special concurrence:
I will preface my special concurrence in this case by noting that I was not sitting on this honorable court when this case was orginally decided. After a careful review of the record, the Supreme Court decision, and hearing oral argument, I feel qualified to express the following opinion in concurrence.
At the outset, I agree with Judge Brett’s majority position that remanding the case for resentencing was in error, and that modifying the sentence to life is appropriate in this instance. The unequal treatment of those who select a jury trial and those who waive jury trials flies in the face of fairness and equal protection under the law. Modification for errors in sentencing is the proper remedy in either non-jury or jury trial situations. I also agree with Woods v. State, 569 P.2d 1004 (Okl.Cr.1977), which makes it clear that the Court of Criminal Appeals does not weigh evidence. I feel, however, an obligation to comment on the evidence in mitigation, and feel compelled to express my concerns for the treatment of a juvenile offender as is involved in this case.
Although it is unnecessary as to the disposition of this case to comment on important mitigating factors, the Supreme Court, *345in Eddings v. State, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), found that “the evidence Eddings offered was relevant mitigating evidence.” Id. at 115, 102 S.Ct at 877. The court also said that to exclude any mitigating evidence as a matter of law violated that court decision in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 793 (1978).
Noting that the Supreme Court found error in the sentencing proceeding and remanded with specific instructions to consider all mitigating circumstances, certainly that Court found merit in the mitigation arguments.
The Supreme Court made it very clear that there were important mitigating factors that should have been considered in sentencing the appellant.
The appellant in this case was sixteen years old at the time of the murder. There was also evidence of a turbulent family background. The Supreme Court succinctly summarized the age factor as follows:
“Even the normal 16-year-old customarily lacks the maturity of an adult. In this case, Eddings was not a normal 16-year-old; he had been deprived of the care, concern, and paternal attention that children deserve. On the contrary, it is not disputed that he was a juvenile with serious emotional problems, and had been raised in the neglectful, sometimes even violent, family background. In addition, there was testimony that Eddings’ mental and emotional development were at a level several years below his chronological age. All of this does not suggest an absence of responsibility for the crime of murder, deliberately committed in this case. Rather, it is to say that just as the chronological age of a minor is itself a relevant mitigating factor of great weight, so must the background and mental and emotional development of a youthful defendant be duly considered in sentencing.”
Eddings v. State, 455 U.S. 104, 116, 102 S.Ct. 869, 877, 71 L.Ed.2d 1.12 (1982).
The chronological age of the appellant must be examined with an understanding of the uniqueness of that stage of development of a youth. The court cites various journal articles and reports that relate to the unique period of social and mental development existing in teenagers. A pertinent article is contained in footnote 11 of the opinion, which, in part, is as follows:
“[Ajdolescents, particulary in the early and middle teen years, are more vulnerable, more impulsive, and less self-disciplined than adults. Crimes committed by youths may be just as harmful to victims as those committed by older persons, but they deserve less punishment because adolescents may have less capacity to control their conduct and to think in long-range terms than adults. Moreover, youth crime as such is not exclusively the offender’s fault; offenses by the young also represent a failure of family, school, and the social system, which share responsibility for the development of America’s youth.” Twentieth Century Fund Task Force on Sentencing Policy Toward Young Offenders, Confronting Youth Crime 7 (1978).
In fact, the court also states that “Our history is replete with laws and judicial recognition that minors, especially in their earlier years, generally are less mature and responsible than adults.” Eddings v. Oklahoma, Id. at 115, 116, 102 S.Ct. at 877, 71 L.Ed.2d at 11.
The general concern for the treatment of youth in our society should not be taken lightly. The State of Oklahoma has enacted a juvenile system which is designed to reform and rehabilitate juveniles that have broken laws. Oklahoma has taken many steps to protect juveniles, as have most jurisdictions of the United States.1 The chronological age of the juvenile involved, coupled with the emotional and mental development of the juvenile, are important factors when dealing with any person, and becomes especially important when dealing with juveniles. The concern and care for juveniles is important to the very existence *346of society, and laws and social structures designed to protect and benefit juveniles are potentially the areas of greatest triumph for our system of justice. “The spectacle of our society seeking legal vengeance through execution of a child raises fundamental questions about the nature of children’s moral responsibility for their actions and about society's moral responsibility to protect and nuture children.”2 The case of Monty Lee Eddings is an example of why our system of justice exists. Applied properly, juveniles will be protected and nurtured, and when necessary, the proper punishments assessed.
It is pertinent to note that Oklahoma has not executed any juveniles for crimes which they have committed. Now is not the time to begin. The evidence of mitigation in this case should have weighed heavily in the minds of the fact finder. A life sentence, rather than death, is appropriate punishment. It is not excusing the crime to modify the sentence to life. Life imprisonment, under the circumstances, is punishment enough for this child.
. See In re Gault, 387 U.S. 1, 14, 87 S.Ct. 1428, 1436, 18 L.Ed.2d 527 (1967).
. "Death Penalty for Children: The American Experience with Capital Punishment for Crimes Committed while Under Age Eighteen,” 36 Okla.L.Rev. 613 (1983).