(concurring specially) — I concur in the majority opinion by Justice Dolliver. Furthermore, as to the first issue, I agree with the reasons expressed in Justice Utter's opinion concurring in part, dissenting in part.
In addition, I feel compelled to register my concern over the views expressed in several of the concurring and dissenting opinions with regard to the issue whether death by *498hanging constitutes cruel and unusual punishment under the eighth amendment to the United States Constitution and Const, art. 1, § 14. Justice Stafford's opinion concurring in part and dissenting in part appears to defer to the legislative judgment that hanging is a constitutional form of punishment in capital crimes. I am troubled by the implication that the legislature, rather than the courts, is the proper body not only to determine the nature of a punishment, but also to evaluate the constitutionality of that punishment.
As Justice Dolliver's majority opinion makes plain, the United States Supreme Court has held in numerous cases that courts have the responsibility of evaluating punishments claimed to violate the Eighth Amendment. See, e.g., Coker v. Georgia, 433 U.S. 584, 53 L. Ed. 2d 982, 97 S. Ct. 2861 (1977); majority opinion, at 491-92, and cases cited therein. In addition, several federal courts have recently emphasized the importance of the judiciary in assessing claims of constitutional violations. In an action challenging prison conditions, for example, one court has explained:
Whatever rights one may lose at the prison gates, . . . the full protections of the eighth amendment most certainly remain in force. The whole point of the amendment is to protect persons convicted of crimes. Eighth amendment protections are not forfeited by one's prior acts. Mechanical deference to the findings of state prison officials in the context of the eighth amendment would reduce that provision to a nullity in precisely the context where it is most necessary. The ultimate duty of the federal court to order that conditions of state confinement be altered where necessary to eliminate cruel and unusual punishments is well established.
(Citations omitted. Italics mine.) Spain v. Procunier, 600 F.2d 189, 193-94 (9th Cir. 1979). See also Williams v. Edwards, 547 F.2d 1206, 1212 (5th Cir. 1977); Newman v. Alabama, 503 F.2d 1320, 1329 (5th Cir. 1974).
In a case involving a claim that the life sentence imposed under the habitual criminal statute, RCW 9.92.090, is unconstitutionally cruel, this court has recently stated:
*499[W]e must and do defer to the legislative decision to impose an enhanced penalty on recidivists. State v. Lee, 87 Wn.2d 932, 558 P.2d 236 (1976). Yet, legislative authority is ultimately circumscribed by the constitutional mandate forbidding cruel punishment. Our duty to determine whether a legislatively imposed penalty is constitutionally excessive is not one which we assume eagerly, but we do not shrink from our responsibility.
State v. Fain, 94 Wn.2d 387, 402, 617 P.2d 720 (1980).
The concurring and dissenting opinions of Justices Rosellini and Dore do not disagree that it is the duty of the courts to determine the constitutionality of a particular form of punishment. Rather, those opinions conclude that in circumstances where the evidence is subject to dispute, the legislature is the proper body to take testimony and weigh conflicting data. Rosellini, J., dissenting in part, at 512; Dore, J., dissenting and concurring, at 527-28.
It must be emphasized that the urgency and importance of these cases prompted this court to invite the parties, by order, to submit a factual record on the issue of death by hanging. I presume the order contemplated that the court would assess this evidence. Moreover, it is not a novel undertaking for this court to independently evaluate a factual record in deciding a case resting on a claim of cruel punishment under the Eight Amendment and Const, art. 1, § 14. A majority of this court did that very thing in State v. Smith, 93 Wn.2d 329, 333-35, 339-44, 610 P.2d 869 (1980) (holding that a possible 5-year sentence for felonious possession of marijuana does not constitute cruel and unusual punishment).
It is thus plain to me that courts have historically been charged with the responsibility to enunciate "the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 101, 2 L. Ed. 2d 630, 78 S. Ct. 590 (1958). See especially Estelle v. Gamble, 429 U.S. 97, 102-04 & n.8, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976). Indeed, our failure to perform this important duty would render meaningless the constitutional prohibition against cruel punishment. Spain v. Procunier, supra. *500Moreover, we have undertaken in these cases and in prior cases to make a factual determination if necessary to decide a claim of cruel punishment. State v. Smith, supra. In light of the evidence of the consequences of hanging presented by the voluminous record on this issue, I am persuaded that execution by hanging clearly falls within the prohibition against cruel punishment embodied in the Eighth Amendment and Const, art. 1, § 14.