with whom Judge HANFT joins, dissenting in part:
I believe the death penalty in this case was imposed under an impermissible sentencing procedure, one which violates both the Eighth Amendment to the Constitution of the United States and Article 55 of the Uniform Code of Military Justice, 10 U.S.C. § 855.1
I
While I do not generally disagree with the majority’s recitation of the Supreme Court’s decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), or in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976), Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976), Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) or Bell v. Ohio, 438 U.S. 637, 98 S.Ct. 2977, 57 L.Ed.2d 1010 (1978), I do find that the majority’s analysis of these cases gives an incorrect picture of the Court’s position regarding capital sentencing procedures. The majority’s treatment of the law allows it to make a number of overly broad conclusions from which it then adjudges the military system constitutionally sufficient.
I do not dispute that death is a permissible punishment, both from a historical standpoint, Gregg v. Georgia, supra 428 U.S. at 176-178, 96 S.Ct. at 2926-2927, and in the current view of society, 428 U.S. at 179, 96 S.Ct. at 2928. The death penalty is not per se cruel and unusual punishment prohibited by the Eighth Amendment, 428 U.S. at 169, 96 S.Ct. at 2923.2 The problem identified and found constitutionally objectionable in Furman v. Georgia, supra, was not the death penalty itself, but the procedures by which that penalty was imposed.
The message of Furman was clear — a sentence of death was constitutionally distinguishable from other punishment, and the sentencing procedure must reflect this. The decision abruptly changed the constitutional status of discretionary sentencing in capital cases. No longer were legislatures entitled to assume that jurors “decreeing death for a fellow human [would] act with due regard for the consequences of their decision.” McGautha v. California, 402 U.S. 183, 208, 91 S.Ct. 1454, 1467, 28 L.Ed.2d 711 (1971).3
*536Four years after Furman, the Supreme Court found that three states, Georgia, Florida, and Texas, had adequately responded to the objections of Furman and fairly met the Court’s mandate for imposition of the death penalty in murder cases.4 Each state created a mechanism whereby designated criteria were used to segregate from the infinite variety of offenses formerly considered capital murder, those offenses which the state deemed peculiarly deserving of the highest sanction. Only persons who were found to have committed an act of murder as further delimited by statute could be considered as a proper candidate for the death penalty.5 Each state included a procedure whereby the sentencing body was directed to consider the propriety of capital punishment for the particular offender in one of the statutorily limited situations.
In each case the statutory scheme met the simple test articulated by Justice Stewart in Gregg v. Georgia:
[T]he concerns expressed in Furman that the penalty of death may not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance. As a general proposition these concerns are best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information. 428 U.S. at 195, 96 S.Ct. at 2935.
A. Georgia
In direct response to Furman, the Georgia legislature enacted a statutory scheme6 which was upheld in Gregg v. Georgia, supra. The manner of sentencing under which Furman had been sentenced to death was not unlike that in any other capital case in the state. Unless the jury recommended mercy upon conviction of the capital offense, the sentence was death. The jury was so charged at the time it was instructed regarding the substantive offense. The Georgia courts had upheld this method against numerous attacks7 as not in violation of the Eighth Amendment, but in *537fact, as the proper subject for the exercise of the jury’s unfettered discretion.8
The defendant Gregg was convicted and sentenced under the new Georgia scheme. The legislature retained the former definition of murder including the authorized punishments, death or life imprisonment. As before, any person convicted of an unlawful killing with malice aforethought or of a killing in the commission of a felony could conceivably be sentenced to death. However, in contrast with the condemned practice, the sentencing authority (judge or jury) was required to hear additional evidence at a proceeding separate from the findings portion which preceded it, and to specifically consider mitigating and aggravating circumstances as they related to the death penalty. As a prerequisite to returning a death sentence, the sentencing authority had to find, beyond a reasonable doubt, the existence of one or more of ten statutorily specified aggravating circumstances. The particular aggravating circumstance found had to be specified in writing. The statutory scheme additionally provided for mandatory appellate review.9
The Supreme Court found the new procedures facially consistent with the Eighth Amendment because, contrary to previous practice, the jury’s discretion was circumscribed by legislative guidelines and channeled by consideration of the aggravating and mitigating factors. The Court repeatedly emphasized that, unlike Furman, the jury’s attention was properly focused on the nature of the particular crime and on the particular characteristics of the individual defendant.10
B. Florida
Florida’s capital sentencing procedure had been directly affected by Furman. On the same day it announced the decision in Furman, the Supreme Court vacated nine Florida death sentences and remanded the cases for further proceedings in accordance with that decision.11 Florida’s then existing method of sentencing in capital cases was nearly identical to that of Georgia. Upon convicting an accused of a capital offense the jury was required to make one of two recommendations, “with mercy” or “without mercy”. The jury was so charged at the same time it was instructed regarding the offense.
In response to Furman, Florida changed slightly its definition of murder and created a separate sentencing proceeding.12 The Supreme Court addressed the new procedures in Proffitt v. Florida, supra, and compared them favorably with the Georgia enactments. Under the procedure, a jury was *538required to hear new evidence and make a recommendation as to the penalty, life or death, to the trial judge who actually determined the sentence. In so doing, the jury had to find beyond a reasonable doubt the existence of one or more statutory aggravating circumstances and weigh that against any mitigating factors it found to exist, including but not limited to seven mitigating circumstances enumerated by statute. Upon receiving the jury’s recommendation the judge had to weigh the same factors and on that basis determine sentence.13 If the judge imposed the death penalty he had to set forth in writing the statutory aggravation he found sufficient to require the ultimate sanction, and the mitigation he found insufficient to outweigh that judgment. Automatic appellate review was required, but, unlike Georgia, it took no specific form.14
After reviewing the Florida statute and the decisions thereunder, Justice Stewart announced approval in Proffitt:
Florida, like Georgia, has responded to Furman by enabling legislation that passes constitutional muster. That legislation provides that after a person is convicted of first-degree murder there shall be an informed, focused, guided, and objective inquiry into the question of whether he shall be sentenced to death. 428 U.S. at 259, 96 S.Ct. at 2969.
C. Texas
In a companion case to Furman the Supreme Court nullified the Texas capital sen-fencing procedure.15 In response, Texas totally and somewhat uniquely revised its procedural and substantive criminal law, including its definition of murder.16 In reviewing the new scheme, the Supreme Court characterized the revision as a “[narrowing of] the scope of its laws relating to capital punishment.” Jurek v. Texas, supra 428 U.S. at 268, 96 S.Ct. at 2954.
Unlike Georgia where every murder (malice aforethought or felony killing) was a capital offense and Florida where only murders of the greatest culpability (premeditated design or in the commission or attempted commission of specific felonies) were designated as capital, Texas authorized death in a severely limited category of murder situations. Capital murder was defined as any murder of the highest culpable mental state (intentional or knowing) which occurs in one of five specific circumstances. Other intentional or knowing murders and any murder of lesser culpability are excluded at the findings stage from capital sentencing consideration.
Upon convicting of capital murder, the jury hears at a separate proceeding, relevant evidence and argument for and against the death penalty. The jury is charged with answering two (or in some instances three) specific questions,17 the responses to which mechanically determine the sentence. However, the jury’s function in responding to these questions is not mechanical. The questions require that the *539jury assess the individual offense and individual offender with consideration of all relevant mitigating factors. This assessment must include the reasons “why a death sentence should be imposed” and “why it should not be imposed.” 428 U.S. at 271, 96 S.Ct. at 2956.
The Supreme Court, in considering the Texas scheme,18 likened the narrowly specified category of capital murders to the statutory aggravating circumstances found in the Georgia and Florida procedures. Because the five specific categories of capital murder served the same purpose as the statutory enumeration of aggravating circumstances, i.e., placing a limit on the circumstances in which a murder offense justifies the death penalty, 428 U.S. at 270, 96 S.Ct. at 2955, and focusing the sentencing authorities’ attention on the particularized nature of the crime, 428 U.S. at 271, 96 S.Ct. at 2956, they withstood attack.
The Court further analyzed the manner in which the Texas scheme provided for consideration of mitigating circumstances. Because the “Texas statute does not explicitly speak of mitigating circumstances,” 428 U.S. at 272, 96 S.Ct. at 2956, the Court focused on one of the three statutory questions which had to be answered by the jury. The Texas Court of Criminal Appeals had interpreted the question of “whether there [was] a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society” as allowing the presentation of any mitigating circumstances the defendant might be able to show. The Court found that, as interpreted by the state courts, the Texas procedure sufficiently provided for consideration of mitigating circumstances.
The Supreme Court concluded that Texas’ response to Furman was constitutionally sufficient:
Texas law essentially requires that one of five aggravating circumstances be found before a defendant can be found guilty of capital murder, and that in considering whether to impose a death sentence the jury may be asked to consider whatever evidence of mitigating circumstances the defense can bring before it ... [A]s in Georgia and Florida, the Texas capital sénteneing procedure guides and focuses the jury’s objective consideration of the particularized circumstances of the individual offense and the individual offender before it can impose a sentence of death. 428 U.S. at 273-4, 96 S.Ct. at 2957.
D. Summary
While each state responded to Furman in a distinct manner, distinguishable in a number of respects from the other two, the Supreme Court in Gregg, Proffitt, and Jurek seized upon features common to all in upholding the imposition of death under the respective schemes. Each state moved from a unitary proceeding to a bifurcated one. In each system further evidence particularly relevant to sentencing may be presented at the separate sentencing hearing. Before the death penalty may be imposed, each state requires the sentencing authority to consider factors specified by statute which, if present, would tend to increase the severity of the offense, and to find beyond a reasonable doubt the existence of at least one of those factors. This factor is required to be found in addition to finding the elements of murder as statutorily provided. Each state requires the consideration of evidence in mitigation, whether such mitigation is statutorily specified or not. Finally, each state requires that specific findings be made regarding the aggravating factor.19
*540Although “each distinct system must be examined on an individual basis,” Gregg v. Georgia, supra 428 U.S. at 195, 96 S.Ct. at 2935, it is significant that each of the approved systems corresponds to the approach suggested by the Court in Gregg. With this in mind we turn to an examination of the military system.
II
A. Trial Procedures
Murder is defined in Article 118 of the Code:
Any person subject to this chapter who, without justification or excuse, unlawfully kills a human being, when he—
(1) has a premeditated design to kill;
(2) intends to kill or inflict great bodily harm;
(3) is engaged in an act which is inherently dangerous to others and evinces a wanton disregard of human life; or
(4) is engaged in the perpetration or attempted perpetration of burglary, sodomy, rape, robbery, or aggravated arson;
is guilty of murder, and shall suffer such punishment as a court-martial may direct, except that if found guilty under clause (1) or (4), he shall suffer death or imprisonment for life as a court-martial may direct. 10 U.S.C. § 918.
In order to be considered as a candidate for the death penalty by a court-martial, a murder defendant must be found guilty of premeditated murder, Article 118(1), or of felony murder, Article 118(4).20
If an accused is convicted of premeditated murder, the court-martial will proceed with the sentencing phase of the trial. Sentencing in a capital case differs only insignificantly from sentencing in a non-capital case. In the separate sentencing proceeding, the prosecution must read personal data from the charge sheet, and may present evidence of previous convictions and matters from the accused’s personnel records which reflect his past conduct and performance; evidence as to aggravating circumstances of the offense not introduced before findings may not be introduced at the sentencing phase; the accused is given great latitude to present matters in extenuation and in mitigation under relaxed rules of evidence; and after the presentation of evidence, both sides may argue for an appropriate sentence. See paragraph 75, Manual for Courts-Martial, United States, 1969 (Revised edition).
The military judge is required to instruct the members of the court-martial regarding their sentencing responsibilities. See paragraph 76, MCM, 1969 (Rev. ed.). He must tailor the instructions to the facts and circumstances of the individual case and must instruct that the members may consider all matters in extenuation and mitigation, as well as in aggravation, whether introduced before or after findings. The judge is also required to state the maximum and lesser punishments authorized and to “fully inform members of the court-martial on their sole responsibility for selecting an appropriate sentence.” Id., paragraph 76b. In a capital case the court-martial is further advised that in order to return a sentence of death, the determination of the members must be unanimous. Id., paragraph 76b (3).
The majority today holds that these procedures sufficiently guide and focus the capital sentencing decision because: 1) “[a] court-martial is required to find at least one statutory aggravating circumstance .. . ”— premeditation; 2) “[djuring the sentencing phase of the bifurcated trial the prosecution is entitled to present or draw attention to certain limited categories of non-statutory aggravating circumstances”; 3) “[t]he accused .. . has broad latitude in presenting *541extenuating and mitigating factors”; 4) “[t]he military judge is required to further focus the jury’s attention by specific instructions tailored to the evidence”; and 5) “if a death sentence is imposed, the sentence is subject to several levels of review to insure fairness and consistency.” In so holding, the majority finds the military procedures “virtually identical” to the Texas procedures upheld in Jurek. This conclusion misconceives the Gregg, Proffitt and Jurek opinions as well as that of Furman v. Georgia.
Furman v. Georgia denounced standard-less sentencing discretion. In order to meet the concerns of Furman, a sentencing system must “define the crimes for which death may be the sentence in a way that obviates ‘standardless [sentencing] discretion’.” Godfrey v. Georgia, 446 U.S. 420, 428, 100 S.Ct. 1759, 1765, 64 L.Ed.2d 398 (1980), quoting Gregg v. Georgia, supra 428 U.S. at 196, n.47, 96 S.Ct. at 2936, n.47. “It must channel the sentencer’s discretion by ‘clear and objective standards’ that provide ‘specific and detailed guidance’, and that ‘make rationally reviewable the process for imposing a sentence of death’.” Godfrey v. Georgia, supra, 446 U.S. at 428, 100 S.Ct. at 1765. Because a system may not preclude the sentencing body from considering any relevant matter in mitigation which the defendant proffers as a basis for a sentence less than death, Lockett v. Ohio, supra, the channeling function must be served by standardization of aggravating criteria required to be considered by each capital sentencing body.
The majority equates the naming of premeditation in Article 118(1) with the statutory delineation of the five categories of capital murder in the Texas procedure. The five criteria in the Texas statute are roughly comparable to the aggravating criteria in the Georgia and Florida statutes.21 Each set of criteria further limits the type of murders which may be considered as deserving of the death penalty. Premeditation, as an aggravating criterion, is not the equivalent of one of the capital murder categories in Jurek or the functional equivalent of the statutory aggravation in Gregg and Proffitt because it does not limit the cases of “first-degree murder” in which “a death sentence may be considered.” Jurek v. Texas, 428 U.S. at 276, 96 S.Ct. at 2958. Furthermore, a particular criterion, in this case premeditation, cannot serve both to narrow the category of offenses for which the death penalty may be imposed and as the aggravating factor which justifies imposition of the death penalty within that narrowed category of offenses.
The Supreme Court has said of a statute similar to Article 118 that “the jury in its unbridled discretion could choose whether the convicted defendant should be sentenced to death or to life imprisonment.” Woodson v. North Carolina, 428 U.S. 280, 285, 96 S.Ct. 2978, 2982, 49 L.Ed.2d 944 (1976). Furman and its progeny are a comment on the inadequacy of distinguishing between those murderers who deserve the death penalty and those who do not solely on the basis of traditional criteria (e.g., malice aforethought, premeditation). Traditional criteria permit the exercise of the unbridled discretion condemned by Fur-man.22
As an aggravating criterion premeditation fails to channel the sentencing decision in an objective or rational manner. Because a pattern of arbitrary and capricious sentencing like that found unconstitutional *542in Furman could occur using the premeditation criterion as a sentencing standard, that criterion is constitutionally inadequate.23 Premeditation is not a clear and objective standard, but an “amorphous” concept, Woodson v. North Carolina, 428 U.S. at 290-291, 96 S.Ct. at 2984-2985, which does not provide specific and detailed guidance to the court-martial. See Proffitt v. Florida, 428 U.S. at 253, 96 S.Ct. at 2967.
It is not denied that the military system generally satisfies the long recognized requirement that “for the determination of sentences, justice generally requires . . . that there be taken into account the circumstances of the offense together with the character and circumstances of the offender.” Gregg v. Georgia, supra 428 U.S. at 189, 96 S.Ct. at 2932, quoting Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51, 55, 58 S.Ct. 59, 60, 82 L.Ed. 43 (1937). Bifurcation facilitates the fair operation of this requirement. 428 U.S. at 191, 96 S.Ct. at 2933. Sentencing procedures in the military system ensure that relevant information will be provided to the court-martial under fair procedural rules. But that alone is not sufficient to guarantee that the information will be properly used in the imposition of the death penalty. Gregg v. Georgia, supra at 192, 96 S.Ct. at 2934.
The military system is deficient in not providing specific guidance to court members on the question of an appropriate sentence in a capital ease. While the military judge must charge the court-martial that it may consider nonstatutory matters in aggravation, as well as in mitigation, he is neither required nor authorized to instruct as to what matters may be particularly aggravating in relation to the death penalty as opposed to any other punishment. Because there is a qualitative difference of constitutional dimension between a sentence of confinement and a sentence of death, there is a qualitative difference in those factors which may aggravate a sentence from one of years to one of life confinement and from one of life confinement to one of death.24 In the context of the Eighth Amendment, a court-martial is provided with no guidance in determining an ‘appropriate sentence’ in a capital case.
In contrast to the procedures found constitutionally sufficient, the military scheme has no mandatory factors that must be found; no mandatory weighing of specific aggravating factors against mitigating factors; no requirement that the members make specific findings or answer specific questions; and above all, no specific consideration is directed to be given to the death penalty. Except for the unanimity requirement for voting, there is no distinction made between the sentencing procedure in a death case and that in any other case. The irreversible nature of the death penalty demands more.
B. Appellate Review
Where a method of imposing the death penalty is found to violate the Eighth Amendment, no degree of appellate review can cure the constitutional deficiency in that capital sentencing procedure. Nonetheless, I believe a few comments are in order concerning appellate review in the military system.
The military scheme provides for an automatic appeal which is general in nature and without direction as far as capital cases are concerned. This Court “may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines on the basis of the entire record, should be approved.” Article 66(c), UCMJ, 10 U.S.C. § 866 (1976). The Court’s function in reviewing the sentence is to deter*543mine its appropriateness. Such a nonspecific appellate review has been endorsed in capital cases only where the trial court received specific guideposts and the appellate court thus had definite, certain points to review. See Proffitt v. Florida, supra 428 U.S. at 258-59, 96 S.Ct. at 2969-70. Where the trial court is given no focus, as in the military, there is no standard for the appellate court to review. That the death sentence might be appropriate in a particular case is not sufficient; it must be appropriate when compared to the sentence imposed in other capital murder cases.25
III
With my determination that the military scheme for the imposition of the death penalty is constitutionally infirm, I need not address the application of those procedures in this case. However, even if the military procedure had complied with constitutional requirements, its application in Matthews’ trial would make the death sentence imposed an impermissible punishment. The deficiency lies in the instructions the military judge gave to the court members.
The Manual and the case law require the military judge to tailor his instructions on sentence to the law and to the facts and circumstances of the particular case. Paragraph 76b(1), MCM 1969 (Revised edition). United States v. Slaton, 6 M.J. 254 (CMA 1979); United States v. Wheeler, 17 U.S.C. M.A. 274, 38 C.M.R. 72 (1967). The military judge failed to do that here. No more perfunctory instruction could be imagined. The judge repeated the litany of considerations from the Manual but he did not personalize them to this case. The closest he came was in saying that the members could consider the testimony of the psychiatrist concerning appellant’s behavior disorder. Presumably this would serve to mitigate the sentence, but the judge did not instruct the court to this effect.26 Except for a listing of the maximum sentence as death and the minimum as life imprisonment, the instructions could just as easily have been applicable to a simple larceny case. There was nothing to focus the court on any specific consideration in imposing the ultimate penalty.
I would affirm a sentence only to a dishonorable discharge, total forfeitures, reduction to E-1, and confinement at hard labor for life.27
APPENDIX TO DISSENTING OPINION OF SENIOR JUDGE JONES
Georgia Laws
Ga.Code Ann. § 26-1101 (1972) provides:
“Murder.
“(a) A person commits murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being. Express malice is that deliberate intention unlawfully to take away the life of a fellow creature, which is manifested by external circumstances capable of proof. Malice shall be implied where no considerable *544provocation appears, and where all the circumstances of the killing show an abandoned and malignant heart.
“(b) A person also commits the crime of murder when in the commission of a felony he causes the death of another human being, irrespective of malice.
“(c) A person convicted of murder shall be punished by death or by imprisonment for life.”
Ga.Code Ann. § 27-2503 (Supp.1975) provides:
Presentence hearings in felony cases
(a) Except in cases in which the death penalty may be imposed, upon the return of a verdict of “guilty” by the jury in any felony case, the judge shall dismiss the jury and shall conduct a presentence hearing at which the only issue shall be the determination of punishment to be imposed. In such hearing the judge shall hear additional evidence in extenuation, mitigation, and aggravation of punishment, including the record of any prior criminal convictions and pleas of guilty or pleas of nolo contendere of the defendant, or the absence of any prior conviction and pleas: Provided, however, that only such evidence in aggravation as the State has made known to the defendant prior to his trial shall be admissible. The judge shall also hear argument by the defendant or his counsel and the prosecuting attorney, as provided by law, regarding the punishment to be imposed. The prosecuting attorney shall open and the defendant shall conclude the argument. In cases in which the death penalty may be imposed, the judge when sitting without a jury shall follow the additional procedure provided in section 27-2534.1. Upon the conclusion of the evidence and arguments the judge shall impose the sentence or shall recess the trial for the purpose of taking the sentence to be imposed under advisement. The judge shall fix a sentence within the limits prescribed by law. If the trial court is reversed on appeal because of error only in the presentence hearing, the new trial which may be ordered shall apply only to the issue of punishment.
(b) In all cases in which the death penalty may be imposed and which are tried by a jury, upon a return of a verdict of guilty by the jury, the court shall resume the trial and conduct a presentence hearing before the jury. Such hearing shall be conducted in the same manner as presentence hearings conducted before the judge as provided in subsection (a) of this section. Upon the conclusion of the evidence and arguments, the judge shall give the jury appropriate instructions, and the jury shall retire to determine whether any mitigating or aggravating circumstances, as defined in section 27-2534.1, exist and whether to recommend mercy for the defendant. Upon the findings of the jury, the judge shall fix a sentence within the limits prescribed by law.
Ga.Code Ann. § 27-2534.1 (Supp.1975) provides:
Mitigating and aggravating circumstances; death penalty
(a) The death penalty may be imposed for the offenses of aircraft hijacking or treason, in any case.
(b) In all cases of other offenses for which the death penalty may be authorized, the judge shall consider, or he shall include in his instructions to the jury for it to consider, any mitigating circumstances or aggravating circumstances otherwise authorized by law and any of the following statutory aggravating circumstances which may be supported by the evidence:
(1) The offense of murder, rape, armed robbery, or kidnapping was committed by a person with a prior record of conviction for a capital felony, or the offense of murder was committed by a person who has a substantial history of serious assaultive criminal convictions.
(2) The offense of murder, rape, armed robbery, or kidnapping was committed while the offender was engaged in the commission of another capital felony, or aggravated battery, or the offense of murder was committed while the offend*545er was engaged in the commission of burglary or arson in the first degree.
(3) The offender by his act of murder, armed robbery, or kidnapping knowingly created a great risk of death to more than one person in a public place by means of a weapon or device which would normally be hazardous to the lives of more than one person.
(4) The offender committed the offense of murder for himself or another, for the purpose of receiving money or any other thing of monetary value.
(5) The murder of a judicial officer, former judicial officer, district attorney or solicitor or former district attorney or solicitor during or because of the exercise of his official duty.
(6) The offender caused or directed another to commit murder or committed murder as an agent or employee of another person.
(7) The offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.
(8) The offense of murder was committed against any peace officer, corrections employee or fireman while engaged in the performance of his official duties.
(9) The offense of murder was committed by a person in, or who has escaped from, the lawful custody of a peace officer or place of lawful confinement.
(10) The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or custody in a place of lawful confinement, of himself or another.
(c) The statutory instructions as determined by the trial judge to be warranted by the evidence shall be given in charge and in writing to the jury for its deliberation. The jury, if its verdict be a recommendation of death, shall designate in writing, signed by the foreman of the jury, the aggravating circumstance or circumstances which it found beyond a reasonable doubt. In non-jury cases the judge shall make such designation. Except in cases of treason or aircraft hijacking, unless at least one of the statutory aggravating circumstances enumerated in section 27-2534.1(b) is so found, the death penalty shall not be imposed.
Ga.Code Ann. § 27-2537 (Supp.1975) provides:
Review of death sentences
(a) Whenever the death penalty is imposed, and upon the judgment becoming final in the trial court, the sentence shall be reviewed on the record by the Supreme Court of Georgia. The clerk of the trial court, within 10 days after receiving the transcript, shall transmit the entire record and transcript to the Supreme Court of Georgia together with a notice prepared by the clerk and a report prepared by the trial judge. The notice shall set forth the title and docket number of the case, the name of the defendant and the name and address of his attorney, a narrative statement of the judgment, the offense, and the punishment prescribed. The report shall be in the form of a standard questionnaire prepared and supplied by the Supreme Court of Georgia.
(b) The Supreme Court of Georgia shall consider the punishment as well as any errors enumerated by way of appeal.
(c) With regard to the sentence, the court shall determine:
(1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor, and
(2) Whether, in cases other than treason or aircraft hijacking, the evidence supports the jury’s or judge’s finding of a statutory aggravating circumstance as enumerated in section 27-2534.1(b), and
(3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
(d) Both the defendant and the State shall have the right to submit briefs within the time provided by the court, and to present oral argument to the court.
*546(e) The court shall include in its decision a reference to those similar cases which it took into consideration. In addition to its authority regarding correction of errors, the court, with regard to review of death sentences, shall be authorized to:
(1) Affirm the sentence of death; or
(2) Set the sentence aside and remand the case for resentencing by the trial judge based on the record and argument of counsel. The records of those similar cases referred to by the Supreme Court of Georgia in its decision, and the extracts prepared as hereinafter provided for, shall be provided to the resentencing judge for his consideration.
(f) There shall be an Assistant to the Supreme Court, who shall be an attorney appointed by the Chief Justice of Georgia and who shall serve at the pleasure of the court. The court shall accumulate the records of all capital felony cases in which sentence was imposed after January 1, 1970, or such earlier date as the court may deem appropriate. The Assistant shall provide the court with whatever extracted information it desires with respect thereto, including but not limited to a synopsis or brief of the facts in the record concerning the crime and the defendant.
(g) The court shall be authorized to employ an appropriate staff and such methods to compile such data as are deemed by the Chief Justice to be appropriate and relevant to the statutory questions concerning the validity of the sentence.
(h) The office of the Assistant shall be attached to the office of the Clerk of the Supreme Court of Georgia for administrative purposes.
(i) The sentence review shall be in addition to direct appeal, if taken, and the review and appeal shall be consolidated for consideration. The court shall render its decision on legal errors enumerated, the factual substantiation of the verdict, and the validity of the sentence.
Florida Laws
Fla.Stat.Ann. § 782.04 (Supp.1976-1977) provides:
Murder
(1) (a) The unlawful killing of a human being, when perpetrated from a premeditated design to effect the death of the person killed or any human being, or when committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any arson, involuntary sexual battery, robbery, burglary, kidnapping, aircraft piracy, or unlawful throwing, placing, or discharging of a destructive device or bomb, or which resulted from the unlawful distribution of heroin by a person 18 years of age or older when such drug is proven to be the proximate cause of the death of the user, shall be murder in the first degree and shall constitute a capital felony, punishable as provided in § 775.082.
(b) In all cases under this section, the procedure set forth in § 921.141 shall be followed in order to determine sentence of death or life imprisonment.
(2) The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, shall be murder in the second degree and shall constitute a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in § 775.082, § 775.083, or § 775.084.
(3) When a person is killed in the perpetration of, or in the attempt to perpetrate, any arson, involuntary sexual battery, robbery, burglary, kidnapping, aircraft piracy, or unlawful throwing, placing, or discharging of a destructive device or bomb by a person other than the person engaged in the perpetration of or in the attempt to perpetrate such felony, the person perpetrating or attempting to perpetrate such felony shall be guilty of murder in the second degree, which constitutes a felony of the first degree, *547punishable by imprisonment for a term of years not exceeding life or as provided in § 775.082, § 775.083, or § 775.084.
(4) The unlawful killing of a human being, when perpetrated without any design to effect death, by a person engaged in the perpetration of, or in the attempt to perpetrate, any felony other than any arson, involuntary sexual battery, robbery, burglary, kidnapping, aircraft piracy, or unlawful throwing, placing, or discharging of a destructive device or bomb, shall be murder in the third degree and shall constitute a felony of the second degree, punishable as provided in § 775.-082, § 775.083, or § 775.084.
Fla.Stat.Ann. § 775.082 (Supp.1976-1977) provides in part:
Penalties
(1) A person who has been convicted of a capital felony shall be punished by life imprisonment and shall be required to serve no less than 25 years before becoming eligible for parole unless the proceeding held to determine sentence according to the procedure set forth in § 921.141 results in findings by the court that such person shall be punished by death, and in the latter event such person shall be punished by death.
Fla.Stat.Ann. § 921.141 (Supp. 1976-1977) provided:
Recommendation to mercy; procedure when person convicted of capital felony
(1) Recommendation to mercy. — A defendant found guilty by a jury of an offense punishable by death shall be sentenced to death unless the verdict includes a recommendation to mercy by the jury. When the verdict includes a recommendation to mercy by the jury, the court shall sentence the defendant to life imprisonment. A defendant found guilty by the court of an offense punishable by death when a jury is waived shall be sentenced by the court to death or life imprisonment.
(2) Separate proceedings on issue of penalty.—
(a) The guilt or innocence of every person charged with an offense for which
the death penalty may be imposed upon conviction shall be determined first without a finding as to penalty. If such person has been found guilty of an offense for which the death penalty may be imposed, there shall be further proceedings on the issue of the penalty, and the trier of fact shall fix the penalty. The determination of whether the defendant will be recommended to the mercy of the court shall be in the discretion of the court or jury trying the issue of the facts on the evidence presented, and the penalty shall be expressly stated in the decision or verdict. If the defendant was convicted by the court sitting without a jury, the trier of fact shall be the court. If the defendant was convicted upon a plea of not guilty, the trier of fact shall be a jury, unless a jury is waived by the defendant and the state. If the defendant was convicted by a jury, the trier of fact shall be the same jury.
(b) There may be presented in the proceedings on the issue of penalty evidence of the circumstances surrounding the crime and of the defendant’s background and history and any facts in aggravation or mitigation; including, but not limited to, those circumstances enumerated in subsections (3) and (4). The proceeding as to penalty shall be separate and distinct from proceedings regarding guilt or innocence, and the penalty proceeding shall be guided by the same rules of criminal procedure as are applied to the guilt or innocence phase of the trial.
(c) Where the jury is the trier of fact a recommendation to mercy shall require the affirmative vote of a majority of the jury. In any case in which the defendant has been found guilty by jury and the jury is unable to reach a verdict on the issue of penalty because of the inability of one or more of the jurors to function, the court shall dismiss the jury and order a new jury impaneled to determine the issue of penalty.
(3) Aggravating circumstances.—
(a) The capital felony was committed by a convict under sentence of imprisonment.
*548(b) The defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person.
(c) At the time the capital felony was committed the defendant also committed another capital felony.
(d) The defendant knowingly created a great risk of death to many persons.
(e) The capital felony was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any robbery, rape, arson, burglary or kidnapping.
(f) The capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.
(g) The capital felony was committed for pecuniary gain.
(h) The capital felony was especially heinous, atrocious, or cruel, manifesting exceptional depravity.
(4) Mitigating circumstances.—
(a) The defendant has no significant history of prior criminal activity.
(b) The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance.
(c) The victim was a participant in the defendant’s conduct or consented to the act.
(d) The capital felony was committed under circumstances which the defendant believed to provide a moral justification or extenuation for his conduct.
(e) The defendant was an accomplice in the capital felony committed by another person and his participation was relatively minor.
(f) The defendant acted under duress or under the domination of another person.
(g) At the time of the capital felony the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or intoxication.
(h) The youth of the defendant at the time of the crime.
Fla.Stat.Ann. § 921.141 has been twice amended since Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). See Fla.Stat.Ann. § 921.141 (Supp.1981).
Texas Laws
Tex.Penal Code § 19.02 (1974) provides:
Murder
(a) A person commits an offense if he:
(1) intentionally or knowingly causes the death of an individual;
(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or
(3) commits or attempts to commit a felony, other than voluntary or involuntary manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.
(b) An offense under this section is a felony of the first degree.
Texas Penal Code § 19.03 (1974) provides:
Capital Murder
(a) A person commits an offense if he commits murder as defined under Section 19.02(a)(1) of this code and:
(1) the person murders a peace officer or fireman who is acting in the lawful discharge of an official duty and who the person knows is a peace officer or fireman;
(2) the person intentionally commits the murder in the course of committing or attempting to commit kidnapping, burglary, robbery, aggravated rape, or arson;
(3) the person commits the murder for remuneration or the promise of remuneration or employs another to commit the murder for remuneration or the promise of remuneration;
*549(4) the person commits the murder while escaping or attempting to escape from a penal institution; or
(5) the person, while incarcerated in a penal institution, murders another who is employed in the operation of the penal institution.
(b) An offense under this section is a capital felony.
(c) If the jury does not find beyond a reasonable doubt that the defendant is guilty of an offense under this section, he may be convicted of murder or of any other lesser included offense.
Former Tex.Penal Code Art. 1256 (1973) provided:
“Murder”
Whoever shall voluntarily kill any person within this State shall be guilty of murder. Murder shall be distinguished from every other species of homicide by the absence of circumstances which reduce the offense to negligent homicide or which excuse or justify the killing.
Former Tex.Penal Code Art. 1257 (1973) provided:
Punishment for murder
(a) Except as provided in subsection (b) of this Article, the punishment for murder shall be confinement in the penitentiary for life or for any term of years not less than two.
(b) The punishment for murder with malice aforethought shall be death or imprisonment for life if:
(1) the person murdered a peace officer or fireman who was acting in the lawful discharge of an official duty and who the defendant knew was a peace officer or fireman;
(2) the person intentionally committed the murder in the course of committing or attempting to commit kidnapping, burglary, robbery, forcible rape, or arson;
(3) the person committed the murder for remuneration or the promise of remuneration or employed another to commit the murder for remuneration or the promise of remuneration;
(4) the person committed the murder while escaping or attempting to escape from a penal institution;
(5) the person, while incarcerated in a penal institution, murdered another who was employed in the operation of the penal institution.
(c) If the jury does not find beyond a reasonable doubt that’ the murder was committed under one of the circumstances or conditions enumerated in Subsection (b) of this Article, the defendant may be convicted of murder, with or without malice, under Subsection (a) of this Article or of any other lesser included offense.
(d) If one of the circumstances or conditions enumerated in Subsection (b) of this Article is charged in an indictment, the prospective jurors shall be informed that a sentence of either death or imprisonment for life is mandatory on conviction for the offense charged. No person is qualified to serve as a juror unless he states under oath that the mandatory penalty of death or imprisonment for life will not affect his deliberations on any issue of fact.
(e) In this Article:
(1) “Penal institution” means an institution operated by or under the supervision of the Texas Department of Corrections or a city, county, or regional jail.
(2) “Peace officer” means a person defined as such by Article 2.12, Code of Criminal Procedure, 1965, as amended.
Tex.Code Crim.Proc. Art 37.071 (Supp. 1975-1976) provides:
Procedure in capital case
(a) Upon a finding that the defendant is guilty of a capital offense, the court shall conduct a separate sentencing proceeding to determine whether the defendant shall be sentenced to death or life imprisonment. The proceeding shall be conducted in the trial court before the trial jury as soon as practicable. In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence. This subsection shall not be construed to authorize the introduction of any evidence secured in viola*550tion of the Constitution of the United States or of the State of Texas. The state and the defendant or his counsel shall be permitted to present argument for or against sentence of death.
(b) On conclusion of the presentation of the evidence, the court shall submit the following issues to the jury:
(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;
(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and
(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.
(c) The state must prove each issue submitted beyond a reasonable doubt, and the jury shall return a special verdict of “yes” or “no” on each issue submitted.
(d) The court shall charge the jury that:
(1) it may not answer any issue “yes” unless it agrees unanimously; and
(2) it may not answer any issue “no” unless 10 or more jurors agree.
(e) If the jury returns an affirmative finding on each issue submitted under this article, the court shall sentence the defendant to death. If the jury returns a negative finding on any issue submitted under this article, the court shall sentence the defendant to confinement in the Texas Department of Corrections for life.
(f) The judgment of conviction and sentence of death shall be subject to automatic review by the Court of Criminal Appeals within 60 days after certification by the sentencing court of the entire record unless time is extended an additional period not to exceed 30 days by the Court of Criminal Appeals for good cause shown. Such review by the Court of Criminal Appeals shall have priority over all other cases, and shall be heard in accordance with rules promulgated by the Court of Criminal Appeals.
. Col. Winthrop in his Military Law and Precedents, Second Edition, 1920 Reprint, stated that the Eighth Amendment to the Constitution did not apply to courts-martial but that the military observed the “cruel and unusual punishment” provision as a “general rule of practice”. Winthrop at page 398. Whether the amendment is applicable directly or only through Article 55, UCMJ, it is now undisputed that the “cruel and unusual punishment” provision is applicable to the military justice system. United States v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249, 261 (1967); United States v. Jobe, 10 U.S.C.M.A. 276, 27 C.M.R. 350, 353 (1959).
. Only Justices Brennan and Marshall would hold that the death penalty imposed under any and all conditions, violates the cruel and unusual punishment clause of the Eighth Amendment.
. McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), dealt with capital sentencing in light of the Due Process clause of the Fourteenth Amendment and held that a jury was not required to be provided with standards to guide its decision whether to recommend a sentence of life imprisonment or death, nor that the capital sentencing proceeding was required to be separate from the guilt *536determination process. “McGautha was not an Eighth Amendment decision, and to the extent it purported to deal with Eighth Amendment concerns, it must be read in light of the opinions in Furman v. Georgia. There the Court ruled that death sentences imposed under statutes that left juries with untrammeled discretion to impose or withhold the death penalty violated the Eighth and Fourteenth Amendments.” Gregg v. Georgia, 428 U.S. 153, 195, n.47, 96 S.Ct. 2909, 2935, n.47, 49 L.Ed.2d 859 (1976).
. The offenses proscribed as murder in the Georgia, Florida, and Texas statutes are not identical. See Ga.Code Ann. § 26-1101 (1972), Fla.Stat.Ann. § 782.04 (Supp.1976-79), Tex.Penal Code § 19.02(a) (1974). Relevant portions of the Georgia, Florida, and Texas statutes are set out in an Appendix following this opinion.
. In Georgia and Florida, the elements of the offense must be found to convict an accused of murder. During the sentencing phase, an additional finding must be made as a prerequisite to consideration of the death penalty as a sentencing option. See Ga.Code Ann. § 26-1101 (1972) and Fla.Stat.Ann. § 782.04 (Supp.1976-1977) for the respective definitions of murder, and Ga.Code Ann. § 27-2534.1(b) and Fla.Stat. Ann. § 921.141(5) (Supp.1976-1977) for the respective aggravating factors. In order for a Texas jury to consider death as a sentencing option, findings must be made as to an intentional or knowing murder as defined in Tex.Penal Code § 19.02(a) and as to an additional circumstance listed in Tex.Penal Code § 19.03 (designating capital murders).
. See Ga.Code Ann. § 27-2503 (Supp.1975), § 27-2514 (Supp.1975), § 27-2534 (1972), § 27-2534.1(b) (Supp.1975), § 27-2537 (Supp. 1975) and § 26-3102 (Supp.1975).
. See Miller v. State, 226 Ga. 730, 177 S.E.2d 253, 255 (1970); Williams v. State, 226 Ga. 140, 173 S.E.2d 182, 184 (1970); Manor v. State, 223 Ga. 594, 157 S.E.2d 431, 437 (1967). These cases were subsequently vacated and remanded for consideration in light of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), respectively at 408 U.S. 938, 92 S.Ct. 2867, 33 L.Ed.2d 758 (1972); 408 U.S. 936, 92 S.Ct. 2879, 33 L.Ed.2d 753 (1972); 408 U.S. 935, 92 S.Ct. 2856, 33 L.Ed.2d 750 (1972).
. See Wyatt v. State, 220 Ga. 867, 142 S.E.2d 810, 812 (1965). See also Brawner v. State, 221 Ga. 680, 146 S.E.2d 737, 741, cert. denied, 385 U.S. 936, 87 S.Ct. 298, 17 L.Ed.2d 216 (1966).
. Georgia requires that the State Supreme Court review every death sentence to determine whether it was imposed under the influence of passion, prejudice, or any other arbitrary factor, whether the evidence supports the findings of a statutory aggravating circumstance, and whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. Ga.Code Ann. § 27-2537 (Supp.1975).
. “[The new Georgia] procedures require the jury to consider the circumstances of the crime and the criminal before it recommends sentence. No longer can a Georgia jury do as Furman’s jury did: reach a finding of the defendant’s guilt and then, without guidance or direction, decide whether he should live or die. Instead, the jury’s attention is directed to the specific circumstances of the crime .... In addition, the jury’s attention is focused on the characteristics of the person who committed the crime.” Gregg v. Georgia, 428 U.S. 153, 197, 96 S.Ct. 2909, 2936, 49 L.Ed.2d 859 (1976).
. Williams v. Wainwright, 408 U.S. 941, 92 S.Ct. 2864, 33 L.Ed.2d 765 (1972); Hawkins v. Wainwright, 408 U.S. 941, 92 S.Ct. 2857, 33 L.Ed.2d 765 (1972); Pitts v. Wainwright, 408 U.S. 941, 92 S.Ct. 2856, 33 L.Ed.2d 765 (1972); Boykin v. Florida, 408 U.S. 940, 92 S.Ct. 2876, 33 L.Ed.2d 763 (1972); Johnson v. Florida, 408 U.S. 939, 92 S.Ct. 2875, 33 L.Ed.2d 762 (1972); Brown v. Florida, 408 U.S. 938, 92 S.Ct. 2870, 33 L.Ed.2d 759 (1972); Anderson v. Florida, 408 U.S. 938, 92 S.Ct. 2868, 33 L.Ed.2d 758 (1972); Paramore v. Florida, 408 U.S. 935, 92 S.Ct. 2857, 33 L.Ed.2d 751 (1972); Thomas v. Florida, 408 U.S. 935, 92 S.Ct. 2855, 33 L.Ed.2d 750 (1972).
. See Fla.Stat.Ann. § 921.141 (Supp.1976-1977).
. “[T]he procedure to be followed by trial judges and juries is not a mere counting process of X number of aggravating circumstances, and Y number of mitigating circumstances but rather a reasoned judgment as to what factual situations require the imposition of death and which can be satisfied by life imprisonment in light of the totality of the circumstances present.” State v. Dixon, 283 So.2d 1, 8 (Fla.1973).
. Fla.Stat.Ann. § 921.141 (Supp.1976-1977). Cf. n.9 supra.
. Branch v. Texas, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).
. See Tex.Code Crim.Proc., Art. 37.071 (Supp.1975-1976).
. Tex.Code Crim.Proc., Art. 37.071 (Supp.1975-1976). The two questions to be answered in all instances are (1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result; and (2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. The third question to be answered, if applicable, is whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation by the deceased.
. Jurek was convicted under Tex.Penal Code, Art. 1256 (1973) (murder defined in terms of malice aforethought), and Tex.Penal Code, Art. 1257 (1973) (capital murder specified in terms of malice aforethought and five circumstances) which were in effect at the time Jurek committed his offense. The Supreme Court in reviewing his death sentence concentrated its discussion of the Texas procedure on the statutes in effect at the time of its decision, Texas Penal Code § 19.02 (murder defined in terms of intentional or knowing) and § 19.03 (capital murder specified in terms of intentional or knowing and five circumstances).
. In contrast to Florida and Georgia, the spe*540cific finding is made under Texas law during the guilt determination phase. The aggravating factor must be pled and proved as part of the substantive offense of capital murder. In order to convict of capital murder as opposed to murder, the jury must find the aggravating factor as an element of the crime.
. My discussion will be limited primarily to sentencing in connection with premeditated murder since Matthews was convicted and sentenced on the basis of that offense.
. The aggravating criteria of all three states include the following concepts: 1) the killing of a police officer or fireman who was in the performance of official duties; 2) a killing during the commission of a felony; 3) a killing for remuneration; 4) a killing in connection with escape from confinement or arrest; 5) a killing while the perpetrator was imprisoned. See Ga.Code Ann. § 27-2534.1(b) (Supp.1975), Fla.Stat.Ann. § 921.141(5) (Supp.1976-1977), Tex. Penal Code Ann. § 19.03 (Vernon 1974). See also ALI, Model Penal Code § 210.6 (Proposed Official Draft 1962).
. Eighty-six death sentences were vacated and the cases remanded by the Furman court. See 408 U.S. at 845, 932-942, 92 S.Ct. at 2845, 2845-2879, 33 L.Ed.2d 744, 745-765. Sixty-one of those death sentences were imposed under “premeditation” statutes existing in nineteen states.
. The establishment of standards does not necessarily guarantee that the sentencing decision will be properly channeled. A standard could be so broad as to result in a pattern of arbitrary and capricious sentencing like that found unconstitutional in Furman. See Gregg v. Georgia, supra 428 U.S. at 195, n.46, 96 S.Ct. at 2935, n.46.
. The sentencing procedures in the military allow for consideration in a capital case of aggravating matters as trivial as whether the accused has received nonjudicial punishment for being late to a formation or whether the accused has been convicted previously for an offense as minor as borrowing another person’s property without permission.
. Any review for sentence appropriateness intrinsically calls for comparison of sentences imposed in similar cases. The Supreme Court has approved a statutory requirement for case comparison by the reviewing court, see Gregg v. Georgia, 428 U.S. at 223, 96 S.Ct. at 2948, but has not required it, see Proffitt v. Florida, 428 U.S. 242, 259, 96 S.Ct. 2960, 2969, 49 L.Ed.2d 913 (1976). However, the requirement that, consistent with the Eighth Amendment, a capital sentencing procedure must “promote the evenhanded, rational and consistent imposition of death sentences”, Jurek v. Texas, 428 U.S. 262, 276, 96 S.Ct. 2950, 2958, 49 L.Ed.2d 929 (1976), requires such a comparison by any reviewing court.
. At least one court has required that in order to satisfy the Eighth Amendment, the trial judge must ‘clearly and explicitly instruct the jury about mitigating circumstances and the option to recommend against death . . . . ’ In that court’s view ‘the judge [would] normally tell the jury what a mitigating circumstance is and what its function is in the jury’s sentencing deliberations.’ See Spivey v. Zant, 661 F.2d 464 (5th Cir. 1981).
. 1 disagree with Judge Foreman’s conclusion that because confinement was not expressly stated in the sentence adjudged, the forfeitures cannot be applied at the time of the convening authority’s action. I believe confinement for life is an inherent part of every sentence to death.