(concurring in part, dissenting in part) — I am compelled to agree with the majority that the death *513penalty statute, as it now reads, is unconstitutional under United States v. Jackson, 390 U.S. 570, 20 L. Ed. 2d 138, 88 S. Ct. 1209 (1968). State v. Martin, 94 Wn.2d 1, 614 P.2d 164 (1980), is correct both for the reasons stated therein and because, as Justice Utter persuasively points out, article 2, section 37 of our state constitution prohibits the legislature from attempting to amend RCW 10.49.010 by RCW 10.94.020. That such an amendment was attempted is implicit from Justice Rosellini's dissent wherein it is suggested the two statutes should be read together to make one scheme. Such is a constitutional impossibility. It is precisely the situation sought to be prevented by the framers of our constitution.
As to the second issue, I agree with Justice Dimmick. The differences between life imprisonment with or without possibility of parole Eire not sufficiently great to be an impermissible encouragement of a defendant to plead guilty. Thus, this situation falls within the framework of Corbitt v. New Jersey, 439 U.S. 212, 58 L. Ed. 2d 466, 99 S. Ct. 492 (1978). I also see no impediment to prosecutors using the special sentencing procedure of RCW 10.94 to file a notice of intention to seek life imprisonment without possibility of parole, given the clear manifestation of legislative intent in both RCW 10.94.900 (severability) and RCW 9A.32.047 (penalty shall be life imprisonment without possibility of release or parole if death penalty is held unconstitutional).
Regarding the third and fourth issues, I agree with Justice Dolliver's majority opinion.
As to the fifth issue, I must dissent. Although I personally find the thought of death by hanging to be abhorrent, and would prefer the employment of a more speedy and more reliable method, I cannot for that subjective reason alone hold it unconstitutional. A law should not be declared unconstitutional just because one does not like it. It is only when a statute contravenes a constitutional provision or principle that it must be invalidated.
*514The majority says hanging is cruel and unusual punishment because it offends civilized standards of decency. This is a purely subjective reaction, however. The legislature is mentally and morally as attuned as the members of this court to precisely determine the point at which civilization is in the "evolving standard of decency" or where such a punishment fits in. In a case such as this wherein wholly subjective observations and reasoning are involved, we should defer to the legislature's judgment. The legislature is, after all, the body most closely representative of the people whose standards of decency are said to be impacted. I cannot presume that the members of that body are less "decent" or "civilized" or any less capable of determining the community's "evolving standard of decency" than are the members of this court or the general populace.
Without question there are methods of imposing death that would clearly contravene the Eighth Amendment and Const, art. 1, § 14. We are not within such a clearly defined area, however. Rather, we are in a gray zone the bounds of which cannot be adequately defined by resort to the mere subjective standard that the method "offends civilized standards of decency" or offends "evolving standards of decency". While subjective standards may suffice to meet a clear-cut case, one must resort to a more objective approach to resolve the emotional issue before us. Absent some objective criteria there will be as many answers as there are people with differing moral and intellectual philosophies. Such a nebulous approach, with the possibility of uncertain results, is intolerable no matter which moral or philosophical view one may advocate. The majority has not employed the necessary objectivity.
Bkachtenbach, C.J., concurs with Stafford, J.
Hicks and Dimmick, JJ., concur with Stafford, J., as to issue V.