dissenting:
I. Harmelin versus Solem
I respectfully dissent. I believe that the majority properly interprets Harmelin v. Michigan, — U.S. -, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), as requiring a somewhat narrower proportionality analysis than that previously required by Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). I dissent, however, because instead of applying such an analysis, the majority merely re-applies Solem.
As the author of Bartlett I, I am pleased that the majority recognizes it as a comprehensive and lucid application of Solem. However, in Arizona v. Bartlett, — U.S. -, 111 S.Ct. 2880, 115 L.Ed.2d 1046 (1991), the United States Supreme Court vacated Bartlett I and remanded the case to this court for further consideration in light of Harmelin — not for some minor editing and rearrangement.
Just what light Harmelin casts — with its 5 separate opinions — is concededly not easy to see. I agree with the majority that Justice Kennedy’s opinion, although joined only by Justices O’Connor and Souter, articulates the proportionality analysis now required by the eighth amendment.12 I disagree, however, with the majority’s application of that analysis.
Under Justice Kennedy’s analysis, á court must first determine whether it is reviewing “the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.” Harmelin, — U.S. at-, 111 S.Ct. at 2707. If the threshold comparison does not lead to an inference of gross disproportionality, the analysis is complete; the sentence does not offend the eighth amendment. If, on the other hand, the threshold comparison does *312lead to an inference of gross disproportionality, the court may find it useful to conduct intra- and inter-jurisdictional proportionality reviews. Harmelin, — U.S. at -, 111 S.Ct. at 2707.
The majority begins its analysis by stating, “In Bartlett I, we held that the ‘broad application of the statute to encompass [Defendant’s] situation results in a penalty grossly out of proportion to the severity of the crime.’ We reached this conclusion after thorough analysis of the facts____” (emphasis in original) (citation omitted). Then, after re-analyzing the exact same facts that we analyzed in Bartlett I, the majority concludes that “the original sentence imposed on Defendant is ‘a penalty grossly out of proportion to the severity of the crime.’ ” (Citation omitted.)
While I would have to agree that this analysis is consistent with the gross disproportionality analysis articulated by Justice Kennedy, it is wholly inconsistent with the gross disproportionality analysis conducted by Justice Kennedy. Justice Kennedy’s analysis measured the severity of Harmelin’s crime not by analyzing the particular facts and circumstances of the crime, but rather by analyzing the threat posed to the individual and to society by the commission of that crime. See Harmelin, — U.S. at-, 111 S.Ct. at 2705-07 (In determining whether Harmelin’s crime was momentous enough to warrant a life sentence without parole, Justice Kennedy did not discuss the fact that during the commission of his crime Harmelin was neither violent nor did he injure anyone. Rather, Justice Kennedy discussed numerous ways in which illegal drugs threaten the individual and society.). Moreover, 5 Justices expressly rejected Harmelin’s argument that his sentence was unconstitutional because “the sentencing judge was statutorily required to impose it, without taking into account the particularized circumstances of the crime and of the criminal,” and held that the eighth amendment allows a judge to impose a sentence without taking into account the particulars of the crime or of the criminal. See Harmelin, — U.S. at -,---,---, 111 S.Ct. at 2684, 2701-02, 2707-09. In sum, Harmelin provides no support for the majority’s discussion of the indispensability of considering the facts of defendant’s crimes or for its consideration of those facts in determining whether defendant’s sentences are grossly disproportionate to the severity of his crimes.
In addition to re-analyzing the facts of defendant’s crimes, the majority bases its conclusion that his sentences are grossly disproportionate to the severity of his crimes by considering 4 additional factors. The first is “the circumstances of [the] crime.” As just noted, however, a fair reading of Harmelin compels the conclusion that in conducting our gross disproportionality analysis, we should not take into account the circumstances of the crime.
The second factor is defendant’s “lack of a prior record.” In Harmelin, however, Justice Kennedy did not mention the fact that Harmelin had no prior felony convictions. Similarly, 5 Justices expressly rejected Harmelin’s argument that “it is ‘cruel and unusual’ to impose a mandatory sentence of such severity, without any consideration of so-called mitigating factors such as, in his case, the fact that he had no prior felony convictions.” Harmelin, — U.S. at-, 111 S.Ct. at 2701 (emphasis added). Under Harmelin’s gross dis-proportionality analysis, this court should not take into account defendant’s lack of a prior record.
The third factor the majority considers is “the realities of adolescent life.” The majority appears to believe that the crimes committed in this case should not be considered severe because they are “not uncommon.” By affirming Harmelin’s sentence, however, the United States Supreme Court appears to believe that even crimes which are “not uncommon,” such as possessing illegal drugs, may be considered severe enough to impose the harshest punishment available, save death. See Harmelin, — U.S. at -, 111 S.Ct. at 2705. Indeed, it is precisely because the crimes committed by defendant and Harmelin are “not uncommon” that they pose such a threat to the individual and to society.
*313Further, Harmelin makes clear that it is not for this court to weigh the realities of adolescent life in determining the propriety of a particular sentence. As Justice Kennedy pronounced in Harmelin,
[T]he fixing of prison terms for specific crimes involves a substantive penological judgment that, as a general matter, is “properly within the province of legislatures, not courts.” Determinations about the nature and purposes of punishment for criminal acts implicate difficult and enduring questions respecting the sanctity of the individual, the nature of law, and the relation between law and the social order. “As a moral or political issue [the punishment of offenders] provokes intemperate emotions, deeply conflicting interests, and intractable disagreements.” The efficacy of any sentencing system cannot be assessed absent agreement on the purposes and objectives of the penal system. And the responsibility for making these fundamental choices and implementing them lies with the legislature.
Harmelin, — U.S. at-, 111 S.Ct. at 2703 (emphasis added) (citations omitted). Under Harmelin’s, gross disproportionality analysis, the legislature, not this court, must determine what role, if any, the realities of adolescent life play in fixing prison terms for defendants convicted of sexual misconduct with children.
This is certainly not to say that this court may uphold as constitutional a sentence that has no rational basis. It may not. Conversely, however, I believe that Harmelin requires this court to uphold as constitutional a sentence that does have a rational basis. See Harmelin, — U.S. at -, 111 S.Ct. at 2706 (“[T]he Michigan Legislature could with reason conclude that the threat posed to the individual and society by possession of [more than 650 grams] of cocaine ... is momentous enough to warrant the deterrence and retribution of a life sentence without parole____ [A] rational basis exists for Michigan to conclude that [Harmelin’s] crime is as serious and violent as the crime of felony murder without specific intent to kill, a crime for which ‘no sentence of imprisonment would be disproportionate____’”) (citations omitted).
The fourth and final factor the majority considers is the “evolution of the law and present sentencing standards.” The majority states that “societal standards have changed,” and “the modem trend in the law has been to separate the crime of statutory rape from other violent forms of rape, and concomitantly to reduce the severity of the sentence!” What this statement ignores, however, is that Harmelin allows societal standards to change back. And, by enacting the statutes at issue in this case, the Arizona Legislature has undoubtedly chosen to adopt a more severe punishment than that espoused by the “modern trend.” Further, modem trends are, at best, an elastic and subjective standard by which to measure the constitutionality of a sentence of imprisonment under the eighth amendment. Because our inquiry is not.whether defendant’s sentences comport with the modem trend, but rather whether a reasonable person might think them proper, this court should, as Harmelin instructs, leave the consideration of modern trends to the legislature. Harmelin, — U.S. at -, -, 111 S.Ct. at 2703, 2706; see also Lochner v. New York, 198 U.S. 45, 75-76, 25 S.Ct. 539, 546-47, 49 L.Ed. 937 (1905) (Holmes, J., dissenting) (“Some ... laws embody convictions or prejudices which judges are likely to share. Some may not. But a Constitution is not intended to embody a particular [theory]. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar, or novel, and even shocking, ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.”).
Likewise, the majority’s comparison of defendant’s sentences to being sent to the stocks, being flogged, or being castrated— which all deal with severe modes of punishment — is not helpful in determining whether a severe term of punishment is constitutional after giving meaning to the eighth amendment by reference to “the evolving standards of decency that mark the *314progress of a maturing society.” What is helpful, however, is to recognize that our society, via the Arizona Legislature, has determined that sexual intercourse between a person who is at least 18 years of age and a child is not in conformity with our “standards of decency.” While it might be decent to some people or even in some societies, ours has “progressed and matured” to the point of condemning such conduct.
The majority makes two other comparisons which, although technically correct, tell only half of the story. First, the majority states that “[t]he ‘minimum’ sentence[s] imposed in this case ... [are] comparable to the minimum sentence[s] imposable had Defendant been provoked, become violent, killed the girls, and been convicted of [two counts of] second degree murder.” The rest of the story is that «/this hypothetical had played itself out, it is more likely that the sentencing judge would have imposed the maximum sentences of 60 years (25 years for the first count and 35 years for the second count), rather than the minimum sentences of 40 years (15 years for the first count and 25 years for the second count) as he did in this case.13
Second, the majority’s statement that “the people, through their legislature, have adopted statutes under which the courts impose comparable punishmentfs] by imprisonment for crimes such as violent rape, second degree murder, and brutal assault of children,” is simply inaccurate. Although it is true that the range of punishment for the crimes committed by defendant and the crimes of violent rape, second degree murder, and the brutal assault of children are the same, there is no evidence that “courts impose comparable punishment” for these offenses. Indeed, it is not only counterintuitive to believe that courts do so, it is inconsistent with the record in this case, which suggests that the reason the court imposed upon defendant the minimum sentences imposable was because of the relatively non-violent nature of his crimes. By comparing defendant’s sentences to a parade of horribles and unsound “what ifs,” it is the majority, not I, who fails to give meaning to the eighth amendment by reference to “the evolving standards of decency that mark the progress of a maturing society.”
After revealing what I consider to be fatal flaws in the majority’s analysis under Harmelin, I now advance what I consider to be the appropriate proportionality analysis as articulated and conducted by Justice Kennedy. First, we must conduct an inquiry to determine whether “a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.” Harmelin, — U.S. at-, 111 S.Ct. at 2707. In conducting this inquiry, I believe that we must look not at the facts or particular circumstances of the crime, but we must decide whether the legislature could, with reason, conclude that the threat posed to the individual and to society by defendant’s offenses is momentous enough to warrant the deterrence and retribution of the sentences imposed. See Harmelin, — U.S. at-, 111 S.Ct. at 2706. If such a rational basis exists, then the sentences imposed are not grossly disproportionate to the severity of defendant’s crimes. Id.
While I do not know exactly what factors the legislature considered in enacting the Sexual Conduct with a Minor statute, A.R.S. § 13-1405, or Adopting the sentencing guidelines of the Dangerous Crimes Against Children statute, A.R.S. § 13-604.-01, I believe that the sentences imposed in this case are not grossly disproportionate to the offenses committed in light of the threat posed to the individual and to society by engaging in sexual misconduct with children.
II. The Threat Posed to the Individual
The threat of harm posed to children who become the victims of sexual misconduct is *315significant. In considering the statutes at issue in this case, the legislature was presented with and considered no less than 3 types of individual harm: emotional, social, and physical. Sexual Offenses; Child Victims: Hearings on S.B. 1021 Before the Comm, on Judiciary, 37th Leg., 1st Sess. 1-15 (Feb. 18, 1985) (hereinafter Child Victims).
Children who become the victims of sexual misconduct often develop emotional problems. One mother testified that as a victim of sexual misconduct, her daughter “has behavioral problems and worse of all, she has stated, ‘... I never want to grow up because adults don’t do fun things.’ ” Child Victims, supra, at 9. In addition, children who are the victims of sexual misconduct often engage in misconduct as adults. See, e.g., State v. Atwood, 171 Ariz. 576,-, 832 P.2d 593 (1992) (defendant molested as child engaged in sexual misconduct as adult). Concomitantly, children who suffer from emotional problems often suffer in their social relationships.
History has taught us that children who become the victims of sexual misconduct are many times physically harmed and even murdered by their attackers to eliminate the children as witnesses. See, e.g., Child Victims, supra, at 9 (mother testified that daughter had been victimized by man who told her that if she told anyone he would kill her and her mother); Atwood, 171 Ariz. at 576, 832 P.2d 593 (defendant convicted of murdering 8-year-old girl had told friend he “had considered ‘picking up’ another child and that ‘this time he would make sure the child wouldn’t talk’ ”); State v. Beaty, 158 Ariz. 232, 762 P.2d 519 (1988) (defendant sexually molested and murdered 13-year-old child); State ¶. Castaneda, 150 Ariz. 382, 724 P.2d 1 (1986) (defendant sexually molested and murdered 12-year-old child); State v. Roscoe, 145 Ariz. 212, 700 P.2d 1312 (1984) (defendant sexually molested and murdered 7-year-old child).14 Not quite so traumatic, but physical harm nonetheless, is the pain suffered by the children during and after the sexual misconduct. Finally,. sexual misconduct subjects children to diseases such as AIDS, and unwanted pregnancy.
III. The Threat Posed to Society
During the hearings on the statutes at issue in this case, Jim Skelly, the Chairman of the House Judiciary Committee, made the following statement:
Crimes against children have increased by epidemic proportions not only in the State of Arizona but throughout our Nation. According to an article in the Arizona Republic, February 17, 1985, child abuse has increased 35 percent nationally in the last year. Current figures for the City of Phoenix show that in 1984 as compared to 1983, assaults and aggravated assaults against minors increased by 36 percent, and although rape against minors decreased by four percent, other sex [offenses] against minors increased by 18 percent. It is not necessary to reiterate to you the tragic happenings in Tucson and Tempe. It is important to note that Frank Jarvis Atwood has a long history of child molestation and had been released on parole after only serving a short sentence. In addition, Mr. Castaneda was also released on parole and we all know what happened to the little Perry boy.
I think it is timely that this month’s Reader’s Digest printed an article entitled, “Why Do We Tolerate These Crimes Against Children?”
Child Victims, supra, at 2. Chief Assistant Attorney General Steven J. Twist also recognized that “crimes against children have made many of our urban centers uninhabitable and cause many of us to have fear and frustration over the criminal justice system.” Child Victims, supra, at 3.
In addition, the mother of an 8-year-old girl who had been abducted and murdered by a convicted child molester emphasized *316the anguish and grief suffered not only by the victim’s family, but also by the victim’s friends and classmates. Child Victims, supra, at 14. That same mother stressed, “It is time we realize we need to protect our children because they are our future. If we do not protect our children, what will it be like fifteen years from now?” Id.
In concluding that Harmelin’s sentence was not grossly disproportionate to the severity of his crime, Justice Kennedy recognized that the “[possession, use and distribution of illegal drugs represents ‘one of the greatest problems affecting the health and welfare of our population.’ ” Harmelin, — U.S. at -, 111 S.Ct. at 2705 (citation omitted). In concluding that defendant’s sentences are not grossly disproportionate to the severity of his crimes, I would recognize that sexual offenses against children represent a similar problem. In other words, I believe a rational basis exists for defendant’s sentences.
Because I find that defendant’s sentences are not grossly disproportionate to the severity of his crimes, no intra- or inter-jurisdictional proportionality review is appropriate. Harmelin, — U.S. at-, 111 S.Ct. at 2707. Similarly, because this court’s analyses of art. 2, § 15 of the Arizona Constitution have consistently been identical to analyses of its federal counterpart, I believe that no independent analysis of the state constitution is appropriate. See, e.g., State v. Mulalley, 127 Ariz. 92, 95-97, 618 P.2d 586, 589-91 (1980), overruled on other grounds, State v. Noble, 152 Ariz. 284, 731 P.2d 1228 (1987); State v. Davis, 108 Ariz. 335, 337-38, 498 P.2d 202, 204-05 (1972).
IV. Conclusion
The result in Harmelin is that a defendant in Michigan may constitutionally be sentenced to life imprisonment without possibility of early release for a first felony conviction of possession of more than 650 grams of cocaine. From that result, it seems clear that the Arizona Legislature has the constitutional authority to require a 23-year-old defendant on a first conviction who has had sexual intercourse with two different 14-year-old girls to be imprisoned for a total of 40 years without possibility of early release.
I read Harmelin as reinforcing society’s declaration of war against drugs. In light of Harmelin, I believe that the Arizona Legislature is entitled to declare war against the sexual abuse of children.
. Like the majority, I believe that Justice Scalia and Chief Justice Rehnquist would prefer Justice Kennedy’s approach to the dissenters’ adherence to Solem.
. Moreover, if defendant had been "provoked, become violent, [and] killed the girls,” after having sexual intercourse with them, he would have been subject to minimum sentences total-ling 90 years’ imprisonment without possibility of parole. See A.R.S. § 13-604.01(A), (G) (15 years for first count of sexual misconduct with a minor, 25 years for second count, and 25 years for each count of second degree murder).
. I am not saying that defendant's crimes were as severe as the crimes committed in these cases. They were not. Nor am I saying that defendant should be sentenced to death, as was each defendant in these cases. He should not. I list these cases only to illustrate the threat posed to children who become the victims of sexual misconduct.