concurring. I agree with parts I through V of the majority opinion. With respect to part VI, which considers the issues raised by the defendant with respect to proportionality review, I agree with the outcome reached by the majority but not with the road taken to get there.
The majority opinion conscientiously and meticulously undertakes to perform proportionality review in the manner that this court previously has authorized. I am persuaded that our legislature did not contemplate anything other than this manner of proportionality *522review. I am now equally persuaded that this manner of proportionality review is unworkable.
I regret that the flaws inherent in proportionality review were not visible to me at an earlier time. Only as I have read the briefs of the parties struggling to resolve the issues raised by proportionality review have I come to see proportionality review as an exercise in futility.
If we are to undertake proportionality review, our prior cases have defined the relevant universe of capital crimes cases appropriately. In light, however, of the legislature’s abolition of proportionality review, that universe will never contain more than a small sample of cases. There will never be a statistical basis for determining that a death penalty decision should be overturned, even though the crime has been committed as charged, and the penalty determination is appropriate on its merits. I do not believe that a nonstatistical intuitive appraisal of comparative death-worthiness is any more likely to succeed. In short, to my mind, the search for an outlier is the pursuit of a chimera.
This appraisal leads me now to agree with the state that we should hold that the legislative abolition of proportionality review applies to cases then pending as well as to cases arising subsequent to its enactment. I would not recommend this course if I thought that a defendant facing the death penalty would receive even a scintilla of protection from proportionality review. Because I am persuaded that no such protection is to be found in such a review, I would discontinue its pursuit.
Accordingly, I respectfully concur in the judgment with respect to part VI.