specially concurring.
¶ 27 I fully agree with both the result and the court’s reasoning. I write separately because I believe that same reasoning requires the court to go one step further to make certain the will of the electorate, which overwhelmingly adopted Proposition 200, is fully carried out.
¶ 28 The court today decides that a person found in possession of a controlled substance for personal use and the paraphernalia with which to use that substance is to be treated under Proposition 200, whether charged with possession of both drugs and paraphernalia or merely with possession of paraphernalia. But the court fails to deal with another category — the “stand-alone” case in which a defendant possesses only the paraphernalia with which to make personal use of a drug. Take, for example, a person who has smoked marijuana and, having finished, possesses only the pipe, the wrapper, or whatever other item might have been used. Consider also the example of a person who has given up drug use but has not thrown away the paraphernalia. The court’s analysis is equally if not more applicable to such stand-alone situations.
¶29 The court gives two reasons for not dealing with the problem. The first is that the stand-alone case is not presented by this record because drugs were actually possessed by both Estrada and Hatton. Opinion at ¶ 24 n. 2. But this third category of cases is encompassed within the issues presented to and accepted by us. In its petitions for review in both Estrada and Hatton, the state frames the issue regarding the paraphernalia charge as follows:
Despite the absence of any reference to drug paraphernalia in the statute, does A.R.S. § 13-901.01 mandate probation for possession of drug paraphernalia?
Although the court states that it addresses “solely” the two issues involving defendants apprehended in possession of both a prohibited substance and paraphernalia, it notes that “we granted the State’s petitions for review to determine the applicability of Proposition 200’s mandatory probation provision to drug paraphernalia convictions.” Opinion at ¶ 14 (emphasis added).
¶ 30 Further, the holding in State v. Holm was also quite broad:
Because one can obviously possess narcotics paraphernalia without necessarily, possessing or using a controlled substance, we hold that possession of narcotics paraphernalia is not a lesser-included offense of personal possession or use for purposes of § 13-901.01(A). Appellant’s contention that our interpretation will lead to illogical and unfair results and permit disparate treatment of similar offenses is an argument properly addressed to the legislature rather than this court.
195 Ariz. 42, 44-45 ¶ 10, 985 P.2d 527, 529-30 ¶ 10 (1998) (footnotes omitted).
¶ 31 This holding would have been much more persuasive, of course, if the legislature had passed the statutes in question. Any doubt about interpretation could then be resolved by the legislature. But Proposition 200 was an initiative proposal, and substantive *254amendment is pragmatically difficult if not impossible. The illogical and unfair results recognized in Holm thus must be considered by this court in trying to avoid unfairness and absurdity on the one hand and in carrying out the will of the electorate on the other. Therefore, the court today properly disapproves Holm by approving the Estrada court’s reasoning. Opinion at ¶¶ 22, 24, 26.
¶ 32 I agree that Estrada was correctly decided. But Estrada’s reasoning was not as limited as today’s decision. One of the questions decided in Estrada was: “Does Proposition 200 require probation for a defendant convicted [only] of possession of drug paraphernalia?” State v. Estrada, 197 Ariz. 383, 384 ¶ 1, 4 P.2d 438, 439 ¶ 1 (2000). The answer was “in the affirmative.” Id. In Estrada, of course, Defendant was caught in possession of both drugs and paraphernalia. But the court’s reasoning was broad:
The instruments and devices that amount to paraphernalia are not unlawful per se; pipes, rolling papers, envelopes, even blenders may constitute drug paraphernalia, but only to the extent that they are used or intended to be used in conjunction with a controlled substance — that is, an unlawful drug. See A.R.S. § 13-3415. The voters who insisted on probationary treatment for drug users could not have meant to mandate probation for possessing methamphetamine but permit prison for possessing a tube to smoke it in. The voters who sought to reserve prison space for violent offenders could not have intended, when a defendant is caught with a joint of marijuana, to require probation for the drug, yet permit prison for the rolling paper wrapped around it. Such a scheme would make no sense; worse, it would defeat the purpose the enactment was meant to serve. Such a scheme would also contravene a general purpose of the criminal code, which is to reasonably differentiate among offenses and prescribe penalties proportionate to the crime. See A.R.S. § 13-101(4).
Id. at 387-88 ¶ 21, 4 P.3d at 442-43 ¶21 (footnote omitted). This analysis, explicitly approved today, a fortiori applies to the stand-alone cases.
¶ 33 This court’s reasoning is even broader than that of Estrada. To interpret the statutes to permit imprisonment for possession of paraphernalia while requiring probation for possession of an illegal drug, the court says, would:
1. Lead to absurd results, it being “irrational to permit incarceration for possession of minor paraphernalia and to prohibit incarceration for the more serious crime of actual drug possession or use.” Opinion at ¶ 18.
2. Reach a result that would frustrate the intent of the electorate, which “did not intend to incarcerate for the lesser offense and yet mandate probation for the more serious.” Opinion at ¶ 20 (citation omitted). And
3. Send first-time offenders to prison for paraphernalia possession when the voters of Arizona have twice decreed they should be treated instead of incarcerated. Such an interpretation “produces a transparently absurd result.” Opinion at ¶ 23.
¶ 34 Each of these reasons is correct. Each of them is equally applicable to the defendant caught in possession of only paraphernalia for personal use. Yet the court says today that the second reason for not dealing with the paraphernalia problem is that Proposition 200 “depends on the actual presence of drugs.” Opinion at ¶ 24 n. 2. But Proposition 200 depends on the presence of drugs only because drugs are all it deals with. The word paraphernalia does not appear in Proposition 200 at all. It is the court that brings the paraphernalia issue — or at least two-thirds of it — within Proposition 200 to avoid absurd results and to effectuate the will and intent of the voters. The court is quite right in doing so but quite wrong in dealing with only two-thirds of the problem.
¶ 35 Why should we worry about the stand-alone problem? Even though the facts of these two cases do not present the standalone situation, it is evident from the cases that have come to our appellate courts that prosecutors have pressed the courts to treat possession of paraphernalia for personal use as outside the confines of Proposition 200. Because the court has limited today’s holding, some prosecutors and judges will no doubt feel justified in continuing to treat *255stand-alone defendants as prison-eligible, even though we have today held that the state should not ignore the will of the electorate and that it is improper for the courts to countenance such attempts. I would make it clear that we will continue to follow the electorate’s intent in all cases to which Proposition 200 applies — as it logically must in stand-alone cases of possession of paraphernalia for personal use.
¶ 36 It has taken years for Estrada and Hatton to make their way through the court system to today’s opinion acknowledging the will of the voters. But it is a pyrrhic victory. Both Estrada and Hatton served their full prison terms, only to learn today that they should have received treatment and probation instead of prison. To- subject others who have been found in possession of only paraphernalia for personal use to the same experience would not only frustrate the aims of Proposition 200 but result in unnecessary expense and waste of judicial and prison resources. I simply see no sense in failing to take the last step required by logic, common sense, and Proposition 200.
CONCURRING: THOMAS A. ZLAKET, Chief Justice.