dissenting:
I respectfully dissent. I believe that section 76-5-103.5(2)(b) of the Utah Code is constitutional on its face, and therefore, I would remand these cases for further proceedings.
I. UNITED STATES CONSTITUTION
A. Procedural Safeguards
It is important to note that in Utah, conviction of a capital crime does not automatically mean a sentence of death. Those convicted of capital crimes may also be sentenced to life imprisonment with or without the possibility of parole. See Utah Code Ann. § 76-3-207(4). Thus, conviction may assure a finding of one statutory aggravating circumstance but does not de facto mean the defendant will be sentenced to death. That is still left to the jury to decide under Utah’s death penalty scheme, which has been explicitly held constitutional. State v. Bishop, 753 P.2d 439, 460 (Utah 1988); State v. Brown, 607 P.2d 261, 268-69 (Utah 1980); State v. Pierre, 572 P.2d 1338, 1345, 1348 (Utah 1977), cert. denied, 439 U.S. 882, 99 S.Ct. 219, 58 L.Ed.2d 194 (1978).
Individuals charged under section 76-5-103.5(2)(b) of the Utah Code are entitled to the same procedural safeguards as are individuals charged with aggravated murder. For example, a unanimous jury must still find the accused guilty of the underlying crime beyond a reasonable doubt. Also, in a *654separate hearing, the jury must unanimously determine the appropriate sentence. In that hearing, the jury’s deliberations are guided by section 76-3-207 of the Utah Code, which directs the jury to consider aggravating and mitigating circumstances. Any sentence of death is automatically appealed to this court for review, and federal and state habeas corpus proceedings are available as avenues to review the sentence. Thus, discretion to impose the penalty of death under section 76-5-103.5(2)(b) is carefully circumscribed.
Justice Durham argues that the statute does not sufficiently narrow the class of persons eligible for the death penalty under the statute. She -states that only two requirements must be met before the statute applies: “(1) The prisoner must be serving a sentence for a first degree felony, and (2) the prisoner must intentionally cause serious bodily injury.” She then asserts that neither of these requirements is a sufficiently aggravating factor so as to justify “the imposition of a more severe sentence on the defendant compared to others found guilty [of the same crime].” Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235 (1983). However, Justice Durham fails to delineate and account for the most important aggravating factor built into the statute: The person charged must be a prisoner. This factor alone sets section 76-5-103.5(2)(b) apart from the various other statutes to which Justice Durham compares it. It serves as an aggravating factor because it narrows the class of eligible defendants to those who are currently being punished for other serious criminal activity. Thus, it is unhelpful to compare the penalty for “normal” aggravated assault with the penalty for aggravated assault by a prisoner resulting in intentionally caused serious bodily injury.
B. Death Penalty and Nonhomicide Crimes
Justice Durham concludes that section 76-5-103.5(2)(b) is per se cruel and unusual because “objective indicia of public attitude do not reflect anything like widespread acceptance of capital punishment for assault by a prisoner, and ... death is an excessive punishment for the crime of aggravated assault by a prisoner under any circumstances.” I do not share Justice Durham’s view of federal death penalty jurisprudence.
First, Justice Durham fails to cite any specific data in support of her public acceptance argument. In any event, each state is entitled to address its own problems individually, and although different states may come up with different conclusions, both may be constitutional. If the basis for determining a statute’s constitutionality was how many states had similar statutes, no state could ever enact a novel or distinctive law without being thwarted by a constitutional challenge. Furthermore, I am not sure the overall trend in societal attitudes is away from imposing the death penalty. The increasing number of prisoners on death row may reflect the opposite. In addition, Justice Durham’s claims are not entirely correct. She claims that since 1977 no judge or jury has imposed the death penalty in a nonhomicide case. While this may be so, in State v. Wilson, 685 So.2d 1063 (La.1996), cert.0 denied sub nom. Bethley v. Louisiana, — U.S.-, 117 S.Ct. 2425, 138 L.Ed.2d 188 (1997), the Louisiana Supreme Court, in a consolidated case, upheld the constitutionality of Louisiana Revised Statute 14:42(c), permitting the imposition of the death penalty for the rape of a child under twelve years of age. Justice Durham’s contention that there was no conviction or sentencing is irrelevant. The fact remains that the statute permitting the death penalty for a nonhomicide crime was upheld. Whether this is an aberration or evidence of a trend is unknown at this time. Nonetheless, the holding in that case stands.
Second, I am not ready to conclude that the statute makes no measurable contribution to the acceptable goals of punishment or, as discussed above, that it is grossly out of proportion to the underlying crime. Justice Durham, showing little faith in our justice system or juries, appeals to a slippery-slope argument in speculating that someone could be sentenced to death under section 76-5-103.5(2)(b) for breaking an arm, a foot, or even a finger. Yet, she ignores a truly plausible possibility: A prisoner serving a life sentence without possibility of parole might permanently cripple someone during an ag*655gravated assault and yet be subject to only nominal, if any, punishment.
Third, Justice Durham argues that “less extreme measures could- be taken to control inmates[.]” However, nothing requires a state to impose the least strict penalty available. See Gregg v. Georgia, 428 U.S. 158, 175, 96 S.Ct. 2909, 2926, 49 L.Ed.2d 859 (1976) (plurality). Further, in the case of first degree felons who are serving life sentences without possibility of parole, it is hard to see what further measures could be taken that would be effective.
Finally, Justice Durham asks why, if its purpose is to regulate prison society, section 76-5-103.5(2)(b) does not apply to all prisoners? The answer is simple: Although subsection (2)(b) does not apply to all prisoners, subsection (1) does. Section 76-5-103.5 reaches all prisoners, while the punishment mandated by the section varies according to the category of the crime for which the prisoner is serving time. This is not so different from recidivist statutes1 or the sentencing schemes in the United States Sentencing Guidelines and in Utah, which both look to criminal history in determining appropriate penalties.
Even if Justice Durham had correctly addressed and relied on the Utah Constitution in her opinion, her analysis thereunder is flawed. Justice Durham correctly characterizes this appeal as a facial challenge to the constitutionality of section 76-5-103.5(2)(b). However, her discussion of the statute is based not on a facial challenge, but rather on a proportionality analysis. It is unclear to me how we can validly discern an understanding of proportionality in the abstract. In these cases, discovery is incomplete and there have been no trials, no determinations of guilt or innocence, no judgments, and no sentences whatsoever. Yet with no facts, evidence, or sentences to guide her, Justice Durham proceeds to discuss whether the hypothetical possibility of the death penalty is proportionate to defendants’ alleged crimes about which we know-nothing.
In her analysis, Justice Durham apparently misunderstands the distinctive standard that applies to a facial challenge to the constitutionality of a statute. “A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987) (emphasis added); see also Greenwood v. City of North Salt Lake, 817 P.2d 816, 819 (Utah 1991) (“In challenging the ordinance on its face, plaintiffs must show that it is ‘invalid in toto — and therefore incapable of any valid application.’ ” (quoting Stejfel v. Thompson, 415 U.S. 452, 474, 94 S.Ct. 1209, 1223, 39 L.Ed.2d 505 (1974))). She claims that Salerno is a due process case and therefore distinguishable. However, Salerno is both a due process and an Eighth Amendment case. The no-set-of-circumstances standard applies in both instances. Instead of Salerno, Justice Durham. claims that the correct standard for an Eighth Amendment facial challenge is merely a presumption of validity. However, the case she cites for the proposition, Gregg v. Georgia, is not a facial challenge to the statute. There the Court specifically stated that it is reviewing the statute “as it applied in this case.” 428 U.S. 153, 162, 96 S.Ct. 2909, 2920, 49 L.Ed.2d 859 (1976). Therefore, the Gregg presumption-of-validity standard is inapplicable here. The standard set in Salerno is appropriate here.
Applying the Salerno standard, I am not prepared to say that section 76-3-103.5(2)(b) of the Utah Code can never be valid under *656any set of facts. It may be that a prisoner who is already serving a life sentence for various violent crimes and who beats a prison guard so violently that the guard is left in a permanent vegetative state would be justified in receiving the death penalty. How can we possibly say that there can be no set of facts in these cases that would justify the death penalty when we have no set of facts to review? We should leave it to the jury, subject to the procedural guidance of sections 76-3-206 and -207 of the Utah Code, to decide whether defendants’ crimes warrant the' death penalty. If the jury should so decide, jurisdiction will again be conferred upon this court to review the decision. At such a time, a proportionality analysis would be more proper.
Justice Durham’s proportionality analysis in the context of a facial challenge is very problematic. For example, Justice Durham is forced to make abstract determinations regarding which crimes are more heinous than others. While we agree that the death penalty is a disproportionate penalty for littering, would everyone agree that it is always disproportionate in a case where the victim did not die? Does it not depend on the factual circumstances of the crime? While life was apparently “not over” for the rape victim in Coker v. Georgia, 433 U.S. 584, 598, 97 S.Ct. 2861, 2869, 53 L.Ed.2d 982 (1977), are we sure that life is not over for a rape victim who has also been severely beaten and left in a permanent vegetative state? What about for a prison guard who has been severely beaten by an inmate and left in a permanent vegetative state? Obviously, these questions are difficult, if not impossible, to answer in the abstract. That is why we of necessity must review each circumstance on a case-by-case basis. Similarly, Justice Durham’s attempt at analyzing society’s “evolving standards,” see Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958) (plurality), and what might “shock the conscience” of the average citizen is by necessity subjective. Attempting such an analysis divorced, as in this case, from any underlying facts is merely an academic exercise in hypotheticals and is improper in the context of a facial challenge.
Justice Durham also adopts the three “Lynch factors” for an “objective” test of proportionality. To briefly reiterate her position, we are first to look at “ ‘the nature of the offense and/or the offender with particular regard to the degree of danger both present to society’”; second, we are to “ ‘compare the challenged penalty with the punishments prescribed- in the same jurisdiction for different offenses which, by the same test, must be deemed more serious’”; and third, we are to “conduct ‘a comparison of the challenged penalty with the punishments prescribed for the same offense in other jurisdictions!.]’” (Quoting In re Lynch, 105 Cal. Rptr. at 226, 227, 228, 503 P.2d at 930, 931, 932.) Again, I am not sure that these “objective” criteria apply in the context of a facial challenge to a criminal statute. In the context of a facial challenge, we know very little about the true nature of the offense, the personality of the offender, or the danger he or she may present to society. Similarly, an accurate description of a particular crime is practically impossible in the absence of factual information. Further, comparing the punishment and classification of aggravated assault by a prisoner with the punishment and classification of other crimes in Utah amounts to a reevaluation of our entire penal code and involves a weighing and reweighing of the severity of various crimes and the appropriate punishment for those crimes. This analysis is appropriate for the legislature, not for this court. Finally, while the law found in other states can provide us guidance, it is certainly not dispositive. The separate states have long been viewed as “independent laboratories,”2 and uniformity *657has never been a requirement for constitutionality. Compare Harris v. Alabama, 513 U.S. 504, 115 S.Ct. 1031, 130 L.Ed.2d 1004 (1995) (upholding sentencing scheme where capital sentencing determination vested in trial judge who must “consider” advisory jury verdict) with Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984) (upholding sentencing scheme where capital sentencing determination vested in trial judge who must give “great weight” to advisory jury verdict) and Utah Code Ann. § 76-3-207(4) (vesting capital sentencing determination in trier of fact; trial judge bound by jury determination).
Because only a portion of the federal constitutional analysis in section III.B.2 of Justice Durham’s lead opinion has gained a majority, the balance of her opinion is dicta. Nonetheless, I will briefly respond to her state constitutional analysis.
II. UTAH STATE CONSTITUTION
Justice Durham claims that defendants “argued that the [death] penalty violates the cruel and unusual punishments clause and the unnecessary rigor clause of article I, section 9 of the Utah Constitution” in their motions below. However, these “arguments” are nowhere to be found. In Gardner’s memorandum in support of defendant’s motion to dismiss, Gardner merely alleges that the “imposition of the death penalty ... would be a violation [of] Article 1, Section 9 of the Utah Constitution.” These mere assertions are not the equivalent of, and do not amount to, arguments. Nowhere does Gardner discuss the state constitution or tie any part of his Eighth Amendment argument, or any other argument, together with his assertions under the Utah Constitution. Furthermore, he offers no test for constitutional validity under the Utah Constitution and cites no case law in support of his challenge. After discussing the Eighth Amendment, Gardner summarily concludes, “Imposition of the death penalty ... can only be viewed as a violation ... of the Utah Constitution[.]” These are the only mentions of the Utah State Constitution in Gardner’s entire memorandum other than in its introduction. This hardly constitutes “argument” sufficient to allow us to adequately address the issue.
Similarly, Simmons failed to set forth any semblance of an argument under the Utah Constitution below. While Simmons did set forth a test for constitutionality, he failed to apply the test or analyze the issue at all. In conclusory terms, he states that article I, section 9 is broader than its Eighth Amendment counterpart and then concludes that the statute is therefore unconstitutional. Again, I fail to see how Justice Durham can unearth any “argument” presented to the trial court by either defendant that would aid us in analyzing the state constitutional issue.
Although both Gardner and Simmons did briefly raise the state constitutional issue on appeal, both defendants presented their oral arguments solely under the Eighth Amendment to the United States Constitution. During those arguments, no justice of this court asked either defendant to discuss the state constitutional challenge. Further, the article I, section 9 arguments in defendants’ briefs center on the “unnecessary rigor” clause — an argument that Justice Durham dismisses without analysis — not on the “cruel and unusual punishment” clause.
In addition, both in the trial court and before this court, the State responded only to the federal constitutional challenge, relying on- State v. Lafferty, 749 P.2d 1239 (Utah 1988), cert. denied sub nom., Cook v. Lafferty, 504 U.S. 911, 112 S.Ct. 1942, 118 L.Ed.2d 548 (1992), where we held that we will not reach state constitutional claims when a party relies on parallel federal constitutional provisions and relies only nominally on the state constitution. Id. at 1247 n. 5. This seems to be the very situation before the court now. However, Justice Durham summarily dismisses this argument in footnote 1 and instead states, “In light of the paucity of guidance offered by decisions of this court or *658the court of appeals on the meaning of article I, section 9 of the Utah Constitution, we regard defendants’ efforts sufficient in this capital case to properly present the state constitutional question for our analysis.” Thus, in order to address the state constitutional issue, Justice Durham creates out of thin air an exception supposedly giving us the power to address issues that are not properly before us under Lafferty simply because this court has not previously offered enough “guidance” on the issue. I cannot agree with an exception that seems to render Lafferty meaningless and allows us to address any issue that may strike our fancy.
CONCLUSION
Section 76-5-103.5(2)(b) of the Utah Code has existed in Utah in one form or another for 98 years. It has been subject to review, revision, and reeodifieation, the last time as recently as 1996. The fact that no prisoner has been sentenced to die pursuant to the statute does not therefore compel the conclusion that society has rejected it. On the contrary, perhaps the attempted application of the statute in the ease before us is more reflective of current societal attitudes. It is precisely because it reflects such attitudes that we defer to the legislature in drafting our criminal laws.
Justice Durham poses numerous questions in relation to the statute. Many of these questions are valid in the abstract and important at the legislative policy-formulating level. None of these questions, however, lead to the conclusion that section 76-5-103.5(2)(c) is unconstitutional on its face. I would uphold the district court’s ruling that the statute is constitutional on its face and remand for further proceedings.
HOWE, J., concurs in Justice RUSSON’S dissenting opinion.. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S.Ct. 371, 386, 76 L.Ed. 747 (1932) (Brandeis, J., dissenting) ("[It is] one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”); Washington v. Glucksberg, - U.S. -, -, 117 S.Ct. 2302, 2303, - L.Ed.2d - (1997) (O’Connor, J., concurring) (assisted suicide); United States v. Lopez, 514 U.S. 549, 581, 115 S.Ct. 1624, 1641, 131 L.Ed.2d 626 (1995) (Kennedy, J., concurring) (possession of firearm in school zone); Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990) (O'Connor, J., *657concurring) (withdrawal of life-sustaining treatment); San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 50, 93 S.Ct. 1278, 1305, 36 L.Ed.2d 16 (1973) (financing public education); see also Spaziano v. Florida, 468 U.S. 447, 464, 104 S.Ct. 3154, 3164, 82 L.Ed.2d 340 (1984) ("The Eighth Amendment is not violated every time a State reaches a conclusion different from a majority of its sisters over how best to administer its criminal laws.”).