(concurring in part, dissenting in part) — I agree with the majority except as to issue IV. On that issue *515I believe RCW 10.94.020(10) (b) violates the due process guaranties of both the United States and Washington Constitutions.
I
To be consistent with due process, a penal statute must contain ascertainable standards, so that people of reasonable understanding, when acting as jurors, will not be required to guess at the meaning of the enactment. Seattle v. Drew, 70 Wn.2d 405, 408, 423 P.2d 522, 25 A.L.R.3d 827 (1967). For criminal statutes to be constitutional, explicit standards are necessary to guard against arbitrary enforcement of the law. Papachristou v. Jacksonville, 405 U.S. 156, 31 L. Ed. 2d 110, 92 S. Ct. 839 (1972). In capital sentencing, the need to guard against arbitrariness is even greater than in other criminal contexts, and the constitutional requirements are more stringent. Godfrey v. Georgia, 446 U.S. 420, 64 L. Ed. 2d 398, 100 S. Ct. 1759.(1980). The sentencing statute 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.'" (Footnotes omitted.) Godfrey, at 428.
RCW 10.94.020(10) (b) violates the constitutional requirement of certainty and clarity. The inadequacy of its terminology has been empirically shown by the frequency with which deliberating juries have requested additional instructions on the terms "probability" and "criminal acts of violence." Scofield, Due Process in the United States Supreme Court and the Death of the Texas Capital Murder Statute, 8 Am. J. Crim. L. 1, 31 (1980). The statute is obscure in that the jury is required to find "a probability beyond a reasonable doubt." As ably discussed by two Justices in Jurek v. State, 522 S.W.2d 934, 945 (Tex. Crim. 1975), aff'd, Jurek v. Texas, 428 U.S. 262, 49 L. Ed. 2d 929, 96 S. Ct. 2950 (1976):
What did the Legislature mean when it provided that a man's life or death shall rest upon whether there exists a *516"probability" that he will perform certain acts in the future? Did it mean, as the words read, is there a probability, some probability, any probability? We may say there is a twenty percent probability that it will rain tomorrow, or a ten or five percent probability. Though this be a small probability, yet it is some probability, a probability, and no one would say it is no probability or not a probability. It has been written: "It is probable that many things will happen contrary to probability," and "A thousand probabilities do not make one fact." The statute does not require a particular degree of probability but only directs that some probability need be found. The absence of a specification as to what degree of probability is required is itself a vagueness inherent in the term as used in this issue. Our common sense understanding of the term leaves the statute too vague to pass constitutional muster.
(Footnotes omitted.) Furthermore,
The concept of the existence of a "probability" "beyond a reasonable doubt" is and can be only puzzling — even mind-boggling — to a jury or to anybody. In strict mathematical terms, and in dealing with a subject strictly amenable to mathematical treatment, it is of course possible to assert that there "is a probability" not only "beyond a reasonable doubt" but to a certainty. But non-mathematicians neither use language nor think in such a way. The terms "probability" and "beyond a reasonable doubt" are repugnant and at war with one another in the common speech in which juries, like all of us, talk and think.
Black, Due Process of Death: Jurek v. Texas and Companion Cases, 26 Cath. U.L. Rev. 1, 4 (1976).
Additionally, the evidence indicates the unreliability of predicting future dangerousness. The research in this field shows that the ability to predict future violence is unproven. Scofield, supra at 32-41. The evidence in this case shows that no one can predict future violent behavior with more than 35 percent accuracy. Most experts agree there is a "very strong doubt" about the predictability of whether a person is more likely than not to commit an act of violence. A state parole board expert testified that pre-*517dieting violent criminal behavior constitutes "sheer speculation." As a result, when a jury is asked to predict the possibility of future violent behavior, its decision is more likely to be influenced by the nature of the crime than the likelihood of future violence.
To conclude that RCW 10.94.020(10) (b) violates due process is not inconsistent with Jurek or Alter v. Morris, 85 Wn.2d 414, 536 P.2d 630 (1975), overruled on other grounds, In re Harris, 94 Wn.2d 430, 617 P.2d 739 (1980). Jurek holds only that a statute like ours does not violate the Eighth Amendment. In Gregg v. Georgia, 428 U.S. 153, 49 L. Ed. 2d 849, 96 S. Ct. 2909 (1976), where review was granted on the same issue as Jurek (423 U.S. 1082), the plurality opinion states that the writ of certiorari was limited to whether the death sentence in Gregg constituted cruel and unusual punishment. Gregg, at 162, 201 n.51; see also Proffitt v. Florida, 428 U.S. 242, 254 n.11, 49 L. Ed. 2d 913, 96 S. Ct. 2960 (1976). Recognizing this, the California Court of Appeals held as unconstitutionally vague a California statute modeled after the one upheld in Proffitt. It held that vagueness, as measured by due process standards, had not been considered by the Supreme Court. People v. Superior Court, 105 Cal. App. 3d 365, 164 Cal. Rptr. 210, cert. granted, judgment vacated, 449 U.S. 945, 66 L. Ed. 2d 209, 101 S. Ct. 344 (1980) (judgment vacated and case remanded to determine whether California result was based on federal or state law).
Alter does not control the outcome of this case. In Alter, the controlling language was "a substantial likelihood of repeating similar acts." That is significantly less vague than "a probability beyond a reasonable doubt" — for it conveys a quantitative notion absent in the latter. Also, the court in Alter noted that the nature of mental commitments requires "some leeway in formulating what are essentially predictive standards." Alter, at 421. Leeway is permissible there because mental commitment may also further the best interest of the committed. Alter v. Morris, supra; *518Addington v. Texas, 441 U.S. 418, 60 L. Ed. 2d 323, 99 S. Ct. 1804 (1979). That feature, and thus that justification for some imprecision in the standard, is absent from the death penalty adjudication. The capital murder defendant is not going to receive any treatment — the adjudication is not in his or her best interest. Furthermore, as already noted, the severity of the death penalty requires the utmost solicitude for reliability.
Lastly, neither Jurek nor Alter considers our state due process guaranty. That provision has a vitality independent of its federal counterpart, and can be more protective when the evidence and reasoning suggest that such is necessary. See Olympic Forest Prods., Inc. v. Chaussee Corp., 82 Wn.2d 418, 511 P.2d 1002 (1973); Young v. Konz, 91 Wn.2d 532, 546, 588 P.2d 1360 (1979) (Utter, J., dissenting). Because the nearly uncontroverted evidence in this case indicates that the legislative standard requires nothing more than sheer speculation, RCW 10.94.020(10) (b) is vio-lative of this state's due process clause. Consequently, the unreliability of the factual finding required by RCW 10.94-.020(10)(b), as well as its vagueness, violates the due process guaranties of both the United States and Washington Constitutions.
II
The dissent on its face appears convincing, but, in addition to the reasons already given by the majority, the dissent overlooks two important points. First, death constitutes such a severe penalty that the usual rules of statutory construction cannot be given their usual application. Cf. Woodson v. North Carolina, 428 U.S. 280, 305, 49 L. Ed. 2d 944, 96 S. Ct. 2978 (1976); Lockett v. Ohio, 438 U.S. 586, 57 L. Ed. 2d 973, 98 S. Ct. 2954 (1978). If there is any ambiguity in a death sentencing scheme, as is present here, it must be resolved in the defendant's favor.
The dissent also ignores Washington Const, art. 2, § 37, which prevents RCW 10.94.020 and 10.49.010 from being read in pari materia.
*519Washington Const, art. 2, § 37, requires that any act revising or amending another must set forth the revised or amended sections in full. The new statute must either be complete in itself or indicate how it relates to the statute it amends. Washington Educ. Ass'n v. State, 93 Wn.2d 37, 39, 604 P.2d 950 (1980). This ensures, among other things, that the legislature is aware of the full effect of each legislative enactment. Flanders v. Morris, 88 Wn.2d 183, 558 P.2d 769 (1977).
Although RCW 10.94.020 does not by its terms purport to amend RCW 10.49.010, an act may be amendatory, though not an amendment on its face. Gruen v. State Tax Comm'n, 35 Wn.2d 1, 24, 211 P.2d 651 (1949). An act is amendatory when it either alters the scope and effect of an existing statute, or cannot be implemented without referring to another enactment. Washington Educ. Ass'n, supra; Weyerhaeuser Co. v. King County, 91 Wn.2d 721, 592 P.2d 1108 (1979); State ex rel. Arnold v. Mitchell, 55 Wash. 513, 518, 104 P. 791 (1909).
By arguing that RCW 10.94.020 and 10.49.010 should be read in pari materia, the dissent is conceding that the two are interdependent and cannot exist without the other. However, since RCW 10.94.020 does not refer to RCW 10.49.010, reading the two together would violate Const, art. 2, § 37. Therefore, as appealing as the dissent may be, our state and federal constitutions prevent me from accepting it.
Brachtenbach, C.J. — I concur with Utter, J.'s, reasoning appearing under issue IJ herein in support of opinion by Dolliver, J., on issue I. I do not concur with Utter, J., on issue IV.
Dore, J. (concurring in part, dissenting in part)—
I
As a preliminary matter, I find nothing ambiguous about RCW 10.94.010, 10.94.020, 10.94.030, 10.94.900, 9A.32.040, 9A.32.045, 9A.32.046, and 9A.32.047 which comprise the *5201977 amendatory act in question. When a statute is unambiguous, there is no room for judicial interpretation. Automobile Drivers Local 882 v. Department of Retirement Sys., 92 Wn.2d 415, 598 P.2d 379 (1979). Thé above cited sections create a procedure for sentencing a defendant who has been convicted of murder. I find nothing unclear in the procedure, nor do I find conflict with other Washington statutes.
The sentencing procedure has no impact on the defendant's plea. If defendant is found guilty of murder by a jury, the sentencing procedure is activated and the trial judge "shall reconvene the same trial jury". RCW 10.94.020(2). If conviction is based on a plea of guilty, the jury is impaneled by authority of RCW 10.49.010 which provides, in part:
If, on the arraignment of any person . . . the defendant plead guilty to a charge of murder, a jury shall be impaneled to hear testimony, and determine the degree of murder and the punishment therefor.
Thereafter, that jury follows the special sentencing procedure as set forth in RCW 10.94.020(1)-(10) to "determine the degree of murder and the punishment therefor."
Statutes in pari materia are to be harmonized, where possible. 73 Am. Jur. 2d Statutes § 187, at 386-87 (1974). Clearly, RCW 10.94.020 and RCW 10.49.010 deal with the same subject (i.e., they are in pari materia) and they can be read consistently with each other. The majority now creates a new rule: "If the legislature had meant RCW 10.49.010 and RCW 10.94.020(1) and (2) to be read together when a defendant pleaded guilty, it is unreasonable to believe it would have failed to say so." Majority opinion, at 475. Is it not more reasonable to assume that the legislature was aware of the familiar rule of construction that two statutes which are not in conflict are both to be given meaning and effect? The legislature is assumed to have had RCW 10.49-.010 in mind when it enacted RCW 10.94.020; the court must view the latter statute as if the legislature had considered its prior enactments. McFadden v. Elma Country Club, 26 Wn. App. 195, 613 P.2d 146 (1980).
*521II
I turn now to the business of statutory construction. The primary role of the court which construes a statute is to determine the intent of the legislature, and to give effect to that intent. Burlington N., Inc. v. Johnston, 89 Wn.2d 321, 572 P.2d 1085 (1977). To this end, the statute must be read as a whole; intent is not to be determined by a single sentence (or, in this case, the single phrase "reconvene the same jury"). State v. Fenter, 89 Wn.2d 57, 569 P.2d 67 (1977).
Who could argue but that the legislature intended to provide for capital punishment for those who perpetrate the most heinous crimes? The majority apparently feels that the legislature intended to extend the death penalty only to those who were foolish enough not to plead guilty to aggravated murder.
When the legislative history of the statute is investigated, it becomes clear that the majority's holding is grounded on a fiction.
1. House Bill 615 (HB 615)
The present death penalty scheme originated as House Bill 615, 45th Legislature (1977) (HB 615). It was introduced by title only. The House Journal, 45th Legislature (1977) (House Journal), at 209 introduces "An Act Relating to crimes and criminal procedures" and lists those sections of Revised Code of Washington which are to be amended by the new act. There is absolutely nothing in the House Journal which indicates any of the substantive provisions of HB 615. Not a single legislator ever voted for or against HB 615.
2. Substitute House Bill 615 (SHB 615)
The judiciary committee substituted another bill for HB 615, designated in the House Journal at page 969 as Substitute House Bill 615 (SHB 615). The House Judiciary Committee recommended that Substitute House Bill 615 "Do Pass".
*5223. Engrossed Substitute House Bill 615 (ESHB 615)
Subsequently, discussions, points of inquiry, and changes were made to SHB 615. Those amendments were engrossed onto SHB 615 and the engrossed bill passed in the House and was sent to the Senate.
4. Senate Amendments to Engrossed Substitute House Bill 615
The Senate referred the engrossed bill to the judiciary committee. Certain amendments were considered by the Senate, as reflected in the Senate Journal, 45th Legislature (1977) (Senate Journal). The most dramatic change made, however, was the motion to "Strike everything after the enacting clause [of Engrossed SHB 615] and insert the following". At this juncture, a comprehensive Senate amendment comprising the Senate's death penalty scheme was attached onto the House's engrossed bill (No. 615); Senate Journal, at 1984. The House bill was dead. The Senate "amendments" passed in that chamber, and subsequently in the House. It was ESHB 615 as completely amended by the Senate amendments which was enacted into law and is now known as RCW 10.94.010, 10.94.020, 10.94.030, 10.94-.900, 9A.32.040, 9A.32.045, 9A.32.046, and 9A.32.047.
The majority grounds its determination of legislative intent on the omission of one section of HB 615 from SHB 615. To this end, the majority adopts the concurring opinion of Justice Horowitz in State v. Martin, 94 Wn.2d 1, 614 P.2d 164 (1980), to wit:
[T]he legislative history of the present death penalty statute shows that the legislature expressly rejected, a proposed provision that would have authorized the impaneling of a capital sentencing jury in cases in which the defendant pleads guilty. House Bill No. 615, the original version of the statute, provided that: "If the trial jury has been waived, or if the defendant pleaded guilty to murder in the first degree, the death penalty proceeding shall be conducted before a jury impaneled for that purpose and such jury cannot be waived." House Bill No. 615, § 68. In enacting the bill, the legislature eliminated this provision.
*523(Italics mine.) Martin, supra at 19 (Horowitz, J., concurring). In other words, by omitting section 68, which was found in the prior draft of the death penalty statute, the majority reasons that the legislature must have intended to limit the applicability of the death penalty sentencing procedures to those defendants who plead "not guilty". Justice Horowitz called this omission an "express" rejection of section 68.1 cannot agree.
First, if prior drafts of an act have any meaning whatsoever, they must be prior drafts of the law which was finally enacted. As has been shown, only the Senate death penalty scheme, attached to the House bill number, was before the legislature. I see no arguments by defendants or the majority here that prior drafts of the enacted law support their position that a defendant who pleads guilty is to be exempted from the statutory scheme.
Second, no substantive provisions of HB 615 appear in the House or Senate Journals. For the text of both HB 615 and SHB 615, reference must be made to the State of Washington Printed Bills of the Legislature, Forty-fifth Session, House, 601-715, 1977, Regular and Extraordinary Sessions (Printed Bills). It is obvious that the Printed Bills were relied on both by Justice Horowitz in Martin, supra, and the majority in the subject case, although neither opinion mentions them. Going behind the journals is not reliable for determination of legislative intent, Hama Hama Co. v. Shorelines Hearings Bd., 85 Wn.2d 441, 536 P.2d 157 (1975), particularly in the case of an omission in a subsequent draft, 82 C.J.S. Statutes § 355, at 752-53.
Even if the Printed Bills are proper sources of legislative intent, the majority's position is unsupported. We may draw a number of inferences from the exclusion of section 68. They are: (1) the exclusion was inadvertent, (2) in substantially paring HB 615 from its 116 sections down to the 10 sections substituted as SHB 615, the judiciary committee felt that section 68 was superfluous in the light of RCW 10.49.010, or (3) the committee wished a defendant who *524pleaded guilty to escape the imposition of the death penalty, marking a radical change in the existing law. Whatever was the reason for the omission of section 68, it cannot stand as a statement of legislative intent. We know that not a single legislator ever voted for or against section 68 or any other section of HB 615. Furthermore, the House Journal fails to show that any of the legislators, when considering SHB 615, were directed to this supposedly intentional and certainly radical departure from long-established Washington law of providing for a sentencing jury after a defendant pleaded guilty to first degree murder. No inquiry is reflected in either the House or Senate Journal which indicates that the legislators considered that such a change in the law was before them. I submit that no such departure was before either legislative chamber. This court has previously cautioned
against over-emphasis and over-reliance upon the fact or happenstance of successive drafts as an absolute determinant, rule, or tool for interpreting a statute.
Hama Hama Co. v. Shorelines Hearings Bd., supra at 449.
The challengers of this statute have failed to meet the burden imposed upon them by law. A statute is presumed to be constitutional. In re Harbert, 85 Wn.2d 719, 538 P.2d 1212 (1975). To overcome this presumption, the challenge must be proved beyond a reasonable doubt. Sator v. Department of Revenue, 89 Wn.2d 338, 572 P.2d 1094 (1977). This simply means that if there is any reason to hold a statute constitutional, the courts cannot find it unconstitutional. By harmonizing the two subject statutes, RCW 10.94.020 with RCW 10.49.010, which I believe was the legislature's intent, there is no need to hold the 1977 death penalty statutes unconstitutional. As noted above, there is more than one reasonable explanation for section 68's exclusion from SHB 615. It has not been proven, beyond a reasonable doubt, that the omission of section 68 was for the purpose of allowing defendants who plead guilty to escape the imposition of the death penalty procedures.
*525The majority concludes that the legislature intended a different punishment for aggravated murder, depending on whether a defendant pleaded guilty or not guilty. If this were true, is it not logical that, as SHB 615 and ESHB 615 moved through the legislative halls toward enactment, a sponsor or member would have advised the legislators that capital punishment, under the provisions of the bill would only apply to aggravated murder in the event defendant pleaded not guilty and was, subsequently, convicted, and that if such defendant pleaded guilty, the maximum he could receive by way of punishment would be "life" with the possibility of parole.
The House and Senate Journals reflect that this death penalty bill was thoroughly debated, numerous amendments were offered — some were accepted and some were rejected; numerous questions were asked and points of order were raised and disposed of. Is it not strange that no mention was made of the type of punishment to be administered in the event a defendant pleaded guilty of an aggravated murder as opposed to not guilty? A permissible inference from such absence of such inquiry is that the legislators were well aware of RCW 10.49.010 which provided for sentencing procedures for defendants who plead guilty to murder. It is unthinkable for this court to "legislate" against the intent of the legislature.
Finally, the statute itself indicates that the legislature intended to make no distinction between those defendants who plead guilty and those who plead not guilty. Legislative intent is to be gleaned, first, if possible, from the statute itself. In re Estate of Lyons, 83 Wn.2d 105, 515 P.2d 1293 (1973). Section 6 of the enacted scheme, codified at RCW 9A.32.047, reads as follows:
In the event that the governor commutes a death sentence or in the event that the death penalty is held to be unconstitutional by the United States supreme court or the supreme court of the state of Washington the penalty under RCW 9A.32.046 shall be imprisonment in the state penitentiary for life without possibility of release or *526parole. A person sentenced to life imprisonment under this section shall not have that sentence suspended, deferred, or commuted by any judicial officer, and the board of prison terms and paroles shall never parole a prisoner nor reduce the period of confinement. The convicted person shall not be released as a result of any type of good time calculation nor shall the department of social and health services permit the convicted person to participate in any temporary release or furlough program.
Life without possibility of parole, then, is the resulting sentence if a death sentence is commuted by the Governor or if the statutory scheme enacting the death penalty is held invalid by the courts. If defendant A pleads guilty to first degree murder and defendant B pleads not guilty to first degree murder, they must be treated equally before the law. If defendant B could be sentenced to life without possibility of parole, but defendant A could only face the lighter sentence of life with possibility of parole, the equal protection clause of the constitution would be violated. The legislature is presumed to act constitutionally thereby creating the presumption that an act is constitutional. In re Har-bert, supra. In that RCW 9A.32.047 makes no distinction between the pleas of defendants (whether they plead guilty or not guilty) and that statute is presumed to be constitutional, that section demonstrates strong legislative intent that the death penalty scheme is to be triggered by either a plea of guilty or not guilty.
Also to be noted is the effect of RCW 9A.32.047 in the light of the majority opinion. The majority of this court has found the death penalty to be unconstitutional. The above cited section will operate to change the sentences of those now on death row to life without possibility of parole. The legislature had the foresight to enact a severability clause. RCW 10.94.900.
*527III
Justice Utter's concurring and dissenting opinion states that RCW 10.94.020 and RCW 10.49.010 cannot be read in pari materia because to do so violates Const, art. 2, § 37, which reads:
No act shall ever be revised or amended by mere reference to its title, but the act revised or the section amended shall be set forth at full length.
I disagree with Justice Utter's conclusion. RCW 10.94, as discussed in section I of this dissent, neither revises nor amends RCW 10.49.010. The death penalty statute is complete in itself. The enactment of the latter statute has no effect on the operation of the former statute. They both concern the sentencing for a defendant convicted of murder. However, RCW 10.49.010 merely allows the provisions of RCW 10.94.020 to be triggered if a defendant pleads guilty to the charge. Const, art. 2, § 37 has not been read in the past to bring within its ken all statutes which are read in pari materia. I see no reason to now make that change.
IV
I concur in the majority's disposition of issues III and IV. As to issue III, however, I feel that a fifth question should be put to the jury: Shall the defendant be sentenced to death? to be answered simply with a "yes" or a "no”. This final determination of imposition of the death penalty should not be taken from the province of the jury.
V
I concur in Justice Rosellini's dissent as to issue V, whether death by hanging violates the eighth amendment to the United States Constitution. Additionally, I note that the legislature is better equipped to determine the mode of execution to be imposed. I take judicial notice of the fact that this very subject is currently before the Washington State Legislature. Unlike the legislature, this court can neither hear live testimony nor conduct hearings on this issue.
*528VI
Conclusion
The majority has found a clear, well reasoned and orderly statute to be ambiguous, and has fabricated legislative intent from impermissible inferences. Simply stated, this court has substituted its intent for that of our legislature. From the usurpation of the legislative power, I dissent.
I would uphold the constitutionality of the 1977 amen-datory act providing for capital punishment and overrule State v. Martin, 94 Wn.2d 1, 614 P.2d 164 (1980).
Rosellini, J., concurs with Dore, J.