dissenting:
I respectfully dissent from the majority’s concurring decision to abolish the doctrine of in favorem vitae. In my opinion, in favorem vitae review is a reasonable and decidedly modest precautionary measure when the state seeks to impose the sanction of death.
As I read the concurrence, the primary reasons advanced for abolishment of the doctrine of in favorem vitae are: 1) The availability of other mechanisms to capital defendants for detection and remedy of errors; and 2) abuse by defendants’ trial counsel who deliberately refrain from interposing objections to trial errors in reliance upon the doctrine. I consider both reasons invalid grounds for abolishing the doctrine.
First, with regard to the availability of other procedural safeguards for capital defendants, none of these serve the specific function of in favorem vitae. The statutory provision for post-conviction relief was created to rectify prejudicial error in any criminal case, and is limited in its scope of review and application. On the other hand, the more expansive in favorem vitae review was created to address errors within the unique context of a capital trial. State v. James Butler, 277 S.C. 543, 290 S.E. (2d) 420 (1982).
As to the ability of capital defendants to obtain a writ of habeas corpus, this remedy is available only after exhausting all other avenues of relief and is limited to cases “where there has been a ‘violation, which, in the setting, constitutes a denial of fundamental fairness shocking to the universal sense of justice.’ ” Horace Butler v. State, — S.C. —, 397 S.E. (2d) 87 (1990) (emphasis in the original), cert. denied, — U.S. —, 111 S. Ct. 442, 112 L. Ed. (2d) 425 (1990), quoting State v. Miller, 16 N.J. Super. 251, 84 A. (2d) 459 (1951). I would find the circumscription upon obtaining habeas corpus, though applicable to other criminal cases, unduly restrictive and inappropriate in a case where the imposition of death precludes subsequent remediation.
Second, concerning abuse of in favorem vitae by defendants’ trial counsel who fail to object to trial errors in reliance upon the doctrine, so called “sandbagging,” I am of the opinion that abolishment of the doctrine for this reason is a severe and *73misdirected attempt to remedy a matter properly and more appropriately addressed through other mechanisms presently in place. I would point out that I find no allegation in this record nor citation in the concurrence of “sandbagging.” However, such an assertion presumes bad faith on the part of defense counsel. I would suggest that where such is the case, the Rules of Professional Conduct provide remedies for attorney misconduct or abuse of the system.. It is incomprehensible that a capital defendant should be penalized for the actions of his counsel when the ultimate result may be prejudicial error for which a defendant pays with his life.
The evolution of mechanisms of protection cited by the majority does not alter the fact that the trial of a capital case and the resulting punishment are inherently different from any other criminal prosecution. For almost 200 years, this Court has recognized the doctrine of in favorem vitae as a viable and necessary device for safeguarding the integrity of our criminal justice system by insuring that prejudicial error in capital cases did not go undetected and unremedied. State v. Briggs, 3 S.C.L. 8 (1 Brev.) (1794). Likewise, the United States Supreme Court recognizes the severity and uniqueness of capital cases. See Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. (2d) 859 (1976). “Imposition of the penalty of death is profoundly different from all other penalties, Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 2965, 57 L. Ed. (2d) 973, 990 (1978), and, as such requires more, not fewer, procedural safeguards.. . .” State v. Biegenwald, 96 N.J. 630, 639, 477 A. (2d) 318, clarified, 97 N.J. 666, 483 A. (2d) 184 (1984). At the very least, justice demands and conscience dictates that the irretrievable extinguishment of human life by the state be preceded by a conscionable effort to be thorough, fair and reasonably certain adequate measures are maintained and observed to minimize the likelihood of an illegal execution.
The prevailing practice for appellate courts in several other jurisdictions is to overlook procedural defaults and review the trial record for reversible error prior to affirming a death sentence. See, e.g., Alabama:
In all cases in which the death penalty has been imposed, . . . the Supreme Court may notice any plain error or defect in the proceeding under review, whether or not *74brought to the attention of the trial court, and take appropriate appellant action by reason thereof, whenever such error has or probably has adversely affected the substantial rights of the petitioner.
Ala. Rule App. Proc. 39(k).
Arkansas: [W]here either a sentence for life imprisonment or death [is present], the Supreme Court shall review all errors prejudicial to the rights of the appellant.
Arkansas Rev. Stat. Ann. § 43-2725 (1977).
Florida: [In capital cases,] [w]e will, of course, continue to review every issue presented and to conduct our own review in accordance with Florida Rule of Appellate Procedure 9.140(f).
Cave v. State, 476 So. (2d) 180, 183, n. 1 (Fla. 1985), cert. denied, 476 U.S. 1178, 106 S. Ct. 2907, 90 L. Ed. (2d) 993 (1986).
Georgia: [In capital cases,] [t]he Supreme Court shall review each of the assertions of error timely raised by the defendant during the proceedings in the trial court regardless of whether or not an assertion of error was presented to the trial court by motion for new trial, and regardless of whether error is enumerated in the Supreme Court.
Georgia Unified Appeal Rule IV B(2).
Idaho: Death is clearly a different kind of punishment from any other that [might] be imposed, and [Idaho Code] § 19-2827 mandates that we examine not only the sentence but the procedure followed in imposing that sentence regardless of whether an appeal is even taken. This indicates to us that we may not ignore unchallenged errors. Moreover, the gravity of a sentence of death and the infrequency with which it is imposed outweighs any rationale that might be proposed to justify refusal to consider errors not objected to below.
State v. Osborn, 102 Idaho 405, 410-411, 631 P. (2d) 187, 192-193 (1981).
*75Illinois: Ordinarily, a contention not made in the trial court is waived on appeal. . . . However, because of the qualitative difference between death and other forms of punishment... this court has elected to address errors in death penalty cases which might have affected the decision of the sentencing jury.
People v. Holman, 103 Ill. (2d) 133, 176, 82 Ill. Dec. 585, 606, 469 N.E. (2d) 119, 140 (1984), cert. denied, 469 U.S. 1220, 105 S. Ct. 1204, 84 L. Ed. (2d) 347 (1985).
Indiana: The failure to properly raise issues in the Motion to Correct Errors — generally results in a waiver of the claimed errors. . . . Since the death penalty was imposed in this case, however, we will review the state of the record concerning these questions.
Lowery v. State, 478 N.E. (2d) 1214, 1229 (Ind. 1985), cert. denied, 475 U.S. 1098, 106 S. Ct. 1500, 89 L. Ed. (2d) 900 (1986).
Kentucky: [I]n a death penalty case every prejudicial error must be considered, whether or not an objection was made in the trial court.
Ice. v. Commonwealth, 667 S.W. (2d) 671, 674 (Ky. 1984), cert. denied, 469 U.S. 860, 105 S. Ct. 192, 83 L. Ed. (2d) 125 (1984).
Louisiana: In death penalty cases, this Court has reviewed assignments of error, despite the absence of a contemporaneous objection, in order to determine whether the error “rendered] the result unreliable,” thus avoiding later consideration of the error in the context of ineffective assistance of counsel.
State v. Hamilton, 478 So. (2d) 123, 127, n. 7 (La. 1985), cert. denied, 478 U.S. 1022, 106 S. Ct. 3339, 92 L. Ed. (2d) 743 (1986).
Missouri: Several states hold that the general rule that allegations of court error not assigned in a motion for new trial are not preserved for appellate review, codified in Missouri Rule 29.11(d) with exceptions not applicable here, is inapplicable in death penalty cases. Even though the assignment of error has been improperly preserved, *76we review, ex gratia, the point relied on for plain error ... to determine if manifest injustice or a miscarriage of justice resulted from the denial of Nave’s request for continuance.
State v. Nave, 694 S.W. (2d) 729, 735 (Mo. 1985), cert. denied, 475 U.S. 1098, 106 S. Ct. 1500, 89 L. Ed. (2d) 901 (1986).
Pennsylvania: Because imposition of the death penalty is irrevocable in its finality, it is imperative that the standards by which that sentence is fixed be constitutionally beyond reproach. . . . The waiver rule cannot be exalted to a position so lofty as to require this Court to blind itself to the real issue — the propriety of allowing the state to conduct an illegal execution.
Commonwealth v. McKenna, 476 Pa. 428, 440-441, 383 A. (2d) 174, 181 (1978).
Utah: [N]o objection was made to the omission. Nevertheless, as this is a capital case, we consider the defendant’s contention on appeal.
State v. Brown, 607 P. (2d) 261, 265 (Utah 1980).
I would maintain that the death penalty is not imposed so infrequently nor the power of the state so vast that we can afford to trivalize the value of human life or our high standard of justice for the sake of expediency. In my view, the justice system has not spawned such a proliferation of safeguards as to guarantee protection against human error, and we can ill afford the cavalier abolishment of one of the few effective devices in existence. To the extent the concurrence relies upon Horace Butler v. State, supra, it is worth noting that, despite the other procedural protections, including infavorem vitae, this Court was constrained to issue extraordinary relief.
I conclude that no other protection or relief within our criminal justice system is applicable to the unique domain of in favorem vitae, and the doctrine should be retained as an integral part of our law.