concurring specially:
Two matters have been presented to the court for the first time which call for a *895more thorough analysis of the validity of the administration of the death penalty in this case.
First, the Panel has been informed for the first time of the prosecution’s position that the three defendants in this case are equally guilty of the murder of the victim.1 Second, we have been informed for the first time that the mother of the older female defendant, Avette Barrett, notified the authorities that she had threatened to kill her mother, her mother’s husband, and her sister and that they were terrified of her. In order to place these matters in context, a brief summary of the facts surrounding the murder are set forth.
The petitioner, Bruce Morris, and two female co-defendants, Avette Barrett and Allison Eckstrom, were picked up as hitchhikers by Rickey Van Zandt. Van Zandt was murdered (now admitted to be equally murdered) by the three defendants. Petitioner was sentenced to death. Barrett was sentenced to three years for stealing Van Zandt’s automobile. Eckstrom, a juvenile, had all charges dismissed, without any juvenile proceeding against her.
The concession by the prosecution that all three were “equally guilty” casts a new, and highly troubling, light on the state court’s refusal to present the following instruction to the jury at Morris’s penalty-phase trial:
In determining the existence of mitigating circumstances you must take into account that the defendant’s accomplice Allison Eckstrom was allowed to plead guilty to a reduced charge and was promised a sentence of dismissal. Avette Barrett was promised three years or less.
The prosecution’s position is that, of the three “equally guilty” perpetrators, one (Morris) deserves to be executed while the other two serve little or no time in prison. As Justice Brennan has noted, this sort of gross disparity in treatment of equally guilty defendants “highlights the utter failure of the elaborate sentencing schemes approved by the Court in Gregg and its companion cases to meaningfully limit the arbitrary infliction of death by the States.” DeGarmo v. Texas, 474 U.S. 973, 974-75, 106 S.Ct. 337, 88 L.Ed.2d 322 (1985) (Brennan, J., dissenting from denial of petition for writ of certiorari). Although the Court has attempted to place limits on juries’ discretion to impose the death penalty, “discrimination and arbitrariness at an earlier point in the selection process nullify the value of later controls on the jury.” Id. at 975, 106 S.Ct. 337. The Eighth Amendment prohibits prosecutors from arbitrarily singling out one person for death where the guilt is equally spread among the perpetrators. Id.
Although the discretion afforded prosecutors in selecting who to prosecute and what charges to bring is extremely broad, “there are undoubtably constitutional limits upon its exercise.” Bordenkircher v. Hayes, 434 U.S. 357, 365, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). A decision to prosecute may not be “based upon an unjustifiable standard such as race, religion, or other arbitrary classification.” Id. at 364, 98 S.Ct. 663. Where a claim of such selective prosecution is made, it will be judged “according to ordinary equal protection standards.” Wayte v. United States, 470 U.S. 598, 608, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985).
In United States v. Redondo-Lemos, 955 F.2d 1296, 1300 (9th Cir.1992), overruled en banc on other grounds by United States v. Armstrong, 48 F.3d 1508 (9th Cir.1995), *896rev’d, 517 U.S. 456, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996), this Circuit distinguished between the general right “not to have charging or plea bargaining decisions made in an arbitrary or capricious manner” and a specific claim that prosecutorial decisions were made on the basis of sex, race, religion, or similar characteristics. The latter case was held to raise both Due Process and Equal Protection problems, and a judicial inquiry into whether protected classes of people were being treated differently was found to be manageable. Id. at 1301. Consequently, the Circuit wrote, “the Supreme Court has concluded that courts do indeed have the authority to inquire into charging and plea bargaining decisions to determine whether the prosecutor is abusing her awesome power to favor or disfavor groups defined by their gender, race, religion, or similar characteristic.” Id.
However, where exercise of prosecutorial discretion is arbitrary but there is no hint of class-based discrimination, the Re-dondo-Lemos majority said that there was no judicial remedy available to the defendant 2 — even while acknowledging that such an arbitrary exercise of power would be a Due Process violation. Id. at 1300. The majority justified this result on separation-of-powers grounds: for the courts to inquire into prosecutors’ decision-making processes would entangle them “in the core decisions of another branch of government.” Id.
Here, however, there is no need for any court to undertake an investigation as to why the prosecution singled out Morris for the death penalty when it pursued little to no penalty against his equally guilty, and apparently violent, co-defendants. This case is a case of mitigating evidence. In such a case, the jury must be instructed that it may consider, as a mitigating factor, the fact that the prosecution pursued substantially more lenient punishment against Morris’s equally guilty co-perpetrators.
Permitting the jury to consider such circumstances as a mitigating factor would address the Due Process concerns raised in Redondo-Lemos without bringing in any separation-of-powers issues. It would not require the courts to investigate the internal charging decisions of the prosecutor. Instead, it would compel the prosecution to live with the charging decisions it has made: if the jury found that the exercise of discretion in seeking the death penalty against Morris was arbitrary, it would be free to use that as a mitigating factor. See United States v. Bin Laden, 156 F.Supp.2d 359, 369 (S.D.N.Y.2001) (finding that, in enacting the statute under which the defendant was prosecuted, Congress intended for juries to consider, as a mitigating factor, that “another defendant or defendants, equally guilty in the crime, will not be punished by death” so as to “provide[] jurors with a means of improving the likelihood that the death penalty would not be administered in an arbitrary or random manner”).
Permitting the jury to consider the disparate sentences pursued against equally guilty defendants would also be in keeping with Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), which held that the Eighth and Fourteenth Amendments require that capital juries not be precluded from considering, as mitigating factors, any aspects of a defendant’s character or of “the circumstances of the *897offense that the defendant proffers as a basis for a sentence less than death.” Although the Ninth Circuit has held that a trial court does not violate Lockett by failing to permit consideration of co-defendant sentences as a mitigating factor, it did so in a case where the defendant facing the death penalty was “not situated similarly to his co-defendants” because “[h]e was the only defendant charged with the special circumstance of a previous murder, and he was the only one who physically participated in both California homicides.” Beardslee v. Woodford, 358 F.3d 560, 579-80 (9th Cir.2004). This case is distinguishable because, here, the prosecution specifically acknowledged that Morris, Eckstrom, and Barrett were equally guilty of Van Zandt’s murder; unlike the defendant in Beardslee, Morris is situated similarly with respect to his guilt in Van Zandt’s death.
There would be no legal imposition of the death penalty without the ability of juries to consider mitigating evidence proffered by the capital defendant. See Gregg v. Georgia, 428 U.S. 153, 206, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (holding that Georgia’s revised death 4356 penalty sentencing scheme differed from that ruled unconstitutional in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), because it “focus[ed] the jury’s attention on the particularized nature of the crime and the particularized characteristics of the individual defendant”); see also Lockett, 438 U.S. at 603, 98 S.Ct. 2954 (holding that juries may “not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers” (emphasis in original)). Where the prosecution has conceded that it has singled out one defendant among several equally guilty perpetrators to receive a death sentence, the defendant must be permitted to present that circumstance for consideration by the jury as a mitigating factor.
. In its Answer to the Petition for Writ of Mandamus, at 8-9, the prosecution states that it "was never disputed” that Morris, Barrett, and Eckstrom "were equally guilty of the felony-murder of Rickey Van Zandt.”
. As the concurrence noted, there was no need for such a broad pronouncement because the defendant in Redondo-Lemos had not been able to make out a prima facie Due Process claim. Id. at 1303 (Canby, J., concurring). It was thus "unnecessary to go further and proclaim that there can never be a due process inquiry into the internal charging decisions of the prosecution.” Id.