amended the statute so that an individual who pled guilty could be sentenced to death. The defendant argued that the statutory change increased his punishment. We concluded that retroactive application of this statutory change would violate the ex post facto prohibition:
What effect did the change in the law produce upon the legal rights of the prisoner? As the law stood on the 23rd day of May, 1880, when the murder was committed, any person indicted for murder had it within his power to avoid all risk of a capital sentence by pleading guilty. In November, 1881, the time of the trial, this privilege did not exist; it had been taken away by the act of March 1, 1881.
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[I]t would seem that the act of March 1, 1881, has changed the law of this state to the disadvantage of those indicted for murders previously committed.
Garvey, 6 Colo, at 565, 568. We then observed, “ ‘though it is desirable that all offenders against our penal laws should be punished, yet it is better that one should occasionally escape than that the fundamental principles of the criminal law should be violated.’ ” Id. at 571 (quoting Commonwealth v. McDonough, 95 Mass. 581, 585 (1866)).
We next considered an ex post facto challenge to a death penalty statute in In re Tyson, 13 Colo. 482, 22 P. 810 (1889). Following the defendant’s commission of the crime of murder, the legislature passed a *216statute that altered the method and place of execution, provided for solitary confinement prior to execution, and allowed the court to shorten the time span between sentencing and execution. Tyson, 13 Colo, at 483, 22 P. at 811. The defendant challenged the retroactive application of the statute to him as a violation of the ex post facto prohibitions of the federal and state constitutions. We found no ex post facto violation, but affirmed our allegiance to the principles announced in Garvey: “In arriving at this result we have not overlooked the case of Garvey v. People, 6 Colo. 559. It seems to us, however, that counsel have confounded certain incidents connected with the administration of the penalty with the punishment itself.” Tyson, 13 Colo, at 487, 22 P. at 811.
Notably, the United States Supreme Court found this construction of the ex post facto clause too narrow in considering the same Colorado statute. Ex parte Medley, 134 U.S. 160, 171, 10 S.Ct. 384, 387, 33 L.Ed. 835 (1890); accord, Ex parte Savage, 134 U.S. 176, 176, 10 S.Ct. 389, 389, 33 L.Ed. 842 (1890). In particular, it held that the imposition of solitary confinement constituted a harsher punishment than that prescribed by the prior statute, and explained:
[I]t may be said that any law which was passed after the commission of the of-fence for which the party is being tried is an ex post facto law, when it inflicts a greater punishment than the law annexed to the crime at the time it was committed, Calder v. Bull, 3 Dali. 386, 390; Kring v. Missouri, 107 U.S. 221, 2 S.Ct. 443 ... or which alters the situation of the accused to his disadvantage; and that no one can be criminally punished in this country except according to a law prescribed for his government by the sovereign authority before the imputed offence was committed, or by some law passed afterwards by which the punishment is not increased.
Medley, 134 U.S. at 171, 10 S.Ct. at 387. We recognized the controlling effect of this holding in Kelly v. People, 17 Colo. 130, 135-36, 29 P. 805, 807 (1891), and also in our second review of the Tyson case itself, In re Tyson, 21 Colo. 78, 79-80, 39 P. 1093, 1094 (1895). In the evolution of these cases, we have evinced grave concern for the administration of a death penalty pursuant to a retroactive statute. The central principle to be distilled from these cases is that the ex post facto clause will not permit the retroactive application of statutory changes that substantially disadvantage a defendant. Garvey, 6 Colo, at 571; French, 19 Colo, at 513, 36 P. at 612-13; cf. Tyson, 13 Colo, at 486-87, 22 P. at 811 (changes in administration of the penalty that do not materially affect defendant do not violate ex post facto prohibitions).
Later cases echo this fundamental tenet of Colorado ex post facto law: they emphasize the importance of guarding against retrospective changes in the law that substantially disadvantage a defendant. Kolk-man v. People, 89 Colo. 8, 31-32, 300 P. 575, 584 (1931); see People v. Fagerholm, 768 P.2d 689, 692 (Colo.1989) (retrospective legislation that is not procedural or remedial but adversely affects substantive right violates Colorado Constitution’s proscription of retrospective laws); People v. Germany, 674 P.2d 345, 351-52 (Colo.1983) (retrospective elimination of an existing substantive right conferred by statute violates Colorado Constitution’s proscription of retrospective laws); cf Myers v. District Court, 184 Colo. 81, 84, 518 P.2d 836, 838 (1974) (quoting the Calder v. Bull definition of ex post facto laws as the “still definitive” statement on the subject).
In Kolkman, we considered the application of a rule of procedure to a criminal trial where the rule was adopted after the commission of the offense. The rule allowed district judges to comment to the jury on the evidence in a case. We found no ex post facto violation:
“Expressions are to be found in earlier judicial opinions to the effect that the constitutional limitation may be transgressed by alterations in the rules of evidence or procedure. And there may be procedural changes which operate to deny to the accused a defense available under the laws in force at the time of the commission of his offense, or which oth*217erwise affect him in such a harsh and arbitrary manner as to fall within the constitutional prohibition. But it is now well settled that statutory changes in the mode of trial or the rules of evidence, which do not deprive the accused of a defense and which operate only in a limited and unsubstantial manner to his disadvantage, are not prohibited."
89 Colo, at 31-32, 300 P. at 584 (quoting Beazell v. Ohio, 269 U.S. 167, 170, 46 S.Ct. 68, 69, 70 L.Ed. 216 (1925)) (emphasis added) (citations omitted). Thus, a defendant is provided with protections against retrospective laws that substantially disadvantage him, but not against those having only an insubstantial adverse effect, under the ex post facto clause of the Colorado Constitution.
More recent cases also affirm this tradition of protecting a defendant against substantial disadvantages proceeding from changes in the law enacted after the commission of his offense. In People v. Bil-lips, we considered an ex post facto challenge to a statute that classified felonies for the first time and made the penalty for escape dependent upon the classification of the felony for which a defendant was sentenced. 652 P.2d 1060 (Colo.1982).' Although we found no violation of either the Colorado or United States Constitution because no retrospective application was involved, we observed:
A statute, however, is not rendered unconstitutional as an ex post facto law merely because it might operate on a fact or status preexisting the effective date of the legislation, as long as its punitive features apply only to acts committed after the statutory proscription becomes effective_ Two critical elements must be present for a criminal statute to be stricken down as an ex post facto law: “it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.”
652 P.2d at 1064 (quoting Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981)). Accord In re R.B., 815 P.2d 999, 1001 (Colo.App.1991).
As Colorado’s ex post facto law stands today, the Colorado Constitution will not tolerate the retroactive application of a penal measure that substantially disadvantages a defendant. This constitutes the principal earmark of an ex post facto law.10 Where the state retroactively escalates the potential punishment for an individual, it subjects that person to just such a substantial disadvantage. Garvey, 6 Colo, at 571; French, 19 Colo, at 513, 36 P. at 612-13; Kolkman, 89 Colo, at 31-32, 300 P. at 584. This lesson was first taught in Calder v. Bull: every law that inflicts a greater punishment than the law annexed to the crime when committed violates the ex post facto prohibition. 3 U.S. (3 Dali.) at 390. It has echoed through our constitutional jurisprudence ever since.
In the case now before us, the stark fact is that in the absence of H.B. 91S2-1038, defendant Thomas would not be subject to the death penalty. At the time of the offense in question, no constitutional procedure existed for imposing the death penalty in Colorado. Only through the retroactive application of the new death penalty statute may the state put this person to death. Certainly then, the statute implements a penalty that works to the substantial disadvantage of the defendant. It retroactively increases his punishment, for it has the potential of depriving him of his very existence. Under Colorado precedent, where the law annexed to the crime at the time of its commission provides for no death penalty, and a later statute makes death an available punishment, the later statute violates constitutional prohibitions against ex post facto legislation. Garvey, 6 Colo, at 567-68; French, 19 Colo, at 513, 36 P. at 612-13. See also Tyson, 13 Colo, at 487, 22 P. at 811.
*218II.
A.
The plurality relies on Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), to permit the retroactive application of H.B. 91S2-1038. I shall now examine the manner in which Dobbert dramatically departs from prior United States Supreme Court precedent and traditional values concerning the purpose of the ex post facto prohibition. Adherence to Dob-bert and its progeny will require us to abandon major components of the substantial protections doctrine that has long been a part of ex post facto law under the Colorado Constitution. This will result in a narrowing of ex post facto protections traditionally considered part of the rights guaranteed Colorado citizens.
In Dobbert, the United States Supreme Court found no ex post facto violation in the retroactive application of a death penalty statute. 432 U.S. at 292, 97 S.Ct. at 2297-98. The Court held that the existence of a prior, albeit unconstitutional, death penalty statute provided the defendant with “fair warning” as to the potential penalty for his conduct and therefore rejected the defendant’s contention that the new statute increased punishment and accordingly violated the ex post facto clause. Id. at 297, 97 S.Ct. at 2300. The Court also concluded that the changes in the sentencing role of the judge and jury wrought by the new death penalty statute were procedural, and on the whole ameliorative, and for these two independent reasons rejected the argument that the changes deprived him of a substantial right and therefore constituted ex post facto legislation. Upon these grounds, the Court rejected the defendant’s ex post facto arguments.11
In Dobbert, the United States Supreme Court took major steps towards narrowing the prohibition of ex post facto legislation, through its adoption of the “fair warning” doctrine, and in its further narrowing of the “substantial protections” doctrine to limit the types of disadvantages that are relevant to ex post facto analysis as elaborated upon in the later case of Collins, 497 U.S.-, 110 S.Ct. 2715. For the reasons that follow, I would decline to follow a similar path in construing the Colorado Constitution.
By relying on Dobbert and its progeny for purposes of analysis under the Colorado Constitution, the plurality turns its back on established Colorado case law interpreting the Colorado Constitution’s ex post fac-to clause and erodes away ex post facto protections developed over a period of more than one hundred years of judicial interpretation. Dobbert itself, and the cases that have followed it, depart dramatically from the history and purpose underlying the federal ex post facto clause. As New York’s highest court has observed, “[a]n independent construction of our own State Constitution is particularly appropriate where a sharp or sudden change in direction by the United States Supreme Court dramatically narrows fundamental constitutional rights that our citizens have long assumed to be part of their birthright.” People v. Scott, 79 N.Y.2d 474, 583 N.Y.S.2d 920, 934, 593 N.E.2d 1328, 1353 (1992). Accord State v. DeFusco, 27 Conn.App. 248, 606 A.2d 1, 5 (1992) (“Connecticut’s appellate courts have not been hesitant to continue to grant its citizens the same protection as did the ‘old’ federal decisions, when the United States Supreme Court has retreated from a previously enunciated broad protection reading of the fourth amendment.”); see State v. Marsala, 216 Conn. 150, 579 A.2d 58 (1990) (illustrating the immediately foregoing principle by holding good faith exception to exclusionary rule adopted by United States Supreme Court in United States v. Leon, 468 U.S. 897,104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), to be inconsistent with the Connecticut Constitution).
B.
In its emphasis on fair notice, Dobbert neglects an important factor in the initial *219impetus behind the prohibition of ex post facto laws: the desire to curb legislatures from passing laws to penalize specific individuals.12 In Calder v. Bull, the United States Supreme Court exposed the character of ex post facto laws and the principal reason for their prohibition. Justice Chase, writing just a few years after the adoption of the federal constitution, stated:
All the restrictions contained in the Constitution of the United States on the power of the state legislatures, were provided in favor of the authority of the federal government. The prohibition against their making any ex post facto laws was introduced for greater caution, and very probably arose from the knowledge, that the parliament of Great Britain claimed and exercised a power to pass such laws, under the denomination of bills of attainder, or bills of pains and penalties; the first inflicting capital, and the other less punishment_ [A]t ... times, they inflicted punishments, where the party was not, by law, liable to any punishment; and in other cases, they inflicted greater punishment, than the law annexed to the offence. The ground for the exercise of such legislative power was this, that the safety of the kingdom depended on the death, or other punishment, of the offender: as if traitors, when discovered, could be so formidable, or the government so insecure! With very few exceptions, the advocates of such laws were stimulated by ambition, or personal resentment and vindictive malice. To prevent such and similar acts of violence and injustice, I believe, the federal and state legislatures were prohibited from passing any bill of attainder, or any ex post facto law.
3 U.S. (3 Dali.) at 388-89 (emphasis omitted). This reading accords with the understanding of the ex post facto prohibition contained in The Federalist No. 44, at 282-83 (J. Madison) (Clinton Rossiter ed., 1961) (hereinafter “Federalist”). James Madison emphasized the importance of preventing legislative interference in individual cases.13
Over time, inhibiting legislative abuse has remained a crucial aspect of the prohibition of ex post facto laws. The United States Supreme Court reiterated the dangers inherent in ex post facto laws and bills of attainder in Cummings v. Missouri:
“Bills of this sort,” says Mr. Justice Story, “have been most usually passed in England in times of rebellion, or gross subserviency to the crown, or of violent political excitements; periods, in which all nations are most liable (as well the free as the enslaved) to forget their duties, and to trample upon the rights and liberties of others.”
71 U.S. (4 Wall.) 277, 323 (1867) (quoting 2 J. Story, Commentaries on the Constitution of the United States § 1344, at 217 (5th ed. 1891)). So too, in 1961, Justice Harlan emphasized that the ex post facto prohibition serves a purpose beyond ensur*220ing that an individual receive fair notice of the legal consequences of his actions:
Aside from problems of warning and specific intent, the policy of the prohibition against ex post facto legislation would seem to rest on the apprehension that the legislature, in imposing penalties on past conduct, even though the conduct could properly have been made criminal and even though the defendant who engaged in that conduct in the past believed he was doing wrong (as for instance when the penalty is increased retroactively on an existing crime), may be acting with a purpose not to prevent dangerous conduct generally but to impose by legislation a penalty against specific persons or classes of persons.
James v. United States, 366 U.S. 213, 247 n. 3, 81 S.Ct. 1052, 248 n. 3, 6 L.Ed.2d 246 (1961) (Harlan, J., concurring in part and dissenting in part); see Commonwealth v. Lewis, 381 Mass. 411, 409 N.E.2d 771, 775 (1980) (ex post facto prohibition “should be seen as intended to discourage badly motivated or erratic action improper in a lawgiver”).
There is substantial evidence in the legislative record that a central consideration motivating the Colorado legislature to enact H.B. 91S2-1038 was the desire to reach a specific group of identified individuals charged with crimes of first-degree murder. Questions raised in the house and senate committees evinced a concern with the number of individuals potentially subject to the death penalty under a retroactive statute. The committees received testimony that seven potential defendants could be affected. Patrick J. Sullivan, Jr., the sheriff of Arapahoe County, reminded the legislature of the crimes potentially governed by H.B. 91S2-1038:
Chairman, representatives of the committee, representative Graham. I am Patrick J. Sullivan, Jr. I’m the Sheriff of Arapahoe County. I am here representing the county sheriffs of Colorado.... I support House Bill 1038. I am not here to discuss the legal theory that has been weighed so heavily here this afternoon but to remind the committee of the several crimes that have occurred during this hiatus or period of some question of whether we had a death penalty. I might remind you of the one from my department, the Eiford case. The mother and baby that were lured out of Aurora and then murdered south of Byers and the child taken to Kansas and converted to another family. That is from representative Ruddick’s district. We feel the intent is definitely to have this apply during that period of time when these crimes did occur.
Hearings on H.B. 1038 Before the House Judiciary Committee, 58th Gen.Assembly, 2d ExtSess. (audio tape 91-48, September 23,1991, at 1:59-3:00 p.m.). One representative demonstrated a particular awareness of a perpetrator who would be reached by a retroactive death penalty. In supporting new death penalty legislation, Representative Ruddick commented:
This to me is the most difficult issue that I have ever had to face since I’ve been elected_ I think at this point, although this vote is very difficult and it is shaky, but I am going to vote yes on the bill now_ I have folks ... quite adamantly opposed to the death penalty. But, I also have a family that is suffering from a severe murder that has been in the paper for some time now, murder of a mother leaving a small child.... I don’t think we have become a civilized society enough that we can avoid the vengeance that we still seem to have in our lives and for that reason I vote aye.
Hearings on H.B. 1001 Before the House Judiciary Committee, 58th Gen. Assembly, 2d Ext.Sess. (audio tape 91-46, September 10, 1991, at 1:40-4:18 p.m.).14 Thus, the legislative record suggests that in supporting a retroactive death penalty, legislators sought to reach a specific group of *221individuals, approximately seven in number, whose offenses moved the legislators to believe that the death penalty should be available as a potential penalty for each of their crimes.
In addition, the specificity of the legislature’s reference to People v. Young in providing for the retroactivity of the death penalty provides an indication of the legislature’s desire to reach the individuals involved in that case. Under H.B. 91S2-1038, the legislature stated:
It is the expressed intention of the general assembly that there be no hiatus in the imposition of the death penalty as a sentence for the commission of a class 1 felony in the state of Colorado as a result _ of the holding of the Colorado Supreme Court in People v. Young, 814 P.2d 834 (Colo.1991). Toward that end, the provisions of section 16-11-103, as it existed prior to the enactment of Senate Bill 78, enacted at the second regular session of the fifty-sixth general assembly ... are reenacted as section 16 — 11— 802 and are hereby made applicable to offenses committed on or after July 1, 1988, and prior to September 20, 1991.
Ch. 6, sec. 1, § 16-11-801, 1991 Colo. 2d Ex.Sess.Laws 16, 16. This reflects an awareness of particular defendants the legislature hoped to reach. Colorado’s ex post facto clause was adopted to curb the legislature from an abuse of its power, not just to give individuals fair warning of potential penalties. The targeting of a particular group of individuals for potential increased punishment in the form of death is just such an abuse.
I find instruction in the observations of Justice Stevens, in his dissenting opinion in Dobbert, in which he commented:
If the Court’s rationale is applicable to all cases in which a State replaces an unconstitutional death penalty statute with a subsequent statute, it is dramatically at odds with the common understanding of the meaning of the Clause. That understanding was most plainly revealed by the nationwide response to this Court’s invalidation of the death penalty in Furman v. Georgia, 408 U.S. 238 [92 S.Ct. 2726, 33 L.Ed.2d 346] (1972). Of the hundreds of prisoners on death row at the time of that decision, none was resentenced to death. Each of those persons, at the time of his offense, had precisely the same “fair warning” as this petitioner. But our state courts and state legislatures uniformly acted on the assumption that none of them could be executed pursuant to a subsequently enacted statute. Under the “fair warning” rationale the Court adopts today, there was, and is, no such constitutional barrier.I15!
If I am correct that the Ex Post Facto Clause was intended as a barrier to capricious government action, today’s holding is actually perverse. For when human life is at stake, the need to prevent capricious punishment is greatest....
Because a logical application of the Court’s “fair warning” rationale would lead to ... manifestly intolerable results, I assume that this case will ultimately be regarded as nothing more than an archaic gargoyle. It is nevertheless distressing to witness such a demeaning construction of a majestic bulwark in the framework of our Constitution.
432 U.S. at 309-10, 97 S.Ct. at 2306-07.
C.
In Dobbert, and Collins,16 the United States Supreme Court substantially nar*222rowed the protections of the ex post facto clause as previously understood. In particular, the Court limited the “substantial protections” doctrine that has been a traditional part of ex post facto law. Collins, 497 U.S. at-, 110 S.Ct. at 2721-24; Dobbert, 432 U.S. at 293, 97 S.Ct. at 2298. The limitations were effected by adoption of the “fair warning” doctrine, previously discussed, and by broadening the categories of laws that will be deemed merely “procedural” and therefore not subject to scrutiny under the ex post facto clause. In Dobbert the Court held that changes in the law that are “procedural” do not violate the ex post facto proscription.
The phrase “substantial protections” embodies the principle that a legislature
“may prescribe altogether different modes of procedure in its discretion, though it cannot lawfully, we think, in so doing, dispense with any of those substantial protections with which the existing law surrounds the person accused of crime.”
Collins, 497 U.S. at-, 110 S.Ct. at 2721 (quoting 1 T. Cooley, Constitutional Limitations 552 (W. Carrington ed.) (8th ed. 1927)). The United States Supreme Court first adopted the phrase in Duncan v. Missouri, 152 U.S. 377, 382, 14 S.Ct. 570, 572, 38 L.Ed. 485 (1894). Generally, it stems from the idea that when a new law “in relation to the offence or its consequences, alters the situation of a party to his disadvantage,” id., it violates the ex post facto clause. The substantial protections doctrine has extensive roots in traditional ex post facto jurisprudence.
In dissenting to Dobbert, Justice Stevens observes that Dobbert’s “fair warning” doctrine is a clear departure from the test enunciated in such cases as Lindsey v. Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182 (1937), which provide that “[t]he Constitution forbids the application of any new punitive measure to a crime already consummated, to the detriment or material disadvantage of the wrongdoer.” Id. at 401, 57 S.Ct. at 799 (quoted in Dobbert, 432 U.S. at 305, 97 S.Ct. at 2304 (Stevens, J., dissenting)). Beginning in Calder v. Bull, 3 U.S. (3 Dali.) at 390-91, the United States Supreme Court recognized that the federal constitution forbids the application of any new punitive measure to a crime already consummated, to the detriment or material disadvantage of the wrongdoer. This reasoning has been followed by the Court in numerous cases. Lindsey, 301 U.S. at 401, 57 S.Ct. at 799; Malloy v. South Carolina, 237 U.S. 180, 184, 35 S.Ct. 507, 508-09, 59 L.Ed. 905 (1915); Thompson v. Utah, 170 U.S. 343, 351, 18 S.Ct. 620, 42 L.Ed. 1061 (1898); Ex parte Medley, 134 U.S. at 171, 10 S.Ct. at 387; Cummings, 71 U.S. (4 Wall.) at 326; Kring v. Missouri, 107 U.S. 221, 228-29, 2 S.Ct. 443, 449-50, 27 L.Ed. 506 (1882).17
Of particular interest for Colorado’s ex post facto jurisprudence is the case of Kring, overruled by the United States Supreme Court in Collins. Kring set forth the understanding of an ex post facto law later renewed in Lindsey: “ ‘[A]n ex post facto law is one ... in short, which, in relation to the offence or its consequences, alters the situation of a party to *223his disadvantage.' ” 107 U.S. at 228-29, 2 S.Ct. at 449-50 (quoting United States v. Hall, 26 F.Cas. 84, 86- (C.C.D.Pa.1809), affd, 10 U.S. (6 Cranch) 171, 3 L.Ed. 189 (1810)) (emphasis in Hall). This is precisely the understanding of an ex post facto law traditionally followed by this court.18 People v. Billips, 652 P.2d at 1064; Kolk-man, 89 Colo, at 20, 300 P. at 584; Kelly, 17 Colo, at 135-36, 29 P. at 807; Garvey, 6 Colo, at 571. Given this definition, a retroactive death penalty falls afoul of the ex post facto prohibition: it alters the situation of a party to his material disadvantage. It must be remembered that in the absence of the new death penalty statute, defendant Thomas could not receive a capital sentence.
Notably, Kring represents a close factual analogue to Garvey, 6 Colo. 559, Colorado’s seminal ex post facto case.19 In Kring, a Missouri defendant could avoid the hazard of a death penalty by pleading guilty to second-degree murder. This constituted the state of the law at the time defendant Kring committed his offense. After the commission of the crime, the citizens of Missouri amended their constitution so that an individual could receive a conviction for first-degree murder and a death sentence despite a guilty plea. The United States Supreme Court found that the Missouri constitutional provision, as applied to Kring, violated the ex post facto clause in that it altered the situation of the defendant to his disadvantage. The Court described the situation in the following manner:
We have here a distinct admission that by the law of Missouri, as it stood at the time of the homicide, in consequence of this conviction of the defendant of the crime of murder in the second degree, though that conviction be set aside, he could not be again tried for murder in the first degree. And that, but for the change in the Constitution of the State, such would be the law applicable to his case. When the attention of the court is called to the proposition that if such effect is given to the change in the Constitution, it would, in this case, be liable to objection as an ex post facto law, the only answer is, that there is nothing in it, as the change is simply in a matter of procedure.
Whatever may be the essential nature of the change, it is one which, to the defendant, involves the difference between life and death, and the retroactive character of the change cannot be denied.
Kring, 107 U.S. at 224, 2 S.Ct. at 446 (emphasis added).
The severe contraction of the substantial protections doctrine accomplished by Dob-bert and Collins gives rise to grave concern about the wisdom of adopting the reasoning of those cases in construing our own constitution. By following Dobbert, the plurality abandons the traditional ex post facto analysis embodied in Garvey and its descendants. Under the analysis in the plurality opinion, Colorado’s ex post facto clause loses its protections for substantial rights of criminal defendants. Dobbert and Collins undercut the previously settled principle that the retroactive application of a law that alters the situation of a party to his material disadvantage violates the ex post facto prohibition. This aspect of the substantial protections doctrine has been a traditional part of both Colorado and federal ex post facto law. For the foregoing reasons, we should reject the fair warning doctrine of Dobbert and the further limitation of the substantial protections doctrine in Collins for purposes of analysis under the Colorado Constitution.
*224D.
Other jurisdictions have refused to follow Dobbert ’s “fair warning” analysis on various grounds. The Tennessee Supreme Court rejected Dobbert for purposes of an analysis of .the ex post facto clause in the Tennessee Constitution. In Miller v. State, 584 S.W.2d 758, 760 (Tenn.1979), that court held that the Tennessee ex post facto clause protected that state’s citizens from the retroactive application of a death penalty. Id. at 762. The court observed:
[T]he legally effective punishment for first degree murder on the date of the crime committed by appellant was life imprisonment, as there was no constitutional procedure for the infliction of the death penalty at the time of the crime. The statute enacted subsequent to the crime may not be applied retroactively to him.
Id. The Tennessee Supreme Court emphasized the obligation of the state courts to interpret their own constitutions, and that application of state constitutional protections is especially important when “exercising the awesome responsibility of determining whether a Tennessee citizen lives or dies.” Id. at 760.
Cases in California distinguish Dobbert or find its reasoning unpersuasive. In People v. Payne, 75 Cal.App.3d 601, 142 Cal. Rptr. 320 (1977), the California Court of Appeal described Dobbert in the following manner:
We do not find comfort for the People in Dobbert v. Florida; The “fair warning” doctrine adopted by the majority of the court is, as demonstrated in the dissenting opinion of Justice Stevens, an absurdity. If applied generally it would mean that whenever a criminal statute were declared unconstitutional it could be patched up and the offender ultimately punished.
Id., 142 Cal.Rptr. at 324 (citations omitted). Payne rejected a contention that a defendant convicted and sentenced to death under a constitutionally invalid sentencing scheme could be subjected to a penalty rehearing under a newly enacted death penalty statute. Id. In a later case, the California Supreme Court also distinguished Dobbert. People v. Teron, 23 Cal.3d 103, 151 Cal.Rptr. 633, 642, 588 P.2d 773, 782 (1979). Teron held that a 1977 death penalty statute could not be applied to impose the death penalty for crimes committed before the effective date of the statute. Id. The death penalty statute in effect at the time of the crime had been declared unconstitutional. 151 Cal.Rptr. at 640, 588 P.2d at 780. Although in Teron the court based its holding on an interpretation of legislative intent,20 its fundamental reasoning rejected the Dobbert form of analysis. The court rejected the California attorney general’s argument that the 1977 legislation simply amounted to a “procedural” change which did not alter the punishment for criminal behavior and therefore should be applied retroactively:21
We find the Attorney General’s characterization of the 1977 legislative action is wholly unrealistic. Absolutely nothing in the legislative history suggests that the Legislature, in considering this controversial and highly charged legislation, believed that it was engaged in the mundane task of regulating criminal procedure.
151 Cal.Rptr. at 641, 588 P.2d at 781. Thus, Teron reflects an understanding that the enactment of a death penalty following a period in which no valid death penalty existed constitutes a substantive change in the law.22 Dobbert took a more expansive *225view of the parameters of a mere procedural change and in so doing eviscerated the constitutional protection against ex post facto legislation.
Still other jurisdictions have prohibited the state from seeking the death penalty against defendants under statutes enacted after commission of their offenses, based upon statutory interpretation grounds. State v. Lindquist, 99 Idaho 766, 769, 589 P.2d 101, 104 (1979); People v. Hill, 78 U1.2d 465, 36 Ill.Dec. 676, 681, 401 N.E.2d 517, 522 (1980); Hudson v. Commonwealth, 597 S.W.2d 610, 611 (Ky.1980); State v. Collins, 370 So.2d 533, 535 (La. 1979). These cases reflect a reluctance to follow the lead of Dobbert by according retroactive application to statutes increasing the penalties for crimes previously committed. Cf. Commonwealth v. Crenshaw, 504 Pa. 33, 470 A.2d 451, 454-55 n. 3 (1983) (distinguishing Dobbert in manner dissent finds unpersuasive); Commonwealth v. Story, 497 Pa. 273, 440 A.2d 488, 491-92 (1981) (same).23
Commentators also criticize the Dobbert fair warning analysis. Professor Laurence Tribe reflected on Dobbert ⅛ failure to consider the dangers of legislative abuse:
If Florida’s legislature had known Dobbert’s identity, or could realistically have discovered it, when it enacted the revised death penalty statute, his case would have powerfully illustrated why the ex post facto ban should prevent the imposition of penalties enacted by lawmakers who know exactly which individuals they are punishing. In such a situation, fair notice to those individuals of what the legislature had in store for them would indeed be beside the point. The objection would not be that they were entitled to rely on the state of the law at the time they acted. Dobbert’s reliance interest at the time ... hardly deserves mention.... The objection would be that even such individuals are entitled to something better than a legislative lynching.
Laurence H. Tribe, American Constitutional Law § 10-3, at 639-40 (2d ed. 1988) (emphasis added).24 Professor Tribe’s comments deserve particular attention in the context of this case, where the evidence is compelling that the legislature acted with specific individuals in mind in enacting the death penalty.
E.
We must not hesitate to interpret our constitutional provisions independently in this instance.25 The framers of the federal *226constitution specifically envisioned this approach. In fact, in the case of Colder v. Bull, Justice Chase of the United States Supreme Court relies on the interpretation given to state constitutional provisions by the respective states to define the federal ex post facto clause. 3 U.S. (3 Dali.) at 391-92. To quote, “I also rely greatly on the definition or explanation of ex post facto laws, as given by the conventions of Massachusetts, Maryland and North Carolina, in their several constitutions.... ” Id. at 390-91. Thus, even in the seminal federal ex post facto case, Justice Chase recognized the power and importance of state constitutional definitions. See also Collins, 497 U.S. at-, 110 S.Ct. at 2719-20.
It is settled law that the supreme court of a state has full and final power to determine the constitutionality of a state law with regard to the state constitution, and this is true even where the state and federal constitutions contain similar or identical provisions. Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 1219, 43 L.Ed.2d 570 (1975); Jankovich v. Indiana Toll Road Comm’n, 379 U.S. 487, 489, 85 S.Ct. 493, 494, 13 L.Ed.2d 439 (1965). In the past, we have not hesitated to recognize expanded protections under the Colorado Constitution when justice has required it. E.g., Bock v. Westminster Mall Co., 819 P.2d 55 (Colo.1991) (recognizing first amendment protection more expansive than that provided by the federal constitution); People v. Oates, 698 P.2d 811 (Colo.1985) (recognizing greater protection against unreasonable searches and seizures under the Colorado Constitution than that provided by the federal constitution); People v. Sporleder, 666 P.2d 135 (Colo.1983) (same); People v. Paulsen, 198 Colo. 458, 601 P.2d 634 (1979) (recognizing more extensive double jeopardy protections under the Colorado Constitution than under the federal constitution); People ex rel. Juhan v. District Court, 165 Colo. 253, 439 P.2d 741 (1968) (recognizing more extensive due process rights under Colorado Constitution than under the federal constitution).
As we observed in People v. Young, 814 P.2d 834, 843 (Colo.1991), our history of case law
reflects our repeated recognition that the Colorado Constitution, written to address the concerns of our own citizens and tailored to our unique regional location, is a source of protection for individual rights that is independent of and supplemental to the protections provided by the United States Constitution.
It is important to heed the lessons offered by Justice William Brennan:
[T]he point I want to stress here is that state courts cannot rest when they have afforded their citizens the full protections of the federal Constitution. State constitutions, too, are a font of individual liberties, their protections often extending beyond those required by the Supreme Court’s interpretation of federal law. The legal revolution which has brought federal law to the fore must not be allowed to inhibit the independent protective force of state law — for without it, the full realization of our liberties cannot be guaranteed.
William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489, 491 (1977).
Other state supreme courts have also embarked upon the path towards a more independent construction of state constitutions. In particular, New York’s highest court recently expanded the protections offered its citizens for search and seizure cases. Scott, 583 N.Y.S.2d at 945-46, 593 N.E.2d at 1353-54. See also, Reeves v. State, 599 P.2d 727, 734 (Alaska 1979) (Alaska constitution extends greater protections against unreasonable searches and seizures than federal constitution); State v. Dukes, 209 Conn. 98, 547 A.2d 10, 22 (1988) (Connecticut constitution extends greater protections against unreasonable searches and seizures than federal constitution); State v. Kaluna, 55 Haw. 361, 520 P.2d 51, 58 (1974) (Hawaii constitution extends greater protections against unreasonable *227searches and seizures than federal constitution); Bierkamp v. Rogers, 293 N.W.2d 577, 579-82 (Iowa 1980) (Iowa constitution contains greater equal protection guarantees than federal constitution); Harris v. Irving, 90 Ill.App.3d 56, 45 Ul.Dec. 394, 397, 412 N.E.2d 976, 979 (1980) (state constitution’s ex post facto prohibition focuses more on actual punishment imposed than on statutory standard of punishment, the relevant reference under the federal constitution); State v. Stroud, 106 Wash.2d 144, 720 P.2d 436, 439 (1986) (Washington constitution has a narrower scope of permissible search of automobile incident to arrest than federal constitution).
Finally, it is essential to remember that in interpreting the ex post facto clause of the Colorado Constitution we are not sailing into uncharted waters. By electing to follow Dobbert in interpreting our own constitution, the plurality turns its back on more than a century of Colorado constitutional jurisprudence firmly entrenching the substantial protections doctrine as one of the important rights guaranteed to Colorado citizens. I fundamentally disagree with this course of action.
III.
In addition to narrowing the scope of “substantial protections” by adoption of the “fair warning” doctrine, the United States Supreme Court in Dobbert and Collins also limited the types of disadvantages that will be considered relevant in substantial protection analysis under the ex post facto clause.26 In Dobbert the Court specifically limited the substantial protections doctrine to permit retroactive legislation that “obviously had a detrimental effect upon the defendant” as long as it was “procedural” and on the whole “ameliorative.” It was therefore permissible under the federal ex post facto clause. 432 U.S. at 292, 97 S.Ct. at 2298. In Dobbert, Chief Justice Rehnquist, writing for the Court, said, “[e]ven though it may work to the disadvantage of a defendant, a procedural change is not ex post facto.” 432 U.S. at 293, 97 S.Ct. at 2298.
The plurality in this case relies on the narrowed scope of federal ex post facto protections in holding that the changes in the definition of an aggravating factor and the creation of an opportunity for a person receiving a life sentence to be paroled in forty years under H.B. 91S2-1038 are not within the area of concerns addressed by the ex post facto requirements. I cannot agree that these provisions are either procedural or ameliorative under the Dobbert standards and accordingly would hold that they violate federal ex post facto criteria. Even if I am wrong in part or all of that assessment, I would not adopt the narrowing approach of Dobbert and Collins in interpreting Colorado’s ex post facto clause and would hold that these provisions offend against the substantial protections doctrine developed by our long history of judicial interpretation of our own constitution.
The plurality concludes that Dobbert permits the retroactive application of the changes in the capital sentencing scheme effected by H.B. 91S2-1038. In Dobbert, the Court concluded that the changes wrought by a new death penalty statute were procedural, and on the whole ameliorative. 432 U.S. at 292, 97 S.Ct. at 2298. Therefore, it held that no ex post facto violation ensued from the retroactive application of the new death penalty statute. Under a prior Florida death penalty statute, a jury’s recommendation of mercy bound the court to a sentence of life imprisonment. The new statute allowed the judge to review the jury’s recommendation and make an independent determination of the suitability of a death penalty. In the present case, I believe that the changes effected by H.B. 91S2-1038 were sufficiently substantive and detrimental that Dobbert is inapplicable.
Under H.B. 91S2-1038 a court must instruct a jury that a defendant receiving a life sentence for a class 1 felony committed at the time of the crime with which Thomas is charged would be eligible for parole after forty years. § 16-ll-802(l)(b). The prior statute provided that a life sentence *228precluded the possibility of parole. § 16-ll-103(l)(b), 8A C.R.S. (1990 Supp.). A guarantee of lifetime incarceration provides jurors with a powerful assurance that the defendant will not be released or have the opportunity to repeat his conduct. A juror who knows that a defendant receiving a life sentence will become eligible for parole may have an additional incentive to impose the death penalty or, at the very least, a disincentive to impose life imprisonment with the possibility of parole. Under these circumstances, I would hold that the new statute works a substantive change to the detriment of the defendant on the critical issue of punishment.
The plurality fails to recognize that in examining these statutory changes, our fundamental role centers on determining whether the changes increase the likelihood that an individual will receive the death penalty. We must be concerned with the potential for application of the death penalty, not with an eventual outcome for an individual receiving a life sentence. To the extent that a change increases the likelihood that death will be imposed, it increases the potential punishment for a defendant.
In addition, the new statute eliminates the explicit and detailed statutory definitions given certain aggravating factors that enter into a sentencing recommendation. A jury may not enter a verdict of death unless it finds at least one aggravating factor has been shown. Where a “defendant committed the offense in an especially heinous, cruel, or depraved manner” an aggravating factor is established. § 16 — 11—103(6)(j). The statute in effect at the time of the commission of the offenses in question specifically defined “heinous,” “cruel,” and “depraved”:
(a) “Cruel” means intentional infliction of physical or psychological torture, and includes the pitiless infliction of pain or suffering with utter indifference to, or the enjoyment of, the suffering of others.
(b) “Depraved” means senseless or committed without purpose or meaning, or that the murder was not the product of greed, envy, revenge, or another of those emotions ordinarily associated with murder, and served no purpose for the defendant beyond his pleasure of killing.
(c)“Heinous” means using a particularly shocking or brutal method of killing, or a killing in which the victim is unable to physically defend himself because of physical or mental disability or because he is too old or too young.
§ 16-11-103(6.5), 8A C.R.S. (1991 Supp.). The new statute eliminates these definitions while retaining the “heinous, cruel, or depraved” aggravator. Notably, the United States Supreme Court has held that, by itself, the “ ‘especially heinous, atrocious, or cruel’ ” aggravator is unconstitutionally vague under the Eighth Amendment because it does not provide sufficient guidance to a jury in deciding whether to impose a death sentence. Maynard v. Cartwright, 486 U.S. 356, 360, 108 S.Ct. 1853, 1857, 100 L.Ed.2d 372 (1988) (quoting Cartwright v. Maynard, 822 F.2d 1477, 1491 (10th Cir.1987)). We recognized this holding in People v. Davis, 794 P.2d 159, 178 (Colo.1990).
In Davis, we defined the terms “heinous, cruel, or depraved” to mean that the murder was committed in a “ ‘conscienceless or pitiless’ manner which was ‘unnecessarily torturous to the victim.’ ” 794 P.2d at 176-77. The failure of the General Assembly to include in H.B. 91S2-1038 either the previously existing statutory definition of these terms or the limiting construction adopted in Davis works a major substantive change: it renders these statutory terms unconstitutionally vague once again. A jury is left with the unchanneled discretion of subjective judgment. “[A]n ordinary person could honestly believe that every unjustified, intentional taking of human life is ‘especially heinous.’ ” Maynard, 486 U.S. at 364, 108 S.Ct. at 1859.
I believe that the plurality errs in concluding that by deleting the aggravator definitions, the legislature resurrected the judicial definitions adopted in Davis. The statutory aggravator definitions represent a more elaborate expression of the ideas embodied in Davis. By repealing the statu*229tory definitions, the legislature must have intended to change those definitions. Resurrecting the judicial definitions, containing the same core of ideas, would impede that result.
Moreover, even if the General Assembly intended to resurrect the Davis definition through the 1991 statute, the fact remains that the Davis definition of “heinous, cruel, or depraved” lacks several elements present in the statutory definition in effect when the alleged crimes were committed. Thus, the application of the Davis definition lowers the prosecution’s burden of proof from what it was at the time of the alleged offenses. For example, the Davis definition fails to incorporate the element of the statutory definition of “cruel” that requires that the infliction of torture be intentional and not simply an unintended by-product of a particular method of killing. The Davis definition also does not require a showing that the crime was “senseless or committed without purpose or meaning” or that it “served no purpose for the defendant beyond his pleasure of killing,” as is necessary to satisfy the statutory definition of “depraved.” Finally, the Davis definition does not require that the method of killing be “particularly shocking or brutal” or in the alternative that the victim be “unable to physically defend himself because of physical or mental disability or because he is too old or too young,” as is required to come within the statutory definition of “heinous.” Simply stated, the Davis definition of “heinous, cruel, or depraved,” is substantially more detrimental to the defendant than the statutory definition of those terms and to that extent increases the likelihood of a death sentence. Essentially, the Davis definition lessens the State’s burden for establishing an aggravating factor.
Legislation that alters the state’s burden of proof falls into the category of substance. See, e.g., Coleman v. Saffle, 869 F.2d 1377, 1386 (10th Cir.1989); United States v. Affleck, 765 F.2d 944, 950 (10th Cir.1985). In the sentencing phase of a capital case, a court should recognize the importance of such a characterization. Statutory aggravating factors provide the essential prerequisite for the imposition of the death penalty. Young, 814 P.2d at 846. Given the crucial importance of establishing an aggravating factor, this substantive change is detrimental to defendants. The prosecution contends that the heinous, cruel, or depraved aggravator will be relevant in the present case. Under Colorado law, where a substantial defense to the imposition of the death penalty is taken away by a statute, we must find an ex post facto violation. Garvey, 6 Colo, at 568-69.
IV.
As an additional basis for my conclusion that H.B. 91S2-1038 is unconstitutional, I would hold that Colorado’s due process clause provides protection against the retroactive application of a death penalty. Article II, section 25, of the Colorado Constitution provides that “[n]o person shall be deprived of life, liberty or property, without due process of law.” Certainly, the imposition of a death penalty invokes the protections of the due process clause. An individual has no greater interest than that of continuing his or her life. To deprive an individual of that existence by the retroactive application of a death penalty statute offends the notions of fundamental fairness, fair play, and substantial justice at the core of the due process clause. See, e.g., Public Serv. Co. v. Public Utilities Comm’n, 765 P.2d 1015, 1025 (Colo.1988) (touchstone of due process is fundamental fairness); Fleet Leasing, Inc. v. District Court, 649 P.2d 1074, 1078-79 (Colo.1982) (fair play and substantial justice required by due process clause).
We have previously recognized the close relationship between the due process clause and ex post facto concerns. Aue v. Diess-lin, 798 P.2d 436, 438-39 (Colo.1990) (finding of judicial ex post facto violations rooted in due process clause); Fagerholm, 768 P.2d at 692. In Fagerholm, we considered the potential retroactive application of a statute precluding a criminal defendant from collaterally attacking prior convictions in sentencing proceedings. Based upon a concern for due process and the constitutional difficulties inherent in the *230retroactive application of a statute directed at “substantive rights,” we implied a five-year grace period to the application of the statute. Fagerholm, 768 P.2d at 693. We observed:
“[R]etrospective elimination of an existing statutory right, which the legislature itself has recognized as a matter of “substantive right” included “within the concept of due process of law,” section [18-1-410], C.R.S.1973 (1978 Repl.Vol. 8), cannot be squared with the constitutional prohibition against retrospectively depriving a person of a statutory right without due process of law. Colo. Const. Art. II, Sec. 25; Colo. Const. Art. II, Sec. 11; see generally French v. De-ane, 19 Colo. 504, 36 P. 609 (1894).”
Id. at 692 (quoting People v. Germany, 674 P.2d 345, 351-52 (Colo.1983)). Fagerholm teaches that the retroactive application of a statute directed at the elimination of substantial rights offends Colorado’s due process clause. See also People v. Ben-ney, 757 P.2d 1078, 1081 (Colo.App.1987) (recognizing that retroactive application of procedural changes impairing defendant’s substantial rights may violate due process).
Furthermore, Colorado’s due process clause can extend beyond the reach of the federal due process clause. In People ex rel. Juhan v. District Court, we observed:
There is not the slightest requirement that the meaning of “due process of law” shall be the same in each of the fifty states. The Supreme Court of the United States has never nullified an interpretation of due process by a state supreme court which might be given by a federal court construing the Constitution of the United States. No state has yet been required to accept as all-inclusive or all-exclusive the federal court determination of what activities of the state fall within or lie without the ambit of due process of law under the United States Constitution. What the United States Constitution does to state authority is this: It says that the state cannot deny a right or impose a liability which is contrary to the federal concept of due process of law. It does not say that a state has no right, under its state due process clause, to create protections for its citizens which might not be required under the federal concept. So long as state action does not deny a right protected under the federal concept of due process, or impose a liability prohibited thereby, the federal power will not nullify the rights and protections which, within the state, are recognized as part and parcel of due process under the state constitution....
165 Colo. 253, 260-61, 439 P.2d 741, 745 (1968). I would hold that the Colorado due process clause includes a prohibition against the retroactive application of a death penalty statute, an action that deprives a defendant of a substantive right, his or her life. I find additional support for this conclusion in the legislative history to H.B. 91S2-1038. This history indicates that the legislature acted with the motive of reaching a specific class of individuals by enacting a retroactive death penalty. I believe that by establishing an avenue to punish a specific group of individuals with death, the legislature trampled on the core values of fundamental fairness inherent in due process.
V.
We must not forget our role in protecting the rights of citizens from arbitrary governmental interference. As Alexander Hamilton wrote, in Federalist No. 78, at 466:
The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
For these reasons, I believe we have the solemn duty and responsibility to declare *231that the Colorado ex post facto and due process clauses protect against the retroactive application of a death penalty statute. It is inherent in the concept of fundamental fairness that the legislature may not engage in acts that retroactively punish an individual after the commission of an offense.
For the foregoing reasons, I would hold that the death penalty cannot be imposed by application of H.B. 91S2-1038 consistent with the ex post facto and due process clauses of the Colorado Constitution. Accordingly, I would affirm the ruling of the Adams County District Court prohibiting the prosecution from seeking to impose the death penalty in this case.
Justice QUINN joins in this concurrence and dissent. Justice KIRSHBAUM joins in Parts I, II, and III of this concurrence and dissent.
. The opinion authored by Chief Justice Rovira is a majority opinion as to part II, the revival issue, and a plurality opinion as to part III, the ex post facto issue. In referring to the Chief Justice’s opinion, I characterize it as either the majority opinion or the plurality opinion depending upon the part of the opinion to which reference is made.
. Ch. 6, sec. 1, §§ 16-11-801 to -802, 1991 Colo. 2d Ex.Sess.Laws 16, 16-22.
. I concur in part II of the court’s opinion, rejecting the prosecution’s revival argument. See n. 5 below. I do not express an opinion as to part IV of the court’s opinion, except insofar as my ex post facto discussion touches upon that section.
. The People charged Thomas with an offense that occurred in February of 1991. The death penalty statute in effect at that time, § 16 — 11— 103, 8A C.R.S. (1988 Supp.), was later declared unconstitutional in People v. Young, 814 P.2d 834, 847 (Colo.1991).
.The majority holds that the pre-1988 statute, § 16-11-103, 8A C.R.S. (1986), which passed constitutional muster in People v. Tenneson, 788 P.2d 786 (Colo. 1990), was not revived by our holding in People v. Young, 814 P.2d 834 (Colo. 1991). Therefore, the state could not seek the death penalty pursuant to that statute. I agree with this conclusion, and join part II of the opinion.
The plurality also discusses its view of the effect of an unconstitutional statute prior to a judicial determination of unconstitutionality. Kg., plurality op. at 197 (statute was presumed to be valid until held unconstitutional in Young); plurality op. at 198 (statute was an "operative fact” and gave "fair warning" of the potential punishment by death until invalidated in Young). Whatever may be the implications of the plurality’s statements concerning presumptive validity of an unconstitutional statute before a judicial determination of invalidity, the plurality does not and could not contend that an accused person, such as Thomas, could be put to death by the application of such a statute.
. Article I, § 10, cl. 1, of the United States Constitution provides:
Powers denied individual states. (1) No state shall enter into any treaty, alliance or confederation; grant letters of marque or reprisal; coin money, emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.
(Emphasis added.)
. In French, we examined a statute that allowed punitive damages for the act of enticing and seduction of a spouse. We considered the statute essentially penal in character, despite its civil form. 19 Colo, at 511-12, 36 P. at 612. We determined that to allow the retroactive application of the statute would violate not only the ex post facto prohibition of the Colorado Constitution, but also the constitution’s prohibition against laws retrospective in nature. Id. In so holding, we recognized that these two prohibitions are interrelated and comprehensive in their proscription of retroactive legislation. Cf. People v. Germany, 674 P.2d 345, 351-52 (Colo. 1983) (retrospective elimination of statutory right to collaterally attack a conviction "cannot be squared with constitutional prohibition against retroactively depriving a person of a statutory right without due process of law” (citing due process clause and article II, § 11, of Colorado Constitution)); People v. Fagerholm, 768 P.2d 689, 691-93 (Colo.1989) (same).
."The term retrospective was intended to apply to laws which could not properly be said to be included in the description of ex post facto, or laws impairing the obligation of contracts.” Woodward, 4 Colo, at 164.
. We quoted with approval Mr. Justice Washington's observation in United States v. Hall, 26 F.Cas. 84, 86 (C.C.D.Pa.1809) (No. 15285), aff’d, 10 U.S. (6 Cranch) 171, 3 L.Ed. 189 (1810), ‘“an ex post facto law is one which in its operation makes that criminal which was not so at the time the action was performed, or which increases the punishment, or, in short, which, in relation to the offense or its consequences, alters the situation of a party to his disadvantage.’" Garvey, 6 Colo, at 566 (emphasis in Hall).
. As detailed in Part II C of this opinion, the United States Supreme Court has used language in many of its cases that has caused this protection against substantial or material disadvantage in criminal cases to be characterized as the "substantial protections” doctrine. I also adopt that term to describe Colorado’s ex post facto prohibition of laws working to the substantial disadvantage of a defendant.
. The Court also held that a new requirement that a defendant sentenced to life imprisonment serve at least twenty-five years before becoming eligible for parole did not give the defendant reason to complain because he had received a death sentence, not a sentence to life imprisonment.
. See also 2 M. Farrand, The Records of the Federal Convention of 1787, 375-76 (1911); The Federalist No. 44, at 282-83 (J. Madison) (Clinton Rossiter ed., 1961).
. In Federalist No. 44, James Madison observes:
Bills of attainder, ex post facto laws, and laws impairing the obligation of contracts, are contrary to the first principles of the social compact and to every principle of sound legislation. The two former are expressly prohibited by the declarations prefixed to some of the State constitutions, and all of them are prohibited by the spirit and scope of these fundamental charters. Our own experience has taught us, nevertheless, that additional fences against these dangers ought not to be omitted. Very properly, therefore, have the convention added this constitutional bulwark in favor of personal security and private rights; and I am much deceived if they have not, in so doing, as faithfully consulted the genuine sentiments as the undoubted interests of their constituents. The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and with indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more industrious and less informed part of the community. They have seen, too, that one legislative interference is but the first link of a long chain of repetitions, every subsequent interference being naturally produced by the effects of the preceding.
Id. at 282-83.
. Representative Ruddick made these comments in support of H.B. 91S2-1001, a bill enacted only shortly before enactment of H.B. 91S2-1038, which applies prospectively to class one felony offenses occurring after September 20, 1991. Ch. 4, sec. 1, § 16-11-103, 1991 Colo. 2d Ex.Sess.Laws 8, 8-13. Ruddick voted in favor of H.B. 91S2-1038 as well. House Journal, 58th Gen. Assembly, 2d Ex.Sess.1991, at 130.
. Given the legislative focus on particular crimes and defendants in the present case, it is to be doubted whether the "fair warning” doctrine would save H.B. 91S2-1038 from invalidation under the ex post facto clause of the United States Constitution. See generally Laurence H. Tribe, American Constitutional Law § 10-3 at 639-40 (2d ed. 1988). I do not find it necessary to reach that question.
. The plurality purports not to find it necessary to adopt Collins' narrow construction of the substantial protections doctrine for the purpose of construing the ex post facto clause of the Colorado Constitution. See plurality op. at 199. Instead, the plurality reads Dobbert as restricting the scope of the federal ex post facto clause to a very narrow reading of the classic definition of ex post facto laws in Calder v. Bull, and adopts this same restrictive reading of the Colorado Constitution’s ex post facto clause. See *222plurality op. at 199. In effect the plurality appears to read Collins as adding little to Dobbert for the purpose of the present controversy. (“Collins, for our purposes, does little more than affirm the decision in Dobbert, which relied solely on the definition of an ex post facto law as set forth in Calder v. Bull." Plurality op. at 199.) As demonstrated in part I of this dissenting opinion, the effect of Dobbert and Collins is to severely impair if not eviscerate the substantial protections doctrine as it has developed in over a century of judicial interpretation of the Colorado Constitution's prohibition of ex post facto laws.
. Collins, decided after Dobbert, characterized the term "substantial protections” as a "rather amorphous phrase” and indicated that it had contributed to an unjustified expansion of ex post facto protections. Accordingly, Collins overruled Kring and Thompson v. Utah as extending ex post facto protections beyond constitutionally proper limits. Collins, 497 U.S. at -, 110 S.Ct. at 2722-24. Collins also noted, however, that "the prohibition which may not be evaded is the one defined by the Calder categories." 497 U.S. at-, 110 S.Ct. at 2721. It is unclear, therefore, how the boundaries between constitutionally permissible retrospective legislation and legislation proscribed by the federal ex post facto clause is to be drawn.
. As explained in part I of this opinion, we have recognized that "disadvantage” means “material disadvantage."
. In Garvey we specifically relied on Kring in finding an ex post facto violation. 6 Colo, at 571. As earlier recounted, under the law in existence at the time Garvey committed his offense, an individual could plead guilty to the crime of murder and by so doing escape all hazard of a death sentence. A court considering a guilty plea would enter a conviction for the lower grade of murder, which was punishable by imprisonment only. The legislature then amended the statute so that an individual who pled guilty could still receive a sentence of death. 6 Colo, at 567-68.
. In Teron the court focused on the presumption that statutes that increase the punishment for crime will be construed to apply only to crimes committed after their enactment. This governed the court's interpretation of the 1977 legislation and precluded its retroactive application. 151 Cal.Rptr. at 641, 588 P.2d at 781.
. See section III of this opinion where Dob-bert 's holding that the federal ex post facto clause is not violated by legislation that is merely procedural or that is ameliorative is discussed.
.More recent cases suggest that ex post facto law in California is unsettled. In considering a question of whether a new statute providing that the court, not the attorneys, should conduct voir dire could be applied in a trial for a crime committed before the act became effective, the *225California Supreme Court noted that Collins had repudiated "substantial protections” analysis. Tapia v. Superior Court, 53 Cal.3d 282, 279 Cal. Rptr. 592, 597, 807 P.2d 434, 439 (1991). The court referred to the concept of "substantial protections” as "now obsolete” based on Collins. Thereafter, in People v. McVickers, a California Court of Appeal held that a statute mandating AIDS testing for persons convicted of certain crimes could not be applied to a person convicted before the statute was enacted. In doing so, the court relied on the ex post facto clauses of both the federal and state constitutions, holding that the statute made the punishment for a crime more burdensome after its commission. People v. McVickers, 233 Cal.App.3d 1153, 285 Cal.Rptr. 152, 153-55 (1991) (review granted 1991). The court held Collins and Tapia "not factually apt” because they involved matters of trial procedure, not consequences of conviction. McVickers, 285 Cal.Rptr. at 153 n. 4, 154 n. 10.
.The plurality cites numerous state court cases as following Dobbert. See plurality op. at 196-97 n. 15. The majority of these cases did not involve retroactive application of a death penalty statute in circumstances where no constitutionally valid death penalty statute was previously in place. Rather, they presented the issues of whether legislative or judicial changes to a valid death penalty statute were procedural or ameliorative rather than substantive and more onerous. E.g., Pickens v. State, 292 Ark. 362, 730 S.W.2d 230, 234-35 (1987), cert, denied, 484 U.S. 917, 108 S.Ct. 269, 98 L.Ed.2d 226 (1987); Castro v. State, 749 P.2d 1146, 1150 (Okla.Crim.App.1987), cert, denied, 485 U.S. 971, 108 S.Ct. 1248, 99 L.Ed.2d 446 (1988); Wallace v. State, 707 S.W.2d 928, 937 (Tex.Ct.App.1986), aff’d, 782 S.W.2d 854 (Tex.Crim.App.1989).
. See also 2 Ronald R. Rotunda, John E. No-wak, and J. Nelson Young, Treatise on Constitutional Law § 15.9(b), at 119 (1986) (the argument of the Dobbert dissenters "seems well taken because the ability to revise an invalid punishment and apply it to persons whose identities or characteristics are already fixed and knowable by the lawmakers can be readily abused”).
. The United States Supreme Court has affirmed that a state has the "sovereign right to adopt in its own Constitution individual liber*226ties more expansive than those conferred by the Federal Constitution." PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 81, 100 S.Ct. 2035, 2040, 64 L.Ed.2d 741 (1980).
. See Part II C of this opinion.