concurring:
This is the first case, since my joining the Court, in which we have considered the application of the death sentence pursuant to Chapter 1201, 1973 Session Laws, ratified April 8, 1974, codified as G.S. 14-17, which makes first degree murder committed after April 8, 1974, punishable by death. All capital cases heretofore considered in which I have participated involved crimes committed before April 8, 1974. Death sentences in these cases have been affirmed by a majority of the Court on the authority of State v. Waddell, 282 N.C. 431, 194 S.E. 2d 18 (1973). I have dissented in each of these cases from that portion of the opinions sustaining the death sentence not on the ground that such a sentence was violative of the Cruel and Unusual Punishment Clauses of the Constitutions of the United States and North Carolina, but on the ground that only the Legislature and not this Court had authority to reinstate the death penalty in North Carolina after our State’s statutory scheme for imposing it had been invalidated by Furman v. Georgia, 408 U.S. 238, 33 L.Ed. 2d 346, 92 S.Ct. 2726 (1972). See my dissent in State v. Williams, 286 N.C. 422, 212 S.E. 2d 113 (1975).
By enactment of Chapter 1201, 1973 Session Laws, effective on April 8, 1974, the North Carolina General Assembly did reinstate the death penalty for the crime of first degree murder and the newly created crime of first degree rape. Consequently, for me, the question of the constitutionality of imposing a sentence of death for conviction of first degree murder duly authorized by legislative enactment is for the first time squarely presented.
It is not an easy question for I am personally opposed to capital punishment. Maintaining it, even for murder, is not in my view wise public policy. I do not believe, however, that its infliction upon one convicted of premeditated murder or murder committed in the course of another felony which itself is inherently dangerous to human life, such as we have here, contravenes the Constitution of the United States or North Carolina.
My belief that capital punishment is unwise as a matter of public policy is based primarily on the proposition that government, if it functions properly, should seek to set an example, to teach the people whom it serves. People ought to be able to look to the basic underlying policies of government and see there *598what is inherently right and proper. I agree with Mr., Justice Brandéis who once wrote: “Our Government is the potent, the omnipresent teacher. For good or for. ill, it teaches the whole people by its example.” Olmstead v. United States, 277 U.S. 438, 485, 72 L.Ed. 944, 959, 48 S.Ct. 564 (1928). The cold, calculated, premeditated taking of human life is an act the brutality and violence of which is not diminished because it is sponsored by the state. We rightly abhor the kind of human being who commits such an act. That the state should respond in kind is, to me, equally abhorrent. The argument that we somehow exalt human life by executing those wretches who murder and rape falls of its own weight. Calculated killings by individuals without doubt cheapen the God-given right to live. So, however, do calculated executions at the hands of the state. Executions are bad examples; they teach, not respect for life, but that some lives are not worth maintaining. It is a short step in the minds of many from execution at the hands of the state to murder and other violence at the hands of people. As Mr. Justice Stewart wrote in his concurring opinion in Furman, 408 U.S. at 306, 33 L.Ed. 2d at 388:
“The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity.” (Emphasis supplied.)
Neither do I believe that capital punishment, even when regularly utilized, deters generally the commission of capital crimes. Practically all of the statistical data available on the subject has been collected and much of it thoroughly analyzed in Bowers, Executions in America (D. C. Heath and Company, 1974) (hereinafter, Bowers). The author concludes:
“To assess the deterrent effects of capital punishment, investigators have conducted studies of various descriptions— examining and comparing nations and jurisdictions within' nations for the affects of abolition and other changes in the status of the death penalty, for the effects of fluctuations in and the cessation of executions, and for the impact of the death sentence and the execution in specific cases. Not one of these studies has turned up evidence that the death penalty is superior as a deterrent to punishments used as alternatives. The data presented in Chapters 5 and *5996 specifically restrict claims for the deterrent power of the death penalty by showing that the experimental abolition of capital punishment, the nationwide moratorium on executions, and the move from mandatory to discretionary capital punishment, did not encourage or contribute to a rise in criminal homicide.
“The failure of the death penalty to display any unique deterrent effect has been attributed to the fact that it had come to be imposed almost exclusively for irrational actions and that even for such conduct it was unlikely to be imposed. Murder and rape are typically committed in rage, drunkenness, and/or stupefying passion. The offender acts in madness or out of hatred, because of insult or betrayal, without expecting to be caught, or not caring if he is. While the objective likelihood of being put to death for his crime is quite low, it is doubtful that the capital offender is subjectively aware of his chances of escaping execution. Thus, even under the mandatory death penalty, which presumably contributes to the impression that offenders are certain to be executed if caught, potential offenders appear equally oblivious to such impending doom.” Id. at 193-94.
Bowers has carefully compared homicide rates for an equal period of time before and after 1967 (the year of the last execution in the United States) in death penalty and contiguous abolition states. These comparisons make a convincing case that neither utilization of capital punishment mandátorily or in a discretionary way nor its de jure nor de facto abolition has had any appreciable effect on the rate of commission of capital crimes. See also Furman v. Georgia, supra at 348-54, 33 L.Ed. 2d at 412-415 (Mr. Justice Marshall concurring).
It must be conceded that the raw datá available has shortcomings which reduce its probative value. “One is that there are no accurate figures for capital murders; there are only figures on homicides and they, of course, include non-capital killings.” Id. at 349-50, 33 L.Ed. 2d at 412-13 (Mr. Justice Marshall concurring). The main shortcoming of the statistical arguments is:
“ ‘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 *600the fear of being hanged.’ This is the nub of the problem. . . .” Id. at 347, 33 L. Ed. 2d at 411 (Mr. Justice Marshall concurring).
Deterrence, however, is not the only purpose of sanctions against criminal activity. Retribution has long been recognized by many as another valid purpose. Chief Justice Burger pointed out in his dissent in Furman, “The Court has consistently assumed that retribution is a legitimate dimension of the punishment of crimes.” 408 U.S. at 394, 33 L.Ed. 2d at 439. I, personally, do not believe that retribution has any legitimate place in our criminal justice system. My view is that the goals of sanctions against criminal conduct should be general deterrence to others, special deterrence to the offender himself, restitution to the victim, and rehabilitation of the offender. Punishment in the sense of retribution, vengeance, or retaliation is always in the long run self-defeating.
“But the punitive attitude persists. And just so long as the spirit of vengeance has the slightest vestige of respectability, so long as it pervades the public mind and infuses its evil upon the statute books of the law, we will make no headway toward the control of crime. We cannot assess the most appropriate and effective penalty so long as we seek to inflict retaliatory pain.” Menninger, The Crime of Punishment 218 (The Viking Press 1968).
Many disagree. “ [R] esponsible legal thinkers of widely varying persuasions have debated the sociological and philosophical aspects of the retribution question for generations, neither side being able to convince the other.” Furman v. Georgia, supra at 394-95, 33 L.Ed. 2d at 439 (Chief Justice Burger dissenting). While the extent of retribution available is certainly limited by the Cruel and Unusual Punishment Clauses in our state and federal constitutions, in the case now under consideration exaction of the death penalty in a purely retributive sense, while offensive to me personally, does not contravene these constitutional prohibitions.
The point is that as a judge I cannot substitute my personal will for that of the Legislature merely because I disagree with its chosen policy. The utility of capital punishment as a sanction against first degree murder in our scheme of criminal justice is one upon which reasonable, learned, humane, and conscientious persons differ. These differences are nowhere better *601documented than in the nine separate opinions filed by the Chief Justice and Associate Justices of the United States Supreme Court in Furman and the various authorities relied on in each of the opinions. Whether the effects of capital punishment in a murder case are, indeed, brutalizing or salutary, whether the data available tending to negate the deterrent effect of capital punishment really outweighs arguments in its favor resting on “logical hypotheses devoid of evidentiary support, but persuasive nonetheless,” Furman v. Georgia, supra at 347, 33 L.Ed. 2d at 411 (Mr. Justice Marshall concurring), and whether in a murder case it should be permitted for purposes of pure retribution are questions upon which honest persons conscientiously and deeply differ. This aspect of the question strongly militates in favor of judicial deference to the legislative will in the case now before us.
I fervently hope that someday North Carolina will join her ten sister states who have legislatively totally abolished capital punishment and some forty-five civilized countries throughout the world who likewise have abolished it (except, in some instances, in time of martial law and “for certain extraordinary civil offenses”). Bowers at 6, 178. The Constitutions of the United States and North Carolina in my view do not require her to do so in cases such as this one.