concurring in the opinion of THOMAS, Justice, except with respect to issues relating to the sentencing phase of the trial.
I
The jury returned a death verdict in appellant’s sentencing trial. This case is before us upon a petition for post-conviction relief. Death penalty cases are different from all other cases. The punishment is final. If it is wrong, it cannot be corrected; it cannot be undone; it cannot be made right. And so, we review this case with utmost care and detail for the purpose of assuring ourselves that we do not impose the death penalty unlawfully, arbitrarily, or unjustly by slavish adherence to doubtful application of technical doctrine.
Appellant claims error, presenting the following issue for our review:
*87“Whether appellant’s right to be free from cruel and unusual punishment and to due process were violated by the jury’s finding as aggravating circumstances that the murder was committed for pecuniary gain and while the defendant was engaged in the commission of a robbery when the robbery had already been used to elevate the crime to capital murder.”
This issue was raised in part on direct appeal and addressed in part by Justice Rose, dissenting, in Engberg v. State, 686 P.2d 541, 558-62 (Wyo.1984), cert. denied 469 U.S. 1077, 105 S.Ct. 577, 83 L.Ed.2d 516 (1984) (Engberg I). Subsequent developments in case law and revision of our statutes require that we review death penalty sentencing in this post-conviction relief proceeding.
The issues we here address are whether the use of the underlying robbery to support two independent aggravating circumstances, and the use of the robbery as an aggravating circumstance when it had already been used to elevate the crime to capital murder were permissible. We conclude that both uses of the robbery were impermissible; that jury instructions relating to the aggravating and mitigating circumstances were incorrect; and that, accordingly, appellant’s sentence must be vacated and this case remanded for resen-tencing.
Appellant was convicted of felony murder under W.S. 6-4-101 (Dec.1977 Repl.) (now W.S. 6-2-101):
“(a) Whoever * * * in the perpetration of, or attempt to perpetrate, any * * * robbery * * * kills any human being * * * is guilty of murder in the first degree.
“(b) A person convicted of murder in the first degree shall be punished by death or life imprisonment according to law.”
Wyoming allows assessment of the death penalty only upon conviction of first degree murder, which is murder with premeditated malice or felony murder. Felony murder occupies a unique place in our jurisprudence. It allows a defendant who commits an unpremeditated murder to be convicted of first degree murder. The only requirement is that the murder occur during the defendant’s perpetration, or attempt to perpetrate, one of the felonies listed in the statute. Thus, we consider whether the death penalty was properly invoked following appellant’s conviction of first degree (felony) murder, the felony being robbery.
The United States Supreme Court has stated that the Eighth Amendment’s prohibition against cruel and unusual punishment, made applicable to the states through the Fourteenth Amendment, prohibits a state from imposing the death penalty in an arbitrary and capricious manner. Instead, the sentencing body must be provided with standards which will genuinely narrow the class of crimes and the persons against whom the death penalty is imposed by allowing it to make an individualized determination on the basis of the character of the individual and the circumstances of the crime. Zant v. Stephens, 462 U.S. 862, 878-80, 103 S.Ct. 2733, 2743-44, 77 L.Ed.2d 235 (1983)
“To avoid [unconstitutional, arbitrary and capricious sentencing], an aggravating circumstance * * * must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” Id., 462 U.S. at 877, 103 S.Ct. at 2742.
See also Gregg v. Georgia, 428 U.S. 153, 206-07, 96 S.Ct. 2909, 2940-41, 49 L.Ed.2d 859, reh. denied 429 U.S. 875, 97 S.Ct. 197, 50 L.Ed.2d 158 (1976); Furman v. Georgia, 408 U.S. 238, 294, 92 S.Ct. 2726, 2754-55, 33 L.Ed.2d 346 (Brennan, J., concurring), reh. denied 409 U.S. 902, 93 S.Ct. 89, 34 L.Ed.2d 164 (1972).
Wyoming has chosen to meet this requirement by creating a separate statutory sentencing procedure under which the jury considers aggravating and mitigating factors in deciding whether the death penalty should be imposed in each case of first degree murder. The pertinent part of Wyoming’s death penalty statute read as follows:
“(d)(i) After hearing all the evidence, the jury shall deliberate and render a recom*88mendation of sentence to the judge, based upon the following:
“(A) Whether one (1) or more sufficient aggravating circumstances exist as set forth in subsection (h) of this section;
“(B) Whether sufficient mitigating circumstances exist as set forth in subsection (j) of this section which outweigh the aggravating circumstances found to exist; and
“(C) Based upon these considerations, whether the defendant should be sentenced to death or life imprisonment.
# * * * * *
“(e) The death penalty shall not be imposed unless at least one (1) of the aggravating circumstances set forth in subsection (h) of this section is found. The jury, if its verdict is a recommendation of death, shall designate in writing signed by the foremen of the jury the aggravating circumstance or circumstances which it found beyond a reasonable doubt. * * * If the jury cannot, within a reasonable time, agree on the punishment to be imposed, the judge shall impose a life sentence.
“(f) Unless the jury trying the case recommends the death sentence in its verdict, the judge shall not sentence the defendant to death but shall sentence the defendant to life imprisonment as provided by law. Where a recommendation of death is made, the court shall sentence the defendant to death.
# * * * * #
“(h) Aggravating circumstances are limited to the following:
“(i) The murder was committed by a person under sentence of imprisonment;
“(ii) The defendant was previously convicted of another murder in the first degree or a felony involving the use or threat of violence to the person;
“(in) The defendant knowingly created a great risk of death to two (2) or more persons;
“(iv) The murder was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any robbery, rape, sexual assault, arson, burglary, kidnapping or aircraft piracy or the unlawful throwing, placing or discharging of a destructive device or bomb;
“(v) The murder was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody;
“(vi) The murder was committed for pecuniary gain;
“(vii) The murder was especially heinous, atrocious or cruel;
"(viii) The murder of a judicial officer, former judicial officer, district attorney, former district attorney or former county and prosecuting- attorney, during or because of the exercise of his official duty,
“(j) Mitigating circumstances shall be the following:
“(i) The defendant has no significant history of prior criminal activity;
“(ii) The murder was committed while the defendant was under the influence of extreme mental or emotional disturbance;
“(in) The victim was a participant in the defendant’s conduct or consented to the act;
“(iv) The defendant was an accomplice in a murder committed by another person and his participation in the homicidal act was relatively minor;
“(v) The defendant acted under extreme duress or under the substantial domination of another person;
“(vi) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired;
“(vii) The age of the defendant at the time of the crime.” W.S. 6-4-102 (Dec. 1977 Repl. & 1982 Cum.Supp.).
The jury, applying the statutory provisions detailed above, found the following aggravating circumstances:
“1. That the murder was committed by a person under sentence of imprisonment.
“2. That the Defendant was previously convicted of another murder in the first *89degree or a felony involving the use or threat of violence to the person.
“3. That the Defendant knowingly created a great risk of death to two (2) or more persons.
“4. That the murder was committed while the Defendant was engaged in the commission of or an attempt to commit or flight after committing or attempting to commit any robbery.
“5. That the murder was committed for pecuniary gain.”
The constitutional difficulty with W.S. 6-4-102 as it existed at the time of Engberg’s sentencing was that it allowed Engberg’s felony murder to both convict him and, without more, sentence him to death by allowing imposition of the death penalty upon the jury finding: “at least one (1) * * * aggravating circumstance” — that being “(h)(iv) murder * * * committed * * * in the commission of * * * any robbery.” This statute provided no requirements beyond the crime of felony murder itself to narrow and appropriately select those to be sentenced to death and therefore, on its face, permitted arbitrary imposition of the death penalty. This statutory scheme of death sentencing preserved in felony murder the very evil condemned and held unconstitutional in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726. It permitted in felony murder cases a sentence to death without applying any standards that generally narrowed the class of crimes and persons who were given the death penalty. The statute recreated a sentencing scheme that the United States Supreme Court found resulted in death sentences being imposed unevenly, unfairly, arbitrarily and capriciously. The infirmity in this statute has since been corrected by the legislature as we shall later discuss.
In Furman, the Court, faced with the same kind of sentencing scheme as now before us, observed that:
“Juries (or judges, as the case may be) have practically untrammeled discretion to let an accused live or insist that he die.” 408 U.S. at 248, 92 S.Ct. at 2731.
and stated further that:
“When the punishment of death is inflicted in a trivial number of the cases in which it is legally available, the conclusion is virtually inescapable that it is being inflicted arbitrarily. Indeed, it smacks of little more than a lottery system.” 408 U.S. at 293, 92 S.Ct. at 2754 (Brennan, J., concurring).
The Court held that imposing the death penalty under statutes without guidelines and criteria to rationally and uniformly select cases for imposition of death rather than life to be arbitrary in application and therefore unconstitutional.
In this case, the enhancing effect of the underlying felony (robbery) provided two of the aggravating circumstances which led to Engberg’s death sentence: (1) murder during commission of a felony, and (2) murder for pecuniary gain. As a result, the underlying robbery was used not once but three times to convict and then enhance the seriousness of Engberg’s crime to a death sentence. All felony murders involving robbery, by definition, contain at least the two aggravating circumstances detailed above. This places the felony murder defendant in a worse position than the defendant convicted of premeditated murder, simply because his crime was committed in conjunction with another felony. This is an arbitrary and capricious classification, in violation of the Furman/Gregg narrowing requirement.
Additionally, we find a further Fur-man/Gregg problem because both aggravating factors overlap in that they refer to the same aspect of the defendant’s crime of robbery. While it is true that the jury’s analysis in capital sentencing is to be qualitative rather than a quantitative weighing of aggravating factors, Engberg I, at 553, the jury should not be presented with two aggravating factors merely because the underlying felony was robbery, rather than some other felony. The mere finding of an aggravating circumstance implies a qualitative value as to that circumstance. The qualitative value of an aggravating circumstance is unjustly enhanced when the same underlying fact is used to create multiple aggravating factors.
*90When an element of felony murder is itself listed as an aggravating circumstance, the requirement in W.S. 6-4-102 that at least one “aggravating circumstance” be found for a death sentence becomes meaningless. Black’s Law Dictionary, 60 (5th ed. 1979) defines “aggravation” as follows:
“Any circumstance attending the commission of a crime or tort which increases its guilt or enormity or adds to its injurious consequences, but which is above and beyond the essential constituents of the crime or tort itself.” (emphasis added)
As used in the statute, these factors do not fit the definition of “aggravation.” The aggravating factors of pecuniary gain and commission of a felony do not serve the purpose of narrowing the class of persons to be sentenced to death, and the Fur-man/Gregg weeding-out process fails.
In our review of state precedent applying the Furman/Gregg criteria to statutory aggravating factors, we find the case of State v. Cherry, 298 N.C. 86, 257 S.E.2d 551 (1979), cert. denied 446 U.S. 941, 100 S.Ct. 2165, 64 L.Ed.2d 796 (1980), particularly persuasive. In that case, the defendant shot and killed a supermarket employee during a robbery. The jury convicted the defendant of felony murder. During the sentencing phase, the jury was submitted, and found as an aggravating circumstance, among others, that the murder was committed while the defendant was engaged in the commission of robbery with a firearm. The North Carolina Supreme Court stated that “[o]nce the underlying felony has been used to obtain a conviction of first degree murder, it has become an element of that crime and may not thereafter be the basis for additional prosecution or sentence.” Cherry, 257 S.E.2d at 567. The court held that “when a defendant is convicted of first degree murder under the felony murder rule, the trial judge shall not submit to the jury at the sentencing phase of the trial the aggravating circumstance concerning the underlying felony.” Id., at 568.
We distinguish Lowenfield v. Phelps, 484 U.S. 231, 246, 108 S.Ct. 546, 98 L.Ed.2d 568, reh. denied 485 U.S. 944, 108 S.Ct. 1126, 99 L.Ed.2d 286 (1988), which involved the killing of three persons and a conviction of three counts of first degree murder in Louisiana. The sole aggravating circumstance found by the jury was that “the offender knowingly created a risk of death or great bodily harm to more than one person.” Lowenfield, 484 U.S. at 243, 108 S.Ct. at 554. The Court reaffirmed the requirement of a statutory narrowing scheme for application of the death penalty, stating:
“To pass constitutional muster, a capital-sentencing scheme must ‘genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.’ Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235 (1983); cf. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976).” 484 U.S. at 244, 108 S.Ct. at 554.
That Court noted the statutes of the state of Louisiana provide five grades of homicide and, within the statute, narrows the class of offenders who receive death or life by providing separately for those who receive life without possibility of parole. Thus, two statutory schemes were permissible. The Court stated:
“[T]he narrowing function required for a regime of capital punishment may be provided in either of these two ways: The legislature may itself narrow the definition of capital offenses, as Texas and Louisiana have done, so that the jury finding of guilt responds to this concern, or the legislature may more broadly define capital offenses and provide for narrowing by jury findings of aggravating circumstances at the penalty phase.” Lowenfield, 484 U.S. at 246, 108 S.Ct. at 555.
and continued:
“Here, the ‘narrowing function’ was performed by the jury at the guilt phase when it found defendant guilty of three *91counts of murder under the provision that ‘the offender has a specific intent to kill or to inflict great bodily harm upon more than one person.’ The fact that the sentencing jury is also required to find the existence of an aggravating circumstance in addition is no part of the constitutionally-required narrowing process, and so the fact that the aggravating circumstance duplicated one of the elements of the crime does not make this sentence constitutionally infirm. There is no question but that the Louisiana scheme narrows the class of death-eligible murderers and then at the sentencing phase allows for the consideration of mitigating circumstances and the exercise of discretion.” 484 U.S. at 246,108 S.Ct. at 555.
The United States Supreme Court found in the Lowenfield case that Louisiana provided the narrowing process at the guilt phase of the trial. The clear provisions of the Wyoming statute provide that the narrowing occur in the sentencing phase of the trial. Lowenfield, therefore, does not govern our disposition in this case.
Another compelling reason for reversing appellant’s death sentence is that since he was sentenced, the legislature has modified the death penalty statute by making three changes which affect the aggravating circumstances used in his case.
First, the legislature removed most of the previous list of felonies, including robbery, from the list of crimes which constitute aggravating circumstances in W.S. 6-2-102(h)(iv). The new version reads as follows:
“The murder was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any aircraft piracy or the unlawful throwing, placing or discharging of a destructive device or bomb.” W.S. 6-2-102(h)(iv) (1991 Cum.Supp.).
Second, the legislature has qualified the question of what kinds of crimes are deemed motivated by pecuniary gain:
“The murder was committed for compensation, the collection of insurance benefits or other similar pecuniary gain.” W.S. 6-2-102(h)(vi) (1991 Cum.Supp.)
Finally, the legislature made murder connected with other violent felonies an aggravating circumstance only when premeditated malice is present:
“The defendant killed another human being purposely and with premeditated malice and while engaged in, or as an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any robbery, sexual assault, arson, burglary or kidnapping.” W.S. 6-2-102(h)(xii) (1991 Cum.Supp.). (emphasis added)
We think these changes demonstrate a recognition by the legislature that the system of aggravating circumstances in place at Engberg’s sentencing was problematic because of the bootstrapping effect of felony murder convictions. The current statute should govern a second sentencing phase trial because it does not contain the deficiency of the earlier statute. Cf. Attletweedt v. State, 684 P.2d 812 (Wyo.1984).
Our disposition in this case requires that we overrule a portion of our opinion in Engberg I. In Engberg I, we addressed the contention that submission to the jury of “murder for pecuniary gain” and “murder * * * committed while the defendant was engaged * * * in the commission of * * * any robbery” was improper because both aggravating circumstances referred to the same aspect of the defendant’s crime. We found the reasoning of the North Carolina court persuasive:
“In State v. Oliver, 302 N.C. 28, 274 S.E.2d 183 (1981), that court held that the aggravating circumstance identified as murder for pecuniary gain examines the defendant’s motive, not his conduct, and while not an element of the offense the jury properly may consider his motive with respect to the issue of a capital sentence. Later that court held that the aggravating circumstance of murder for pecuniary gain almost always appropriately will be submitted to the jury where the murder is committed during the *92course of an armed robbery. State v. Irwin, 304 N.C. 93, 282 S.E.2d 439 (1981). The thrust of the North Carolina court’s holdings is that these two aggravating circumstances both may be submitted to the jury.” Engberg, 686 P.2d at 553.
Since the entry of our opinion in Engberg I, the North Carolina Supreme Court — relied upon and cited by us with approval — has further explained Oliver, in State v. Quesinberry, 319 N.C. 228, 354 S.E.2d 446 (1987). In Quesinberry, the court synthesized Oliver and Cherry and held that, where a defendant is convicted of felony murder only, it is inappropriate to consider both pecuniary gain and the fact that a robbery was committed as separate aggravating factors because the motive cannot be divorced from the act for the purpose of aggravation. Quesinberry, 354 S.E.2d at 452. Accordingly, we no longer find Oliver valid for the principle cited in Engberg I. We agree with the North Carolina court and, for this and the other reasons cited, overrule Engberg I to the extent that it is inconsistent with this opinion. We now hold that where an underlying felony is used to convict a defendant of felony murder only, elements of the underlying felony may not again be used as an aggravating factor in the sentencing phase. We acknowledge the jury’s finding of other aggravating circumstances in this case. We cannot know, however, what effect the felony murder, robbery and pecuniary gain aggravating circumstances found had in the weighing process and in the jury’s final determination that death was appropriate.
Although the above issues are dis-positive in the penalty phase of this case, we also make note of amended W.S. 6-2-102 concerning jury determination of mitigating circumstances. W.S. 6-2-102(e) (1991 Cum.Supp.) states in part:
“(e) The death penalty shall not be imposed unless at least one (1) of the aggravating circumstances set forth in subsection (h) of this section is found. In nonjury cases the judge shall make such designation. If the jury cannot, within a reasonable time, agree on the punishment to be imposed, the judge shall impose a life sentence. The jury, if its verdict is a sentence of death, shall designate in writing signed by the foreman of the jury:
“(i) The aggravating circumstance or circumstances which it unanimously found beyond a reasonable doubt;
"(ii) The mitigating circumstance or circumstances which it unanimously found by a preponderance of the evidence; and
"(Hi) The mitigating circumstance or circumstances which any individual juror found by a preponderance of the evidence.” (emphasis added)
The emphasized portion was added in 1989. 1989 Wyo.Sess.Laws ch. 171, § 1. The version of the statute in effect at the time of the sentencing phase simply stated:
“(e) The death penalty shall not be imposed unless at least one (1) of the aggravating circumstances set forth in subsection (h) of this section is found. The jury, if its verdict is a recommendation of death, shall designate in writing signed by the foreman of the jury the aggravating circumstance or circumstances which it found beyond a reasonable doubt. In nonjury cases the judge shall make such designation. If the jury cannot, within a reasonable time, agree on the punishment to be imposed, the judge shall impose a life sentence.” 1977 Wyo.Sess. Laws ch. 122 § 1. See W.S. 6-4-102 (Dec.1977 Repl.).
The change reflects the United States Supreme Court’s decision in Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), a decision made while this petition was still pending before this court. In Mills, the Court held that the trial court in a death sentence case must clearly instruct the jury that each individual juror may consider any mitigating circumstance he or she finds to exist in making a sentencing determination, regardless of whether the jury unanimously found that mitigating circumstance to exist. 486 U.S. at 377-80, 108 S.Ct. at 1867-68. Reversal is required unless a “substantial possibility” that this occurred can be ruled out.
*93The sentencing phase instructions in this case required that the jury find an aggravating circumstance beyond a reasonable doubt and mitigating circumstances by a preponderance of evidence. The instruction for weighing the factors against each other did not indicate whether the mitigating factors must be found unanimously. Another instruction told the jury that it must unanimously agree on a verdict of death, and if it is unable to do so, the court will impose a sentence of life. The verdict form gave the jury two choices. The jury could either find the mitigating circumstances outweighed the aggravating circumstances and sentence Engberg to life, or that the mitigating circumstances did not outweigh the aggravating circumstances and sentence him to death. Nowhere in the instructions or verdict form was the jury told that the mitigating circumstances need not be found unanimously by the jury but that the mitigating circumstances may be found by individual jurors and weighed by them individually in deciding the life or death question.
Because W.S. 6-2-102 (1991 Cum.Supp.) will govern retrial of the sentencing phase of this case, we need not decide whether to extend the Mills decision to Engberg in a retroactive manner. See Sawyer v. Smith, — U.S.—, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990); Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989); Flores v. State, 572 P.2d 746 (Wyo.1977). Nevertheless, it is important to remember that our law has always been “that matters which convict require unanimity, and failure to convict can result from the vote of one juror and that aggravating and mitigating circumstances should be dealt with in the same way.” Hopkinson v. State, 798 P.2d 1186, 1190 (Wyo.1990) (Cardine, J., dissenting). The right to a unanimous verdict is beyond dispute. Taylor v. State, 612 P.2d 851, 853 (Wyo.1980); see Wyo. Const. Art. I, § 9. It is essential that Engberg be accorded the proper instructions on finding and considering mitigating circumstances in a retrial of the penalty phase of his felony murder conviction.
II
The dissenting opinion quotes the author of this opinion’s writing from Hopkinson, at 1188 — first out of context and then to suggest that I have no feeling for victims of crime.
First, out of context, I am quoted as refusing to accept the law of capital punishment because “I am convinced now that this is an unwise policy.” Omitted from the quote is the very next sentence:
“I am convinced also that, at this time in our history, these statutes are constitutional and, therefore, the law. I have taken an oath to support, obey and defend the constitution and will honor that oath.” Hopkinson, at 1188.
Second, it is said that my discussion of death and killing applies only to perpetrators, implying that I have no feeling for victims of crime. Thus, quoting me again from Hopkinson and then editorializing it is stated:
“These are noble words. Would they had been uttered to memorialize a torture victim, a family literally blown apart, or an innocent victim of an armed robbery rather than in support of convicted, cold-blooded killers.” Thomas, J., dissenting, at 5.
I assure the dissenting justice that my feelings about life and death and killing apply to victims as well as all mankind. I do not apologize for a feeling of regret over the killing of other human beings — something in which others seem to revel. My greatest hope is that someday we, as a civilized society, will stop the slaughter — the killing — of all human beings. Educating people about how to live with each other is the surest path to achievement of this result. Now we do it either poorly, or not at all.
The dissent, after quoting other writings of the author of this opinion, referencing him by name and stating that his words have a “hollow ring,” incredulously asserts that these references are not to that justice at all. The illogical discussion to support this claim could be understood only had it come from Alice in Wonderland, see Harvey v. State, 774 P.2d 87, 113 (Wyo.1989) (Thomas, J., dissenting). The dissent lec*94tures that the majority opinion, because joined by two other justices, is the product of the court, not the drafter, and therefore a direct reference to a single justice is not a reference to that justice at all. Surely, what is sauce for the goose is sauce for the. gander. The dissenting opinion is joined by a second justice. Therefore, it is the product of the court in dissent and, as suggested, nothing said in reference to a justice is a reference to that justice at all.
With that rule established, and being sensitive to the feelings of my colleagues, I agree that the time has come for candor in our discussion. Perhaps the real basis for my esteemed colleague's vigorous dissent can be gleaned from its observation that the majority opinion would “have the effect of eliminating the death penalty in the only two remaining cases in Wyoming * * Op. at 168. How tragic it is to lament the perceived loss of opportunity to kill these two men. However, there is no need for sorrow. The statement is incorrect. It is incorrect because Engberg will now, on remand, be given a lawful sentencing hearing at which a jury can correctly consider life or death upon proper instructions on the law and, if appropriate, impose the death penalty.
The dissent criticizes the majority for its citation of a dissenting opinion and alleged reliance on dictum. Op. at 168. However, the proposition that “ ‘matters which convict require unanimity, and failure to convict can result from the vote of one juror and that aggravating and mitigating circumstances should be dealt with in the same way,’ ” Hopkinson v. State, 798 P.2d 1186, 1190 (Wyo.1990) (Cardine, J., dissenting), is not merely dictum or a hypothetical argument in a dissent. Rather, that is the premise for the current statutory scheme and required instruction under the Wyoming death penalty statute. W.S. 6-2-102(e)(i) through (iii). The changes in the statutory mitigating factor scheme are relevant and not an “effort to eliminate capital punishment in Wyoming, * * * by articulating dictum,” dis. op. at 3, because Eng-berg will be resentenced under that amended scheme. Therefore, the revised Wyoming statutory scheme as well as the controlling United States Supreme Court precedent of Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), are mandatory and important considerations in our disposition of this case and not merely “articulating dictum[.]”
The dissent states — without empirical data, study, citation of authority or any basis whatsoever — that “there is evidence of the fact that prosecutors are not seeking the death penalty in cases in which a sentence to death well might be appropriate because they do not believe that the judiciary will permit the execution.” Op. at 168. This bald assertion is unsupported. But there is evidence to support the proposition that spending limits in district attorneys’ offices result in plea bargains. As a long-time, most respected Wyoming district attorney said when interviewed,
“he is aware of two possible capital cases in other counties that never went to court because the counties couldn’t afford the expense. The prosecutors settled for a plea bargain.”
and
“[i]f a prosecution means bringing in witnesses from out-of-state, the cost may be the deterrent that fosters a plea bargain.” Barron, Defense needs $, prosecutor can deal, Casper Star-Tribune, Sept. 22, 1991, at A8, col. 3, 4.
Unfounded, unsupported blame for lack of death penalty executions placed on decisions of this court is neither constructive nor helpful. The effect, as always, is to oversimplify the debate with the ‘I’m tough-on-crime, you’re soft-on-crime’ accusations. It is the sort of demagoguery that political candidates seize upon and unfairly exploit. The problem with these simplistic buzz words and slogans is that they often obscure the real and specific issues and do not aid in the solution of pressing problems. For example, a populous state in this country recently passed a milestone in that, for the first time in its history, it counted more than 100,000 persons incarcerated in its prisons. That is a milestone because it is more persons in prison than in any industrialized nation anywhere in the *95world, except the United States of America. Should we begin to look at that state’s milestone and ask ourselves if the ‘tough-on-crime’ approach is really working? We have more violent crime than any of the other western industrialized nations. We have a greater drug problem than any others. We have more murders. We are one of a small minority of developed countries that retains the death penalty. All of this deserves serious and thoughtful study. While recognizing that crime must be pun: ished and offenders incarcerated, we should also understand that in doing so we treat the disease and not the cause. The causes are many, and they deserve serious study, debate, and consideration.
The business of law, by its very nature, involves conflict, controversy, and disagreement. A healthy discussion of different points of view is the very essence of law— it is the way we grow, live better with each other, and improve our system of law to better serve society. It was in this spirit that discussion of the important questions presented in this case was undertaken.
It is said by the dissent that we have abolished the death penalty. The claim is absurd. The death penalty exists pursuant to legislation adopted in 1989 by the Wyoming legislature. Because we are a government of laws and not of men, we must reverse the sentencing phase of this case.
Whether a prosecutor, a member of the executive branch of government, seeks capital punishment or life imprisonment is a decision placed with his office. The decision ought to result from an honest, fair assessment of the facts and circumstances present in each particular case. I am confident the prosecutor will not shirk the duty in this case by whining about the court or complaining about the difficulty caused by delay. Presenting to a sentencing jury aggravating and mitigating factors is not really burdensome or difficult. Surely the prosecutor will eschew the suggestion of such difficulty and do his job honestly, reasonably, and as required by law.
Conviction affirmed. Sentence vacated and case remanded for proceedings consistent with this opinion.