dissenting.
Respectfully, I dissent from the majority’s conclusion that this is not the “rare case” in which the crime committed and the sentence imposed are grossly disproportionate. Defendant’s sentence of 17 years for each of two counts, to be served consecutively, without possibility for suspension or commutation of sentence, probation, pardon, parole, work furlough, release from confinement, or the ability to earn release credits, is excessive and in violation of the prohibition on cruel and unusual punishment contained in the Eighth Amendment to the United States Constitution and article II, section 15 of the Arizona Constitution.
It is not the purpose of this dissent to quarrel with the legislative prerogative or to suggest that the statute under which the defendant is charged is unconstitutional. It is, however, a judicial responsibility to examine the particular circumstances of this case to determine whether it leads first, to the inference of disproportionality, and, if it does, to complete the analysis required under Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), to determine whether the sentence, under the particular circumstances of this case, violates the Eighth Amendment proscription against cruel and unusual punishment.
The majority opinion sets forth numerous factors to be taken into consideration in making the threshold determination of whether *53the sentence is grossly disproportionate to the gravity of the offense.
This opinion will discuss the same factors as set forth by the majority and the additional factor recognized by Solem, that being the motive and intent of the defendant.
Defendant’s wrongful act was the intentional placement of her two sons into a circumstance that threatened them with death. This act constitutes child abuse under Ariz. Rev.Stat.Ann. (“A.R.S.”) section 13-3623(B)(1) (1989), the crime for which defendant was convicted.
The majority repeatedly refers to defendant’s crime as an attempt to murder her children. Defendant was not convicted of attempted murder. If defendant had been convicted of the crime of attempted murder of her two sons, the presumptive sentences as a dangerous offense would have been 10.5 years and could have run concurrently. There also would have been no requirement that the sentences run consecutively and without the possibility of pardon or parole.
Harm Caused or Threatened to Victims and Society; Seriousness of the Crime; Victims; and Level of Violence
Defendant did not harm her children, nor did she harm society. Defendant and her children survived the defendant’s suicide attempt without suffering any ill effects. There was no violence or threat of violence to the children in this case. Nor is there any known emotional trauma to the children. Indeed, it appears that the children were unaware of any intent or conduct directed toward them.
It is undisputed that grave risks of violence and abuse toward children threaten the safety and well being of society. One need only compare the circumstances here of no harm to the children or society with the brutality of other Arizona cases involving actual harm in which the defendants received lesser sentences. See, e.g., State v. Lopez, 174 Ariz. 131, 847 P.2d 1078 (1992) (father beat one-year-old son severely enough to fracture skull and ribs, damage internal organs and cause death), cert. denied, 510 U.S. 894, 114 S.Ct. 258, 126 L.Ed.2d 210 (1993); State v. Poehnelt, 150 Ariz. 136, 722 P.2d 304 (App.1985) (mother and stepfather systematically starved and beat nine year old daughter, who was discovered by police after incident in which defendants left her hog-tied and gagged in a motel room); State v. Moyer, 151 Ariz. 253, 727 P.2d 31 (App.1986) (defendant fractured skull and burned face of his 21 month old step-daughter).
It is grossly disproportionate to subject a woman whose thwarted suicide attempt did no harm to her children to the severe punishment meted out by the laws that protect young children from being beaten, raped, or otherwise tortured and abused.
Other Mitigating and Aggravating Factors
As additional aggravating factors, the majority points out that defendant denies she was committing suicide or intended to harm her children, denies she had any mental health problems, and expresses no remorse for her actions. She also became a fugitive when the jury returned its verdicts though she voluntarily surrendered herself three months later. None of these “aggravating factors” played any part in the crime itself, and none are relevant to the Solem analysis of proportionality. See Solem, 463 U.S. at 292-94, 103 S.Ct. at 3011.
The mitigating factors recognized by the majority are that there was no injury to the children, defendant had no prior record of any crime, and defendant was a good parent until the commission of the crimes.
An additional mitigating factor is that the defendant’s convictions and consecutive sentences arise out of a single act. Under a legislative sentencing scheme which renders each sentence mandatory and consecutive, her actions do not differ, but her sentence does. This mechanistic sentencing approach sometimes results in extremely long terms of incarceration.
The majority suggests that it is inappropriate to compare defendant’s crime involving a single act with two victims to other cases involving child abuse where there was only one child involved. The harm done to the children who were beaten, starved, burned *54and hog-tied were vastly out of proportion to the harm done in this case which was none. Therefore, receipt of a greater punishment is grossly disproportionate.
Additionally, the majority argues that such cases involved shorter presumptive terms, and that the state legislature enacted the Dangerous Crimes Against Children laws in response to the sentences in such eases. The argument turns on itself. If the legislature created the act in response to such horrendous cases of abuse, then it is especially important to scrutinize its application in a case such as this, where the child victims were neither harmed nor suffered any ill effects. This is especially important where a defendant’s single act results in multiple sentences which are mechanistically made consecutive and mandated to be served without any possibility of parole or earlier release.
Defendant’s Motive and Intent
In Solem, the U.S. Supreme Court noted that motive and intent were indicative of the defendant’s culpability. Solem, 463 U.S. at 293-94, 103 S.Ct. at 3011. The majority opinion fails to address the issue of defendant’s motive, thereby ignoring a key to the Solem culpability analysis. Instead, the majority dismisses the fact that the jury apparently believed the defendant was suffering from extreme depression as a motive in spite of the position she took at the trial. The majority acknowledges there were “financial and emotional pressures” that were brought to bear on defendant immediately prior to the crimes, but that “unfortunately a more meaningful review of defendant’s psychological condition is impossible for want of competent evidence on this issue.”
It is clear that the jury believed defendant was depressed and was attempting suicide. One need only read the “suicide note” to see that defendant was depressed and felt hopeless:
To all the people who have made my life somewhat bearable;
Although none of this makes much sense to you — I just know that I cannot put my sons through the coldness & hate that goes on — People talk about love — what does that mean — your parents tell you you’re out of the house when you’re 18 — Your spouse leaves and believes he doesn’t need to pay child support — your children look up to you — what do you have to offer.
Dear God — I’ve taken my sons with me in the hopes that we’d be somewhere away from the place we are now.
Jim — what a loser you are for not helping me with the boys — I tried so hard to do it by myself — I tried so hard!. — You Bastard — how can anyone not want to see these two boys succeed — They deserve more than what I can offer as a single income family — Why couldn’t you help us — Just with day care expenses — They’re your kids.
God only knows how much I believe in life — but I look around me and see everyone lying cheating stealing no one has any morals — I’m not a 90’s person — I don’t want my sons to be a part of the hate we all spread around — They are beautiful & pure & no one will take that away from us — We are decent and honest ...
Under the circumstances in which the note was written it is only reasonable to conclude that defendant’s psychological condition was that of despair and extreme depression. Defendant’s motive, therefore, was markedly distinct from a motive of ill-will toward her children. The only reason for taking the children with her was because she no longer had the emotional and financial resources to protect them from the lying, cheating, stealing, immorality and hatred which she perceived was all around her.
Though defendant’s act is indisputably a criminal one, defendant’s culpability is diminished because she was not motivated by a desire to kill her children, but by a desire to kill herself. An entirely different level of culpability would be involved if defendant set out to intentionally rid herself of her children. This is precisely the reason why Solem identifies motive as relevant to culpability.
Conclusion
An analysis of the relevant factors shows that this case is, indeed, one of the “rare *55cases” in which the sentences imposed reach the threshold inference that they were grossly disproportionate to the crimes committed, requiring us, as the reviewing court, to analyze punishments imposed in Arizona and in other states in order to validate the inference. State v. Bartlett, 171 Ariz. 302, 830 P.2d 823, cert. denied, 506 U.S. 992, 113 S.Ct. 511, 121 L.Ed.2d 445 (1992).
Punishments Imposed for Other Crimes of Child Abuse in Arizona
The child abuse statute under which defendant was convicted was enacted into law in 1978. Sentencing enhancement for dangerous crimes against children became effective in May, 1985. Before that time, the presumptive sentence for conviction under A.R.S. section 13 — 3623(B)(1) was 10.5 years. Still in existence is A.R.S. section 13-3619 which treats the crime of child abuse as a misdemeanor, even in instances where the custodial adult knowingly causes the child’s life to be endangered. The choice of which statute to select for prosecution is made by the prosecutor.
The sentence received by defendant was the harshest penalty ever imposed in an Arizona child abuse prosecution reported in our cases. Of even greater relevancy to the inquiry here is the fact that a review of other child abuse cases in Arizona reveals that more serious abuses have been punished less severely.
In State v. Tamplin, 146 Ariz. 377, 706 P.2d 389 (App.1985), the defendant was convicted of violating A.R.S. section 13-3623(B) for having caused second degree burns on a two-year-old boy by placing him in hot water. The defendant was sentenced to prison for 6 years.
In State v. Poehnelt, the defendants, charged under A.R.S. section 13-3623, were convicted of tying up, gagging, and leaving a nine-year-old girl in a motel room. She had bruises on her face, scars that were consistent with her testimony that she had been struck with pliers, two broken fingers caused by a hammer, and severe mental and emotional injuries. She was also very malnourished and had been starved for such a period (perhaps as long as five years) that her growth had been stunted. The defendants were sentenced to 10.5 years in prison.
In State v. Moyer, the defendant fractured the skull and burned the face of his 21 month old stepdaughter. The defendant received a sentence of 5 years in prison.
In State v. Lopez, the defendant beat his one year old son severely enough to fracture the child’s skull and ribs, damage internal organs and cause death. The defendant was sentenced to 22 years in prison on the child abuse conviction. (Prior to sentencing in the present case, George Molina Lopez had the distinction of receiving the harshest penalty ever imposed in an Arizona child abuse prosecution and reported in our case law.)
Thus, a comparison of the punishments imposed for the same crime in Arizona reveals that defendant in this case was sentenced disproportionately.
Punishments Imposed For Other Crimes In Arizona More Serious than the Crime Charged in this Case
The child abuse that occurred here did not involve violence or actual harm to the children. It involved the intentional placement of the children into a circumstance likely to result in death. A number of dangerous offenses in Arizona are punished with less severity.1 As can be seen from the table below, the presumptive sentences are significantly shorter than 17 years, assuming in each instance that the victims are over 15 years old. Moreover, there is no requirement that multiple sentences imposed for these crimes be served consecutively.
*56Crime A.R.S. Section Presumptive Term
Attempted Murder 13-1001 10.5 years
Manslaughter 13-1103 10.5 years
Kidnapping 13-1304 10.5 years
Armed Robbery 13-1904 10.5 years
Aggravated Assault 13-1204 7.5 years
Sexual Assault 13-1406 10.5 years
Arson of an Occupied Structure 13-1704 10.5 years
Armed Burglary of a Residential Structure 13-1508 10.5 years
Punishments Imposed For the Same Crime In Other States
Examination of sentencing ranges in other jurisdictions reveals that Arizona imposes the harshest penalties in the nation for child abuse. This dissenting opinion is not in any way suggesting that Arizona’s punishment laws must be revised. The fact that Arizona “has the most severe punishment for a particular crime does not by itself render the punishment grossly disproportionate.” Harmelin v. Michigan, 501 U.S. 957, 1000, 111 S.Ct. 2680, 2704, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring). It does, however, require us to insure that such harsh penalties are not unconstitutionally applied under the circumstances of a particular ease.
A typical sentence for the same crime in other states would be dramatically less severe. Tables I and II, attached to this opinion, show that defendant’s crime would be a misdemeanor in many other jurisdictions. The fact that no actual injury occurred, combined with a number of mitigating factors present in this case, leads to the conclusion that defendant would probably have received probation in many other states.
The harshest maximum penalty for a child abuse conviction in any other state is fifteen years imprisonment, subject to probation. Eight other jurisdictions have the next highest maximum penalty of ten years. Considering that Arizona alone requires consecutive service of prison sentences imposed under the child abuse statute, defendant stands to serve at least 4 more years in prison in Arizona than she would serve had she been convicted of a similar crime in any other state. Because her two convictions arose out of a single act, it is realistic to conclude that defendant is probably serving 19 more years in Arizona than she would serve in that state. Lack of eligibility for probation or parole further exacerbates the disproportionality of her punishment.
Defendant’s consecutive, mandatory 17-year sentences stand in stark contrast to punishment for the same act in other states. The comparative analysis confirms that defendant’s sentences are grossly disproportionate to the crimes for which she was convicted.
Conclusion and Appropriate Disposition
Defendant’s sentences violate the Eighth Amendment’s proscription against cruel and unusual punishment because they are grossly disproportionate to the crimes she committed in this case. Under other circumstances, the application of the statute may be fully appropriate.
The proper disposition of this ease is to follow what the Arizona Supreme Court did in State v. Bartlett, 164 Ariz. 229, 792 P.2d 692 (1990), vacated, 501 U.S. 1246, 111 S.Ct. 2880, 115 L.Ed.2d 1046 (1991), and bar the application of the sentencing provisions of AR.S. section 13-604.01 to defendant under the facts and circumstances of this case, leaving defendant to be sentenced the same as any other class 2 felon to whom the provisions of A.R.S. section 13-604.01 would not apply. On re-sentencing, a wide discretionary range of sentencing would be available to the trial court to proportionately tailor the harshness of the penalty to the severity of the crimes.
Accordingly, this case should be remanded to the trial court for resentencing.
NOTE: The Honorable Stephen A. Gerst, Maricopa County Superior Court Judge, was authorized to participate in the disposition of this matter by the Chief Justice of the Arizona Supreme Court pursuant to article 6, section 3 of the Arizona Constitution.
*57TABLE I
States Where Conviction Requires a Showing that Defendant’s Actions or Omissions Caused Actual Physical Harm:
Alaska
Arkansas
California
Florida
Georgia
Hawaii
Maryland
Massachusetts
Michigan
Minnesota
North Dakota
Rhode Island
West Virginia
Wisconsin
TABLE II
Comparison of States Where Statute Requires Proof that Defendant Exposed Child Victim to Significant Risk or Likelihood of Serious Physical Harm or Death *
Alabama Felony Yes ZO-ID-S
Arizona 17 years Felony No 13- 3623(B)(1)
Colorado 3-12 months Misdemeanor Yes 18-6-401(1)
Connecticut Up to 10 years Felony Yes 53-21
Delaware Up to 1 year Misdemeanor Yes ll-1102(l)(a)
Idaho Up to 10 years Discretionary Yes 18-1501(1)
Illinois Up to 1 year Misdemeanor Yes 720-5/12-21.6
Indiana 1.5 years Felony Yes 35-46-l-4-(a)(l)
Iowa Up to 2 years Misdemeanor Yes 726.6(l)(a)
Kansas Up to 1 year Misdemeanor Yes 21-3608(a)
Kentucky 5 to 10 years Felony Yes 508.100(l)(b)
Maine Up to 1 year Yes 17- 554(1)(C)
Mississippi Up to 1 year Misdemeanor Yes 97-5-39(1)
Missouri Up to 5 years Felony Yes 658.045
Nebraska Up to 5 years Felony Yes 28-707(a)
Nevada Up to 1 year Misdemeanor Yes 200.508(l)(a)
New Hampshire Up to 1 year Misdemeanor Yes 639:3(1)
New Jersey 5 to 10 years Felony Yes 2C:12-l(b)(l)
New Mexico 3 years Felony Yes 30-6-l(c)
New York Up to 1 year Misdemeanor Yes 39-260.10(1)
N. Carolina Up to 2 years Misdemeanor Yes 14- 318.2(a)
Ohio Up to 6 months Misdemeanor Yes 2919.22(A)
Oregon Up to 1 year Misdemeanor Yes 163.195
Pennsylvania Up to 5 years Misdemeanor Yes 18- 4304
S. Carolina Up to 10 years Felony Yes 20-7-50
S. Dakota Up to 10 years Felony Yes 26-10-1
Tennessee Up to 1 year Misdemeanor Yes 39-15-401
Texas Up to 2 years Felony Yes 22.041(c)
Utah 1- 15 years Felony Yes 76-5-109
Vermont Up to 2 years Yes 13-1304
Virginia 2- 10 years Felony Yes 18.2-371.KA)
Washington Up to 5 years Felony Yes 9A42.030(1)
Wyoming Up to 1 year Misdemeanor Yes 6-4-403(a)(ii)
Abstracted from Appendix to Appellant’s Opening Brief
. A.R.S. section 13-604(1) defines dangerous offense as an offense if it involved the intentional or knowing infliction of serious physical injury or the use or exhibition of a deadly weapon or dangerous instrument.