dissenting in part and concurring in part.
I will concur with the majority’s conclusion that we must remand for the reason that the trial court erred in instructing the Green sentencing jury with respect to aggravating and mitigating circumstances.1 I *173also agree that the jury’s sentencing verdict in the Green case was in error, as was the judgment of the court which was entered upon the verdict.
Even though I will separately concur in the result contained in the majority’s holding with respect to the Green death-sentence proceeding, which holding says that it was error to permit sentencing-jury consideration of aggravating circumstances unsupported by the evidence,2 I must dissent from other aspects of the majority’s opinion *174and I also find it necessary to raise issues not considered by the majority.
AGGRAVATING AND MITIGATING CIRCUMSTANCES
Separate Concurring Opinion
Mr. Justice White, in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), spoke to the obligation of the Supreme Court of Georgia to oversee the application of the statutory standards in a manner which would comport with the requirements of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), reh. denied 409 U.S. 902, 93 S.Ct. 89, 34 L.Ed.2d 163. He said:
“In considering any given death sentence on appeal, the Georgia Supreme Court is to determine whether the sentence imposed was consistent with the relevant statutes — i. e., whether there was sufficient evidence to support the finding of an aggravating circumstance. * * * ” (Emphasis added.) 428 U.S. at 223, 96 S.Ct. at 2948.
Here is what the jury did in the sentencing phase of the Hopkinson trial with respect to their findings concerning aggravating and mitigating circumstances.
As a first aggravating circumstance, the jury found the Green murder to have been committed while Hopkinson was “under a prison sentence” — which is true.3 There is therefore at least one aggravating circumstance of record proven beyond a reasonable doubt, concerning which no issue can be taken.
As a second aggravation, the jury found the defendant to have “previously” been
“convicted of another murder in the first degree or a felony involving the use or threat of violence to the person.”
This is not true. This finding is not supported by the evidence, and the majority agree that this aggravating circumstance should not have been submitted to the sentencing jury for its infusion into the weighing and balancing process.
This is so because the words “previously convicted of another murder,” perforce must refer to a murder other than any of those with which he is charged in the instant case because it is provided in the jury-sentencing verdict:
“We, the jury, duly empaneled * * * do find the existence of the following aggravating circumstances at the time of the murders * * (Emphasis added.)
Hopkinson had not “previously” been convicted of murdering the three Vehars when he was tried for the murder of Green, because he was tried for all four murders at the same time. There is no evidence of record that the defendant had ever been charged with or convicted of any murder except those with which this appeal is concerned. Furthermore, the record does not disclose that he had “previously” been convicted of a felony involving “the use or threat of violence to the person.”
It is true that Hopkinson had previously been indicted in federal court and convicted for various offenses relating to an explosive *175bomb (not the Vehar bombings). Count I charged transportation in violation of 18 U.S.C. §§ 884(d) and 884(a). Count II charged possession in violation of 26 U.S.C. §§ 5861(d) and 5871. Count III charged concealment in violation of 18 U.S.C. §§ 842(h) and 844(a). Count IV charged making in violation of 26 U.S.C. §§ 5861(f) and 5871. Count V charged possession in violation of 18 U.S.C. §§ 5861(i) and 5871. Count VI charged conspiracy in violation of 18 U.S.C. § 371.
None of these charges involved “the use or threat of violence to the person” of anyone.
As a third aggravating circumstance, the jury was given the opportunity to and did decide that Green was murdered when Hop-kinson
“ * * * was engaged or was an accomplice in the commission of or an attempt to commit or flight after committing or attempting to commit any robbery, rape, sexual assault, arson, burglary, kidnapping or aircraft piracy or the unlawful throwing, placing, or discharging of a destructive device or bomb.”
There is no evidence to support such a finding. The only included criminal offense which could even be fantasized as the one to which the jury could have had reference is “kidnapping.” There is not one shred of evidence in this record — circumstantial or otherwise — that Hopkinson either was privy to an arrangement to have Green kidnapped or that Green was in fact kidnapped. The fact that Green was the victim of a torture-murder does not supply the inference that the evil deeds were done under circumstances which would warrant the jury’s assumption that Hopkinson was an accomplice to a crime or crimes which involved the kidnapping of Green. In fact — in my judgment — there is no evidence in the record to justify a conclusion that Hopkinson was a party to a plan or conspiracy to torture Green.
It is, in my opinion, impermissible (given the state of the record) to permit the jury to speculate that Green’s killer, whose identity to this day remains unknown, kidnapped Green before torturing and murdering him. Especially is this so when the statutory definition of kidnapping is taken into account.4
Section 6-4-201, W.S.1977, Wyoming’s kidnapping statute, provides:
“Whoever shall willfully, maliciously, fraudulently, forcibly or unlawfully seize, confine, inveigle, decoy, kidnap, abduct, entice away or carry away by any means whatsoever and hold or detain any person, for ransom, reward, or robbery; or whoever shall transport or aid or abet in transporting any person, knowing such person to have been willfully, maliciously, fraudulently, forcibly or unlawfully seized, confined, inveigled, decoyed, kidnapped, abducted, enticed away or carried away by any means whatsoever to be held or detained for ransom, reward, or for robbery, shall, upon conviction, be punished by death if the verdict of the jury so recommend, provided that the sentence of death shall not in any case be imposed by the court if, prior to the commencement of the trial of the case in which the defendant is charged, the kidnapped person has been liberated unharmed. If the death penalty shall not apply or be imposed the convicted person shall be punished by imprisonment in the state penitentiary for a period of not more than twenty (20) years.” (Emphasis added.)
The record in this case is devoid of evidence that Green was abducted and/or kidnapped for purposes of holding him for “ransom, reward, or robbery” and there is no evidence that Green was transported anywhere to be held or detained against his will for “ransom, reward, or robbery” and no evidence exists to support a finding that Hopkinson was an aider or abetter in such a scheme. Therefore, the elements of the crime of kidnapping have not been proven.
*176For the reasons given this aggravating circumstance should not have been made available to the jury’s consideration because there is no evidence to support it.
The Murder “was especially heinous, atrocious or cruel”
Section 6-4-102(h)(vii), W.S.1977
Given the facts presently of record in this case, I would agree with the appellant that the “especially heinous, atrocious or cruel” aggravating circumstance should not have been given to the jury because when applied to the evidence — i.e., as construed — it is vague and overbroad. I would remand for this additional reason with the hope that before this aggravating circumstance is submitted to any future sentencing authority, the matter would first be given careful consideration.
The aggravating circumstance assigned to the killing of Green with which I am concerned here, says that this murder was “especially heinous, atrocious or cruel.” Note should be taken of the fact that the jury also found this aggravating circumstance applicable to the Vehar murders. The United States Supreme Court has recently held, in Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), that, as construed, the offense described as “ ‘outrageously or wantonly vile, horrible or inhuman’ ” was so vague as to violate the Eighth and Fourteenth Amendments to the United States Constitution.5
The majority opinion at p. 153 says: “Appellant’s first challenge focuses upon § 6-4-102(h)(vii). There the statute lists as an aggravating circumstance that the murder, for which the defendant has been convicted and is being sentenced, ‘was especially heinous, atrocious or cruel.’ Appellant essentially argues that a jury could find any murder to be ‘especially heinous, atrocious or cruel’ and therefore conclude that an aggravating circumstance is present which outweighs all mitigating circumstances and accordingly impose the death penalty. This he contends gives a jury ‘free rein to decide to sentence a person to death,’ and denigrates the meaning of Furman and Gregg. Appellant’s brief, p. 113.”
The majority then reason and conclude: “ * * * The statute does not fail to properly channel the jury’s sentencing decision and does not grant it unfettered discretion to impose the death penalty for arbitrary and capricious reasons. * * * ” (Emphasis added.) Majority Opinion at p. 153.
I would agree that the condition of the law presently is that the language of § 6-4-102(h)(vii), supra, is not facially in violation of the Eighth and Fourteenth Amendments to the Federal Constitution.
In Gregg v. Georgia, supra, 428 U.S. at 201, 96 S.Ct. at 2938, the appellant had attacked the submission of the Georgia aggravating-circumstance language which provides that the murder is
“ * * * ‘outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim,’ * * * ”
as being over-broad in that if fails to provide such standards as are required by Fur-man, and thus the dangers of arbitrariness *177and caprice in the sentencing process are not removed.
The Court held, however, that — on its face —the language did not render the statute violative of the Eighth and Fourteenth Amendments as being arbitrary and capricious as proscribed by Furman.
The same contention was made in Proffitt v. Florida, decided the same day as Gregg v. Georgia, i.e., July 2, 1976. See Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). In this case the aggravating-circumstance language was the same as ours, i.e., the death penalty is authorized where the crime is “ ‘especially heinous, atrocious, or cruel.’ ”
In Proffitt, the United States Supreme Court said:
“That court [the Supreme Court of Florida] has recognized that while it is arguable ‘that all killings are atrocious, * * * [s]till, we believe that the Legislature intended something “especially” heinous, atrocious or cruel when it authorized the death penalty for first degree murder.’ Tedder v. State, 322 So.2d, at 910. As a consequence, the court has indicated that the eighth statutory provision is directed only at ‘the conscienceless or pitiless crime which is unnecessarily torturous to the victim.’ State v. Dixon, 283 So.2d, at 9. See also Alford v. State, 307 So.2d 433, 445 (1975); Halliwell v. State, supra [323 So.2d], at 561. We cannot say that the provision, as so construed, provides inadequate guidance to those charged with the duty of recommending or imposing sentences in capital cases. See Gregg v. Georgia, ante, at 200-203 [96 S.Ct. at 2937-2939].” (Footnote omitted.) (Emphasis and bracketed material added.) 428 U.S. at 255-256, 96 S.Ct. at 2968.
The Gregg v. Georgia language referred to in the Proffitt quote, supra, is:
“The petitioner attacks the seventh statutory aggravating circumstance, which authorizes imposition of the death penalty if the murder was ‘outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim,’ contending that it is so broad that capital punishment could be imposed in any murder case. It is, of course, arguable that any murder involves depravity of mind or an aggravated battery. But this language need not be construed in this way, and there is no reason to assume that the Supreme Court of Georgia will adopt such an open-ended construction. In only one case has it upheld a jury’s decision to sentence a defendant to death when the only statutory aggravating circumstance found was that of the seventh, see McCorquodale v. State, 233 Ga. 369, 211 S.E.2d 577 (1974), and that homicide was a horrifying torture-murder.” (Footnotes omitted and emphasis added.) 428 U.S. at 201, 96 S.Ct. at 2938.
These Gregg and Proffitt interpretations were addressed to fact situations where the capital crime was pitiless and torturous. The Supreme Court was therefore able to find that — as construed —the aggravating-circumstance standard could not be held to be unconstitutional upon its face.
Having concluded that Green’s was a torture-murder engineered by Hopkinson, the majority apply the aforementioned rules of Gregg and Proffitt in order to uphold giving to the sentencing jury this aggravating circumstance for its consideration.
I do not find it permissible, under the facts of record in this case, to give this aggravating circumstance to the jury for its consideration.
The record does not contain such evidence as will permit the conclusion by court or sentencing jury that Hopkinson conspired in the torture killing of Green. For the purpose of making the point, I am assuming, arguendo, that there is sufficient circumstantial evidence to allow for the conclusion that Hopkinson is guilty of conspiring to kill Green. The only evidence that Hopkin-son had anything to do with Green’s torture is the fact that Green was in fact tortured. This is insufficient.
In effect, then, we have a situation in which the jury — without explanatory instruction of any kind — has returned a find*178ing that the murder was “especially heinous, atrocious or cruel” upon a record which is totally void of torture evidence. The question then becomes whether the submitted aggravating circumstance is so vague and overboard as to violate the requirements of Furman. In this connection, it must be remembered that, without court explanatory instruction, the jury found the bombing of the Vehars — who are presumed to have been killed instantly — to have also been murdered under conditions which were “especially heinous, atrocious or cruel.”
Conspiracy in a plot to murder Green without evidence of torture participation and the conspiracy bombing resulting in the instant death of the Vehars, does not, as a matter of Jaw, permit sentencing-jury consideration of such an aggravating circumstance as that with which we are concerned, i.e., “[t]he murder was especially heinous, atrocious or cruel.” This conclusion is dictated by United States Supreme Court interpretive decisions handed down since Gregg, supra, and Proffitt, supra.
In the instructions given to the jury prior to deliberation in the sentencing phase, the court submitted only the bare statutory aggravating circumstances, without explanation of any kind. More particularly, the court did not instruct the jury that the especially heinous, atrocious or cruel aggravation could not be found to exist beyond a reasonable doubt under the facts of this case unless the jury was able to also find beyond a reasonable doubt that Hopkinson conspired to torture Green as well as murder him. The jury was thus left without the guidance required by Furman to construe and apply this aggravating circumstance as best it could, and, in consequence, did it in a manner which violated Hopkin-son’s Eighth and Fourteenth Amendment rights.
We are thus confronted with a question which is identical with that considered by the United States Supreme Court in God-frey v. Georgia, supra. Mr. Justice Stewart who, in Godfrey, wrote for the court in reversing a death penalty after observing that the Gregg court had found no facial unconstitutionality in an aggravating circumstance where murder is committed under conditions which are described by the statute as
<<***<*** outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim,’ ”
said:
“ * * * The issue now before us is whether, in affirming the imposition of the sentences of death in the present case, the Georgia Supreme Court has adopted such a broad and vague construction of the § (b)(7) aggravating circumstance as to violate the Eighth and Fourteenth Amendments to the United States Constitution.” (Footnote omitted and emphasis added.) 446 U.S. at 423, 100 S.Ct. at 1762.
In Godfrey, the defendant, without warning, shot his mother-in-law and ex-wife and they both died instantly. In this case, there is no evidence of Hopkinson’s participation in Green’s torture — only circumstantial evidence that he conspired with others to kill— and did kill — him. Even so, the sentencing jury found beyond a reasonable doubt Hop-kinson’s murder of Green and the instantaneous killings of the Vehars to be “especially heinous, atrocious or cruel.”
Now, the question is not whether you or I think these murders were “especially heinous, atrocious or cruel,” but whether these words — when a proper construction is adopted — furnish such a specific standard as will accommodate the defendant’s constitutional guarantees under the mandate of Furman which says that there may be no standardless sentencing in a way that permits a substantial risk of arbitrary and capricious infliction of the death penalty without violation to the Eighth and Fourteenth Amendments to United States Constitution.
The Gregg Court reaffirmed the Furman concept when it said:
“ ‘[Wjhere discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion *179must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.’ 428 U.S., at 189 [96 S.Ct. at 2932], (opinion of STEWART, POWELL, and STEVENS, JJ.).” 446 U.S. at 427, 100 S.Ct. at 1764.
And then the Godfrey Court said:
“A capital sentencing scheme must, in short, provide a ‘meaningful basis for distinguishing the few cases in which [the penalty] is imposed from the many cases in which it is not.’ Id., at 188 [96 S.Ct. at 2932], quoting Furman v. Georgia, supra [308 U.S.], at 313 [92 S.Ct. at 2764]. (White, J., concurring).” (Bracketed material in original.) 446 U.S. 427-428, 100 S.Ct. at 1764.
According to the rule of Godfrey, it is impossible for me to see how the Hopkinson sentencing jury could have construed the “especially heinous, atrocious or cruel” test in a way which would satisfy the mandates of Furman and Gregg, when it is remembered that the record contains no evidence that Hopkinson conspired to torture Green and when it is recalled that the jury found this aggravating circumstance to exist in both the Vehar and the Green murders. The difficulty remains for me even if it is assumed (for sake of argument and without evidentiary support) that Hopkinson participated in a conspiracy to torture as well as murder Green. I say this because the very verdicts themselves are proof of the proposition that the jury, operating without adequate channeling standards and instructions, was forced to the conclusion that, in its view of things, all of the murders were “especially heinous, atrocious or cruel.” These responses say to me that this jury, without adequate channeling instruction, would have found any murder of which Hopkinson had been found guilty to have been “especially heinous, atrocious or cruel.” If so, the aggravating-circumstance language, as construed, fails to provide such standards as are required by Furman.
In explanation of its position the Godfrey Court said:
“This means that if a State wishes to authorize capital punishment it has a constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty. Part of the State’s responsibility in this regard is to define the crimes for which death may be the sentence in a way that obviates ‘standardless [sentencing] discretion.’ Gregg v. Georgia, supra [428 U.S.], at 196, n. 47 [96 S.Ct. at 2936 n. 47]. See also Proffitt v. Florida, 428 U.S. 242 [96 S.Ct. 2960, 49 L.Ed.2d 913]; Jurek v. Texas, 428 U.S. 262 [96 S.Ct. 2950, 49 L.Ed.2d 929]. It 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.’ As was made clear in Gregg, a death penalty ‘system could have standards so vague that they would fail adequately to channel the sentencing decision patterns of juries with the result that a pattern of arbitrary and capricious sentencing like that found unconstitutional in Furman could occur.’ 428 U.S., at 195, n. 46 [96 S.Ct. at 2935, n. 46].” (Footnotes omitted and bracketed material in original.) 446 U.S. at 428, 100 S.Ct. at 1764-1765.
In my judgment, this is the very thing that happened in the case at bar.
In addressing the immediate issue relative to the aggravating-circumstance language of “ ‘outrageously or wantonly vile, horrible and inhuman’ ” the Godfrey Court said:
“In the ease before us, the Georgia Supreme Court has affirmed a sentence of death based upon no more than a finding that the offense was ‘outrageously or wantonly vile, horrible and inhuman.’ There is nothing in these few words, standing alone, that implies any inherent restraint on the arbitrary and capricious infliction of the death sentence. A person of ordinary sensibility could fairly characterize almost every murder as ‘outrageously or wantonly vile, horrible and inhuman.’ Such a view may, in fact, have been one to which the members of the jury in this case subscribed. If so, *180their preconceptions were not dispelled by the trial judge’s sentencing instructions. These gave the jury no guidance concerning the meaning of any of § (b)(7)’s terms . In fact, the jury’s interpretation of § (b)(7) can only be the subject of sheer speculation.” (Footnotes omitted and emphasis added.) 446 U.S. at 428-429, 100 S.Ct. at 1765.
The Court went on to find that the case must be remanded because — under the facts of the case — the language of the statute was vague and overbroad. That is, the Court found that the defendant’s constitutional rights were not preserved as the Georgia Supreme Court had construed the statutory language in application to the facts before it.
The majority opinion at pp. 153-154, in the case at bar, seeks to legitimize the aggravating circumstance “[t]he murder was especially heinous, atrocious and cruel” in the following way:
“We disagree with appellant’s conclusion. The statute does not fail to properly channel the jury’s sentencing decision and does not grant it unfettered discretion to impose the death penalty for arbitrary and capricious reasons. First, the statute requires the jury to find the murder to have been ‘especially heinous, atrocious or cruel.’ Webster’s Third New International Dictionary defines heinous as ‘hatefully or shockingly evil.’ Thus the term ‘especially heinous’ is more than just hatefully or shockingly evil. The murder, to be so classified, must demonstrate that the con-sciencelessness of the defendant is not only an outrage but also a dangerous and unrestrainable threat to society. Only when this is found can the murder properly be categorized as especially heinous. Since very few murders can be regarded in this manner, the term is not impermissible and vague.
“As to the terms especially atrocious or cruel, we adopt the definition of these terms established in the jurisdiction from whence the state legislature borrowed them. See, Woodward v. Haney, Wyo. 1977, 564 P.2d 844. In this case the statute was derived from Florida’s. Its interpretation of these terms was discussed by Justices Stewart, Powell and Stevens in Proffitt as follows:
“ ‘ * * * In particular, the petitioner attacks the eighth * * * statutory aggravating circumstances, which authorize the death penalty to be imposed if the crime is “especially heinous, atrocious or cruel,” * * * §§ 921.141(5)(h), * * * (Supp. 1976-1977). These provisions must be considered as they have been construed by the Supreme Court of Florida.
“ ‘That court has recognized that while it is arguable “that all killings are atrocious, * * * [sjtill, we believe that the Legislature intended something ‘especially’ heinous, atrocious or cruel when it authorized the death penalty for first degree murder.” Tedder v. State, 322 So.2d at 910. As a consequence, the court has indicated that the eighth statutory provision is directed only at “the conscienceless or pitiless crime which is unnecessarily torturous to the victim.” State v. Dixon, 283 So.2d, at 9. See also Alford v. State, 307 So.2d 433, 445 (1975); Halliwell v. State, [323 So.2d 557] at 561. We cannot say that the provision, as so construed, provides inadequate guidance to those charged with the duty of recommending or imposing sentences in capital cases. * * ’” (Footnote omitted; emphasis added.)
In addressing the significance of the God-frey v. Georgia opinion, the majority at p. 155 say:
“Further, appellant’s reliance upon Godfrey v. Georgia, 1980, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398, is misplaced. There the issue was whether the Georgia Supreme Court had adopted such a broad and vague construction of ‘was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim’ so as to violate the constitutional limits recognized in Furman and Gregg. The U.S. Supreme Court decided that *181these limits were breached. * * * ” (Footnote omitted.)
And then the majority at page 156 say:
“Our interpretation of ‘extremely heinous, atrocious or cruel’ clearly distinguishes between murder cases and provides a principled way to determine whether the death penalty should be imposed. We will not allow caprice or emotion to become a determinative factor in imposing the death penalty. Thus we conclude Godfrey does not require us to hold that our statute is unconstitutional.”
I find fault with the majority’s analysis and rationale in these various respects.
In the first place, I would hold that— without court explanation and clarification — the language “[t]he murder was especially heinous, atrocious or cruel” is so broad as to invite the jury in every murder sentencing decision to impose the death sentence. I take it to be the rule of Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978 at 2991-2992, 49 L.Ed.2d 944 (1976), and Godfrey that it is the discretion of the sentencer that must be properly channeled — not the after-the-fact judgment of the appellate court. (See also, Gregg v. Georgia, supra, 428 U.S. at 189, 96 S.Ct. at 2932-2933, opinion of Stewart, Powell, and Stevens, JJ.; Westbrook v. Balkcom, 449 U.S. 999, 101 S.Ct. 541, 66 L.Ed.2d 298 (1980), Stewart, J., dissenting from denial of certiorari.
As has been noted, the Godfrey Court says that the legislature must furnish the sentencer with a statute that will accomplish the following:
“ * * * It [the definition of crimes for which death may be the sentence] 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 the sentence of death.’ ” (Footnotes omitted.) 446 U.S. at 428, 100 S.Ct. at 1764.
The Woodson Court held that the requirements of Furman could only be satisfied by replacing the sentencer’s
“ * * * arbitrary and wanton jury discretion with objective standards to guide, regularize, and make rationally reviewable the process for imposing a sentence of death.” (Emphasis added.) 428 U.S. at 303, 96 S.Ct. at 2991.
If this is the law, and if this is the test, I do not see how an uninstructed sentencing jury can be aided with an after-the-fact decision by an appellate court to the effect that it will always be able to interpret the words “heinous, atrocious or cruel” in a way which will guarantee that the jury did not indulge in standardless sentencing — that is — did not indulge in sentencing that could be categorized as having been applied in a manner which would avoid the arbitrary and capricious infliction of the death penalty. While the powers of appellate courts may be awesome, those powers do not include the ability to take a retroactive trip back inside the heads of the various jurors in order to conclude that the standard was, at the time of jury consideration, so clear as to preclude an arbitrary and capricious sentence. Especially is this true in the face of Godfrey, where the Court held, concerning language no more vague or indefinite than that contained in the Wyoming statute, that “[a] person of ordinary sensibility could fairly characterize almost every murder as” falling within the disputed aggravating-circumstance language.
I would further criticize the majority’s approval of the submission of this particular aggravating circumstance in this case in view of the fact that there is no evidence of record that Hopkinson conspired to torture-murder Green. Furthermore, there is no finding that the jury believed that Hopkin-son was part and parcel of the torture. Recalling that the jury found this particular aggravating circumstance to also apply to the Vehar bombings, it is perfectly logical to conclud that it did not either know or feel it had to know whether Hopkinson participated in a plan to make torture a part of the killing in order to conclude that the “heinous, atrocious or cruel” aggravating circumstance was applicable. It is reasonable and logical to believe that, absent court instruction and direction, the jury *182found the aggravating circumstance to apply even though its members had no idea whether Hopkinson conspired with others to torture Green or not. After all, that is the conclusion they reached in the Vehar murders and — under Godfrey — had the jury found that Hopkinson should suffer the death sentence for the Vehar murders, such a sentence would (in my opinion at least) be unconstitutional as being arbitrary and capricious death sentencing, in violation of the Eighth and the Fourteenth Amendments.
For the reasons set out above, I would hold the “heinous, atrocious or cruel” aggravating circumstance to be facially in violation of the Wyoming Constitution, Art. 1, § 14 and Art. 1, § 6, and — as applied and under the authority of the Godfrey decision — I would find the submission of this aggravating circumstance to be in violation of the cruel-and-unusual clauses of the Federal and State Constitutions, and the due-process clauses of the Federal and State Constitutions.
The Law Pertaining to the Submission of Aggravating Circumstances Which Are Unconstitutional, Otherwise Illegal, or Lack Evidentiary Support6
In sum, we find the sentencing jury saying to Hopkinson:
Defendant Hopkinson, you will be put to death on purely circumstantial evidence for the Green murder, but not the bombing murders of the three Vehars because — even though, as mitigating circumstances with respect to all four, we find, first off, that you have no “significant history of prior criminal activity” (which says that the jury either did not consider the bombing attempt in the Mar-iscal case, for which Hopkinson was serving a prison term to be “significant” or did not know about it) and even though the Green and Vehar murders were committed while you were “under the influence of extreme mental or emotional disturbance,” these mitigating factors, existing at the time of the commission of all four murders, will not overcome the following aggravating circumstances which we find to have also existed at the time all four murders were committed, namely:
(1) You were under a prison sentence.
(2) You were previously convicted of another felony involving the use or threat of violence to the person of another, even though there is no evidence of this.
(3) The murders were committed while you were
“engaged, or [were] an accomplice in the commission of or an attempt to commit or flight after committing or attempt to commit any robbery, rape, sexual assault, arson, burglary, kidnapping or aircraft piracy or the unlawful throwing, placing, or discharging of a destructive device or bomb,” (see statutory language n. 1, supra)
even though, as to Green, there is no evidence that — at the time of his murder — -you were engaged or were an accomplice in the commission of any crimes enumerated in the last above-quoted statute.
And, lastly — all of the murders were “especially heinous, atrocious or cruel.”
According to § 6-4-102(e), W.S.1977, it is the duty of the jury to find such aggravating circumstance upon which it relied to be proved “beyond a reasonable doubt.” The State must prove each aggravating circumstance beyond a reasonable doubt. Williams v. State, Fla., 386 So.2d 538, 542 (1980), reh. denied, citing Alford v. State, Fla., 307 So.2d 433 (1975), cert. denied 428 U.S. 912, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976); State v. Dixon, Fla., 283 So.2d 1 (1973), reh. denied, cert. denied 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974). The work product of this jury testifies to the impossibility of fulfillment of this statu*183tory and precedential mandate since the jury, by its verdict, found aggravating circumstances to be present with respect to which there was no supporting evidence at all and, in my judgment, aggravating circumstances which are unconstitutionally vague absent specific court explanatory instruction.
It thus becomes this court’s task to decide whether or not, given the mitigating circumstances found by the jury, the defendant may be put to death where the jury admittedly balanced, against these mitigating circumstances, various statutory aggravating circumstances, some of which were either unconstitutional (under my analysis) or admittedly not supported by the evidence.
It is upon this issue that the majority have held remand to be necessary. I feel, however, that the subject should be more thoroughly indulged, and I therefore add these concurring thoughts.
The United States Court of Appeals for the Fifth Circuit has recently considered the question of whether or not it is plain error to allow a jury to consider impermissible aggravating circumstances and has responded in the affirmative. In the Fifth Circuit ease, the jury, in the penalty phase, was charged with the task of weighing permissible aggravating circumstances against relevant mitigating circumstances and, based upon this weighing process, was asked to come to its verdict on the question of whether death or life imprisonment was the appropriate sentence for the defendant. Stephens v. Zant, 631 F.2d 397 (5th Cir. 1980). It was clear to the Fifth Circuit that in case any one of the aggravating circumstances was improperly considered by the sentencing authority, it would not then have been possible for the appellate court to say that the jurors would have imposed the death penalty if they had weighed only legitimate aggravating circumstances in discharging their balancing obligations. Even in a case of noncapital sentencing by a judge, the intrusion into a discretionary sentencing judgment of factors which the sentencer wrongly believes that it may properly consider deprives the sentence of the integrity necessary to sustain it on appeal. See, e.g., United States v. Tucker, 404 U.S. 443, 447-449, 92 S.Ct. 589, 591-593, 30 L.Ed.2d 592 (1972). When the death sentence has been imposed by a jury, it is unacceptable for an appellate court to indulge the assumption that the improper sentencing consideration had no impact upon the final outcome. The Fifth Circuit framed and decided the issue as follows:
“The question presented, then, is whether the death penalty was invalid under the Constitution because it was imposed when one of the aggravating circumstances was later held to be unconstitutional even though there were two other aggravating circumstances, either of which by itself would be legally sufficient to permit the jury to impose the death penalty and as to both of which there is no uncertainty.
“In Stromberg v. California, 283 U.S. 359, 367-68, 51 S.Ct. 532, 535, 75 L.Ed. 1117 (1931), the Supreme Court held that if the jury has been instructed to consider several grounds for conviction, one of which proves to be unconstitutional, and the reviewing court is thereafter unable to determine from the record whether the jury relied on the unconstitutional ground, the verdict must be set aside. Accord, Bachellar v. Maryland, 397 U.S. 564, 570-71, 90 S.Ct. 1312, 1315-16, 25 L.Ed.2d 570 (1970); Street v. New York, 394 U.S. 576, 585-88, 89 S.Ct. 1354, 1362-63, 22 L.Ed.2d 572 (1969); Yates v. United States, 354 U.S. 298, 311-12, 77 S.Ct. 1064, 1072-73, 1 L.Ed.2d 1356 (1957). This settled principle of law applies with particular force in cases in which the death penalty has been imposed. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), held that the death penalty may not be imposed under sentencing procedures that create a substantial risk that the penalty will be inflicted in an arbitrary and capricious manner. The Constitution requires that the sentencer’s discretion be channeled by clear and objective standards that ‘make rationally reviewable the process for im*184posing a sentence of death.’ Woodson v. North Carolina, 428 U.S. at 303, 96 S.Ct. at 2990 (opinion of Stewart, Powell and Stevens, JJ.).
“It is impossible for a reviewing court to determine satisfactorily that the verdict in this case was not decisively affected by an unconstitutional statutory aggravating circumstance. The jury had the authority to return a life sentence even if it found statutory aggravating circumstances. It is possible that even if the jurors believed that the other aggravating circumstances were established, they would not have recommended the death penalty but for the decision that the offense was committed by one having a substantial history of serious assaultive criminal convictions, an invalid ground. The presence of the unconstitutionally vague circumstance also made it possible for the jury to consider several prior convictions of petitioner which otherwise would not have been before it. The instruction on the invalid circumstance may have directed the jury’s attention to those convictions. It cannot be determined with the degree of certainty required in capital cases that the evidence of those convictions together with the instruction, did not make a critical difference in the jury’s decision to impose the death penalty-
“We hold that the jury’s discretion here was not sufficiently channeled, see Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), and that the process in which the death penalty was imposed in this case was not ‘rationally reviewable.’ Woodson v. North Carolina, 428 U.S. at 303, 96 S.Ct. at 2990. See also Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393. Petitioner’s death sentence therefore cannot stand.” Supra, 631 F.2d at 406.
The North Carolina Supreme Court has also acknowledged the impropriety of affirming a death sentence after one aggravating circumstance submitted to the sen-tencer is invalidated. State v. Cherry, 298 N.C. 86, 257 S.E.2d 551 (1979), cert. denied 446 U.S. 941, 100 S.Ct. 2165, 64 L.Ed.2d 796 (1980). The court there held that in the sentencing hearing of a defendant convicted of felony-murder, the jury had improperly been permitted to consider the underlying felony as an aggravating circumstance. Holding that the error required resentenc-ing, the court noted:
“We are unable to say that under the circumstances of this particular case the trial judge’s submission of the issue concerning the underlying felony constituted harmless error. Had the jury not considered the underlying felony as an aggravating circumstance, it may well have decided that the remaining aggravating circumstances were not sufficiently substantial to call for imposition of the death penalty.” Id., 257 S.E.2d at 568.
See also Bufford v. State, Ala.Cr.App., 382 So.2d 1162, 1174-1175 (1980), cert. denied, Ala., 382 So.2d 1175 (1980).
In Bufford v. State, supra, 382 So.2d at 1174, the court said:
“There has been some confusion as to whether a remandment and a new sentencing hearing is required where a trial court finds one or more proper aggravating circumstances, but likewise bases its sentence on one or more improper aggravating circumstances. Compare Mack v. State, Ala.Cr.App., 375 So.2d 476 (1978), affirmed, Ala., 375 So.2d 504 (1979), with Johnson v. State, Ala.Cr.App. [399 So.2d 859] [Ms. May 22, 1979], reversed, Ala. [399 So.2d 873] [Ms. December 7, 1979]. Johnson is the latest expression of the supreme court on this issue. In that case there were at least two aggravating circumstances which were valid and one which was found invalid by that court. A remandment to the circuit court for a new sentencing hearing was mandated by that decision.” (Bracketed material in original.)
Similarly, the Florida Supreme Court has said that where one aggravating circumstance is invalidated,
“ * * * regardless of the existence of other authorized aggravating factors we must guard against any unauthorized ag*185gravating factor going into the equation which might tip the scales of the weighing process in favor of death.
* * * ⅜ * *
“Would the result of the weighing process by both the jury and the judge have been different had the impermissible aggravating factor not been present? We cannot know. Since we cannot know and since a man’s life is at stake, we are compelled to return this case to the trial court for a new sentencing trial at which the [improper] factor * * * shall not be considered. See Miller v. State, 332 So.2d 65 (Fla.1976); Messer v. State, 330 So.2d 137 (Fla.1976). This result is dictated because, in order to satisfy the requirements of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the sentencing authority’s discretion must be ‘guided and channeled by requiring examination of specific factors that argue in favor of or against imposition of the death penalty, thus eliminating total arbitrariness and capriciousness in its imposition.’ (Emphasis supplied) Proffitt v. Florida, 428 U.S. 242, 258, 96 S.Ct. 2960, 2969, 49 L.Ed.2d 913” (Bracketed material added.) Elledge v. State, Fla., 346 So.2d 998, 1003 (1977), reh. denied.
See also Menendez v. State, Fla., 368 So.2d 1278, 1282 (1979):
“There is, therefore, only one properly found aggravating circumstance and one mitigating circumstance. Since the trial judge has committed error in considering matters outside the permissible range of legal standards set by the statute, and because it is impossible for us to evaluate the weight given by the trial judge to those factors which were proper to consider in imposing the death penalty, we can only vacate the sentence of death and remand the case for resentencing.”
We have, in this appeal, a situation in which the jury found two mitigating circumstances and various aggravating circumstances, one of which, as I have said, violates the Furman standards requirement and some of which are not supported by the evidence and thus should not have been given to the jury for its consideration. Given these factors, we are unable, as a reviewing court, to determine whether, in imposing the death sentence, the jury relied upon an unauthorized aggravating circumstance or not. Since this is so, we find ourselves in the same dilemma as that with which the Fifth Circuit was concerned in Stephens v. Zant, supra, and are forced to the same conclusion for the same reasons, i.e.:
“We hold that the jury’s discretion here was not sufficiently channeled, see Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), and that the process in which the death penalty was imposed in this case was not ‘rationally reviewable.’ Woodson v. North Carolina, 428 U.S. at 303, 96 S.Ct. at 2990. See also Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393. Petitioner’s death sentence therefore cannot stand.” Stephens v. Zant, supra, 631 F.2d at 406.
I would therefore concur with the majority and hold that error was committed in the sentencing phase in that unauthorized aggravating-circumstance options were made available to the jury for its consideration, and, thus, on this point, the case must be returned to the district court for the purpose of undertaking a full resentencing procedure in a manner which is not inconsistent with the reason and authority recited and reviewed herein and in the majority opinion wherein this issue is considered.
THE UNANIMITY INSTRUCTION
Sentencing Phase
I would remand for yet another reason. The Wyoming statute, § 6-4 — 102(e), W.S. 1977 provides:
“ * * * If the jury [in the sentencing phase] cannot, within a reasonable time, agree upon the punishment to be imposed, the judge shall impose a life sentence.” (Bracketed material added.)
At the close of the argument in the sentencing phase of the case and before the jury retired to decide the life-or-death fate of the defendant, the judge read instructions and ruled on motions. The instruc*186tions included the admonition to the jury that the verdict must be unanimous. That is, if the jury believed the defendant should be sentenced to death, the verdict should unanimously reflect that decision, and, if the jury believed the defendant should receive a life sentence, its verdict should unanimously reflect that decision. In fact, at one juncture, the judge, believing that the unanimity admonition had not been made clear, deviated from the written instruction to say that the sentencing instructions should be read with all other instructions which had been submitted, and
“Your decision with reference to this portion of the trial must be unanimous.”
Defense counsel indicated that he was not pleased with this instruction on unanimity, and was given the opportunity to prepare and submit one which would satisfy him and to return it to the court after the lunch hour, with the representation that it would be considered on its merits for purposes of either giving or refusing to give the submitted instruction to the jury. Defense counsel then prepared and offered the following instruction to the court:
“In order for the defendant to receive the death penalty in this case the jury must unanimously recommend the death penalty. If the jury is unable to unanimously agree upon the penalty within a reasonable time, or if the unanimous recommendation is a life sentence, the court will sentence the defendant to life imprisonment.”
The trial judge refused this instruction on such grounds as contemplated the fact that it was not offered timely; was erroneous; it told the jury they must hurry; it tended to force a decision by the court; it would have had the effect of interfering with the jury process; it was not carefully thought out; and for other reasons.
I suggest that the offered instruction was not only proper, it was absolutely essential and states the law accurately and succinctly. It stated a part of the applicable Wyoming statute that goes to the very soul of defendant’s fair-trial rights. By its refusal the defendant was denied due process under the Fourteenth Amendment and the corollary Wyoming constitutional amendment proviso.
Furman v. Georgia, supra, held that the imposition of the death penalty under statutes which gave the jury (or judge) unbridled sentencing discretion violated the Eighth and Fourteenth Amendments to the United States Constitution. The Court said that a death statute, in order to pass constitutional muster, must be suitably direct and limited so as to minimize the risk of wholly arbitrary and capricious action. In Lockett v. Ohio, 438 U.S. 586, 599, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) the Court summarizes the Furman holding as follows:
“ * * * In separate opinions, the three concluded that discretionary sentencing, unguided by legislatively defined standards, violated the Eighth Amendment because it was ‘pregnant with discrimination,’ id., at 257 [92 S.Ct. at 2735] (Douglas, J., concurring), because it permitted the death penalty to be ‘wantonly’ and ‘freakishly’ imposed, id., at 310 [92 S.Ct. at 2763] (STEWART, J., concurring), and because it imposed the death penalty with ‘great infrequency’ and afforded ‘no meaningful basis for distinguishing the few cases in which it [was] imposed from the many cases in which it [was] not,’ id., at 313 [92 S.Ct. at 2764] (WHITE, J., concurring). * * * See Gregg v. Georgia, 428 U.S. 153, 195-196, n. 47 [96 S.Ct. 2909, 2935-2936, n. 47, 49 L.Ed.2d 859] (1976) (opinion of STEWART, POWELL, and STEVENS, JJ.).”
In Lockett, the Court discussed the plurality views in Gregg v. Georgia, supra, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859, where the Court spoke to the requirement for channeling and limiting discretion in death cases. The Lockett court said:
“The joint opinion [Gregg, supra] reasoned that, to comply with Furman, sentencing procedures should not create ‘a substantial risk that the death ] nalty [will] be inflicted in an arbitrary and capricious manner.’ Gregg v. Georgia, supra, at 188 [96 S.Ct. at 2932], In the view of the three Justices, however, Fur-*187man did not require that all sentencing discretion be eliminated, but only that it be ‘directed and limited,’ 428 U.S. at 189 [96 S.Ct. at 2932], so that the death penalty would be imposed in a more consistent and rational manner and so that there would be a ‘meaningful basis for distinguishing the * * * cases in which it is imposed from * * * the many cases in which it is not.’ Id., at 188 [96 S.Ct. at 2932]. * * * ” 438 U.S. at 601, 98 S.Ct. at 2963.
I read the United States Supreme Court opinions following Furman to say that not only must the statutes not be arbitrary and capricious with unbridled sentencing discretion, but, additionally, a proper statute may not be utilized in a manner which would bring on arbitrary, capricious and unbridled sentencing-discretion results.
The plurality in Gregg recognized the necessity of instructing the jury in a way which will give effect to a valid statute when the Court said:
“But the provision of relevant information under fair procedural rules is not alone sufficient to guarantee that the information will be properly used in the imposition of punishment, especially if sentencing is performed by a jury. Since the members of a jury will have had little, if any, previous experience in sentencing, they are unlikely to be skilled in dealing with the information they are given. See American Bar Association Project on Standards for Criminal Justice, Sentencing Alternatives and Procedures, § 1.1(b), Commentary, pp. 46 — 47 (Approved Draft 1968); President’s Commission on Law Enforcement and Administration of Justice: The Challenge of Crime in a Free Society, Task Force Report: The Courts 26 (1967). To the extent that this problem is inherent in jury sentencing, it may not be totally correctable. It seems clear, however, that the problem will be alleviated, if the jury is given guidance regarding the factors about the crime and the defendant that the State, representing organized society, deems particularly relevant to the sentencing decision.
“The idea that a jury should be given guidance in its decisionmaking is also hardly a novel proposition. Juries are invariably given careful instructions on the law and how to apply it before they are authorized to decide the merits of a lawsuit. It would be virtually unthinkable to follow any other course in a legal system that has traditionally operated by following prior precedents and fixed rules of law. See Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494, 498 [51 S.Ct. 513, 514, 75 L.Ed. 188] (1931); Fed.Rule Civ.Proc. 51. When erroneous instructions are given, retrial is often required. It is quite simply a hallmark of our legal system that juries be carefully and adequately guided in their deliberations.” (Footnote omitted.) 428 U.S. at 192-193, 96 S.Ct. at 2934.
The lesson in Gregg, then, is that not only must the protection against untrammeled discretion in the death-pronouncing process be structured in the statutes, but these statutes must also be applied in a way which precludes such results as were found to be unacceptable in Furman.
I would hold that for the court, in addition to giving the unanimous-verdict instructions, to refuse to give the jury the statutory alternative of returning a less-than-unanimous verdict, which verdict the court would have been bound to accept by statute and the result of which would be to insure for the defendant, a life rather than a death sentence, was to deny to the sentencing process a vital third option.
How substantive is the failure to give this offered instruction?
In order to put the issue into more vivid perspective in this case, it is proper to note that, during the sentencing deliberations, a message was delivered to the judge in which a juror expressed a change of heart as to guilt or innocence, and believed Hop-kinson to be guilty — not of first-degree murder but of second-degree murder or manslaughter — and the juror asked that she be given the opportunity to change her vote to reflect her decision on the issue of guilt *188or innocence. The judge refused to permit the reopening of the guilt or innocence phase of the bifurcated trial for this purpose and advised the juror that the only matter under consideration was
“ * * * the death penalty or life imprisonment as set forth in the instructions previously given you on that matter.” (Emphasis added.)
This said to the juror, who now believed Hopkinson not guilty of first-degree murder and thus not subject to capital punishment, but who, later, together with 11 other jurors, cast a unanimous vote for death, that in order to bring back a verdict of any kind, the vote had to be unanimous. This was her instructed belief even though the law gave her and all other jurors another alternative — a “third option” — about which she and her fellows were not apprised, that is: If any one of them had not wanted to vote with the majority for the death-sentence unanimity, such juror or jurors could have refused to so vote, the effect of which would be that the judge would have been obligated under the law to sentence Hop-kinson to life imprisonment. I emphasize— just one juror could have had this effect— but the jury was not so informed; all of them believed that their verdict had to be unanimous, i.e., neither the juror who wrote to the judge nor any other juror knew that one person voting against 11 who were death-sentence inclined, could save Hopkinson’s life — even though this is the statutory law of the state of Wyoming.
How does this all come out from Hopkin-son’s point of view?
His most obvious concern must have its genesis in the fact that he had a juror who, in the sentencing stage, thought him to be not guilty of a capital crime punishable by death, but who, under peer pressure coupled with erroneous unanimous-verdict instructions, or for whatever reasons, wound up voting that he be put to death anyway. But the defendant’s underlying anxiety— which would be the concern of any defendant in similar circumstances — was that none of his sentencing jurors were informed of the “third option” — i.e., the effect of a nonunanimous verdict. Thus I utilize the example of the mind-changing juror solely for the purpose of pointing up the vividness of the error in this case. For me, the failure or refusal to give the jury the third-option information would be plain error in any circumstance.
And what will the law say about this? Even if it can be argued that this particular juror could have changed her mind again between the time when she sent the note and when she voted for death, the fact still remains that she did not know (and the other jurors did not know) that she had a “third option” which contemplated that she, or any other single juror, or any greater number of jurors, could have refused to vote for a unanimous death verdict, in which event the judge would have been obligated by law to sentence Hopkinson to life imprisonment.
The “third option” issue was discussed in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), wherein the question was whether the death sentence could be constitutionally imposed when the jury was denied the right to consider the “third option” — in this case a lesser-included-offense instruction which was precluded from consideration in a death case by statute.
Remembering the admonitions of Fur-man that
“ * * * the Court held unconstitutional a Georgia statute that vested the jury with complete and unguided discretion to impose the death penalty or not as it saw fit, on the ground that such a procedure led to the ‘wanton’ and ‘freakish’ imposition of the penalty,” 447 U.S. at 639, 100 S.Ct. at 2390,
the Beck Court found that the unavailability of the “third option” led to the interjection of irrelevant considerations into the fact-finding process. In the case at bar the unavailability of the “third option”, which would have permitted even one juror to swim against the current and hold out for something less than the death sentence, has the effect of denying the jury a choice which was absolutely essential to the statu*189torily structured life-and-death decision-making process. Its withholding from the jury’s consideration resulted in a decision which was not in contemplation of Wyoming law and therefore was arbitrarily imposed in violation of due process and § 6 — 4-103(d)(i), W.S.1977.
It would not do to argue that there was a third option for this jury in the nature of mistrial. The Beck Court did not think mistrial answered the defendant’s “third option” contention.
Mistrial may be another option, but its offerings are certainly a far cry from the advantages furnished by a jury instructed that
“ * * * If the jury cannot, within a reasonable time, agree on the punishment to be imposed, the judge shall impose a life sentence.” (Emphasis added.) § 6-4-102(e), supra.
In a mistrial, the defendant is tried again and his life is again on the line. In a trial where the jury is properly instructed concerning the “third option”, the defendant’s life is saved, should the jury — or a juror —decide to exercise it.
I would hold, then, that to fail to give the jury an instruction apprising them of this statutory third alternative to a unanimous verdict — and to instruct that its decision in this part of the trial “must be unanimous” —was to fail to comply with the requirement of Furman, which says that the sentencing authority must not leave juries with untrammeled discretion to impose or withhold the death penalty. Such failure amounts to a violation of the Wyoming statutes (§ 6-4-102(e), supra), which in turn amounts to a violation of the Eighth and Fourteenth Amendments to the United States Constitution and corollary provisions of the Wyoming Constitution, i.e., Art. 1, § 14 and Art. 1, § 6.
Plain Error
I would hold the failure to instruct as requested by defendant to be of plain-error magnitude. I offer the following as the law of plain and harmless error in capital cases.7
In 1948, Andres v. United States, 333 U.S. 740, 752, 68 S.Ct. 880, 886, 92 L.Ed. 1055 (1948), the Court said:
“ * * * In death cases [with regard to the prejudicial effect of trial error] doubts * * * should be resolved in favor of the accused. * * 333 U.S. at 752, 68 S.Ct. at 886.
This thought is italicized where the Court in Woodson v. North Carolina, supra, 428 U.S. at 305, 96 S.Ct. at 2991, says:
“ * * * the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.” (Footnote omitted.)
See also, e.g., Lockett v. Ohio, supra, (plurality opinion); Beck v. Alabama, supra.
In Gardner v. Florida, 430 U.S. 349, 357-358, 97 S.Ct. 1197, 1204-1205, 51 L.Ed.2d 393 (1977), the Court said:
“First, five Members of the Court have now expressly recognized that death is a different kind of punishment from any other which may be imposed in this country. Gregg v. Georgia, 428 U.S. 153, 181-188 [96 S.Ct. 2909, 2928-2932, 49 L.Ed.2d 859] (opinion of STEWART, POWELL and STEVENS, JJ.); see id., at 231-241 [96 S.Ct. at 2973-2977] (MARSHALL, J., dissenting); Furman v. Georgia, 408 U.S., at 286-291 [96 S.Ct. at 2982-2985] (BRENNAN, J., concurring), 306-310 [96 S.Ct. at 2992-2994] (STEWART, J., concurring); see id., at 314-371 [92 S.Ct. at 2764-2794] (MARSHALL, J., concurring). *190From the point of view of the defendant, it is different in both its severity and its finality. From the point of view of society, the action of the sovereign in taking the life of one of its citizens also differs dramatically from any other legitimate state action. It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.”
In Woodson v. North Carolina, supra, 428 U.S. at 304-305, 96 S.Ct. at 2991, the plurality said:
“ * * * [W]e believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment, see Trop v. Dulles, 356 U.S. [86,] at 100 [78 S.Ct. 590, 597, 2 L.Ed.2d 630] (plurality opinion), requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.
“This conclusion rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however long. * * * ”
Courts must be very careful not to regard error as harmless in capital eases, see People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, 885 (1961).
“Thus ‘[w]hat may be harmless error in a case with less at stake becomes reversible error when the penalty is death.’ Irving v. State, 361 So.2d 1360, 1363 (Miss.1978), cert. den., 441 U.S. 913 [99 S.Ct. 2014, 60 L.Ed.2d 386] (1979). Accord, Pait v. State, 112 So.2d 380, 385 (Fla.1959). Because death is different from all other penalties, errors occurring during a capital trial are subjected to the most exacting scrutiny. See Gardner v. Florida, 430 U.S. 349 [97 S.Ct. 1197, 51 L.Ed.2d 393] (1977).”
To the extent that any error
“ * * * creates ‘a substantial risk that [the death penalty will] * * * be inflicted in an arbitrary and capricious manner,’ Gregg v. Georgia, 428 U.S. 153, 188 [96 S.Ct. 2909, 2932, 49 L.Ed.2d 859] (1976) (plurality opinion), it arises to constitutional proportions, [whereupon] * * a reviewing court must satisfy itself * * that the error was harmless * * 8
In the instant case where the court refused to give an instruction which I think was mandated by the statute, the issue becomes one of due process of law. The question asks whether the refusal to give the defendant an instruction incorporating the part of the statute which would save his life in circumstances where the verdict was other than unanimous, is or is not harmless error. The harmless-error query is resolved in this setting by asking and answering the question of whether or not the failure to give a proper instruction or the giving of an erroneous instruction creates a reasonable possibility that the court’s action in this regard “might have contributed to the conviction.” Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), quoting from Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963). It is said in Chapman:
“ * * * We prefer the approach of this Court in deciding what was harmless error in our recent case of Fahy v. Connecticut, 375 U.S. 85 [84 S.Ct. 229, 11 L.Ed.2d 171]. There we said: ‘The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.’ Id., at 86-87 [84 S.Ct. at 230]. Although our prior cases have indicated that there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error, this statement in Fahy itself belies any belief that all trial errors which violate the Constitution automatically call for reversal. At the same time, however, like the federal harmless-error statute, it emphasizes an intention not to treat as harmless those constitutional errors that ‘affect substantial rights’ of a party. * * *
*191“ * * * We, therefore, do no more than adhere to the meaning of our Fahy case when we hold, as we now do, that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. While appellate courts do not ordinarily have the original task of applying such a test, it is a familiar standard to all courts, and we believe its adoption will provide a more workable standard, although achieving the same result as that aimed at in our Fahy case.” (Footnotes omitted.) 386 U.S. at 23-24, 87 S.Ct. at 827-828.
Applying the Chapman rule to the instruction issue here, I would think it impossible for any appellate judge to come to the conclusion “beyond a reasonable doubt” that the failure to incorporate the statutory language in an instruction or the giving of the unanimity instruction without the “third option” did not in any way contribute to the jury’s death-sentence decision.
At the Conference of Chief Justices (see notes 6 and 7), Professor Amsterdam concluded and summarized as follows:
“ ‘Thus any such substantial error in the penalty trial may have affected the result; it is “reasonably probable” that in the absence of such error “a result more favorable to the appealing party would have been reached.” ’
“People v. Hines [61 Cal.2d 164, 37 Cal.Rptr. 622, 626], 390 P.2d 398, 402 ([Cal.] 1964). See also People v. Hamilton [60 Cal.2d 105, 32 Cal.Rptr. 4, 23], 383 P.2d 412, 431 ([Cal.] 1963); People v. White [69 Cal.2d 751, 72 Cal.Rptr. 873, 879], 446 P.2d 993, 999 ([Cal.] 1968).
“ ‘To attempt to assess the effect of error in this legal vacuum is to superimpose one untestable surmise upon another. We must not pile conjecture upon conjecture and posit the decision of life or death upon a pyramid of guesses.’
“People v. Terry [61 Cal.2d 137, 37 Cal.Rptr. 605, 616], 390 P.2d 381, 392 ([Cal.] 1964), cert. den., 379 U.S. 866 [85 S.Ct. 132, 13 L.Ed.2d 68] (1964).
“Fundamental fairness requires that ‘any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion,’ Gardner v. Florida, 430 U.S. 349, 358 [97 S.Ct. 1197,1205, 51 L.Ed.2d 393] (1977) (plurality opinion), and that sentencing courts not act upon ‘surmise or suspicion,’ Harris v. United States, 382 U.S. 162, 167 [86 S.Ct. 352, 355, 15 L.Ed.2d 240] (1965) (noncapital case). These requirements would be defeated if, subsequent to the imposition of the death penalty at the trial level, reviewing courts were to affirm death sentences on the basis of the necessarily speculative Conclusion that no one of twelve trial jurors might have been affected by an error when he or she came to make the most serious, intractable, and unfathomable decision known to the law. The ‘uncertain consequences’ of any legal error in the penalty phase of a death case are ‘too obvious’ to allow for affirmance. Davis v. State [236 Ga. 804], 225 S.E.2d 241, 247 ([Ga.] 1976) (Ingram, J., dissenting), rev’d, 429 U.S. 122 [97 S.Ct. 398, 50 L.Ed.2d 339] (1976).” (Emphasis in original.)
In any future penalty-phase hearing, I would advise that the offered instruction must be given to the sentencing jury.
INEFFECTIVE ASSISTANCE OF COUNSEL
Sentencing Phase
I would remand for a third reason.
Even though it has not previously been raised, I would remand for the resentencing of Hopkinson for the reason that the defendant did not, in the penalty phase, have such effective assistance of counsel as would insure his constitutional rights under the Sixth and Fourteenth Amendments to the Federal Constitution. I do not raise the issue to embarrass counsel, but it is done because scrupulous care should be given to the end that an ineffective-assistance-of-counsel error is not committed should the district court and counsel find that the death-penalty phase of this case must again *192be submitted to a jury rather than, for example, agreeing that Hopkinson should be sentenced to a fourth consecutive term of life imprisonment.
The statutes of this and other states have long taken into account the special nature of the capital defendant’s need for unusual protection. See § 6-4-102 and § 6-4-103, W.S.1977.
In early recognition of the unusual-protection concept, the United States Supreme Court first held that capital criminal defendants have a constitutional right to be represented by counsel. Powell v. Alabama, 287 U.S. 45, 72, 53 S.Ct. 55, 65, 77 L.Ed. 158 (1932). This right was guaranteed to all felony defendants. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).
It is now universally conceded that since Furman v. Georgia, supra, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, a constitutional concept has emerged which stands for the proposition that capital cases — -in all respects — stand upon a different constitutional footing than other criminal matters. Among other unique features, this special consideration demands careful and meticulous procedural inquiry.
In Woodson v. North Carolina, supra, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944, the plurality rejected North Carolina’s mandatory death statute because it failed to take into account the particular circumstance of the offense, thus violating the Eighth and Fourteenth Amendments. The holding was bottomed principally in the Eighth Amendment, taking into consideration the difference between the death penalty and any other penalty with respect to which courts have the power to impose. That is, the court held that death is so manifestly different from other penalties that it required special procedural treatment.
The Woodson plurality opinion says:
“A third constitutional shortcoming of the North Carolina statute is its failure to allow the particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon him of a sentence of death. In Furman, members of the Court acknowledged what cannot fairly be denied — that death is a punishment different from all other sanctions in kind rather than degree. See 408 U.S., at 286-291 [92 S.Ct. at 2750-2753] (BRENNAN, J., concurring); id., at 306 [92 S.Ct. at 2760] (STEWART, J., concurring). A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind. It treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death.
“This Court has previously recognized that ‘[f]or the determination of sentences, justice generally requires consideration of more than the particular acts by which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender.’ Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51, 55 [58 S.Ct. 59, 61, 82 L.Ed. 43] (1937). Consideration of both the offender and the offense in order to arrive at a just and appropriate sentence has been viewed as a progressive and humanizing development. See Williams v. New York, 337 U.S., at 247-249 [69 S.Ct. at 1083-1084]; Furman v. Georgia, 408 U.S., at 402-403 [92 S.Ct. at 2810-2811] (BURGER, C. J., dissenting). While the prevailing practice of individualizing sentencing determinations generally reflects simply enlightened policy rather than a constitutional imperative, we believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment, see Trop v. Dulles, 356 U.S., at 100 [78 S.Ct. at 597] (plurality opinion), requires consideration of the character and record of the individual offender and the *193circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.
“This conclusion rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.” (Footnote omitted.) 428 U.S. at 303-305, 96 S.Ct. at 2991.
Two years later Chief Justice Burger, writing for a three-justice plurality in Lockett v. Ohio, supra, said:
“ * * * We are satisfied that this qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed. * * *
******
“ * * * When the choice is between life and death, that risk [that the death penalty will be imposed in spite of factors which may call for a less severe penalty] is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments.” 438 U.S. at 604-605, 98 S.Ct. at 2964-2965.
The Court has since applied this principle to impose stricter procedural protection in capital cases. See Gardner v. Florida, supra, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393; Beck v. Alabama, supra, 447 U.S. at 625, 100 S.Ct. at 2382.
The strict procedural-scrutiny standard for capital cases was brought into play in State v. Myles, La., 389 So.2d 12 (1980), when the Louisiana Supreme Court focused upon the issue of whether to reverse or affirm a death sentence where ineffective assistance of counsel was in question. The Louisiana court, reacting to a petition for rehearing, reversed and remanded for another sentencing hearing. The court said:
“In determining the proper standard of competence to be applied, we are ever mindful that this is a capital case. We must not only select a standard of substance, but also give close scrutiny to insure adherence to this standard. The penalty of death is qualitatively different from a sentence of imprisonment. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the jury’s determination that death is the appropriate punishment in a specific case. Lockett v. Ohio, 438 U.S. 586, 603, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973, 989 (1978); Gardner v. Florida, 430 U.S. 349, 362, 97 S.Ct. 1197, 1207, 51 L.Ed.2d 393, 405 (1977) (White, J., concurring); Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944, 961 (1976). This necessary reliability is undermined unless it appears that the defendant received the competent assistance of an attorney acting as a diligent, conscientious advocate for his life. See United States v. DeCoster, 487 F.2d 1197 (D.C.Cir.1973); People v. Pope, 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859 (Cal.1979).” (Footnotes omitted and emphasis added.) 389 So.2d at 30.
In seeking a standard for effective assistance of counsel, the court rejected the “farce and mockery of justice” test. Even though one circuit and a very few of the states continue to adhere to this test, it has been severely criticized and the trend is unerringly away from it. These following standards are presently utilized by the courts in this country. The Seventh Circuit has referred to “assistance which meets a minimum standard of professional representation,” United States ex rel. Williams v. Twomey, 510 F.2d 634, 641 (7th Cir. 1975); the Fourth Circuit, to “representation within the range of competence demanded of attorneys in criminal cases,” Marzullo v. Maryland, 561 F.2d 540, 543 (4th Cir. 1977); the Fifth Circuit, to “counsel reasonably likely to render and rendering reasonably *194effective assistance,” (emphasis in original) MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir. 1960); and the Third Circuit, to “[t]he standard of normal competency,” Moore v. United States, 432 F.2d 730, 737 (3rd Cir. 1970). Like these formulations is that adopted by the District of Columbia Circuit, “reasonably competent assistance of an attorney acting as [a] * * * diligent conscientious advocate.” (Emphasis in original.) United States v. DeCoster, 487 F.2d 1197 (D.C.Cir.1973), reh. denied. In the. D.C. Circuit the DeCoster court went on to incorporate therein the duties and obligations imposed upon defense counsel by the ABA’s Standards for the Defense Function. 487 F.2d at 1203.
Until very recently the Wyoming Supreme Court had not settled upon a standard for ascertaining ineffective assistance of counsel. To be sure, in the decision-making process, we have quoted cases in which it was held that ineffective assistance of counsel was “such as to make a mockery, a sham or a farce of the trial.” This quote was utilized in Galbraith v. State, Wyo., 503 P.2d 1192 (1972), quoting Bottiglio v. United States, 431 F.2d 930 (1st Cir. 1970), and Rivera v. United States, 318 F.2d 606, 608 (9th Cir. 1963), and was referred to again in Ash v. State, Wyo., 555 P.2d 221 (1977). Even so, in Galbraith v. State, supra, 503 P.2d at 1196, we also said:
“ * * * As has been remarked, the assertion that ‘my lawyer was incompetent’ should be carefully scrutinized. The scrutiny of such an objection is properly based upon a background as suggested in United States v. Rubin, 5 Cir., 433 F.2d 442, 444, certiorari denied 401 U.S. 945, 91 S.Ct. 961, 28 L.Ed.2d 228, where it was said:
“ ‘Taking a hindsight view, many convicted defendants may condemn their counsel as ineffective. But the command of the constitution is for a battle, not a victory, as Judge Goldberg pointed out for us in Odom v. United States, 5 Cir., 1967, 377 F.2d 853, 859. The standard was articulated by Judge Wisdom in MacKenna v. Ellis, 5 Cir., 1960, 280 F.2d 592, 599: “We interpret the right to counsel as the right to effective counsel. We interpret counsel to mean not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.” We have never deviated from these principles. * * * ’ ” (Footnotes omitted and emphasis added.)
It can therefore be observed that we have also cited with approval the holding of courts wherein effective assistance of counsel is thought about as being “the right to effective counsel”, wherein “counsel,” within such a definition, is not “errorless,” or an attorney “judged ineffective by hindsight,”
“but counsel reasonably likely to render and rendering reasonably effective assistance.” (Emphasis added.)
In this court’s recent decision in Hoskovek v. State, Wyo., 629 P.2d 1366 (1981), we said:
“ * * * The standard which we have established to determine whether or not the assistance of counsel is effective is one of ‘reasonableness.’ Is the assistance rendered by counsel that which would reasonably be rendered by a reasonably competent attorney under the facts and circumstances of the case? If it is, it is effective. If it is not, it is ineffective. Galbraith v. State, Wyo., 503 P.2d 1192 (1972); Ash v. State, Wyo., 555 P.2d 221 (1977); Johnson v. State, Wyo., 562 P.2d 1294 (1977); Adger v. State, Wyo., 584 P.2d 1056 (1978). * * * ”
The only issue present on rehearing in Myles, supra, was the ineffective assistance of counsel’s representation during the penalty phase. John Wilson Reed, commenting on State v. Myles, supra, and writing in Death Penalty Reporter for January, 1981, comments as follows:
“ * * * The issue, and thus the standard that develops, is different when the focus is upon the penalty phase alone. In the guilt phase, it may indeed often be the case that the law and the facts are such that it may be said beyond a reasonable doubt that no matter what the fail*195ing of counsel they could not have affected the verdict.
“The overwhelming reality of certain cases may make a finding of guilt inevitable. That inevitability, however, is never the case at the penalty hearing. At that stage, there is no set of facts and no set of legal principles that in any given case requires a rational person to vote for the death penalty. Given the vast spectrum of individual opinions and feelings about the appropriateness of the death penalty, and given the basic humanity of every defendant no matter how heinous his crime, there is in every case a rational basis for a juror to vote for life imprisonment. Since, in Louisiana at least, a hung jury at the penalty stage automatically results in a sentence of life imprisonment,[9] it can never be said beyond a reasonable doubt that the performance of counsel did not affect the sentencing proceedings. Thus understood, the fact that the Louisiana Supreme Court’s formulation did not include the element of prejudice is not surprising. The nature of the sentencing proceeding is such that upon a finding of ineffectiveness of counsel, prejudice may, and indeed must, be assumed.
“The court in Myles applied its test strictly to the record before it. It set aside the death penalty essentially on a finding that, during the penalty phase, counsel had failed to advocate his client’s cause, his right to live, in any material way. The record revealed that at the penalty stage, counsel had waived an opening argument, had submitted no evidence whatsoever (and none had been submitted at the guilt phase), that he had made a closing argument, less than a page in length, that was at best ‘lackluster.’ 389 So.2d at 30. The court did not suggest precisely what counsel should have done during the sentencing phase, but it made clear that the sentencing phase was the key portion of the trial and in some way and to some degree counsel was obliged to use his adversarial and advocacy skills to present a case for the defendant’s life. Counsel’s failure in any way to do that rendered his assistance ineffective.
“ ‘Applying this standard [as set forth above], we conclude that the omissions by defendant’s counsel established that the assistance afforded at his sentencing hearing was constitutionally inadequate. The advocacy for Myles’ life was tepid and virtually non-existent. ******
“ ‘The practice of law is a partisan endeavor requiring those who engage in it to represent their clients vigorously even in the face of overwhelming adversity.
******
“‘However, when counsel’s acts and omissions reduce his role to one approaching that of a neutral observer, a defendant is denied the effective assistance of counsel.’ 389 So.2d at 30-31.
“The sentencing hearing is the key element of the capital trial; it is at that point that the jury determinations must be made with special reliability to meet the standards of the Eighth and Fourteenth Amendments. Under the adversary system, it is the role of counsel to use his skills to influence that determination. Under Myles, supra, the Louisiana Supreme Court has made it clear that the standard of effective representation during the sentencing hearing is one of unswerving, vigorous, advocacy and that, if that standard is not met, prejudice will be assumed and a death sentence will be summarily reversed.” (Bracketed material in original and footnotes omitted.)
In attempting to answer questions having to do with the constitutionality of § 6-4-102, W.S.1977,1 am left with a very uncomfortable and bothersome feeling in regard to the sentencing hearing conducted in this *196case. In an effort to track down this discomfiture, I have again looked to Furman v. Georgia, supra, 408 U.S. at 309-310, 92 S.Ct. at 2762, where the United States Supreme Court mandated that the death penalty could not be imposed under sentencing procedures which created a substantial risk that such imposition would be made in an arbitrary and capricious manner. The Fur-man court rejected a sentencing procedure which had resulted in the infliction of the death penalty being “so freakishly” and “so wantonly” determined that it violated the Eighth and Fourteenth Amendments. The proposition was again recognized in Gregg v. Georgia, supra, 428 U.S. at 188, 96 S.Ct. at 2932.
In what must be assumed was an attempt to comply with the Gregg and Furman opinions, the Wyoming legislature passed § 6-4-102, W.S.1977, providing for eight “limited” aggravating circumstances and a proviso that “[mjitigating circumstances shall be the following.” Seven such mitigating circumstances are provided. This same statutory scheme of aggravating and mitigating circumstances was held to be facially adequate as applied in Proffitt v. Florida, supra, with six of the justices concluding that the list of mitigating factors was not exclusive. See Lockett v. Ohio, supra.
The Florida and Wyoming statutes differ in one major respect which I regard as singularly significant, namely, in Florida the jury’s recommendation as to whether death shall be imposed is just that — a recommendation, while in Wyoming, although denominated a “recommendation,” the jury’s determination is binding on the judge. Section 6-4-102(f), W.S.1977. Unlike the judge in Florida who, as the final sentencing authority, must weigh and balance the aggravating and mitigating circumstances and may go outside of the record to determine whether other mitigating circumstances exist, the judge in Wyoming is left with no such discretion. Once the jury has delivered its “recommendation,” the judge is effectively denied any option of invoking Rule 33, W.R.Cr.P., to ascertain any factors in mitigation which may exist outside of the court’s record.10
Although the Supreme Court has implied that judicial sentencing is preferred because of the greater experience of the trial judge and because of the likelihood that greater consistency in sentencing may be achieved, Proffitt v. Florida, supra, 428 U.S. at 252, 96 S.Ct. at 2966, the Court has not explicitly rejected jury sentencing. In fact, the Court has continued to recognize that the jury’s participation in the sentencing process serves a valuable societal function, Witherspoon v. Illinois, 391 U.S. 510, 519, n.15, 88 S.Ct. 1770, 1775-76, n.15, 20 L.Ed.2d 776 (1968); and jury sentencing under a Georgia statute similar to that of Wyoming, making the jury’s recommendation binding, has been upheld by the United States Supreme Court. Gregg v. Georgia, supra.
*197The Wyoming jury is a sentencing jury, and as such provides a constitutionally permissible, though not constitutionally required, function. Proffitt v. Florida, supra, 428 U.S. at 253, 96 S.Ct. at 2967. As with the sentencing judge in Florida, the jury in Wyoming is the body with the authority to exercise the Rule 33, W.R.Cr.P., prerogatives; that is to say, the Wyoming sentencing jury may go outside of the record and outside of the statutory list of seven mitigating circumstances to view other factors in mitigation which may be presented to them. Hence, in a capital case in Wyoming, the sentencing hearing is tantamount to the presentence investigation which the court may otherwise order under Rule 33(c), W.R. Cr.P.,11 in noncapital cases.
In the present case, the jury was in fact instructed to invoke the Rule 33(c) prerogatives, i.e., they were instructed to consider “[a]ny other mitigating circumstanaces.” The sentencer here — the jury — was therefore not
“ * * * precluded from considering as a mitigating factor, any aspect of [the] defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. * * * ” (Footnote omitted and emphasis in original.) Lockett v. Ohio, supra, 438 U.S. at 604, 97 S.Ct. at 2964.
Yet, in this case, the jury was effectively deprived of the opportunity to fulfill that duty, which deprivation — in my judgment— resulted in a constitutionally deficient sentencing hearing.
Having analyzed the procedure provided in § 6-4-102, W.S.1977, in light of Proffitt, Gregg and Lockett, I am left with the conclusion that the sentencing hearing in this case is constitutionally deficient. It did not fail because of an unconstitutional statute, but because of the ineffective assistance of counsel. Effective representation is constitutionally guaranteed the appellant at this stage of his trial.12
In particular I am convinced that appellant was denied his Sixth Amendment right to effective assistance of counsel when it is remembered that he stood before the court threatened with the most severe penalty known to mankind — the death penalty. Notwithstanding this grim and real possibility — perhaps even probability — Hopkinson found himself represented by an attorney who chose to speak but “[t]wo minutes” in his behalf.13
Ineffective assistance of counsel is not easy to prove; in fact, this court has held that,
“There is a presumption that counsel was competent and performed his duty, [citations]; and because of this presumption a heavy burden rests on the one asserting ineffective assistance of counsel, [citations]. * * * ” Johnson v. State, Wyo., 562 P.2d 1294, 1300 (1977).
Any allegation of incompetency of counsel must be carefully scrutinized. Galbraith v. State, supra, 503 P.2d at 1196.
Although usually deciding ineffective assistance of counsel on a case-by-case basis, see, e.g., Adger v. State, Wyo., 584 P.2d 1056 (1978), this court has consistently recognized that there are but three areas in which a defense attorney is “governed by *198the wishes and commands of his client”: “Should he plead guilty? Should he waive a jury trial? Should he take the stand and testify?” Gallup v. State, Wyo., 559 P.2d 1024, 1026 (1977); see also, Johnson v. State, supra, 562 P.2d at 1300. In all other areas the attorney is considered “the master of the proceedings.” Gallup v. State, supra, 559 P.2d at 1027. In the ease at bar, the guilt phase of the trial had been completed and the determination as to how to proceed at sentencing fell solely to the discretion of the appellant’s attorney.
*197“Two minutes. I’m serious. I have been in this position probably more than anybody in this room multiplied by 5, okay, and there ain’t nothing you can say. They will do what they want and there is no point.”
*198Concerning the evidentiary portion of the sentencing hearing, counsel for the State and for the defendant stipulated that all evidence entered at the first stage of the trial, in addition to some rather general statements about prior convictions of the appellant, would constitute the evidence on sentencing. The court then moved to the Rule 33(c) portion of the sentencing hearing, or that part of the hearing where statements and evidence in mitigation of punishment could be made and introduced.
The appellant first made an ineffective, ill-advised and uncounseled statement in his own behalf. The appellant’s attorney then took it upon himself to address the jury and said he would not “bother to waste [the] time” of the jury, saying to them that he believed they had already determined what the penalty would be and that no amount of his talking would convince them otherwise.14
And what did appellant’s counsel say to the jury about mitigating circumstances? He first referred to the statutory mitigating circumstance which contemplates minor participation in the crime by the accused,15 and then told them that Mark Hopkinson had not “physically placed a bomb; not physically lighted a fuse; not physically tortured or not physically shot anyone.” Of course, he had not been charged with doing these deeds — only that he procured that they be done. Looking outside of the record, appellant’s counsel then suggested to the jury that “any other mitigating circumstance means you just plain don’t think the death penalty fits.”
Counsel said he would not attempt to influence the jury about the issue of capital punishment, and suggested that the jury had already made up their minds about that. He said that Mark Hopkinson did not want to die, but he did not think anything he said would affect the jury with respect to their attitude about whether Hopkinson should die or not. He talked about the definition of and penalty for first-degree murder, but did not draw any relevant conclusions- — that I can see, at least. There was a Biblical challenge thrown to the jury about the quotation “ ‘Thou shalt not kill,’ ” and counsel quoted another phrase, “ ‘Father, forgive them for they know not what they do.’ ” But it was not connected up with anything.
The lawyer said that his comments would be brief because he did not expect to change the jury’s minds. Mr. Hopkinson’s attorney then wound up an argument which occupies only two and one-half double-spaced pages of the record by saying Hop-kinson did not want to die and that his counsel did not want him to either.
I cannot imagine a more inept plea for a man’s life! Although counsel professed that he was not giving up, the record reflects that this is precisely what occurred. Appellant’s counsel exhibited a total disregard for the plight of his client by failing to offer even the most meager of presentations in mitigation of his client’s actions. Could anything in our judicial system be more of a farce? Did not appellant’s counsel reduce the sentencing hearing itself to a “mockery of justice”? The answers to these questions, in light of the above facts, are painfully obvious.
*199Counsel not only denied his client his proper day in court, but he also denied the jury their opportunity to view the mitigating and aggravating circumstances on a fully informed basis. As such, I can only conclude that at the sentencing stage of his trial the appellant was not accorded constitutionally mandated effective assistance of counsel pursuant to the Sixth and Fourteenth Amendments.
“CRUEL OR UNUSUAL PUNISHMENT” IN WYOMING16
The Green case should be remanded for resentencing to life imprisonment because the penalty of death is unconstitutional under the Constitution of the state of Wyoming.
In the debates upon the Murder Bill of 1965 (which abolished the death penalty in England), Lord Chancellor Gardiner declared:
“When we abolished the punishment for treason that you should be hanged, and then cut down while still alive, and then disembowelled while still alive, and then quartered, we did not abolish that punishment because we sympathized with traitors, but because we took the view that it was a punishment no longer consistent with our self-respect.” 17
For my part, the death penalty itself is constitutionally cruel and/or unusual and thus violates the self-respect of humanity in this so-called enlightened age. Because it offends contemporary standards of human decency, this barbaric sanction is disappearing from the lists of acceptable criminal punishments among the various civilized cultures of the world. I find great discomfiture in the thought that the social order of which I am a member can find no better way to address its atrocities than to compound them by committing more of the same. I question the level of moral sophistication of a society that is forced to the admission that its only response to murder is murder. It frightens me to hear it argued that, since the vilest and most depraved criminal has killed four people, the most civilized and humane response that the state of Wyoming can think of, in discharging its punishment obligations to society, is to kill the killer while pretending that the act of state murder is not offensive to her people’s sense of decency.
I wonder how many capital victims would, if they could, tell us that the murders perpetrated upon them were not cruel — were not unusual — and therefore (within the ambit of these constitutional proscriptions) society could, so far as they were concerned, proceed to murder murderers.
In Gregg v. Georgia, supra, Mr. Justice Brennan dissenting from a holding that the death penalty — in certain circumstances — is constitutional, said:
“The fatal constitutional infirmity in the punishment of death is that it treats ‘members of the human race as nonhu-mans, as objects to be toyed with and discarded. [It is] thus inconsistent with the fundamental premise of the Clause that even the vilest criminal remains a human being possessed of common human dignity.’ * * * ” (Bracketed ma-
“ * * * No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” *200terial in original.) 428 U.S. at 230, 96 S.Ct. at 2972.
The Justice went on to quote from the plurality opinion authored by Chief Justice Warren in Trap v. Dulles, 356 U.S. 86, 99, 78 S.Ct. 590, 597, 2 L.Ed.2d 659 (1958), where the Chief Justice said:
“ * * * As such it is a penalty that ‘subjects the individual to a fate forbidden by the principle of civilized treatment guaranteed by the [Clause].’ * * * ” (Bracketed material in original.) 428 U.S. at 230, 96 S.Ct. at 2972.
In rejecting a mandatory death statute in Woodson v. North Carolina, supra, 428 U.S. at 304, 96 S.Ct. at 2991, the plurality said that a statute such as that with which the Court was concerned
“ * * * treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death.”
In reiterating the thought from Trop v. Dulles, 356 U.S. at 100, 78 S.Ct. at 597, that a civilized society demands underlying respect for humanity and individual consideration of the personhood of the defendant along with the circumstances of the offense, the Woodson Court said:
“This conclusion rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. * * ” 428 U.S. at 305, 96 S.Ct. at 2991.
Within the framework of these humanitarian pronouncements, I would hold the electrocution of Mark Hopkinson to be cruel or unusual punishment under the Constitution of the state of Wyoming.18 That is, I would hold that death is too cruel by constitutional standards (see District Attorney for Suffolk District v. Watson, - Mass. -, 411 N.E.2d 1274 (1980)) and it is unusual by constitutional standards. See People v. Anderson, 6 Cal.3d 628, 100 Cal.Rptr. 152, 493 P.2d 880 (1972).
An Historical Background
It is necessary to briefly sketch the legal history of capital punishment in this country in order to sort out the precepts which guide me as I seek to justify my position on this issue.
The Eighth Amendment to the United States Constitution was adopted to insure against barbarous punishment and torture,19 and for two centuries before Furman v. Georgia, supra, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, it was assumed that the death penalty did not violate this amendment. In Wilkerson v. Utah, 99 U.S. 130, 25 L.Ed. 345 (1878),20 where the defendant was ordered to be “ ‘publicly shot until * * * dead,’ ” Mr. Justice Clifford, writing for the Court, said:
“Difficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted; but it is safe to affirm that punishments of torture, * * * and all others in the same line of unnecessary cruelty, are forbidden by that amendment to the Constitution. [Citations.]” 99 U.S. at 135-136.
While finding that shooting was not cruel and unusual, the opinion nevertheless speaks to the proposition that unnecessary cruelty, in whatever form, is no more permissible than torture.
In In re Kemmler, 136 U.S. 436, 447, 10 S.Ct. 930, 933, 34 L.Ed. 519 (1890), where *201the power of the state to take a life by electrocution was challenged, the Court said:
“ * * * Punishments are cruel where they involve torture or lingering death; but the punishment of death is not cruel, within the meaning of that word as used in the Constitution. * * * ”
In Kemmler, the Court found electrocution “unusual” but not “cruel”.21 The Kemmler Court holds that a punishment is not necessarily unconstitutional simply because it is unusal so long as the legislature has a humane purpose in selecting it. (See Furman v. Georgia, supra, 408 U.S. at 324, 92 S.Ct. at 2769-2770, Marshall, J., concurring.) For perspective purposes, it is well to recall just here that the relevant clause in the Wyoming Constitution is in the disjunctive. “[CJruel or unusual” — not “cruel and unusual.” (Emphasis added.)
Ground was broken for Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910) when, in O’Neil v. Vermont, 144 U.S. 323, 12 S.Ct. 693, 36 L.Ed. 450 (1892), O’Neil was found guilty of 307 offenses of illegal sale of intoxicants, sentenced to pay an aggregate fine of $6,140.00 and, if not paid,
“ * * * he should be confined at hard labor, in the house of correction at Rut-land, for the term of 19,914 days.” Id., 144 U.S. at 330, 12 S.Ct. at 696.
The Court declined to consider whether this sentence was cruel and unusual because it was not raised and because the Eighth Amendment had then not been held to apply to the states, but Justice Field, dissenting, said of the Eighth Amendment:
“ * * * The inhibition is directed, not only against punishments of the character mentioned, but against all punishments which by their excessive length or severity are greatly disproportioned to the offences charged. The whole inhibition is against that which is excessive either in the bail required, or fine imposed, or punishment inflicted. * * * ” Id., 144 U.S. at 339-340, 12 S.Ct. at 699-700.
The Justice concluded:
“ * * * It is against the excessive severity of the punishment, as applied to the offences for which it is inflicted, that the inhibition is directed.” Id., 144 U.S. at 364, 12 S.Ct. at 709.
In delivering the opinion of the Court in Weems v. United States, supra, 217 U.S. at 364, 30 S.Ct. at 548, Mr. Justice McKenna, for the Court, was concerned that a defendant who falsified a public document would receive a sentence which condemned him to 15 years of hard and painful labor — wear chains at the ankles and the wrists and suffer “civil interdiction” which would deny him the rights of
“ < * * * parental authority, guardianship of person or property, participation in the family counsel, marital authority, the administration of property, and the right to dispose of his own property by acts inter vivos. * * * ’ ”
Further, the prisoner was condemned to “surveillance” during his entire lifetime.
In holding the sentence to violate the Eighth Amendment, the Court pitted the penalty against the evil to reach the conclusion that the same result could be attained by the imposition of a lesser punishment.
In utilizing the Eighth Amendment in this way, the Weems Court recognized that not only the mode of inflicting punishment but the extent of the severity of the punishment is subject to Eighth Amendment examination. The Court said:
“Legislation, both statutory and constitutional, is enacted, it is true, from an experience of evils, but its general language should not, therefore, be necessarily confined to the form that evil had theretofore taken. Time works changes, brings into existence new conditions and purposes. Therefore a principle to be vital must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions. They are not ephemeral enactments, designed to *202meet passing occasions. They are, to use the words of Chief Justice Marshall, ‘designed to approach immortality as nearly as human institutions can approach it.’ * * * In the application of a constitution, therefore, our contemplation cannot be only of what has been but of what may be. * * *” 217 U.S. at 373, 30 S.Ct. at 551.
Justice Arthur J. Goldberg, late of the United States Supreme Court, in his address delivered for the Arizona Law Review Symposium at the University of Arizona College of Law February 19, 1973, said of Weems:
“ * * * In light of its antecedents, it may be read as recognizing the following tests for determining the constitutionality of state imposed punishment:
“(1) Giving full weight to reasonable legislative findings, a punishment is cruel and unusual if a less severe one can as effectively achieve the permissible ends of punishment such as deterrence, isolation, rehabilitation or whatever the contemporary society considers the permissible objective of punishment.
“(2) Regardless of its effectiveness in achieving the permissible end of punishment, a punishment is cruel and unusual if it offends the contemporary sense of decency.
“(3) Regardless of its effectiveness in achieving the permissible ends of punishment, a punishment is cruel and unusual if the evil it produces is disproportionately higher than the harm it seeks to prevent.” (Footnotes omitted.) 15 Ariz.L. Rev. 355, 359-360.
In Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422 (1947), the Court held that the Eighth Amendment is applicable to the states and, in a fact situation which saw the electrician’s power fail and the state undertake to electrocute the defendant the second time, said that
“ * * * [t]he traditional humanity of modern Anglo-American law forbids the infliction of unnecessary pain * * 329 U.S. at 463, 67 S.Ct. at 376.
The proportionality concept was described in Trop v. Dulles, supra, 356 U.S. at 100-101, 78 S.Ct. at 597-598. Emphasizing the flexibility inherent in the phrase “cruel and unusual”, Chief Justice Warren, in a plurality opinion, wrote that denaturalization, as a sanction, was indeed cruel and unusual. He said:
“ * * * It is a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development. * * ” Troop v. Dulles, supra, 356 U.S. at 101, 78 S.Ct. at 598.
In so holding, the Chief Justice announced the doctrine which asserts that the underpinning of the Eighth Amendment is the dignity of the human being. He said that this foundational concept finds its meaning in the
“ * * * evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, supra, 356 U.S. at 101, 78 S.Ct. at 598,
thus proposing that:
“a form of punishment thought to be permissible in an early day, is not necessarily acceptable to modern society.”22
This is to say, we must look to the public attitude toward the nature of sanctions for a given criminal offense, but
“ * * * our cases also make clear that public perceptions of standards of decency * * * are not conclusive. A penalty also must accord with ‘the dignity of man,’ which is the ‘basic concept underlying the Eighth Amendment.’ Trop v. Dulles, supra, at 100, 78 S.Ct. at 597-598 (plurality opinion). * * * ” Gregg v. Georgia, supra, 428 U.S. at 173, 96 S.Ct. at 2925.
While in Trop a majority of the Court could not agree that loss of citizenship was a cruel and unusual punishment, four years later a majority did agree in Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 *203L.Ed.2d 758 (1962) that a sentence of 90 days imprisonment for violation of a statute making it a crime to be addicted to the use of narcotics was cruel and unusual. Writing for the Court, Mr. Justice Stewart allowed — as did the Court in Weems, supra, and the Chief Justice in Trop, supra — that the clause was not static but one that must continually be re-examined “in the light of contemporary human knowledge.”
In summary, these opinions say that the meaning of the term “cruel and unusual” must be drawn from contemporary standards, i. e., from
“ * * * the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, supra, 356 U.S. at 101 [78 S.Ct. at 598]. See also Weems v. United States, supra, 217 U.S. at 373, 30 S.Ct. at 551; Robinson v. California, supra, 370 U.S. at 666, 82 S.Ct. at 1420.
While refusing to come to grips with the per se death-penalty question in Furman v. Georgia, supra, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, the Court did hold in a per curiam that the imposition of the death penalty under statutes permitting the sentencing judge or the jury uncontrolled and unbridled discretion violated the Eighth and Fourteenth Amendments to the Federal Constitution.
In Gregg v. Georgia, supra, while holding the death penalty not to be unconstitutional per se, the Supreme Court said that, when a type of punishment in the abstract (the death penalty) is under consideration, the Eighth Amendment will not permit it to be either painful or excessive. In finality, the Court said:
“ * * * [W]e must consider whether the punishment of death is disproporitionate in relation to the crime for which it is imposed. There is no question that death as a punishment is unique in its severity and irrevocability. Furman v. Georgia, 408 U.S., at 286-291 [92 S.Ct. at 2750-2753] (BRENNAN, J., concurring); id., at 306 (STEWART, J., concurring). When a defendant’s life is at stake, the Court has been particularly sensitive to insure that every safeguard is observed. Powell v. Alabama, 287 U.S. 45, 71 [53 S.Ct. 55, 65, 77 L.Ed. 158] (1932); Reid v. Covert, 354 U.S. 1, 77 [77 S.Ct. 1222, 1262, 1 L.Ed.2d 1148] (1957) (HARLAN, J., concurring in result). But we are concerned here only with the imposition of capital punishment for the crime of murder, and when a life has been taken deliberately by the offender, we cannot say that the punishment is invariably disproportionate to the crime. It is an extreme sanction, suitable to the most extreme of crimes.” (Footnote omitted.) Id., 428 U.S. at 187, 96 S.Ct. at 2931-2932.
The Court then held:
“ * * * that the death penalty is not a form of punishment that may never be imposed, regardless of the circumstances of the offense, regardless of the character of the offender, and regardless of the procedure followed in reaching the decision to impose it.” 428 U.S. at 187, 96 S.Ct. at 2932.
In reaching the conclusion that the death penalty was not per se violative of the Eighth Amendment, the Supreme Court said, in Gregg:
“The death penalty is said to serve two principal social purposes: retribution and deterrence of capital crimes by prospective offenders.
“In part, capital punishment is an expression of society’s moral outrage at particularly offensive conduct. This function may be unappealing to many, but it is essential in an ordered society that asks its citizens to rely on legal processes rather than self-help to vindicate their wrongs.
“ ‘The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they “deserve,” then there are sown the seeds of anarchy — of self-help, vigilante justice, and lynch law.’ Furman v. Geor*204gia, supra, at 308, 92 S.Ct. at 2761 (STEWART, J., concurring).
“ ‘Retribution is no longer the dominant objective of the criminal law,’ Williams v. New York, 337 U.S. 241, 248 [69 S.Ct. 1079, 1083-84, 93 L.Ed. 1337] (1949), but neither is it a forbidden objective nor one inconsistent with our respect for the dignity of men.” (Footnotes omitted.) Id., 428 U.S. at 183, 96 S.Ct. at 2930.
Therefore, Justice Stewart, for the plurality, finds the Eighth Amendment to justify the death penalty because two social purposes are served — first, retribution and, second, deterrence.
The Wyoming Constitution
In addressing the constitutionality of a Wyoming death-penalty statute, this court has said that it is indeed necessary that the applicable legislative enactments in fact contain
“ * * * standards to guide and control the exercise of discretion by the sentencing authority in its determination of the propriety of the application of the death sentence, or the alternative of a term of life imprisonment * * * Kennedy v. State, Wyo., 559 P.2d 1014, 1016 (1977).
In so holding, we observed that this lesson was learned from Gregg, supra; Roberts v. Louisiana, supra, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974; Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Proffitt v. Florida, supra, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913.
I have previously observed that our Constitution, Art. 1, § 15, provides:
“The penal code shall be framed on the humane principles of reformation and prevention ” (emphasis added),
and the state may not inflict cruel or unusual punishment under the proscription of Art. 1, § 14. I then assume “reformation and prevention” to be the standard for all criminal legislative enactment in Wyoming.
In an effort to understand what the framers of Wyoming’s Constitution had in mind when they said that the standards of the penal code must be founded in “the humane principles of reformation and prevention,” as that provision is read with the language of Art. 1, § 14 which prohibits “cruel or unusual” punishment, it is well for us to look to Wyoming history in an effort to obtain a feeling for the intent of the legislature.
The Wyoming Constitution, unlike the Eighth Amendment to the Federal Constitution, phrases the prohibition in the alternative. Use of the disjunctive in the Wyoming phrasing is important since it says that a punishment may be void under the state Constitution if it is either “cruel” or “unusual.”
This usage was intentional. The Wyoming Constitutional Convention of 1889 had access to the constitutions of all the states then admitted to the Union as well as those of the five unadmitted territories.23
“The debates include references to the constitutions of Colorado, Kansas, Illinois, Missouri, Nebraska, Pennsylvania, Texas, and Washington, but the greatest obligation of the Wyoming Constitution’s makers appears to have been the constitutions of North Dakota, Montana, and Idaho.” 24
North Dakota and Kansas had disjunctive forms of the cruel/unusual-punishment ban in their Constitutions, while Idaho, Montana, Missouri, and Nebraska used a conjunctive form.25 Although the debates do not unequivocally demonstrate the source of Art. I, § 14, the text of the prohibition was the product of debate, and a motion to delete the word “unusual” was rejected26:
*205“MR. COFFEEN: I wish to call attention to the last line of Sec. 14. ‘Nor shall any cruel or unusual punishment be inflicted.’ To some people hanging might be considered an unusual form of punishment. This might prevent any such punishment for crime. I therefore move to strike it out.
“MR. BAXTER: I think that the proper construction of that is that unusual means something unheard of, some punishment that the law does not contemplate. If the legislature should provide for punishment by electricity or something else, I have no idea there would be any objection to it under this.
“MR. CHAIRMAN: The question is on the motion to strike out ‘unusual’ in the third line of Sec. 14. Are you ready for the question? All in favor of the motion will say aye; contrary no. The noes have it; the motion is lost.” 27
Competent authority verifies the proposition that the use of the word “or” means that a punishment may be unconstitutional under Wyoming law if it is either “cruel” or “unusual.”28
In California, where the disjunctive “or” is used instead of the conjunctive “and,” the impact of this fact was discussed in People v. Anderson, supra, 493 P.2d at 885-886, and the court said:
“The fact that the majority of constitutional models to which the delegates had access prohibited cruel or unusual punishment, and that many of these models reflected a concern on the part of their drafters not only that cruel punishments be prohibited, but that disproportionate and unusual punishments also be independently proscribed, persuades us that the delegates modified the California provision before adoption to substitute the disjunctive ‘or’ for the conjunctive ‘and’ in order to establish their intent that both cruel punishments and unusual punishments be outlawed in this state. In reaching this conclusion we are mindful also of the well established rules governing judicial construction of constitutional provisions. We may not presume, as respondent would have us do, that the framers of the California Constitution chose the disjunctive form ‘haphazardly,’ nor may we assume that they intended that it be accorded any but its ordinary meaning. (Los Angeles Met. Transit Authority v. Public Util. Com. (1963) 59 Cal.2d 863, 869, 31 Cal.Rptr. 463, 382 P.2d 583; Lockhart v. Wolden (1941) 17 Cal.2d 628, 631, 111 P.2d 319.)” (Footnotes omitted.)
The intent of the framers of the Wyoming constitutional provision pertaining to punishment was clearly stated, and it left no room for court interpretation:
“ * * * The primary principle underlying an interpretation of constitutions or statutes is that the intent is the vital part, and the essence of the law. * * * Such intent, however, is that which is embodied and expressed in the statute or instrument under consideration. * * If the language employed is plain and unambiguous, there is no room left for construction. It must be presumed that in case of a constitution the people have intended whatever has been plainly expressed. Courts are not at liberty to depart from that meaning which is plainly declared. ******* We are not at liberty to presume that the framers of the constitution, or the people who adopted it, did not understand the force of *206language.’ * * * ” Rasmussen v. Baker, 7 Wyo. 117, 50 P. 819, 821 (1897).
Quoting State v. Stern, Wyo., 526 P.2d 344, 346 (1974), we said in Kennedy v. State, supra, 559 P.2d at 1017.
“ * * * When the constitutionality of a statute is in question ‘the plain, ordinary, and usual meaning of words used in a statute controls in the absence of clear statutory provisions to the contrary’ [citation].”
This court has never decided the question of whether the death penalty is unconstitutional under Art. 1, § 14, although dicta in certain of the court’s opinions, see, e. g., Jenkins v. State, 22 Wyo. 34, 135 P. 749 (1913), and Kennedy v. State, supra, appears to assume that this punishment is constitutionally permissible.29 But the court has emphasized the evolutionary nature of the Clause, declaring that it prevents the imposition of “obsolete, painful, and degrading punishments,” (emphasis added) In re MacDonald, 4 Wyo. 150, 33 P. 18, 21 (1893); cf. Trop v. Dulles, supra. See also Fisher v. McDaniel, 9 Wyo. 457, 64 P. 1056, 1061 (1901); Owens v. State, Wyo., 398 P.2d 556 (1965); Cavanagh v. State, Wyo., 505 P.2d 311 (1973).
Is Death Cruel?
In People v. Anderson, supra, the court considered a constitutional challenge to the death penalty under Art. I, § 6 of the California Constitution, the language of which is for all relevant purposes the same as Art. 1, § 14 of the Wyoming Constitution, and which provides:
“ * * * Excessive bail shall not be required, nor excessive fines imposed, nor shall cruel or unusual punishment be inflicted.”
In emphasizing that the clause was not “static” and, in the process of interpreting its contemporary application, the court remarked that it was not bound by “[j]udg-ments of the nineteenth century as to what constitutes cruelty, * * * ” 493 P.2d at 893.
The court said:
“Were the standards of another age the constitutional measure of ‘cruelty’ today, whipping, branding, pillorying, severing or nailing ears, and boring of the tongue, all of which were once practiced as forms of punishment in this country, might escape constitutional proscription, but none today would argue that they are not ‘cruel’ punishments. Thus, although respondent argues that the standard of cruelty today is not different from what it was when article I, section 6, was adopted, our responsibility demands that we must construe that provision in accordance with contemporary standards. * * * ” 493 P.2d at 893.
Wyoming no longer permits vigilante justice, flogging or public hanging. These punishments have, since territorial days, come to offend our evolving and contemporary standards of decency which mark the progress of Wyoming’s modern society. Assuming, then, that we have, in this social structure, traveled far enough so that these kinds of punishment offend us, i.e., that they are “no longer consistent with our self-respect,” are we not now ready to say that death itself is a punishment which offends and insults our collective person-hood? In our Constitution, the cruel-or-unusual language was intended to include not only those punishments with which the framers were familiar, but those forms of punishment- which, at any given time in the future, were no longer consistent with con*207temporary standards of decency and the self-respect of society.
I realize that at the time of its adoption, Art. 1, § 14 of the Wyoming Constitution was not intended to prohibit the penalty of death. However, like the Eighth Amendment, Art. 1, § 14
“ * * * must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, supra, 356 U.S. at 101, 78 S.Ct. at 598.
And, as I have previously quoted the Supreme Court from Weems, supra, a constitutional provision
“ * * * is enacted, it is true, from an experience of evils, but its general language should not, therefore, be necessarily confined to the form that evil had theretofore taken. Time works changes, brings into existence new conditions and purposes. Therefore a principle to be vital must be capable of wider application than the mischief which gave it birth. * * * ” 217 U.S. at 373, 30 S.Ct. at 551.
The California Supreme Court expressed the following thought in People v. Anderson, supra, which is reiterated in District Attorney for Suffolk District v. Watson, supra, when it was said:
“ * * * Clearly, ‘[t]he framers of our Constitution, like those who drafted the Bill of Rights, anticipated that interpretation of the cruel or unusual punishments clause would not be static but that the clause would be applied consistently with the standards of the age in which the questioned punishment was sought to be inflicted.’ * * * ” 411 N.E.2d at 1281.
Within the framework of these observations, the court, in District Attorney for Suffolk District v. Watson, supra, concluded:
“ * * * Therefore, if the death penalty is indeed unacceptable under contemporary moral standards, it is tantamount to those punishments barred since the adoption of art. 26 [the Massachusetts cruel and unusual punishment clause], and it is our responsibility to declare it invalid.” 411 N.E.2d at 1281.
If our Art. 1, § 14 is not static, then the judgments of those who sought to eradicate known evils when the clause was adopted cannot bind this court. Were the standards of other years to be regarded as the constitutional measure of cruelty today, then the public hangings and floggings of vigilante days would be acceptable. But all would agree that such punishments are indeed cruel according to today’s standards.
The argument is heard that the state’s punishment by death does not, in fact, affront contemporary standards of decency, and statistics are cited to the effect that most states have death-penalty statutes, and public polls indicate public opinion to sanction this form of punishment.
I concede that there is no unanimity of opinion either favoring or opposing the death penalty. But while public opinion is a proper consideration in deciding whether the penalty offends contemporary standards of decency, it is not the only factor to be considered. Justice Brennan, concurring in Furman, supra, quoted from Goldberg and Dershowitz, Declaring the Death Penalty Unconstitutional, 83 Harv.L.Rev. 1773, 1782 (1970), as follows:
“ * * * If the judicial conclusion that a punishment is ‘cruel and unusual’ ‘depended] upon virtually unanimous condemnation of the penalty at issue,’ then, ‘[l]ike no other constitutional provision, [the Clause’s] only function would be to legitimize advances already made by the other departments and opinions already the conventional wisdom.’ We know that the framers did not envision ‘so narrow a role for this basic guaranty of human rights.’ Goldberg & Dershowitz, Declaring the Death Penalty Unconstitutional, 83 Harv.L.Rev. 1773, 1782 (1970). * * *” 408 U.S. at 268, 92 S.Ct. at 2741.
It is my judgment that what we actually do is more telling than our representation *208to the pollsters as to what we would do if we had the chance. Even though 143 defendants have been found guilty of first-degree murder since 1912, Wyoming has executed but 14 male prisoners, of which nine were hanged and five were executed by gas. No women have been executed. Of those executed, six were other than of Caucasian origin. The Wyoming justice system has executed only two persons in the last 37 years30.
This says to me that those responsible for the criminal-justice system have, themselves, generally found punishment by death less and less acceptable. Until now we have not had a death by execution in this state since December 10, 1965 — almost 17 years ago.
I would submit that the infrequency and the decline in the usage of death as a penalty in Wyoming comes about out of recognition of the fact that state-inflicted death is cruelty which is dehumanizing for not only the convicted, the executioner, the executing authority, i.e., the courts, the governors, and the legislatures, but, perhaps most importantly, it is shattering to the self-respect of Wyoming’s people as a whole.
The universally declining usage of death as a penalty is well exemplified by these following extracts and tables from People v. Anderson, supra, 493 P.2d at 898-899. While the tables are not up to date, they show vividly that the peoples of the world are refusing to longer sanction state murder. The opinion in People v. Anderson says:
“Not only have nine states, Puerto Rico and the Virgin Islands totally abolished capital punishment, but New Mexico, New York, North Dakota, Rhode Island and Vermont have limited its application to exceptional circumstances. Among those American jurisdictions which permit it at all, 14 have not conducted an execution since 1960, 19 have had none since 1961, 24 have had none since 1962, 30 have had none since 1963, and 35 have had none since 1964. In 1967 California and Colorado each executed one person. Prior to 1967 California had not had an execution since 1963 when one person was executed. The increasingly unusual nature of capital punishment in the United States is readily apparent in the following chart:
“Total Number of Executions in the United States
1930 - 155 1963 - 21
1935 - 199 1964 - 15
1940 - 124 1965 - 7
1945 - 117 1966 - 1
1950 - 82 1967 - 2
1955 - 76 1968 - 0
1960 - 56 1969 - 0
1961 - 42 1970 - 0
1962 - 47 1971 - 0
“The observation of the National Crime Commission that the infrequency of its application is the most salient characteristic of capital punishment in the United States is echoed in the report of the Secretary General of the United Nations on the world-wide status of capital punishment. ‘There is still a clear trend toward total abolition. Most countries are gradually restricting the number of offences for which the death penalty can be applied and a few have totally abolished capital offences even in wartime. Those countries retaining the death penalty report that in practice it is only exceptionally applied and frequently the persons condemned are later pardoned by executive authority. * * *’ (United Nations, Economic and Social Council, Note by the Secretary General, Capital Punishment (E/4947) (February 23, 1971) p. 3.) Defendant has prepared the following table demonstrating the extent of de jure and de facto abolition of capital punishment in foreign jurisdictions:
*209“Worldwide Abolition
Argentina 1922
Australia (Federal) 1945
New South Wales 1955
Queensland 1922
Tasmania 1968
Austria 1968
Belgium 1863
Bolivia 1961
Brazil 1946
Canada 1967
Columbia 1910
Costa Rica 1880
Denmark 1930
Dominican Republic 1924 Ecuador 1897
Finland 1949
Germany, West 1949
Greenland 1954
Honduras 1957
Iceland 1940
India
Travencore 1944
Israel 1954
Italy 1944
Liechtenstein 1798
Luxembourg 1821
Mexico (Federal) 1931 29 of 32
states 1931-1970
Monaco 1962
Mozambique 1867
Nepal 1950
Netherlands 1886
Antilles 1957
New Zealand 1961
Nicaragua 1892
Norway 1905
Panama 1915
Portugal 1867
San Marino 1848
Surinam 1927
Sweden 1921
Switzerland 1942
United Kingdom Great Britain 1965
No. Ireland 1966
Uruguay 1907
Vatican City St. 1969
Venezuela 1863
“No longer can it be said that capital punishment is not ‘cruel per se, for the whole current of law for centuries justifies its infliction.’ (In re Finley, supra, 1 Cal.App. 198, 202, 81 P. 1041, 1043 [(1905)].) Although world-wide acceptance of capital punishment at the turn of the century may then have warranted resolving doubts as to its cruelty in favor of its constitutionality, the current has now reversed. It is now, literally, an unusual punishment among civilized nations.” (Footnotes omitted.) 493 P.2d at 898-899.
Death is cruel in fact and cruel in law— and — it is cruel in Wyoming.
The Loss of Rights as Constituting Cruelty
The death penalty destroys the rights of the person condemned. It was said in Commonwealth v. O’Neal, 369 Mass. 342, 339 N.E.2d 676, 678 (1975), that “the right to live is the natural right of every man,” (quoting from Camus, Reflections on the Guillotine in Resistance, Rebellion and Death 131, 221 (1969)), encompassing as it does “the right to have rights.” Trop v. Dulles, supra, 356 U.S. at 102, 78 S.Ct. at 599. When the state kills a human being this involves a denial of the humanity of the state’s victim. Those who go to prison do not lose the right to have rights — such a prisoner retains
“ * * * the constitutional rights to the free exercise of religion, to be free of cruel and unusual punishments and to treatment as a ‘person’ for purposes of due process of law and the equal protection of the laws. * * *” Furman v. Georgia, supra, 408 U.S. at 290, 92 S.Ct. at 2752. Brennan, J., concurring.
Speaking of the loss of rights as coming within the purview of the Eighth Amendment, the Supreme Court found, as I have previously said, expatriation to be cruel punishment in Trop v. Dulles, supra. Justice Brennan, in a separate opinion necessary for a majority, commented:
“ * * * The uncertainty, and consequent psychological hurt, which must accompany one who becomes an outcast in his own land must be reckoned a substantial factor in the ultimate judgment.” 356 U.S. at 111, 78 S.Ct. at 603.
The Court went on to say that the penalty of expatriation
« * * * is a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development. * * * His very existence is at the sufferance of the country in which he happens to find himself. * * *” 356 U.S. at 101, 78 S.Ct. at 598.
Psychological Fear as Constitutional Cruelty
“Ay, but to die, and go we know not where;
To lie in cold obstruction and to rot;
This sensible warm motion to become
A kneaded clod; and the delighted spirit
To bathe in fiery floods, or to reside
In thrilling region of thick-ribbed ice;
To be imprison’d in the viewless winds,
And blown with restless violence round about
The pendent world. * * * ” W. Shakespeare, Measure for Measure, Act III, Scene I.
The United States Supreme Court in Weems v. United States, supra, 217 U.S. at 372, 30 S.Ct. at 551 said that
*210“ * * * it must have come to [the framers of the Eighth Amendment] that there could be exercises of cruelty by laws other than those which inflicted bodily pain or mutilation. * * *”
Therefore, the cruelty of capital punishment is expressed — not alone in the loss of rights — or the pain of execution — but also in the dehumanizing effects of long imprisonment pending execution during which the prisoner’s rights are being exhausted. It is said in People v. Anderson, supra, that
“ * * * [p]enologists and medical experts agree that the process of carrying out a verdict of death is often so degrading and brutalizing to the human spirit as to constitute psychological torture. * * *” 493 P.2d at 894.
Surely the fear of death by gas is as great as the fear of expatriation, which was under consideration as constitutional cruelty in Trop v. Dulles, supra.
It was said in Furman v. Georgia, supra: “ * * * Since the discontinuance of flogging as a constitutionally permissible punishment, Jackson v. Bishop, 404 F.2d 571 (CA8 1968), death remains as the only punishment that may involve the conscious infliction of physical pain. In addition, we know that mental pain is an inseparable part of our practice of punishing criminals by death, for the prospect of pending execution exacts a frightful toll during the inevitable long wait between the imposition of sentence and the actual infliction of death. * * *” 408 U.S. at 287-288, 92 S.Ct. at 2751.
Justice Frankfurter dissenting in Solesbee v. Balkcom, 339 U.S. 9, 14, 70 S.Ct. 457, 459, 94 L.Ed. 604 (1950), said:
“ * * * [T]he onset of insanity while awaiting execution of a death sentence is not a rare phenomenon. * * *”
As C. Duffy, a former warden of California’s prison at San Quentin has said:
“ * * * One night on death row is too long, and the length of time spent there by [some inmates] constitutes cruelty that defies the imagination. It has always been a source of wonder to me that they didn’t all go stark, raving mad.” C.. Duffy & A. Hirshberg, 88 Men and 2 Women 254 (1962).
Justice Liacos, in his concurring opinion in District Attorney for Suffolk District v. Watson, supra, 411 N.E.2d at 1288 expressed some salient observations in the course of amplifying his reasons for joining in the court’s conclusion that
“ * * * the death penalty, with its full panoply of concomitant physical and mental tortures, is impermissibly cruel under art. 26 when judged by contemporary standards of decency.” Id., 411 N.E.2d at 1283.
The Justice recites the story of one Henry Arsenault, a Massachusetts prisoner saved from the electric chair less than one-half hour before his scheduled execution. The Justice recites from the prisoner’s brief, after explaining that for over two years Henry Arsenault
“ ‘ * * * lived on death row feeling as if the Court’s sentence were slowly being carried out.’ Arsenault could not stop thinking about death. Despite several stays, he never believed he could escape execution. ‘There was a day to day choking, tremulous fear that quickly became suffocating.’ If he slept at all, fear of death snapped him awake sweating. His throat was clenched so tight he often could not eat. His belly cramped, and he could not move, his bowels. He urinated uncontrollably. He could not keep still. And all the while a guard watched him, so he would not commit suicide. The guard was there when he had his nightmares and there when he wet his pants. Arsenault retained neither privacy nor dignity. Apart from the guards he was alone much of the time as the day of his execution neared.
“And on the day of the execution, after three sleepless weeks and five days’ inability to eat, after a night’s pacing the cell, he heard the warden explain the policy of the Commonwealth — no visitors, no special last meal, and no medication. Arsenault asked the warden to let him walk to the execution on his own. The *211time came. He walked up to the death chamber and turned toward the chair. Stopping him, the warden explained that the execution would not be for over an hour. Arsenault sat on the other side of the room as the witnesses filed in behind a one-way mirror. When the executioner tested the chair, the lights dimmed. Ar-senault heard other prisoners scream. After the chaplain gave him last rites, Arsenault heard the door slam shut and the noise echoing, the clock ticking. He wet his pants. Less than half an hour before the execution, the Lieutenant Governor commuted his sentence. Arse-nault’s legs would not hold him up. Guards carried him back to his cell. He was trembling uncontrollably. A doctor sedated him. And he was moved off death row.” (Footnote omitted.) Id., 411 N.E.2d at 1290.
In A. Camus, Reflections on the Guillotine, in Resistance, Rebellion and Death, 155-156 (1960), the author wrote:
“What man experiences at such times is beyond all morality. * * * Having to face an inevitable death, any man, whatever his convictions, is torn asunder from head to toe. The feeling of powerlessness and solitude of the condemned man, bound up and against the public coalition that demands his death, is in itself an unimaginable punishment. * * * [I]t would be better for the execution to be public. The actor in every man could then come to the aid of the terrified animal and help him cut a figure, even in his own eyes. But darkness and secrecy offer no recourse. In such a disaster, courage, strength of soul, even faith may be disadvantages. As a general rule, a man is undone by waiting for capital punishment well before he dies. Two deaths are inflicted on him, the first being worst than the second, whereas he killed but once. Compared to such torture, the penalty of retaliation seems like a civilized law.” (Footnote omitted.)
Physical Cruelty
And then there is the kind of cruelty that we can all understand. This cruelty requires no legal or psychological explanation. It is the kind of cruelty that fits the dictionary identification of cruelty when that word is defined as “inhuman treatment.” Webster’s New Collegiate Dictionary. It is the kind of man’s inhumanity to man that an unknown attorney described to the jury in a Texas capital case involving his client, one Jerry Bird. The attorney said:
“In Texas executions are performed around midnight. As the day of his execution begins Jerry Bird will be visited by the Assistant Warden, the man who will kill him. The warden will read him the order of the Court sentencing him to death. The warden will leave and then Jerry Bird will spend an hour or two with visitors, friends or family. At about 5:00 the phone will ring to announce the arrival of the barber. Jerry Bird will leave his cell to go to the barber’s chair to have his head and leg shaved for the electrodes. As the barber works, Jerry Bird’s belongings are being shifted from his own cell to the one next to the green door leading into the Death Chamber. He will return to his new cell. Soon the night guard will arrive, followed shortly by the food wagon. Jerry Bird will not eat that evening with the other men. He will have already had his last meal at their preceding eating hour. After the other prisoners have finished their meals the night guard will unwrap the bundle that was delivered earlier and will place its contents, Jerry Bird’s death costume, on his cot. It will be a blue Eisenhower battle jacket with slacks to match, Khaki shirt, socks and shoes without laces. No belt and no shoe laces. After all, he must not hang or strangle himself and cheat the chair. The chaplain will return to wait with Jerry Bird. Soon there will be a knock from beyond the green door and the warden will say, ‘We’re ready.’ The guard will unlock the cell and Jerry Bird will step out into the corridor and file into the Death Chamber with the chaplain and three guards. Inside the chamber already will be the doctor, the warden and four witnesses. The warden will be *212behind a one-way mirror at the controls of his equipment. Jerry Bird will be asked if he has any last words. After those he will be asked to have a seat and the guards will strap him in, dampening the shaved areas on his head and leg with a saline solution before attaching the electrodes. His arms will be lashed to arm rests, his legs to the chair legs and his body to the chair with a broad strap so taut that it will straighten his spine to the chair back. The guards will stuff cotton up his nose to trap blood that might gush from ruptured veins in his brain. A mask will be placed across his face. The warden will glance around to see that everyone is in his place and then he will nod to the executioner behind the one-way mirror. The generator will whine and snarl, Jerry Bird’s lips will peel back, his throat strain for a last desperate cry, his body arch against the restraining straps; then his features will purple, steam and smoke rise from the bald spots on his head and leg while the sick-sweet smell of burned flesh permeates the little room. The generator will purr to a halt. The physician will step forward and place his stethoscope against the steaming chest and then will pronounce Jerry Bird dead. Ventilator fans will suck out the fouled air as the guards wait for the corpse to ‘cool off’ before they remove it from the chair. The counties now pay the state $25.00 for each prisoner transferred to Death Row in Huntsville, a compensation for caring for him before, during, and after he meets his fate.
“I ask you in the name of all that is sacred and holy, how can such a spectacle as this ever magnify the law or make it honorable or preserve the peace and dignity of the state?
“And they say that Jerry Bird killed in cold blood.” Anonymous.
To argue that state murder is not cruel is beyond my comprehension and beyond the comprehension of almost all who write on the subject. Additionally, and as we have seen, in this day and age the state’s punishment by death is unusual worldwide — in America and in Wyoming. I refer specifically to the figures furnished by the warden of the Wyoming State Penitentiary, which tell us that 143 first-degree murderers have received life sentences since the year 1912, while only 14 have been put to death for the same crime during the same period of time.
Those who urge the death sentence talk of retribution and deterrence. Gregg, supra.
Retribution
“ * * * Revenge is a kind of wild justice; which the more man’s nature runs to, the more ought law to weed it out. * * * ” (Footnotes omitted.)31
I am sorry that we have had to come to a place in our history where the moral and legal judgments of our Supreme Court have dictated this following statement which I take from Gregg, supra:
“In part, capital punishment is an expression of society’s moral outrage at particularly offensive conduct. This function may be unappealing to many, but it is essential in an ordered society that asks its citizens to rely on legal processes rather than self-help to vindicate their wrongs.
“ ‘The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they “deserve,” then there are sown the seeds of anarchy — of self-help, vigilante justice, and lynch law.’ Furman v. Georgia, supra, at 308, 92 S.Ct. at 2761 (STEWART, J., concurring).
“ ‘Retribution is no longer the dominant objective of the criminal law,’ Williams v. New York, 337 U.S. 241, 248 [69 S.Ct. 1079, 1084, 93 L.Ed. 1337] (1949), but nei*213ther is it a forbidden objective nor one inconsistent with our respect for the dignity of men. * * * ” (Footnote omitted.) 428 U.S. at 183, 96 S.Ct. at 2930.
For me, this concept is inconsistent with the historical view taken by the court.32 The Court has, as Marshall says in Furman, supra, “consistently denigrated retribution as a permissible goal of punishment.” He also says this of retribution:
“ * * * It is undoubtedly correct that there is a demand for vengeance on the part of many persons in a community against one who is convicted of a particularly offensive act. At times a cry is heard that morality requires vengeance to evidence society’s abhorrence of the act. But the Eighth Amendment is our insulation from our baser selves. The ‘cruel and unusual’ language limits the avenues through which vengeance can be channeled. Were this not so, the language would be empty and a return to the rack and other tortures would be possible in a given case.
⅜ * * * * *
“The history of the Eighth Amendment supports only the conclusion that retribution for its own sake is imporper.” (Footnote omitted.) Furman, supra, 408 U.S. at 344, 92 S.Ct. at 2780, Marshall, J., concurring.
While retribution may have been found permissible in Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), it cannot be the only objective of a capital sentencing and it cannot be founded upon a respect for the dignity of man as the court suggests in Furman, supra.
In addressing the contention that retribution excuses cruelty, and thus becomes a permissible purpose of punishment, Williams v. New York, supra, 337 U.S. at 248, 69 S.Ct. at 1083-1084, I would hold the following to be true:
1. Measured by the “evolving standards of decency that mark the progress of a maturing society,” retribution cannot be the standard for the infliction of death in Wyoming. Our people are not so base as to opt for state murder in order to penalize murder, assuming circumstances in which they were given the opportunity to understand and appreciate the animal cruelty that is synonymous with the death-penalty process.
2. In Wyoming, we do not sanction punishment either solely for retribution or partially for retribution, because the standards against which Wyoming court judgments are tested are the “humane principles of reformation and prevention.” Art. 1, § 15, Wyoming Constitution. The concepts of vengeance and retribution are incompatible with these lofty and earing goals and standards.
It is an inconsistency, according to the most fundamental rules of logic, to say that a statute must, before it may be said to be constitutional, adhere to a requirement that it promote reformation in the criminal defendant and the prevention of future crime against society while — in the same breath— saying, in pursuit of these humane doctrines, it is also permissible to commit state murder either solely or partially out of hatred and vengeance.
And so, in my judgment, the Constitution of this state does not permit the death *214penalty to be imposed out of vengeance and retribution.
Deterrence
If it can be said that cruelty by state murder is excusable (an irreconcilable incongruity so far as I am concerned), within the purview of the question which asks whether or not a statute authorizing state murder is constitutional, then deterrence is a permissible consideration under both the Wyoming Constitution and the United States Constitution.
The great death-penalty arguments usually come down to whether or not the sanction is justified by reason of the fact that it deters crime. But the central issue really is whether it deters potential criminals from committing capital felonies more effectively than life imprisonment. Furman v. Georgia, supra, 408 U.S. at 346-347, 92 S.Ct. at 2780-2781, Marshall, J., concurring.
Having admitted that the results of the debate between those who say the death penalty is a deterrent and those who say it is not are inconclusive, the Gregg plurality refers to a passage in the works of Charles Black, Capital Punishment: The Inevitability of Caprice and Mistake (1974), where the author says:
“ ‘[Ajfter all possible inquiry, including the probing of all possible methods of inquiry, we do not know, and for systematic and easily visible reasons cannot know, what the truth about this “deterrent” effect may be. * * *
“ ‘The inescapable flaw is * * * that social conditions in any state are not constant through time, and that social conditions are not the same in any two states. If an effect were observed (and the observed effects, one way or another, are not large) then one could not at all tell whether any of this effect is attributable to the presence or absence of capital punishment. A “scientific” — that is to say, a soundly based — conclusion is simply impossible, and no methodological path out of this tangle suggests itself.’ C. Black, Capital Punishment: The Inevitability of Caprice and Mistake 25-26 (1974).” 428 U.S. at 185.
It is worthwhile, here, to see what Professor Black goes on to say on the subject of deterrence:
“On all scores, then, the ‘deterrence’ question is wide open and will, as far as anyone can see, remain wide open indefinitely. The connection with the thesis of this book is clear. If this thesis — that we do not and cannot administer the penalty of death without arbitrariness and mistake — is true, some might think we ought nevertheless to go on administering it if there were a clear case for its saving innocent lives by deterring homicide. There is, however, no case for the proposition that any such effect is to be attributed to capital punishment. We are entirely free to abolish capital punishment on the ground that it is not and cannot be rationally administered, without any fear, or at least any fear warranted by proof or experience, that any innocent life would thereby be endangered.” (Emphasis in original.) Capital Punishment at 27.
It is admitted by the Court in Gregg that there is no evidence to support or refute views that the death penalty does or does not serve as a deterrent. Gregg, supra, 428 U.S. at 186, 96 S.Ct. at 2931.
Justice Marshall in his dissenting opinion in Furman said:
“There is no more complex problem than determining the deterrent efficacy of the death penalty. ‘Capital punishment has obviously failed as a deterrent when a murder is committed. We can number its failures. But we cannot number its successes. No one can ever know how many people have refrained from murder because of the fear of being hanged.’ This is the nub of the problem and it is exacerbated by the paucity of useful data. * * ” (Footnote omitted.) 408 U.S. at 347, 92 S.Ct. at 2781.
The Justice goes on to conclude, 408 U.S. at 353, 92 S.Ct. at 2784:
“The United Nations Committee that studied capital punishment found that ‘[i]t is generally agreed between the re-*215tentionists and abolitionists, whatever their opinions about the validity of comparative studies of deterrence, that the data which now exist show no correlation between the existence of capital punishment and lower rates of capital crime.’ “Despite the fact that abolitionists have not proved non-deterrence beyond a reasonable doubt, they have succeeded in showing by clear and convincing evidence that capital punishment is not necessary as a deterrent to crime in our society. This is all that they must do. We would shirk our judicial responsibilities if we failed to accept the presently existing statistics and demanded more proof. It may be that we now possess all the proof that anyone could ever hope to assemble on the subject. * * * ” (Footnote omitted.)
Professor Black comments on the status of the deterrence question when it has deteriorated to resolving where the burden of proof lies, when he says (Capital Punishment at p. 26):
“ * * * When I last sampled this enormous literature, I found two scholars were arguing over where the ‘burden of proof’ lay — whether, that is to say, the man who asserts that capital punishment deters has to prove this proposition of lose out, or whether the man who asserts that it does not deter has to prove this proposition or lose out. When you observe that an argument is in that posture, you can be very sure that neither side has a convincing case. Nobody is arguing about where the ‘burden of proof’ lies with respect to the assertion that families of five with incomes under $4000 are on the whole less well nourished than those with incomes over $20,000.” (Emphasis in original.)
I must conclude that deterrence is an impermissible reason for even arguing that the death penalty is — in any circumstances —warranted, because there is no reliable proof that this is true. The state should not kill people in reliance upon an unproven excuse — even to salve its conscience.
Conclusion
In conclusion, I would hold the death penalty statute with which we are here concerned (§ 6-4-102) to be in violation of the Wyoming Constitution, Art. 1, § 14, for the reason that it mandates both cruel punishment and unusual punishment by authorizing, under certain circumstances, the imposition of death by the state.
In reaching this conclusion, I find the sentence of death to be — not only cruel in fact — unusual in fact — but cruel and unusual in law.
When I say it is cruel in law, I rely heavily upon the parameters within which the testing process must take place as delineated in the Wyoming constitutional provision which says the criminal laws of this state must be founded in “the humane principles of reformation and prevention” (Art. 1, § 15, Wyoming Constitution) and the doctrine which has been identified by the United States Supreme Court when it has been said that we will test the cruelty of punishment from time to time by taking into account the “evolving standards of decency that mark the progress of a maturing society.”
I have lived my entire life in Wyoming and I have to believe that were my friends and associates who are citizens of this state able to visit the whole process of the death penalty from indictment to the throwing of the switch — with its dehumanizing effect— that is, its tendency to turn all of us who are charged with the responsibility of committing state murder back into animals — I am positive that the vast majority of the people of Wyoming would say, “There has to be another way.” They would say this, I think, even as they contemplated the plight of Hopkinson who pleads for life while he offered his victims no such option. They would say this, I think, not because they pitied him — because who could pity one so ealculatingly evil and cold-heartedly vicious? — but because they, the people of this great state in the year 1981, would ultimately decide that murder in response to murder is a punishment no longer consistent with their self-respect. They would *216say, I think, that there must be another way and that this form of punishment— while acceptable in another day — is no longer acceptable to a more advanced morality.
I would have held the Wyoming death-penalty statute unconstitutional for the reason that such a statute imposes cruel and/or unusual punishment.
McCLINTOCK, Justice, Retired, concurs in the court’s disposition of the appeal but joins with the Chief Justice in his suggestions that:
1. Error was committed in the sentencing phase of the trial in that unauthorized aggravating circumstances options were made available to the jury for its consideration;
2. Instructions in the form proposed by defendant upon the penalty phase of the trial should be given upon retrial of that issue.
. Section 6-4-102, W.S.1977, provides:
“Presentence hearing for murder in the first degree; mitigating and aggravating circumstances.
“(a) Upon conviction of a person for murder in the first degree the judge shall conduct a separate sentencing hearing to determine whether the defendant should be sentenced to death or life imprisonment. The hearing shall be conducted before the judge alone if:
“(i) The defendant was convicted by a judge sitting without a jury;
“(ii) The defendant has pled guilty; or
“(iii) The defendant waives a jury with respect to the sentence.
“(b) In all other cases the sentencing hearing shall be conducted before the jury which determined the defendant’s guilt or, if the judge for good cause shown discharges that jury, with a new jury impaneled for that purpose.
“(c) The judge or jury shall hear evidence as to any matter that the court deems relevant to a determination of the sentence, and shall include matters relating to any of the aggravating or mitigating circumstances enumerated in subsections (h) and (j) of this section. Any evidence which the court deems to have probative value may be received regardless of its admissibility under the exclusionary rules of evidence, provided the defendant is accorded a fair opportunity to rebut any hearsay statements, and provided further that only such evidence in aggravation as the state has made known to the defendant or his counsel prior to his trial shall be admissible.
“(d) Upon conclusion of the evidence and arguments the judge shall give the jury appropriate instructions, including instructions as to any aggravating or mitigating circumstances, as defined in subsections (h) and (j) of this section, or proceed as provided by paragraph (ii) of this subsection:
“(i) After hearing all the evidence, the jury shall deliberate and render a recommendation of sentence to the judge, based upon the following:
“(A) Whether one (1) or more sufficient aggravating circumstances exist as set forth in subsection (h) of this section;
“(B) Whether sufficient mitigating circumstances exist as set forth in subsection (j) of this section which outweigh the aggravating circumstances found to exist; and
“(C) Based upon these considerations, whether the defendant should be sentenced to death or life imprisonment.
*173“(ii) In nonjury cases, the judge shall determine if any aggravating or mitigating circumstances exist and impose sentence within the limits prescribed by law, based upon the considerations enumerated in (A), (B) and (C) of this subsection.
“(e) The death penalty shall not be imposed unless at least one (1) of the aggravating circumstances set forth in subsection (h) of this section is found. The jury, if its verdict is a recommendation of death, shall designate in writing signed by the foremen of the jury the aggravating circumstance or circumstances which it found beyond a reasonable doubt. In nonjury cases the judge shall make such designation. If the jury cannot, within a reasonable time, agree on the punishment to be imposed, the judge shall impose a life sentence.
“(f) Unless the jury trying the case recommends the death sentence in its verdict, the judge shall not sentence the defendant to death but shall sentence the defendant to life imprisonment as provided by law. Where a recommendation of death is made, the court shall sentence the defendant to death.
“(g) If the trial court is reversed on appeal because of error only in the presentence hearing, the new trial which may be ordered shall apply only to the issue of punishment.
“(h) Aggravating circumstances are limited to the following:
“(i) The murder was committed by a person under sentence of imprisonment;
“(ii) The defendant was previously convicted of another murder in the first degree or a felony involving the use or threat of violence to the person;
“(iii) The defendant knowingly created a great risk of death to two (2) or more persons;
“(iv) The murder was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any robbery, rape, sexual assault, arson, burglary, kidnapping or aircraft piracy or the unlawful throwing, placing or discharging of a destructive device or bomb;
“(v) The murder was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody;
“(vi) The murder was committed for pecuniary gain;
“(vii) The murder was especially heinous, atrocious or cruel;
“(viii) The murder of a judicial officer, former judicial officer, county attorney, or former county attorney, during or because of the exercise of his official duty.
“(j) Mitigating circumstances shall be the following:
“(i) The defendant has no significant history of prior criminal activity;
“(ii) The murder was committed while the defendant was under the influence of extreme mental or emotional disturbance;
“(iii) The victim was a participant in the defendant’s conduct or consented to the act;
“(iv) The defendant was an accomplice in a murder committed by another person and his participation in the homicidal act was relatively minor.
“(v) The defendant acted under extreme duress or under the substantial domination of another person;
“(vi) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired;
“(vii) The age of the defendant at the time of the crime.”
. This court’s authority with respect to the review of the death sentence is contained in § 6-4-103, W.S.1977, which provides:
“Review of death sentences.
“(a) The judgment of conviction and sentence of death is subject to automatic review by the supreme court of Wyoming within sixty (60) days after certification by the sentencing court of the entire record, unless the time is extended for an additional period not to exceed thirty (30) days by the supreme court for good cause shown. Such review by the supreme court shall have priority over all other cases.
“(b) Within ten (10) days after receiving the transcript, the clerk of the trial court shall transmit the entire record and transcript to the supreme court of Wyoming together with a notice prepared by the clerk and a report prepared by the trial judge. The notice shall set forth the title and docket number of the case, the name of the defendant and the name and address of his attorney, a statement of the judgment, the offense and punishment prescribed. The report shall be in the form of a standard questionnaire prepared and supplied by the supreme court of Wyoming.
“(c) The supreme court of Wyoming shall consider the punishment as well as any errors enumerated by way of appeal.
“(d) 'With regard to the sentence, the court shall determine if:
“(i) The sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor;
*174“(ü) The evidence supports the jury’s or judge’s finding of an aggravating circumstance as enumerated in W.S. 6-54.2 [§ 6-4-102] and a lack of sufficient mitigating circumstances which outweigh the aggravating circumstances;
“(iii) The sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
“(e) The court shall include in its decision a reference to those similar cases which it took into consideration. In addition to its authority regarding correction of errors, the court, with regard to review of death sentences, may;
“(i) Affirm the sentence of death;
“(ii) Set the sentence aside and impose a sentence of life imprisonment; or
“(iii) Set the sentence aside and remand the case for resentencing by the trial judge based on the record and argument of counsel.” (Bracketed material in original.)
. At the time of trial for the murder of the three Vehars and Jeff Green, Mark Hopkinson was in prison at Lompoc, California in response to a federal jury’s guilt verdict having to do with bomb charges concerning an Arizona lawyer named Mariscal. In any resentencing proceeding, court and counsel will want to make certain that proof of this fact is in the record.
. I note in passing that § 6-4-102, W.S.1977 being a mandatory death-sentencing statute is unconstitutional under Furman v. Georgia, supra, and this court’s holding in Kennedy v. State, Wyo., 559 P.2d 1014 (1977).
. The Eighth Amendment to the United States Constitution provides:
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
The corollary in the Constitution of Wyoming is Art. 1, § 14, which provides:
“ * * * Excessive bail shall not be required, nor excessive fines imposed, nor shall cruel or unusual punishment be inflicted.”
The Fourteenth Amendment to the United States Constitution provides:
“All persons bom or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The corollary in the Constitution of Wyoming is Art. 1, § 6, which provides:
“No person shall be deprived of life, liberty or property without due process of law.”
. I am in the debt of Professor Anthony Amsterdam of Stanford University School of Law for many thoughts and citations concerning the law pertaining to the consideration of mitigating and aggravating circumstances in the sentencing phase, as those authorities were presented by Professor Amsterdam to the Conference of Chief Justices in a meeting at Houston, Texas, February 4-5, 1981.
. The plain-and-harmless-error discussion in this opinion is aided in a material way by the paper discussed with the Conference of Chief Justices at their mid-year meeting in Houston, Texas, February 4-5, 1981, by Anthony Amsterdam, Professor of Law at Stanford University, Palo Alto, California.
. From the paper of Professor Amsterdam to the Chief Justices, supra n.6.
. As it does in Wyoming under § 6 — 4—102(e), W.S.1977, where the statute says:
“ * * * If the jury cannot, within a reasonable time, agree on the punishment to be imposed, the judge shall impose a life sentence.”
. Rule 33, W.R.Cr.P., provides in pertinent part:
“(a) Sentence.
“(1) Imposition of Sentence. — Sentence shall be imposed without unreasonable delay. Pending sentence the court may commit defendant, continue or alter the bail. Before imposing sentence the court shall afford counsel an opportunity to speak and shall address the defendant personally and ask him if he wishes to make a statement in his own behalf and to present any information in mitigation of the punishment.
⅜ ¡⅛ ⅛ ‡ ⅝
“(c) Presentence investigation.
“(1) When Made. — The probation service of the court shall make a presentence investigation and report to the court before the imposition of sentence or the granting of probation unless the court otherwise directs.
“(2) Report. — The report of the presentence investigation shall contain any prior criminal record of the defendant and such information about his characteristics, his financial condition and the circumstances affecting his behavior as may be helpful in imposing sentence or in granting probation, or in the correctional treatment of the defendant, and such other information as may be required by the court. The court, before imposing sentence, shall disclose to the defendant or his counsel all of the material contained in the report of the presentence investigation and afford an opportunity to the defendant or his counsel to comment thereon. The material disclosed to the defendant or his counsel shall also be disclosed to the attorney for the state.”
. See n. 10, supra.
. I do not here address nor make any judgments with regard to the competency of counsel during the guilt phase of the trial.
. Prior to convening the sentencing stage of the trial, counsel for both the State and the defendant, and the defendant himself, met in chambers with the trial judge. In response to the judge’s inquiry as to the length of time needed by each party in the sentencing hearing, appellant’s counsel responded:
In point of fact, appellant’s counsel probably kept to his designated time limit; his entire statement on behalf of the appellant consists of less than three pages of transcript. It was supplemented only by a somewhat rambling, quasi-apologetic statement by the appellant who professed his innocence to the crimes for which he was found guilty.
. Counsel was nearly proved wrong about this. In this quadruple-murder conviction, the jury returned a life imprisonment in three of them, and the death sentence in the one in which proof of conspiracy to kill was wholly circumstantial and the most tenuous.
. “The defendant was an accomplice in a murder committed by another person and his participation in the homicidal act was relatively minor * * § 6 — 4—102(j)(iv), W.S.1977.
. Art. 1, § 14 of the Wyoming Constitution provides:
“Bail; cruel and unusual punishment. — All persons shall be bailable by sufficient sureties, except for capital offenses when the proof is evident or the presumption great. Excessive bail shall not be required, nor excessive fines imposed, nor shall cruel or unusual punishment be inflicted.”
Art. 1, § 15 of the Wyoming Constitution provides:
“Penal code to be humane. — The penal code shall be framed on the humane principles of reformation and prevention.”
The Eighth Amendment to the United States Constitution provides:
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
The Fourteenth Amendment to the United States Constitution provides:
. 268 Hansard, Parliamentary Debates (5th Series) (Lords, 43rd Pari., 1st Sess., 1964 — 1965) 703 (1965).
.The United States Supreme Court has held that the death penalty is not per se cruel and unusual punishment under the Eighth Amendment to the Federal Constitution. Furman v. Georgia, supra, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346; Gregg v. Georgia, supra, 428 U.S. 153, 179-180, n.23, 96 S.Ct. 2909, 2928, n.23, 4 L.Ed.2d 859 (1976).
. Gregg v. Georgia, supra.
. The first case in which the United States Supreme Court squarely faced the job of interpreting the cruel-and-unusual-punishment language of the Eighth Amendment.
. See n. 16, supra.
. See McCall, The Evolution of Capital Punishment in Wyoming: A Reconciliation of Social Retribution and Humane Concern? 13 Land and Water L.Rev. 865 (1978).
. T. A. Larson, History of Wyoming (1965), at 247; Frances Birkhead Beard (ed.), Wyoming: From Territorial Days to the Present (1933), at 434.
. Larson, id., at 247.
. The Constitutions of Pennsylvania and Washington contain a ban on “cruel punishments.”
. I am indebted to Dean John Ackerman of the National College for Criminal Defense, Houston, Texas, for this historical material.
. Journal and Debates of the Constitutional Convention of the State of Wyoming (Cheyenne: The Daily Sun, 1893), at 719.
. See District Attorney for Suffolk District v. Watson, supra, where Justice Liacos, concurring in an opinion that holds the death penalty unconstitutional per se, says:
“ * * * I would go further and state that article 26 [the Massachusetts Constitution cruel or unusual clause] stands on its own footing, for reasons similar to those expressed in Anderson, supra (People v. Anderson, supra). 1 would further hold that a punishment may not be inflicted if it be either‘cruel’or‘unusual’. * * *” Supra, 411 N.E.2d at 1289.
. Prior to Furman v. Georgia, supra, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, the United States Supreme Court had never squarely ruled upon the Eighth Amendment constitutionality of the death penalty, although numerous decisions of the Court appeared to presume its constitutionality under the societal standards of “decency” then prevalent. See, e.g., Wilkerson v. Utah, supra, 99 U.S. 130, 25 L.Ed. 345; in re Kemmler, supra, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519; Louisiana ex rel. Francis v. Resweber, supra, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422; Trop v. Dulles, supra, 356 U.S. at 100 n.32, 78 S.Ct. at 597 n.32 (dictum.)
. Cleveland Brown, Jr., executed November 17, 1944, and Andrew Pixley, executed December 10, 1965.
. Of Revenge, the Works of Francis Bacon, 384 (J. Spedding ed. 1858).
. Note 86 to Marshall’s dissenting opinion in Furman, supra, 408 U.S. at 344, 92 S.Ct. at 2780, says:
“See, e.g., Rudolph v. Alabama, 375 U.S. 889 [84 S.Ct. 155, 11 L.Ed.2d 119] (1963) (Goldberg, J., dissenting from denial of certiori); Trop v. Dulles, 356 U.S., at 97 [78 S.Ct. at 596] (Warren, C. J.), 113 [78 S.Ct. at 604] (BRENNAN, J., concurring); Morissette v. United States, 342 U.S. 246 [72 S.Ct. 240, 96 L.Ed. 288] (1952); Williams v. New York, 337 U.S. 241 [69 S.Ct. 1079, 93 L.Ed. 1337] [69 S.Ct. 1079, 93 L.Ed. 1337] (1949). In Powell v. Texas, 392 U.S., at 530 [88 S.Ct. at 2153], we said: ‘This Court has never held that anything in the Constitution requires that penal sanctions be designed solely to achieve therapeutic or rehabilitative effects. * * * ’ This is, of course, correct, since deterrence and isolation are clearly recognized as proper. E.g., Trop v. Dulles, supra, at 111 [78 S.Ct. at 603] (BRENNAN, J., concurring). There is absolutely nothing in the language, the rationale, or the holding of Powell v. Texas that implies that retribution for its own sake is a proper legislative aim in punishing.”