(concurring) — I concur in the majority's holding that there exists no authority under the statute to execute juveniles. I would go further and hold that, in comparison to other cases as mandated by RCW 10.95.130, the penalty of death is excessive or disproportionate to that of other juveniles convicted of aggravated first degree murder.
First, juveniles in our state receive different treatment than adults across a broad range of legal categories. It is, in my view, wholly inappropriate to suspend this treatment for the purpose of imposing the most severe penalty available under our criminal system. Second, there is no evidence of community standards in our state to support the execution of a person who was a juvenile at the time of the offense. Finally, I believe Washington should join the emerging national trend of legislatures recognizing that it is improper to execute persons who were juveniles at the time the crime was committed. I write also to indicate that the prosecutor's misconduct in this case was egregious and would constitute an independent ground for reversing Furman's sentence even if we were not invalidating his sentence of death on another ground.
I
The Status of Minors Under Washington Law
Juveniles in Washington receive different, indeed protective, treatment as compared to adults across a wide range of legal categories. The State restricts a minor's right to vote, to serve on a jury, to marry without parental consent, even to purchase alcohol and cigarettes. See, e.g., RCW 26.28-.015(3) and article 6, section 1 of the Washington State Constitution (restricting a juvenile's right to vote); RCW 2.36-.070 (restricting a juvenile's right to serve on a jury); RCW 26.04.210 and RCW 26.28.015(1) (restricting a juvenile's right to marry); RCW 26.28.080(1) (restricting a juvenile's right to be present in places were intoxicating liquors are sold); RCW 26.28.080(4) (restricting a juvenile's right to purchase or possess tobacco products); RCW 26.28.070 (restricting a juvenile's right to certain types of employment); RCW *46026.28.080(2) (restricting a juvenile's right to be present in a public pool or billiard hall); RCW 26.28.080(3) (restricting a juvenile's right to gamble or be present in houses of prostitution or drug use); RCW 26.28.080(5) (restricting a juvenile's right to purchase or possess a handgun); RCW 9.68 (restricting a juvenile's right to purchase, or possess sexually explicit materials).
These laws reflect a recognition by courts and commentators alike that minors have less in the way of developed and responsible decision-making faculties than adults. See, e.g., Parham v. J.R., 442 U.S. 584, 603, 61 L. Ed. 2d 101, 99 S. Ct. 2493 (1979) ("[m]ost children, even in adolescence, simply are not able to make sound judgments concerning many decisions"); Bellotti v. Baird, 443 U.S. 622, 635, 61 L. Ed. 2d 797, 99 S. Ct. 3035 (1979) ("during the formative years of childhood and adolescence, minors often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them"); Ginsberg v. New York, 390 U.S. 629, 649-50, 20 L. Ed. 2d 195, 88 S. Ct. 1274 (1968) (Stewart, J., concurring) ("a child ... is not possessed of that full capacity for individual choice which is the presupposition of First Amendment guarantees") (citation omitted); see also Carey v. Population Servs., Int'l, 431 U.S. 678, 693 n.15, 52 L. Ed. 2d 675, 97 S. Ct. 2010 (1977) ("the law has generally regarded minors as having a lesser capability for making important decisions"). See generally Streib, The Eighth Amendment and Capital Punishment of Juveniles, 34 Clev. St. L. Rev. 363 (1985-1986); Comment, Capital Punishment for Minors: An Eighth Amendment Analysis, 74 J. Crim. & Criminology 1471 (1983); Note, The Decency of Capital Punishment for Minors: Contemporary Standards and the Dignity of Juveniles, 61 Ind. L.J. 757 (1986).
It is not only anomalous, but in my view grossly inappropriate, to create an exception to our otherwise protective treatment of minors for the purpose of considering whether their acts should be punishable by death.
Moreover, I think it time Washington joined the state legislatures recognizing the impropriety of executing persons *461for crimes committed as juveniles. In the past several years at least five states have examined this issue, and have excluded the imposition of the death penalty for juvenile crime: New Jersey (N.J. Stat. Ann. § 2C:ll-3(g) (West Supp. 1993), § 2 A:4A-22(a) (West 1987 & Supp. 1993)); Oregon (Or. Rev. Stat. §§ 161.620, 419.476(1) (1991)); Colorado (Colo. Rev. Stat. § 16-ll-103(l)(a) (1986 & Supp. 1992)); Nebraska (Neb. Rev. Stat. § 28-105.01 (1989)); and Ohio (Ohio Rev. Code Ann. § 2929.02(A) (Anderson 1993)). See Note, The Juvenile Death Penalty: Counsel’s Role in the Development of a Mitigation Defense, 53 Brook. L. Rev. 767, 776 n.78 (1987-1988).
II
Proportionality
I have already explained at length my reservations about proportionality analysis under our statute. State v. Campbell, 103 Wn.2d 1, 41-49, 691 P.2d 929 (1984) (Utter, J., concurring in part, dissenting in part), cert. denied, 471 U.S. 1094 (1985); State v. Jeffries, 105 Wn.2d 398, 431-40, 717 P.2d 722 (Utter, J., dissenting) (Jeffries I), cert. denied, 479 U.S. 922 (1986); State v. Harris, 106 Wn.2d 784, 802-06, 725 P.2d 975 (1986) (Utter, J., dissenting), cert. denied, 480 U.S. 940 (1987); State v. Lord, 117 Wn.2d 829, 939-45, 822 P.2d 177 (1991) (Utter, J., dissenting), cert. denied, 113 S. Ct. 164 (1992) ; State v. Benn, 120 Wn.2d 631, 697-709, 845 P.2d 289 (1993) (Utter, J., dissenting). I shall not repeat them here, other than to note there are serious problems iri the statutory design and serious methodological flaws in the manner in which we have structured our review.
Putting these reservations aside, RCW 10.95.130 requires us to evaluate whether the sentence of death is excessive or disproportionate as compared to other similar cases. We should therefore consider similar cases in which the defendant was found guilty of aggravated first degree murder, whether or not the death penalty was actually imposed or carried out. RCW 10.95.130(2)(b). As I have emphasized elsewhere, the relevant inquiry is whether the death penalty is generally imposed in similar cases, not whether it has ever *462been imposed in such cases. See State v. Lord, 117 Wn.2d at 940 (Utter, J., dissenting); In re Jeffries, 114 Wn.2d 485, 490, 789 P.2d 731 (1990) (Jeffries II).
To make this determination, we must compare the facts and circumstances of Furman's crime with those of others who have committed aggravated first degree murder while still juveniles. This involves taking into account the presence or absence of aggravating factors. See Lord, 117 Wn.2d at 940 (citing Jeffries II, 114 Wn.2d at 490). Yet we must do more than compare numbers of victims or aggravating circumstances. We must engage in a "careful examination of the circumstances of the crimes and the defendants' personal characteristics." Jeffries II, 114 Wn.2d at 490 (citing State v. Rupe, 108 Wn.2d 734, 768-70, 743 P.2d 210 (1987), cert. denied, 486 U.S. 1061 (1988)); State v. Rice, 110 Wn.2d 577, 625-28, 757 P.2d 889 (1988), cert. denied, 491 U.S. 910 (1989).
An examination of similar crimes committed by juveniles reveals clearly that visiting the death penalty on juveniles for aggravated first degree murder is disproportionate. Since 1981, eight people under the age of 18 have been convicted of aggravated first degree murder. In none was the death penalty imposed. Indeed, no juvenile has been executed in our state since 1932. See Brown, The Juvenile Death Penalty in Washington: A State Constitutional Analysis, 15 U. Puget Sound L. Rev. 361, 384 (1992) (citing V. Streib, Death Penalty for Juveniles 207-08 (1987)). It cannot then be said the death penalty is generally imposed on juveniles for aggravated first degree murder. Given this fact, the death penalty fails to pass muster under the proportionality review mandated by RCW 10.95.130.
Besides Furman, seven people under the age of 18 have been convicted of aggravated first degree murder since 1981. The circumstances of their crimes and the sentences they ultimately received are set forth below.
Report of the Trial Judge (Questionnaire No. 50): State v. Stevenson (Sean Allen), 55 Wn. App. 725, 780 P.2d 873, review denied, 113 Wn.2d 1040 (1989).
*463Age at date of offense: 16
Sean Allen Stevenson was convicted of aggravated first degree murder for the death of his sister and two counts of first degree murder for the deaths of his stepfather and mother. Stevenson, 55 Wn. App. at 727.
One aggravating circumstance was found: the rape of a victim, his sister. Report of the Trial Judge (Stevenson), Clark/ Skamania Cy. cause 87-1-00011-5, at 5. The court cited evidence of four statutory mitigating circumstances: (1) age of defendant; (2) no prior histoiy; (3) mentally disturbed; and (4) failure to find aggravated murder as to stepfather and mother. Report of the Trial Judge (Stevenson), at 6. The court also cited evidence of one nonstatutory mitigating circumstance: abuse by his stepfather. Report of the Trial Judge (Stevenson), at 7. The prosecutor originally sought the death penalty but withdrew his request on the basis of a psychiatric evaluation of the defendant. Stevenson was sentenced by the jury to life without parole. Report of the Trial Judge (Stevenson), at 7.
Report of the Trial Judge (Questionnaire No. 61): State v. McNeil (Russell Duane), 59 Wn. App. 478, 798 P.2d 817 (1990).
Age at date of offense: 17
Russell Duane McNeil (codefendant of Herbert Rice (No. 70)).pleaded guilty prior to trial to two counts of aggravated first degree murder for the death of Dorothy Nickoloff and (as an accomplice) for the death of Mike Nickoloff. McNeil, 59 Wn. App. at 478-79. Both victims were elderly (ages 74 and 82) and were stabbed to death, their bodies badly mutilated. Report of the Trial Judge (McNeil), at 8, 9.
The following aggravating circumstances were found (by admission): concealment of first degree burglary and of the identities of those who committed the crimes; a common scheme or plan with more than one murder victim; and committed in the coruse of and in furtherance of first degree burglary. Report of the Trial Judge (McNeil), at 5. Two mitigating circumstances were cited: the defendant's age and *464lack of significant criminal history. Report of the Trial Judge (McNeil), at 6.
The prosecution gave notice it intended to seek the death penalty. Before trial, the State agreed to withdraw its request for the death penalty in exchange for guilty pleas by McNeil. McNeil was sentenced to two consecutive exceptional life sentences without parole. Report of the Trial Judge (McNeil), at 13; McNeil, 59 Wn. App. at 478, 479.
Report of the Trial Judge (Questionnaire No. 67): State v. Cummings (Susan), 44 Wn. App. 146, 721 P.2d 545, review denied, 106 Wn.2d 1017 (1986).
Age at date of offense: 16
Susan Cummings was convicted of aggravated first degree murder. Cummings, 44 Wn. App. at 148. The following aggravating circumstances were found: murder in the course of, in furtherance of or flight from robbery, first degree, and rape, first degree; intent to conceal commission of or identity of persons committing the crime of rape and murder. Report of the Trial Judge (Cummings), Walla Walla Cy. cause 85-1-00044-4, at 5. Another aggravating factor cited was the victim's advanced years. Report of the Trial Judge (Cummings), at 13.
The trial judge reported there was no credible evidence of statutory mitigating circumstances, Report of the Trial Judge (Cummings), at 6, and two nonstatutory mitigating circumstances: the defendant's age; and the fact the defendant did not use the weapon that caused death. Report of the Trial Judge (Cummings), at 7.
The trial judge noted in the posttrial questionnaire that there were at least four other teenagers involved in the killing. No other cofelon, however, received a sentence of life without release. Despite this acknowledged disproportionality of the sentence, the trial judge had no alternative but to impose a sentence of life imprisonment without release. Report of the Trial Judge (Cummings), at 7, 13.
Report of the Trial Judge (Questionnaire No. 70): State v. Rice, Jr. (Herbert A.), 120 Wn.2d 549, 844 P.2d 416 (1993).
*465Age at date of offense: 17
Herbert A. Rice (codefendant of Russell McNeil (No. 61) and not to be confused with David Rice (No. 43)) was convicted of two counts of aggravated first degree murder for the death of Mike Nickoloff and (as an accomplice) for the death of Dorothy Nickoloff. Rice, 120 Wn.2d at 553. The trial judge found both victims suffered torture and were aware of the other's suffering; both were brutally murdered with dozens of stab wounds; it took many minutes for each victim to die; and both victims were elderly. Report of Trial Judge (Rice), Yakima Cy. cause 88-1-00427-2, at 8.
At trial, the following aggravating circumstances were found: murder committed to conceal the identity of persons committing crimes; multiplicity of victims; common scheme or plan; committed in the course of first degree burglary and robbery. Report of the Trial Judge (Rice), at 5.
Although the defendant claimed a long list of mitigating circumstances including his youth, limited criminal history and extreme emotional disturbance, the trial judge reported that in the court's opinion there was no credible evidence of statutory mitigating circumstances. Report of the Trial Judge (Rice), at 6-7.
The prosecutor sought the death penalty, but the jury was unable to reach a unanimous verdict as to its imposition (11 for death, 1 for life in prison). Rice was sentenced to two consecutive sentences of life without the possibility of release or parole. The trial judge commented in the questionnaire that he thought the life sentence given was inappropriate. Rice, 120 Wn.2d at 555; Report of the Trial Judge (Rice), at 7, 13.
Report of the Trial Judge (Questionnaire No. 110): State v. Harris (Michael E.), unpublished opinion noted at 58 Wn. App. 1065 (1990).
Age at date of offense: 15
Michael E. Harris (cofelon of Barry C. Massey (No. 111)) was convicted of aggravated first degree murder.
At trial, one aggravating circumstance was found: murder committed during a robbery. Report of the Trial Judge (Har*466ris), Pierce Cy. cause 87-1-01354-7, at 5. The trial judge made no notation in the posttrial questionnaire regarding mitigating circumstances. The prosecutor did not seek the death penalty. Harris was sentenced to life in prison without the possibility of release or parole.
Report of the Trial Judge (Questionnaire No. Ill): State v. Massey (Barry C.), 60 Wn. App. 131, 803 P.2d 340 (1990), cert. denied, 499 U.S. 960 (1991).
Age at date of offense: 13
Barry C. Massey (cofelon of Michael E. Harris (No. 110)) was convicted of aggravated first degree murder for the death of Paul Wang. Massey, 60 Wn. App. at 134.
At trial, two aggravating circumstances were found: the murder was committed during a robbery; and was committed to conceal commission of a crime and its perpetrator. Report of the Trial Judge (Massey), Pierce Cy. cause 87-1-01354-7, at 5. The trial judge made no notation in the post-trial questionnaire about mitigating circumstances. The prosecutor did not seek the death penalty. Massey was sentenced to life in prison without the possibility of release or parole.
Report of the Trial Judge (Questionnaire No. 122): State v. Hofstetter (Ansel Wolfgang) Court of Appeals cause 15786-1-II; 15471-4-II (disposition pending).
Age at date of offense: 16
Ansel Wolfgang Hofstetter was convicted of aggravated first degree murder. At trial, one aggravating circumstance was found: murder committed in the course of, in furtherance of, or in immediate flight from, robbery in the first or second degree. Report of the Trial Judge (Hofstetter), at 5. The trial judge made no notation in the posttrial questionnaire about mitigating circumstances. The prosecutor did not seek the death penalty. Hofstetter was sentenced to fife in prison without the possibility of release or parole.
As the foregoing indicates, the death penalty is not generally imposed on juvéniles for aggravated first degree murder. Further, the death penalty is not generally imposed for aggra*467vated first degree murder accompanied by rape when the defendant is an adult at the time of the crime. See State v. Lord, 117 Wn.2d 829, 942-46, 822 P.2d 177 (1991) (Utter, J., dissenting). Thus, even if there were express legislative authorization to execute persons who were juveniles at the time of the crime, such punishment would be disproportionate, and would fail to pass scrutiny under RCW 10.95.130.
m
Prosecutorial Misconduct During Closing Argument
I write also to point out that the prosecutor's closing argument at the penalty phase was so improper it would be grounds for reversal even if we were otherwise upholding the sentence of death.
Where improper argument is charged, the defense generally bears the burden of establishing the impropriety as well as the prejudice flowing from it. See State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577 (1991). Both are patent on the record before us. Moreover the defendant objected on at least one occasion, see Report of Proceedings (Penalty Phase) vol. 22, at 3548, and requested a limiting instruction, which the court denied. See Report of Proceedings (Penalty Phase) vol. 22, at 3523-28.
Even if there had been no objection, a prosecutor's conduct is reviewable if it is so flagrant and ill intentioned that no curative instruction could have eliminated the prejudice it engendered. Hoffman, 116 Wn.2d at 93; State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988). This is such a case.
We have held closing arguments compelled mistrial notwithstanding defense counsel's failure to object on facts far less egregious than those present here. In State v. Reeder, 46 Wn.2d 888, 893-94, 285 P.2d 884 (1955), this court held that in a prosecution for homicide, it was prejudicial misconduct requiring mistrial for the deputy prosecutor to state three times that the defendant had threatened his first wife with a gun, where there had been no testimony to that effect, and the statements were based on allegations in a divorce com*468plaint not admitted into evidence. The statement we considered prejudicial misconduct also included the following:
"He [the defendant], himself, was married before and divorced by a wife who says he threatened her with a gun in '36. The little man with a gun then, the little man with a gun on September 26, 1953. The little man with a gun out at the resort when the big fellow got in a ruckus with him. There hasn't been any change in this man. He was the same yesterday, today, and he will be tomorrow."
State v. Reeder, 46 Wn.2d at 891. Likewise, in State v. Case, 49 Wn.2d 66, 73-74, 298 P.2d 500 (1956), a prosecution for carnal knowledge, this court held the deputy prosecuting attorney's closing argument compelled a mistrial, even absent a defense objection, because no instruction could haye cured the prejudice created. In Case the deputy prosecutor suggested he believed personally in the defendant's guilt, referred to the defendant's character witnesses as "his entire herd", Case, 49 Wn.2d at 73, and stated further:
"Is it uncommon for a person charged with a sex crime to be a pillar of society? You can't characterise [sic] or pigeonhole this sort of crime in any segment of society. You can have the top man, the top man of the nation, even. It hasn't happened, I am sure, but it could be. We have had men in the State Department that have been accused of things of that nature. In my own experience it has occurred in the Seattle School District, principals of schools have been accused, charged and convicted of sex deviations. It knows no difference. It is like a disease. It is like polio, it hits all over, it doesn't pay any attention to who the person is, whether you had measles as a child, whether you had rickets or something. It is something in the brain and mind and goes all over the area."
Case, 49 Wn.2d at 69.
More recently, in State v. Belgarde, supra, we reversed the defendants' conviction because the prosecutor made prejudicial comments to the jury about the defendants' alleged ties to the American Indian Movement (AIM), a group he characterized as a "deadly group of madmen" and "butchers". Belgarde, 110 Wn.2d at 506-08. We reasoned:
These inflammatory comments were a deliberate appeal to the jury's passion and prejudice and encouraged it to render a verdict based on Belgarde's associations with AIM rather than *469properly admitted evidence. The remarks were flagrant, highly prejudicial and introduced "facts" not in evidence.
Belgarde, 110 Wn.2d at 507-08.
We reaffirmed our reasoning in Case that " '[i]f misconduct is so flagrant that no instruction can cure it, there is, in effect, a mistrial and a new trial is the only and the mandatory remedy'". Belgarde, 110 Wn.2d at 508 (quoting State v. Case, supra at 74). If that was true in Belgarde, Reeder and Case, it is certainly true here, where the substance of the remarks was far more prejudicial, and far less likely to be cured by an instruction. At least three times during closing argument, the prosecutor referred to Furman raping his little brother, an alleged act for which he was never convicted. He also used closing argument to make reference to Fur-man's other alleged acts of sexual misconduct, including bestiality, also an act for which he was never convicted. Report of Proceedings. (Penalty Phase) vol. 22, at 3535, 3541, 3579.
Or the time that he raped one of his brothers, I don't know if it was Mark Paul or the stepbrother here in Port Orchard. He admitted that to his doctor.
(Italics mine.) Report of Proceedings (Penalty Phase) vol. 22, at 3535. And again,
Think about all the evidence that's been presented in this case, in the first phase and this phase. The defendant would have you believe that his drug activity was part of the root of this problem. And yet when he's in juvenile detention in California, not exposed to any drugs, what's he do. He exposes himself Well, he doesn’t have drugs as an excuse there. What excuse does he have when he's having sex with the dog? What excuse does he have when he's raping his little brother, or his sister? Or fantasizing about his grandma, having sex with her?
(Italics mine.) Report of Proceedings (Penalty Phase) vol. 22, at 3540-41. In rebuttal closing argument he stated:
How he treats his brother, rapes him anally. How he treats other people, burgles [sic] their houses, steals, smokes dope, drops out of school. That's what we have here. We have a sitting crimewave right there.
(Italics mine.) Report of Proceedings (Penalty Phase) vol. 22, at 3579.
*470References to Furman's alleged acts of sexual deviancy are far more damaging than the remarks we held fatally prejudicial in the cases discussed above. They were repugnant in the extreme, and at best would have distracted the jury from its statutory mandate to focus on the crime and its circumstances to decide whether there were sufficient mitigating circumstances to warrant leniency. See RCW 10.95-.060(4).
The State contends the trial court had already admitted this evidence at the guilt phase, so these references could not have been prejudicial because the jury heard them earlier. The State also maintains the statements had some rebuttal value. Even assuming arguendo the State is correct, the prosecutor's closing argument would still be improper and grounds for reversal.
None of the alleged sexual acts resulted in convictions. We held in State v. Bartholomew, 101 Wn.2d 631, 683 P.2d 1079 (1984) that evidence of nonstatutory aggravating factors must be limited to the defendant's record of convictions, evidence that woúld have been properly admissible at the guilt phase, and evidence designed to rebut the defendant's mitigating evidence. See Bartholomew, 101 Wn.2d at 642-43 (quoting State v. Bartholomew, 98 Wn.2d 173, 197-98, 654 P.2d 1170 (1982), State's cert. granted and remanded, 463 U.S. 1203, defendant's cert. denied, 463 U.S. 1212 (1983)). We specifically warned against misconstruing our holding to sanction the introduction of highly prejudicial matters of tangential relevance: "We do not intend . .. that the prosecution be permitted to produce any evidence it cares to so long as it points to some element of rebuttal no matter how slight or incidental." Bartholomew, 101 Wn.2d at 643 (quoting Bartholomew, 98 Wn.2d at 197-98).
We should be especially carefiil to apply the principles articulated in our case law in the context of a death penalty proceeding, where the defendant faces the harshest penalty available under our sentencing system. The prosecutor's behavior is the more reprehensible because we have repeatedly admonished the State about precisely this type °f excess, *471even outside the context of a death penalty proceeding. See, e.g., State v. Belgarde, 110 Wn.2d 504, 507-09, 755 P.2d 174 (1988); State v. Reed, 102 Wn.2d 140, 145-48, 684 P.2d 699 (1984); State v. Case, 49 Wn.2d 66, 74-75, 298 P.2d 500 (1956) and cases cited therein.
Smith, J., concurs with Utter, J.