(specially concurring).
Based upon this Court’s decision, a hearing before the appropriate trial court, which would amount to a resentencing hearing, should now be held. Due process must attend with the petitioner being given a full opportunity to prove his rehabilitative worth. This hearing must be granted in a meaning*329ful manner. Daugaard v. Baltic Co-op. Bldg. Supply Ass’n, 349 N.W.2d 419, 424 (S.D.1984) (quoting Boddie v. Connecticut, 401 U.S. 371, 378, 91 S.Ct. 780, 786, 28 L.Ed.2d 113, 119 (1971)).
These offenses took place in Huron, South Dakota, which is the county seat of Beadle County. Both Judge Martin, the sentencing judge, and Judge Erickson, the habeas judge who denied habeas corpus relief, chamber in the Beadle County Courthouse. It is beyond cavil to note that this was a sensational episode in the community of Huron, spawning strong feelings and high emotion. Truly, this is understandable. For, indeed, a 5 year-old girl was abducted from her tricycle and taken to a cornfield where an 18 year-old high school senior had sexual contact upon her little body. Thirty minutes later she was returned to her neighborhood. Although no evidence of penetration was found, the testifying physician noted scratches and marks on her neck, thigh, and chest. Additionally, the little girl’s genitalia area was red and somewhat swollen. By any norm within civilized society, it was a dastardly act.
This criminal scenario took place on September 15, 1982; on June 3, 1983, petitioner was sentenced to life imprisonment without parole on a kidnapping conviction and to a concurrent ten-year sentence on a sexual contact conviction. As of the time I write, petitioner has been in the State Penitentiary for a period of ten years. So far as the court system is concerned, until this Habeas Corpus action was filed, heard, and appealed, petitioner has been under the sole jurisdiction of the executive branch of government, and, most particularly, the rules and regulation of the State Penitentiary and the executive branch of government.
So — ten years have gone by and troubling questions pervade my spirit. What has he learned? What has he been taught in the state penitentiary? His spirit — is it now contrite? What kind of value system does he have? And during these ten years, what of the little girl? She is now in her teens. What of her memories? And her fears? Has she required psychological treatment? And the petitioner — has he undergone psychiatric treatment? These questions must be probed for answers so that the resentencing court is knowledgeable about petitioner’s mind and conduct. Judge Erickson is a former Assistant Attorney General. He served for years on the Board of Pardons and Paroles. These were years of dedication and able effort. As a circuit court judge, and the habeas court herein, he found in Finding of Fact # 14 that South Dakota’s “state penal facilities have inadequate evaluation and treatment programs, which results in perpetrators who are still at risk to re-offend being released, often without supervision.” Obviously, inter alia, this weighed heavily in-his decision in concluding that petitioner should be denied relief. In so finding, Judge Erickson took judicial note of the Governor’s Task Force on the Children’s Justice Report.
The preceding dissertation leads me to SDCL 22-22-1.3 which calls for extra information on a sex offender. This new law, enacted by our State Legislature in 1992, took effect on July 1, 1992. Said law provides as follows:
Any person convicted of a violation listed in § 22-22-1.2 * shall have included in his presentence investigation report an assessment which shall include the following information: the offender’s sexual history; intellectual, adaptive and academic functioning; social and emotional functioning; previous legal history; previous treatment history; victim selection; risk to the community; and treatment options recommended.
In my opinion, it is evident that the resen-tencing judge, whomsoever he or she may be, must consider the above criteria. Implicit in the consideration would be the penitentiary record of petitioner. If there are mitigating circumstances that should now be considered, pursuant to SDCL 22-22-1.4, with respect to the sexual offense, the trial court should enter its factual basis in -writing. A new sentence will now be entered pursuant to the majority opinion; a sentence to life imprisonment, without parole, the majority holds, “shocks the conscience of men generally and of this Court.”
*330I would further venture that a new sentencing trial judge should now hear this case. See United States v. Robin, 553 F.2d 8, 11 (2nd Cir.1977) wherein it advised that “... reassignment to another judge may be advisable in order to avoid ‘an exercise in futility [in which] the Court is merely marching up the hill only to march right down again’, United States v. Tucker, 404 U.S. 443, 452, 92 S.Ct. 589, 594, 30 L.Ed.2d 592, 599 (1972) (Blackmun, J., dissenting).” A fresh approach to the resentencing process could well produce a desirable objectivity. Note the final words in SDCL 22-22-1.3: “... and treatment options recommended.”
As I write, I wonder — who determines what those “treatment options” are? A Court Services Officer? A psychologist? A psychiatrist? After ten years of incarceration, one would believe that a mental profile of the petitioner is indispensable to a sound sentence. And that, I believe, would be an expert, appointed by the trial court, to look into this 28 year-old man’s mind. He is no longer a teenager. In this connection, I refer to 1 Corinthians 13:11: “When I was a child, I talked like a child, I thought like a child, I reasoned like a child. When I became a man, I put childish ways behind me.” It is unknown, at least to the judiciary, the effect ten years of imprisonment has had upon the petitioner.
Underlying the resentencing process should be, as reflected upon in State v. Weiker, 342 N.W.2d 7, 11 (S.D.1983) (Weiker I): (1) Retribution (2) Deterrence and (3) Rehabilitation. These criteria were adopted by this Court from Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). A considered judgment (sentence) should consider the victim and determination should be made if restitution is applicable for counseling; at first blush, with years (possibly) to serve in prison, such a judgment could ring hollow for, indeed, where would petitioner obtain money to pay for counseling? An evidentiary hearing would, as an example of enlightenment, reveal if there has been counseling and expense for treatment of the victim to the date of sentencing. The State of South Dakota should have an opportunity, also, to bring out a rebuttal, if it so sees fit, to any mitigation produced by petitioner. A state victim’s assistance office and court services officer would be a great aid to the sentencing judge to arrive at a plausible legal conclusion. Under the dictate of State v. Wolff, 438 N.W.2d 199 (S.D.1989), a restitu-tional hearing must be held with due process requirements fulfilled. In State v. Reed, 451 N.W.2d 409, 411 (S.D.1990), this Court upheld a sentence ordering mental health treatment. In Reed at 411 we expressed:
While the sentence serves the valid goals of retribution and deterrence the trial court also provided for the goal of rehabilitation by ordering mental health treatment.
In Reed, the record revealed that he had a history of being sexually abused as a child and later sexually abused small children.
Vindictiveness has no place in resentencing. See Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1988). When a ease, such as this one, ends up with a reversal, a trial judge should reassess the original sentence, using objective criteria to arrive at a just sentence. Earlier this year, this Court affirmed a 40-year probation sentence for a 17 year-old lad who held his classmates in terror in one of the biggest high schools in South Dakota, Stevens High School in Rapid City. See State v. Harris, 494 N.W.2d 619 (S.D.1993). Harris was found guilty of one count of kidnapping, one count of intentional damage to property (shooting up a classroom with classmates therein), and three counts of aggravated assault. I point this ease out to illustrate the disparity of sentencing. In Harris, I concurred on affirming on the merits of the case but dissented to the 40-year probation, believing that it was an illegal sentence, citing State v. Oban, 372 N.W.2d 125 (S.D.1985) and State v. Tibbets, 333 N.W.2d 440 (S.D.1983). In Matter of A.S., 496 N.W.2d 589, 590 (S.D.1993), in concurring, I expressed that appellate courts exist for a reason and thereupon, cited to Parker, Improving Appellate Methods, 25 N.Y.U.L.Rev. 1 (1950), which set forth three basic functions of appellate courts. The second basic function being “to see that justice is administered uniformly throughout the state.”
*331In SDCL 24-1-1, it is specified that the State Penitentiary exists for the punishment of offenders and their reformation. As I pointed out in State v. Holloway, 482 N.W.2d 306, 314 (S.D.1992) in my special writing, the penitentiary’s name is taken from the word “penitent.” To be penitent is having a feeling or expressing pain for sins or offenses. It is to be sincerely affected by a sense of guilt and to be resolved on the worthy concept of amending one’s life. Petitioner is a first offender.
In the reports to the sentencing judge, there was some denial on the part of the petitioner of his guilt, with certain expressions by him that there was not enough evidence offered to the jury to prove him guilty. He also told H.T. Hermann, M.D., psychiatrist, that he agreed to the accusations against him to law enforcement only “to get them off my back” and that in truth, and in fact, he had absolutely no contact with the little girl at all. This interview took place some 10 years ago. Is he now penitent? Has he abandoned denial? Has he reformed himself? All of these haunting questions must be determined by the resentencing judge. I recently came across this case, United States v. Jones, 965 F.2d 1507, 1521 (8th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 346, 121 L.Ed.2d 261 (1992):
However, punishing first offenders with twenty-five year sentences does not deter crime as much as it ruins lives ... Discouraging recidivism by people who have already been in prison and been released serves a far more valuable purpose than deterring offenders who have yet to be arrested and have no knowledge of the law’s penalties.
Ten years behind prison walls — what kind of man is Justin Bult?
“A person sentenced to life imprisonment is not eligible for parole by the board of pardons and paroles.” SDCL 24-15-4. To prison authorities and fellow inmates, they are known as “lifers.” If the resentencing judge follows the instructions of this Court, considers Bult’s behavior over the last ten years, and conscientiously adheres to sentencing due process, petitioner could be eligible for parole, in the future, under SDCL 24-15-1.1 which provides in pertinent part:
Parole is the discretionary conditional release of an inmate from actual penitentiary custody before the expiration of his term of imprisonment. The prisoner remains an inmate under the legal custody of the department of corrections until the expiration of his term of imprisonment. A prisoner is not required to accept a conditional parole. A prisoner is never entitled to parole. However, parole may be granted if in the judgment of the board of pardons and paroles granting a parole would be in the best interests of society and the prisoner.
It is obvious that a new sentence will be less than a life imprisonment, thus the above statute will eventually be considered. Bult was a first offender; Judge Martin, as exemplified by his remarks, determined, based upon outside reading, that Bult was an unrehabilitative individual and should be “written off’ as incorrigible. There were no medical reports, criminal records, expert testimony, or evidence of any kind to substantiate that the decisional law of this state was followed and I particularly refer to Weiker I, supra. Weiker I cautioned against imposing a life sentence except in those type of cases where the defendant is without hope or a possibility of rehabilitation.
Both the Eighth Amendment of the United States Constitution and its comparable counterpart, Article VI, § 23 of this state’s constitution, prohibit the infliction of cruel and unusual punishment. Was the sentence cruel considering the age of Bult, his background, the fact that he was a first offender, and the limited duration he held this little girl captive? In my opinion, it was. Though it becomes difficult to say, knowing he did a dastardly deed, one must consider that he did deliver the little girl back into the neighborhood and in approximately one-half hour. He did not kill her nor maim her nor use a weapon upon her, but he did traumatize her.
His actions have now cost him ten years of imprisonment. Does his sentence shock the “conscience and reason of men generally?” See State v. Becker, 3 S.D. 29, 40, 51 N.W. 1018, 1022 (1892) and State v. Bad Heart Bull, 257 N.W.2d 715, 720 (S.D.1977). As I *332set forth in State v. Holloway, 482 N.W.2d 306, 319 (S.D.1992), wherein I dissented, this Court added this phrase “shock the conscience of the Court,” as depicted in State v. Antelope, 304 N.W.2d 115, 117 (S.D.1981). See also State v. Curtis, 298 N.W.2d 807, 811 (S.D.1980). Therefore, we now appear to have two tests on conscience: Shock the conscience and reason of men generally and shock the conscience of the Court. The majority opinion holds it satisfies both scopes of review; with said holding, I agree. Thereafter, I part company with my Brothers that the proportionality review is “obviated” under Harmelin, cited in the majority opinion. It is not apposite to such a holding. Rather, because we have determined the sentencing to be shocking, the Eighth Amendment proportionality test is activated. Take heed of our recent pronouncement in State v. Gehrke, 491 N.W.2d 421, 423 (S.D.1992), and recognizing that the “conscience and reason of men generally,” as well as the “conscience of this Court” is shocked.
If a sentence is manifestly disproportionate to the crime, [in light of the gravity of the offense and harshness of the penalty] ... then the other two factors listed in Helm [sentence imposed on others in the same jurisdiction and in other jurisdictions] become more focused and require extensive review. Weiker II, 366 N.W.2d at 827. See also Helm, 463 U.S. at 292, 103 S.Ct. at 3011, 77 L.Ed.2d at 650.
In my opinion, this Court has reviewed the sentence of life imprisonment and has considered the punishment to be manifestly disproportionate to the crime. Therefore, at a new sentencing, so that a trial judge may focus on a fair sentence, a trial judge must consider sentences imposed on others who were given sentences for kidnapping and in other jurisdictions. It is termed, by writers, as “the within and without the jurisdiction proportionality test.” State v. Basker, 468 N.W.2d 413, 418 (S.D.1991).
Petitioner’s habeas counsel, challenging the constitutionality of his client’s sentence, presented facts, statistics, data, records, and case sentencings in South Dakota. We have condemned a failure to present an adequate record so as the trial court could conduct a meaningful proportionality review. State v. Castaneira, 502 N.W.2d 112 (S.D.1993); Holloway at 311; State v. Sheridan, 383 N.W.2d 865 (S.D.1986); and State v. Christians, 381 N.W.2d 214 (S.D.1986). The habeas corpus court refused to consider other kidnapping sentences deeming all of the aforesaid data as “useless.” In Shilvock-Havird, 472 N.W.2d 773, 779 (S.D.1991), cited in the majority opinion, Judge Erickson, writing for this Court (and who is the habeas court here) cited this writer’s concurrence in result in State v. Janssen, 371 N.W.2d 353, 357 (S.D.1985). Therein, he recognized that a proportionality test cannot be considered at appellate level unless it is raised at the trial court level. Certainly it can be said that a disproportional sentence can never be established unless counsel is permitted to establish his client’s case by facts, statistics, data, records and ease sentencings. Here, petitioner was totally denied a consideration which had a direct hearing on proportionality. Excessive or disproportionate sentences have been constitutionally offensive since 1892 in South Dakota. Becker, 51 N.W. 1018, 1022. A little word, “or,” seems to be overlooked by many in this state; notice it cited below:
On appeal, we first determine whether the sentence “shocks the conscience” or is so disproportionate to the crime that it actú vates the Eighth Amendment “within and without jurisdiction” proportionality tests. (Emphasis supplied mine.)
State v. Lykken, 484 N.W.2d 869, 879 (S.D.1992). Accord State v. Andrews, 393 N.W.2d 76, 82 (S.D.1986); State v. Weiker, 366 N.W.2d 823, 827 (S.D.1985) (Weiker II). Obviate? No. Activate? Yes.
We need not follow literally all that is expressed in Harmelin. Need we adhere to the strict proportionality principles as held by the habeas court? No. A seminal case in this nation was State v. Opperman, 89 S.D. 25, 247 N.W.2d 673 (1976). Said decision, shining as a beacon for our sister states to follow a state’s rights star, held that this very institution has the power to provide individuals with greater protection under the State Constitution than does the United States Su*333preme Court under the United States Constitution. Accord: State v. Jones, 406 N.W.2d 366, 369 (S.D.1987); State v. McDowell, 391 N.W.2d 661, 665 (S.D.1986); and Daugaard v. Baltic Co-op Bldg. Supply Ass’n, 349 N.W.2d 419 (S.D.1984).
If this Court failed to follow a strict proportionality rule under Harmelin, nevertheless a proportionality analysis would survive in this non-capital sentence case. Harmelin was a plurality decision. Justice Scalia, joined by Chief Justice Rehnquist, held that there was no proportionality guarantee attending the Eighth Amendment. Justices Kennedy, O’Connor and Souter joined forces holding that the Eighth Amendment encompasses a narrow proportionality principle in non-capital sentences. But Justices White, Blackmun, Stevens, and Marshall adhered to the broader proportionality principle in the Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) holding. Therefore, seven Justices of the Supreme Court of the United States adhere to the proportionality standard which may be raised under the Eighth Amendment. Justice Kennedy wrote: “The Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.” Harmelin, — U.S. at -, 111 S.Ct. at 2705, 115 L.Ed.2d at 866-874 (citing Solem, 463 U.S. at 288, 303, 103 S.Ct. at 3008, 3016). Instanter, the majority opinion holds the Bult sentence is shocking to the conscience of men generally and to the conscience of this Court. We are thus decreeing that the sentence is grossly disproportionate to the crime and the Harmelin decision supports a decision to implement the Solem test.
Replete is the record below with exhibits, case history, statistics, and data setting forth twenty defendants who were sentenced to the State Penitentiary in South Dakota for kidnapping. It is abundantly clear that Bult has been treated far more harshly than these prisoners. Twelve are serving a specific term of years, from 25 years to 51 years. Every one of these sentences stemmed from far more aggravated facts than the one under consideration, including a history of serious crime, which cannot be demonstrated against Bult. Of eight individuals serving life sentences for kidnapping, only one involves a mandatory sentence of life imprisonment. In the latter case, the prisoner was found guilty of murder as well as kidnapping.
In Solem v. Helm, a case arising in South Dakota, Justice Brennan expressed: “The principle that a punishment should be proportionate to the crime is deeply rooted and frequently repeated in common-law jurisprudence.” 463 U.S. at 284, 103 S.Ct. at 3006. Later, we were reminded by the writer that the constitutional principle of proportionality has been explicitly recognized for almost a century.
I despise the acts of Bult; however, he is entitled to a meaningful hearing. I remind you of Chief Justice Burger’s written words which I referenced in Gehrke at 427:
In part the terrible price we are paying in crime is because we have tended — once the drama of the trial is over — to regard all criminals as human rubbish. It would make more sense, from a coldly logical viewpoint, to put all “rubbish” into a vast incinerator than simply store it in warehouses for a period of time, only to have most of the subjects come out of prison and to return to their old ways. Some of this must be due to our failure to try — in a really significant way — to change these men while they are confined. We lawyers and judges sometimes tend to fall in love with procedures and techniques and formalism. The imbalance in our system of criminal justice must be corrected so that we give at least as much attention to the defendant after he is found guilty as before. We must examine into the causes and consequences of the protracted warfare our system of justice fosters. Whether we find it palatable or not, we must proceed, even in the face of bitter contrary experiences, in the belief that every human being has a spark somewhere hidden in him that will make it possible for redemp*334tion and rehabilitation. If we accept the idea that each human, however “bad,” is a child of God, we must look for that spark.
Life is a burning candle. It is a dear light — a light — so precious — prison walls should not extinguish lest it ebb away into a state of total darkness. Bult. Does he sess the spark?
This refers to minimum sentences for sexual contact with children under ten years of age.