concurring in part, dissenting in part.
I concur in Justice Martone’s application of A.R.S. § 13-4087(B) to this case but disagree with his conclusion that DePiano’s sentence is not cruel and unusual. I also find the “informed speculation” with which he analyzes this issue to be most peculiar and highly problematic. Whether a majority of the present United States Supreme Court would agree with the plurality opinion in Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), is not at issue here. Furthermore, “whether the majority or the minority read Harmelin correctly in Bartlett II,” ante at 30, 926 P.2d at 497 is an extremely inappropriate inquiry if the doctrine of stare decisis is to have continuing vitality in Arizona.
Only four years ago, a majority of this court held that Harmelin v. Michigan requires an examination of the circumstances of both the crime and the offender when deciding the constitutionality of a sentence:
[T]he question of “gross disproportion” cannot be resolved without considering all of the factors that aggravate or mitigate the crime. To ignore the facts in determining whether a sentence is cruel and unusual would make the title of the statute ... determine the constitutionality of the sentence imposed. Surely, if this court has a responsibility to review the constitutionality of sentences under the eighth amendment, that duty requires us to apply the standards of the federal constitution to the facts of what occurred, no matter what label the legislature has attached to the criminalizing statute.
State v. Bartlett, 171 Ariz. 302, 307-08, 830 P.2d 823, 828-29, cert. denied, 506 U.S. 992, 113 S.Ct. 511, 121 L.Ed.2d 445 (1992) (footnote omitted) (Bartlett II). The dissenters in Bartlett II lost the exact argument that today’s opinion makes. Nothing has changed since that decision except the composition of this court. It is settled that “[m]ere disagreement with those who preceded us, without more, is not an adequate reason to overrule precedent.” Wiley v. Industrial Comm’n of Arizona, 174 Ariz. 94, 103, 847 P.2d 595, 604 (1993). Nevertheless, with remarkably little support, the opinion boldly proclaims:
We do not believe that Bartlett II is entitled to the sort of precedential value one ordinarily would associate with an opinion of this court. The court was almost equally divided on the meaning of a plurality opinion of the United States Supreme Court. We are thus left with two levels of informed speculation. The first is whether the plurality opinion in Harmelin would command a majority today. The second is whether the majority or the minority read Harmelin correctly in Bartlett II.
Ante at 30, 926 P.2d at 497.
I respectfully submit that Bartlett II continues to be the law of this jurisdiction. The fact that it was not unanimous makes it no less deserving of “precedential value” than any other decision of this court. See White v. Bateman, 89 Ariz. 110, 114, 358 P.2d 712, 714 (1961). In the absence of compelling circumstances, stare decisis requires that we not overrule it. Wiley, 174 Ariz. at 103, 847 P.2d at 604.
Sound jurisprudential policy has caused us to abandon substantive precedent only when the reasons for it have ceased to exist or it appears to be clearly erroneous. White, 89 Ariz. at 114, 358 P.2d at 714; see also State v. Salazar, 173 Ariz. 399, 417, 844 P.2d 566, 584 (1992), cert. denied, 509 U.S. 912, 113 S.Ct. 3017, 125 L.Ed.2d 707 (1993). Neither basis is convincingly demonstrated here. Today’s court is composed of one member of the three-person Bartlett II majority, the two dissenters, and two newer members. Significantly, the outcome is again 3-2, “almost equally divided on the meaning of [Harmelin ].” Ante at 30, 926 P.2d at 497. Because four present and past members of this court agree with Bartlett II, it can hardly be said that the decision is clearly erroneous or manifestly wrong. The fact that the United States Supreme Court denied certiorari adds further support to this conclusion. See Ari*38zona v. Bartlett, 506 U.S. 992, 113 S.Ct. 511, 121 L.Ed.2d 445 (1992). Moreover, since one member of today’s majority has recently retired, we conceivably could soon witness another shift in the judicial winds, unless we remain “mindful that precedents of the court should not lightly be overruled and certainly not for reasons so inconsequential as a change of personnel on the court.” State v. Crowder, 155 Ariz. 477, 483, 747 P.2d 1176, 1182 (1987) (Moeller, J., concurring in part, dissenting in part). Ironically, if Justice Martone’s extraordinary approach to Bartlett II is valid, the present opinion would itself seem to be of highly questionable precedential value.
Not only am I unable to find a compelling reason to overrule Bartlett II, but I also concur that the facts and circumstances of the crime and the individual offender must be examined when determining gross disproportionality. It is the only logical way to apply punishment in a system rooted in concepts of justice and fairness. All defendants are not alike, just as all crimes, even if given the same label, are not identical. Child abuse is a prime example of an offense for which culpability arises from a full spectrum of conduct, ranging from neglectful parent to child predator. If this court were to ignore the particular facts and circumstances of each case, we would effectively be relinquishing our obligation to examine the constitutionality of sentences to the legislature, which has the power to define crimes, and the prosecutor, who has the authority to charge. See Bartlett II, 171 Ariz. at 309, 830 P.2d at 830 (“The eighth amendment, after all, is either a barrier to legislative action or nothing but empty words.”); Harmelin, 501 U.S. at 996, 111 S.Ct. at 2702 (A “proportionality principle ... has existed in our Eighth Amendment jurisprudence for 80 years.”). Thus, the analysis approved in Bartlett II remains the proper one and, in this case, leads to the conclusion that DePiano’s 34-year, day-for-day sentence is unconstitutional.
The threshold inquiry is whether defendant’s sentence is grossly disproportionate to her crimes. “[Pjroportionality review ... should be informed by ‘objective factors to the maximum possible extent.’ ” Harmelin, 501 U.S. at 1000, 111 S.Ct. at 2704 quoting Rummel v. Estelle, 445 U.S. 263, 274-75, 100 S.Ct. 1133, 1139, 63 L.Ed.2d 382 (1980). “Harmelin ... did not criticize the factors utilized in [Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) ] to determine whether the sentence is grossly disproportionate to the crime.” Bartlett II, 171 Ariz. at 307, 830 P.2d at 828. These include, but are not limited to, the harm caused or threatened to the victim and society, as well as the culpability of the offender. We must also consider evidence tending to aggravate or mitigate the crime. Id.
DePiano was convicted of intentionally placing her children in a circumstance that was likely to cause death. See A.R.S. § 13-3623(B)(1). She and her sons were sitting in a running car within a closed garage. While the end result could have been tragic, it was not. The state argues that there is no dis-proportionality because defendant “attempted to kill her kids” and would be guilty of first degree murder had she succeeded. Putting aside the likelihood that she too would be dead under such a scenario, DePiano did not murder her children. Moreover, attempted murder was not the charge ultimately made by the prosecution, even though it was the basis upon which defendant was arrested. Most significantly, as the state conceded at oral argument, had this woman been convicted of attempted murder, her sentence would probably have been much less severe.
An expert -witness testified that the conditions of the garage were “likely to cause death.” However, the lack of physical effects on DePiano and her children, together with the low levels of carbon monoxide in their blood, show that they were not exposed to these conditions in any meaningful way. The expert concluded, and the evidence supports, that they were inside the ear with the windows rolled up. According to the expert, for the 20-30 minutes of exposure to have been lethal, they needed to be outside the car and exposed to carbon monoxide levels 5 times as concentrated as it was when the police arrived.
*39The children were not physically harmed in any way by DePiano’s actions. It further appears that they knew little or nothing of what was going on around them and suffered no significant emotional trauma at the time. Obviously, they must have experienced considerable mental distress when they were later taken from their mother and told what had occurred, but such evidence does not appear in this record and, in any event, would not be relevant to the present analysis.
Although one could argue that Harmelin involved a similarly nonviolent crime — possession of cocaine — the Supreme Court made a point of citing studies and statistics showing a link between drugs, violence, and harm to society. The Court noted that the defendant in that case possessed 672.5 grams of undiluted cocaine, potentially yielding between 32,500 and 65,000 doses. Other evidence taken from Harmelin corroborated his heavy involvement in the drug trade: marijuana cigarettes, four brass cocaine straws, a cocaine spoon, 12 Percodan tablets, 25 tablets of Phendimetrazine Tartrate, a Motorola beeper, plastic bags containing cocaine, a coded address book, and $3,500 in cash. The Court found it undeniable that violent crime is linked to drug use, possession, and distribution. Thus, Harmelin’s crime was viewed as one involving violence to society as a whole.
When we look at the realities of DePiano’s crime, however, we see that this was an attempted suicide-infanticide. “[A] suicide gesture ... something calling for help” is how the prosecutor presented it to the jury. As the state points out, the statute in question did not require that this woman specifically intend to harm her children. But personal culpability, including state of mind, should be a factor in our proportionality determination. See Solem, 463 U.S. at 293, 103 S.Ct. at 3011 (“A court, of course, is entitled to look at a defendant’s motive in committing a crime.”); Bartlett II, 171 Ariz. at 307, 830 P.2d at 828. DePiano’s mental state at the time of the crime was certainly not that of an evil and wicked person. As the prosecution continually conceded, DePiano’s intentions were those of someone trying to take her own life: “The children [were] in danger because of her actions against herself. It is not the typical abuse where it is an act against the child.” See State v. Williams, 175 Ariz. 98, 103, 854 P.2d 131, 136 (1993) (holding that § 604.01 enhancements apply only when a child is the person against whom the crime is directed).
The state presented considerable evidence that DePiano was extremely depressed and despondent, someone who had previously been admitted to a mental hospital and left against medical advice. She was called “a troubled person, troubled person with a troubled mind.” The emergency room doctor described her demeanor on the date of this incident as very flat, continuous, monotonous, and consistent with that of someone suffering extreme depression. The entire picture is of a disturbed young woman who needs help, not 34 years in prison. Her children have been taken and her parental rights severed. There is no evidence that she poses a continuing threat to them or anyone else. How then can it be said that the punishment fits the crime?
I do not mean to suggest that we can or should ignore the legislature’s choice of how to treat certain conduct or the prosecutor’s discretion in filing criminal charges. It must be remembered, however, that despite the latitude afforded, “[a] prosecutor has the responsibility of a minister of justice and not simply that of an advocate.” ER 3.8 emt., Arizona Rules of Professional Conduct, Rule 42, Ariz.R.Sup.Ct. Furthermore, although we must “acknowledge the legislature’s prerogative to criminalize behavior and to choose the appropriate punishment,” Bartlett II, 171 Ariz. at 308, 830 P.2d at 829, we should be mindful that “the legislature, in enacting § 13-604.01, was attempting to respond effectively to those predators who pose a direct and continuing threat to the children of Arizona.” Williams, 175 Ariz. at 102, 854 P.2d at 135. Shocking examples of such predatory abuse can be found in our caselaw. See, e.g., State v. Poehnelt, 150 Ariz. 136, 722 P.2d 304 (App.1985) (10.5 years for abuse of girl found hog-tied and gagged, and who had been severely deprived of food for a period of years resulting in various permanent injuries); State v. Webb, 140 Ariz. 321, 681 P.2d *40473 (App.1984) (aggravated concurrent terms of 10 and 15 years for defendant who pled guilty to 2 counts of child molestation that included the use of physical violence and who had prior convictions for attempted rape, 3 counts of child molesting, and 2 counts each of sexual assault and kidnapping). This ease is clearly not in the same universe.
DePiano is not a child predator. Not one witness testified to ever seeing her hit, scold, or “abuse” her children in any way. In fact, prosecution and defense witnesses all described her as a good mother who worked at being a better parent. The children were described as well-mannered and fun-loving, always clean, healthy, well taken care of, and well-groomed. DePiano also comes before the court without any prior convictions.
While the definition of the crime charged encompasses defendant’s actions, this is one of those rare cases in which the extreme sentence is grossly disproportionate to the circumstances of the offense. DePiano received two 17-year consecutive sentences to be served without any apparent possibility of suspension, commutation, probation, pardon, parole, work furlough, or other form of early release. See former A.R.S. §§ 13-604.01(B), (E) & (J). Unlike in Harmelin, the potential injustice of this broad sentencing scheme cannot be averted or corrected by executive or legislative clemency. See Harmelin, 501 U.S. at 1008, 111 S.Ct. at 2709; former A.R.S. § 13-604.01(E); see also Solem, 463 U.S. at 300-03, 103 S.Ct. at 3015-16 (chance of commutation does not render sentence less cruel and unusual).
The legislature has recognized this flaw and amended § 13-604.01 to permit commutation. See A.R.S. § 13-604.01(E). The amendment, however, applies to crimes committed after January 1, 1994. See Laws 1993, Ch. 255, §§ 98, 99. For defendant, then, only this court can ensure that she receives a constitutional and just sentence. See supra at 29, 926 P.2d at 496. Thirty-four years, to be served in its entirety for a single act of desperation by a depressed and hopeless individual that resulted in no physical harm, is neither.
Having found an inference of gross disproportionality, an intra- and inter-jurisdictional analysis is necessary to validate the result. Harmelin, 501 U.S. at 1005, 111 S.Ct. at 2707; Bartlett II, 171 Ariz. at 304, 310, 830 P.2d at 825, 831. First, we compare the sentences imposed on other criminals in Arizona. “If more serious crimes are subject to the same penalty, or to less serious penalties, that is some indication that the punishment at issue may be excessive.” Solem, 463 U.S. at 291, 103 S.Ct. at 3010. The inquiry is not limited to only those crimes encompassed within the challenged sentencing statute. State v. Jonas, 164 Ariz. 242, 249-50, 792 P.2d 705, 712-13 (1990).
Without repeating the persuasive analysis contained in Judge Gerst’s dissent below, State v. DePiano, 187 Ariz. 41, 926 P.2d 508 (App.1995), it is clear that offenses more serious than the one DePiano committed result in lesser presumptive sentences, even when charged as dangerous crimes:
Class 1 felony — 15 years: Second degree murder (A.R.S. § 13-1104);
Class 2 felonies — 10.5 years: Attempted Murder (A.R.S. § 13-1001); Kidnapping (A.R.S. § 13-1304); Sexual Assault (A.R.S. § 13-1406); First Degree Burglary of a Residential Structure (A.R.S. § 13-1508); Arson of an Occupied Structure (A.R.S. § 13-1704);
Class 3 felonies — 7.5 years: Manslaughter (A.R.S. § 13-1103); Aggravated Assault (A.R.S. § 13-1204).
With the exception of second degree murder and sexual assault, all of the above sentences are subject to early release. Even the murderer of a victim under age 15 sentenced to life imprisonment is eligible for release after 35 years. See A.R.S. § 13-703(A). Moreover, life sentences for first degree murder can be served concurrently. Incredibly, had both of her children died, DePiano would have been eligible to receive a sentence comparable to that she now faces. Unquestionably, the punishments imposed for more serious crimes in Arizona can be less severe than the 34 flat years Depiano received.
Finally, Arizona has by far the most severe punishment in the country for intentionally placing a child in a situation likely to cause death or serious physical injury. Although *41this is not dispositive, it reinforces our finding of gross disproportionality. See Harmelin, 501 U.S. at 1000, 111 S.Ct. at 2704. As Judge Gerst’s dissent points out, “[djefendant’s consecutive, mandatory 17-year sentences stand in stark contrast to punishment for the same act in other states.” DePiano, 187 Ariz. at 56, 926 P.2d at 523.
Ten states hold a caretaker liable only if the child suffers physical or mental injury. See, e.g., Ga.Code Ann. § 16-5-70 (Supp. 1995) (cruel or excessive physical or mental injury). Of the “non-injury” states, only five require prison time exceeding one year, with the maximum sentence being 10 years. See Ala.Code § 26-15-3 (1975); Idaho Code § 18-1501(1) (1987); Ky.Rev.Stat. Ann. § 508.100(l)(b) (Michie/Bobbs-Merrill 1990); N.J. Stat. Ann. § 2G:24-4 (West 1995); N.M. Stat. Ann. § 30-6-1(0 (Michie 1978). Furthermore, in about one-third of the jurisdictions that do not require injury, there is a 1-year maximum sentence; in two-thirds, a 5-year maximum; and none have maximum sentences over 10 years. Finally, almost every other jurisdiction allows probation.
Having performed the constitutionally-mandated analysis of defendant’s claim, I find this the “exceedingly rare” circumstance in which a sentence is cruel and unusual under the Eighth Amendment to the United States Constitution and art. 2, § 15 of the Arizona Constitution. See Bartlett II, 171 Ariz. at 311, 830 P.2d at 832 (recognizing the possibility that Arizona’s cruel or unusual clause is broader than the federal constitution’s).
Defendant’s consecutive 17-year prison terms without possibility of early release should be vacated, and the case remanded to the trial court for resentencing under A.R.S. §§ 13-701 and -702 (unenhanced sentencing guidelines with parole, probation, and concurrent sentences available), treating DePiano as a class 2 or 3 felon.
FELDMAN, C.J., concurs.