(dissenting) — I dissent in this case for three reasons. First, I disagree with the majority about the propriety of the prosecutor's cross examination of Rupe on the issue of a commuted sentence. Second, I believe the State has failed to meet its burden of proof on the absence of mitigating factors. Third, I believe the imposition of the death penalty is a disproportionate sentence when compared to the sentences in other cases in this state. Each of these errors requires reversal, and the latter two require that the trial court be directed to enter a sentence of life imprisonment without possibility of parole.
I
The majority holds that the prosecutor's cross examination of Rupe focusing on the possibility of a commuted sentence was not error. The majority bases its conclusion on the assertion that the prosecutor's questions were proper rebuttal to evidence in mitigation presented by the defense. Majority opinion, at 758-61. I believe the prosecutor's questions not only were improper but in addition were highly prejudicial.
The information that may be considered by a jury in a death penalty case is governed by statute. See RCW 10.95. The State may present evidence of aggravating circumstances such as those enumerated in RCW 10.95.020; the defendant may produce evidence of mitigating factors such as those enumerated in RCW 10.95.070. Generally, aggravating circumstances are aspects of the crime that make it more heinous, such as a contract killing or a multiplicity of *772victims. See RCW 10.95.020(4), (8). Mitigating factors tend to be characteristics of the defendant that make him or her less culpable, such as severe mental disturbance or extreme youth. See RCW 10.95.070(2), (7).
As the majority points out, the State is not limited to presenting evidence only of aggravating circumstances: once the defendant produces evidence in mitigation, the State may offer pertinent rebuttal evidence. Majority opinion, at 760-61 (citing State v. Bartholomew, 101 Wn.2d 631, 642, 683 P.2d 1079 (1984) (Bartholomew II)). It is this right to present rebuttal evidence, the majority maintains, that justifies the prosecutor's cross examination of Rupe on the issue of commutation. Rupe's statement that he faced "life without parole" if the death penalty were not imposed supposedly carried the "mitigating" implication that Rupe would pose no threat to society because he would remain incarcerated his entire life. Majority opinion, at 761. The prosecution thus was entitled to rebut this implication.
It is incorrect, however, to characterize Rupe's statement on direct examination as mitigating evidence. Defense counsel asked, "Mitch, at best, you will be looking at Walla Walla for the rest of your life?" Rupe responded, "Life without parole." This dialogue made no reference to Rupe's propensity to violence; it merely alluded to Washington's sentencing scheme. The death penalty statute requires the jury to select one of two alternatives, death or life imprisonment without possibility of parole. RCW 10.95.030. Rupe's statement merely clarified the alternatives.
The majority's error appears to arise from a misunderstanding of the statutory mitigating factor "future dangerousness''. See RCW 10.95.070(8). As indicated above, mitigating factors are those characteristics peculiar to the defendant that may make him or her less culpable than other persons committing similar offenses. Bartholomew II, at 647. A defendant may present in mitigation evidence of a passive personality or the absence of a general tendency to violence. The State in such an instance is entitled to present rebuttal evidence of defendant's aggressiveness.
*773This is not the situation in the instant case, however. Rupe's statement that under the statutory alternative to the death penalty he would face "life without parole" is a statement about the statutory alternative facing all defendants eligible for the death penalty. Rupe's statement is not evidence probative of Rupe's character or mental condition; it does not suggest traits peculiar to Rupe that distinguish him from others who have committed similar crimes. In the same vein, the testimony the prosecutor elicited from Rupe on the possibility of a commuted sentence is not evidence of Rupe's mental condition; it suggests no aggressiveness on his part. The majority's characterization of this evidence as pertaining to mitigation, then, is incorrect. As the majority concedes, the prosecutor's questions are not admissible under any other theory. Majority opinion, at 760. Therefore their admission was error.
This understanding of our statutory scheme is in keeping with other states' understanding of their statutory schemes. As the United States Supreme Court has observed, even though reference to commutation would not violate federal constitutional guaranties, such reference may run afoul of state guaranties. California v. Ramos, 463 U.S. 992, 1013-14 & n.30, 77 L. Ed. 2d 1171, 103 S. Ct. 3446 (1983). Illinois' capital punishment scheme, cited by the Ramos Court, 463 U.S. at 1013 n.30, provides a useful comparison to our own statutory scheme.
Illinois law, like Washington law, directs the jury to weigh aggravating circumstances and mitigating factors in deciding whether to impose the death penalty. Ill. Ann. Stat. ch. 38, ¶ 9-1 (c) (Smith-Hurd 1979). The aggravating circumstances enumerated by the Illinois statute are similar to those set forth in Washington's statute. Compare Ill. Ann. Stat. ch. 38, ¶ 9-l(b) with RCW 10.95.020. The mitigating factors also are similar in the two jurisdictions. Compare Ill. Ann. Stat. ch. 38, ¶ 9-l(c) with RCW 10.95-.070.
In People v. Walker, 91 Ill. 2d 502, 440 N.E.2d 83 (1982), cited in Ramos, 463 U.S. at 1013 n.30, the prosecutor indi*774cated in closing argument that if the defendant received a prison sentence in lieu of the death penalty, the defendant would be "eligible for parole ... in eleven years." Walker, at 513. The prosecutor's statement was not an inaccurate description of Illinois' sentencing scheme. However, the defendant argued that the prosecutor's remarks constituted reversible error because the possibility of parole was not a proper matter for the jury's consideration. Walker, at 513. The Illinois Supreme Court agreed, holding that under Illinois law the jury is confined to the consideration of aggravating circumstances and mitigating factors only. "By injecting the parole consideration into the penalty determination, the jury is diverting its attention from the offense and the offender, and is focusing upon a speculative possibility that may or may not occur." Walker, at 515; see also People v. Brisbon, 106 Ill. 2d 342, 367-68, 478 N.E.2d 402, cert. denied, 474 U.S. 908 (1985). The prosecutor's remarks thus constituted prejudicial error.
In the same way, in light of Washington's statutory scheme for imposition of the death penalty, the prosecutor's cross examination of Rupe on the subject of commutation violated our Legislature's directive. RCW 10.95 contemplates juror consideration only of the particular circumstances peculiar to the crime committed, characteristics personal to the defendant, and the two sentencing alternatives. Deliberation of the commutation possibilities facing all defendants is not within the jury's delegated authority. Cf. People v. Walker, supra.1
*775Moreover, even if the prosecutor's questions somehow could be construed as rebuttal, they still would be improper. This court has held that not all rebuttal evidence is necessarily admissible. Bartholomew II, at 642-43. In order to be admissible, rebuttal evidence must satisfy a balancing test similar to that prescribed under ER 403. The trial court must weigh the "extent to which the evidence tends to rebut defendant's mitigating information" against "the extent to which the evidence is otherwise prejudicial to defendant. Only if the rebuttal value of the evidence outweighs the prejudicial effect should the evidence be admitted." Bartholomew II, at 643 (quoting State v. Bartholomew, 98 Wn.2d 173, 198, 654 P.2d 1170 (1982) (Bartholomew I), State's cert. granted and remanded, 463 U.S. 1203, defendant's cert. denied, 463 U.S. 1212 (1983)).
The prejudice to the defendant caused by the prosecu*776tor's questions is not insubstantial. On direct examination Rupe made a single statement that he would face "life without parole". The prosecutor, on the other hand, inquired four times of the possibility of commutation. In addition, the judge overruled defense counsel's objection to the questions, thereby suggesting the court's approval of jury consideration of the issue. See Caldwell v. Mississippi, 472 U.S. 320, 339, 86 L. Ed. 2d 231, 105 S. Ct. 2633 (1985) (finding prejudice to defendant in prosecutor's improper remarks, in part because ”[t]he trial judge . . . not only failed to correct the prosecutor's remarks, but in fact openly agreed with them"). Other jurisdictions have recognized the prejudice inherent in the State playing on the jury's fear of future parole. For example, Louisiana has held that a court reviewing a death penalty case in which the possibility of future release was interjected into the proceedings "must presume that a death sentence was imposed under the influence of an arbitrary factor unless the record clearly indicates . . . the jury was . . . admonished to disregard the improper remark, and the record indicates that the jury heeded the admonition." (Italics mine.) State v. Lindsey, 404 So. 2d 466, 487 (La. 1981). See also People v. Myers,_Cal. 3d_, 729 P.2d 698, 233 Cal. Rptr. 264, 277 (1987) (court aware of no case in which error such as reference to commutation "has been found nonprejudicial in a death penalty case" and court strongly doubted it "could ever confidently conclude that there was no reasonable possibility" the jury's decisionmaking process was tainted). See generally People v. Brisbon, supra at 367-68; People v. Ramos, 37 Cal. 3d 136, 156 n.10, 689 P.2d 430, 207 Cal. Rptr. 800 (1984) (noting that 25 jurisdictions2 *777at that time held jury consideration of parole, pardon, or commutation to be error, and only three jurisdictions held such consideration proper), cert. denied, 471 U.S 1119 (1985).
We tread on dangerous ground when we hold that a single statement by the defendant mentioning the statutory alternative to the death penalty somehow opens the door to an otherwise improper appeal to the jury's fears. The death penalty is qualitatively different from all other punishments and requires the courts to conduct a greater degree of scrutiny when a capital sentence is imposed. California v. Ramos, 463 U.S. 992, 998-99, 77 L. Ed. 2d 1171, 103 S. Ct. 3446 (1983). Under the federal constitution, the death penalty may not be imposed arbitrarily and capriciously, and the jury must adhere to the substantive factors state law lays before it. Ramos, at 999; see People v. Walker, 91 Ill. 2d at 515 (fact that prosecutor's improper remarks may have been invited by defendant not dispositive in death penalty case; court must use strict scrutiny and determine that jury considered only proper factors). Our state constitution requires even greater safeguards. Bartholomew II, at 639. "Where the trial which results in imposition of the death penalty lacks fundamental fairness, the punishment violates article 1, section 14 of the state constitution.” Bartholomew II, at 640. Fundamental fairness is absent from any proceeding "in which evidence is allowed which lacks reliability." Bartholomew II, at 640.
No reliable evidence was presented to support the suggestion that Rupe's sentence might be commuted; the likelihood of commutation is virtually unascertainable. Rupe's *778future dangerousness is equally speculative. Scientific studies have laid to rest the idea that future dangerousness can be predicted with any degree of certainty. People v. Ramos, 37 Cal. 3d at 156. Furthermore, if Rupe's statement that at best he faced "life without parole" justified the prosecutor's references to commutation, the statement also would appear to justify questions about the possibility of, for example, federal habeas corpus relief. Such relief could occur, if not in the immediate future, then in 5 or 10 years, when the United States Supreme Court might decide to create new constitutional standards. Or perhaps "life without parole" could end with the release of prison inmates due to overcrowding or other intolerable prison conditions, at the behest of some as yet unappointed federal judge. Even if we lacked our statutory prohibition to jury consideration of these matters, our state constitution would not allow death penalty determinations to be based on such unchanneled speculation.
II
Two additional reasons compel reversal: the State's failure to prove the absence of mitigating factors, and the dis-proportionality of Rupe's sentence when compared with the sentences in similar cases. But unlike the error in questions regarding commutation, these two errors preclude a second sentencing hearing and instead require imposing a sentence of life imprisonment without possibility of parole.
Whenever a defendant is sentenced to death, our court is statutorily required to review the sentencing procedure and outcome. RCW 10.95.100. Regardless of what other issues the defendant may raise, the mandatory review specifies three express inquiries:
(a) Whether there was sufficient evidence to justify the affirmative finding to the question [''Having in mind the crime of which the defendant has been found guilty, are you convinced beyond a reasonable doubt that there are not sufficient mitigating circumstances to merit leniency?"]; and
(b) Whether the sentence of death is excessive or dis*779proportionate to the penalty imposed in similar cases, considering both the crime and the defendant. . . .
(c) Whether the sentence of death was brought about through passion or prejudice.
RCW 10.95.130(2); see RCW 10.95.060(4).
Each of these questions is distinct from the others. The inquiry in (a) focuses on the defendant and the crime and asks the question: are there facts about the defendant's character and facts about the crime that militate against imposing the most severe of penalties? The burden of proof is not on the defendant but on the State; the State must prove that whatever mitigating facts do exist are outweighed by the particular aggravating circumstances in the case. See State v. Mak, 105 Wn.2d 692, 755, 718 P.2d 407, cert. denied, 107 S. Ct. 599 (1986).
The inquiry in (b), whether the sentence is disproportionate, asks: even if the defendant can be said to deserve the death penalty, does such a sentence constitute a significant departure from the sentence generally imposed on other defendants in similar circumstances? An otherwise appropriate sentence of death will be reversed if one defendant is treated more harshly than other defendants of similar character who have committed similar crimes.
The third inquiry, whether the death penalty was brought about "through passion or prejudice", is concerned more with the jury's means of arriving at the sentence than at the sentence itself. I do not believe the record suggests anything improper in the jury's motivation and process. The first two inquiries, however, are problematic.
The inquiry under (a), as indicated, focuses on whether the aggravating circumstances of the crime outweigh the mitigating aspects of the defendant's character or mental state. RCW 10.95.070 sets forth examples of mitigating factors, two of which are relevant here: (1) whether the defendant has a significant history of prior criminal activity; and (2) whether the murders were committed while the defendant "was under the influence of extreme mental disturbance". RCW 10.95.070(1), (2). The evidence is undis*780puted that Rupe had no history of prior criminal activity. Cf. State v. Harris, 106 Wn.2d 784, 799, 725 P.2d 975 (1986), cert. denied, 107 S. Ct. 1592 (1987). Not only does this fact, standing alone, argue in favor of leniency, but in addition it speaks to the second factor, Rupe's mental state. Before examining the meaning of "extreme mental disturbance", however, the undisputed evidence bearing on Rupe's background merits discussion.
Approximately 50 people testified on Rupe's behalf at his sentencing hearing. They were childhood friends, friends of Rupe's parents, high school friends, and co-workers who served with Rupe in the army or on various community volunteer projects. The testimony was corroborative, not conflicting, and the picture of Rupe that emerged was uncontested: prior to the crime he had been — throughout his life — an even-tempered, likeable, helpful, kind, and law-abiding person.
As a child, Rupe played well with other children. He demonstrated no violent tendencies, and he "really liked people". When he was younger, he was a cub scout. In junior high school he was active in football and track; in high school he was team manager in several sports. He participated in the drama club, the debating club, and an exchange student program. He had many friends and was never known to be rowdy or violent.
When Rupe was only a young teenager he became active in Explorer Scouting — an extension of Boy Scouts — and joined the Civil Air Patrol. These activities taught him, among other things, skills useful in search and rescue operations. By the time he was 16, he had joined seven search and rescue missions. Rupe subsequently became a charter member of the Mason County Search and Rescue Council, an organization whose primary purpose was coordinating the activities of a large number of search and rescue groups. A number of years later, after joining the army, Rupe and a co-worker set up a ground search and rescue program in South Carolina.
Rupe's childhood ambition had always been to join the *781military service. When he was still in high school but had turned 17, he obtained his parents' permission to sign up for a 3-year tour of duty in the army. A bad ankle and arthritis kept him out of the military police, so he took an assignment in electronics signal duty. He served in New Jersey, South Carolina, and Korea, working on computer communications. He rose from repairman to Specialist 5th Class, and held positions as Assistant Shift Supervisor and Field Trip Supervisor. He was on temporary duty with the White House Communications Agency and spent 2 weeks at Camp David.
Rupe's military career included serving in Thailand, Taiwan, and Viet Nam; in the latter instance, he worked on removing electronic equipment just prior to the military pull-out. He was also stationed in Germany where he was the maintenance chief in charge of seven sites. During his first 3 months in Germany Rupe worked 7 days a week, often 16 to 17 hours a day. Although he was not enamored with every aspect of his job, he was happy in his work.
Throughout the period of his military career Rupe continued to be known as a gentle person who was willing to lend a hand to others. When he visited with friends, he enjoyed playing with their children, and the children responded with affection. Many of Rupe's friends considered him a member of their families.
Rupe's 8V2 years of productive military service came to an abrupt end in December 1980. New army regulations required Rupe to reduce his weight by more than 80 pounds. He managed to lose 71 pounds, but was unable to shed an additional 10. Rupe was honorably discharged and, for the first time since high school, Rupe was a civilian.
Rupe's civilian life proved less rewarding than his military career. Due to a civilian hiring freeze he was unable to find work that would exploit the skills he had learned in the army. Three months after his discharge he enrolled in Olympia Technical Community College. He also took a half-time position as a security officer at the college. In mid-September, Rupe felt the stress of financial problems. *782He was unsure of his long-term goals, his job, and his schooling. He was drinking heavily and taking amphetamines. It was at this time he thought of robbing the Turn-water State Bank.
There can be no question that Rupe's thoughts turning to bank robbery and murder represent a marked deviation from his prior personal history. He had never before committed a crime. Everyone who knew him — whether during his childhood, teenage years, or military career — considered him a gentle, friendly person, someone who went out of his way to help others. It is difficult to imagine this good friend and citizen pointing a gun at Candace Hemmig and Twila Capron and shooting them to death. But it is impossible to imagine this scene without believing that Mitchell Rupe was acting under the influence of an extreme mental disturbance.
I do not mean to suggest that Rupe was insane at the time of the murders. However, as an examination of the death penalty statute will reveal, a person need not be even "nearly" insane to be considered to suffer from an "extreme mental disturbance".
To understand the statutory language "under the influence of extreme mental disturbance", we first must recognize that RCW 10.95.070 contains more than one factor pertaining to the defendant's state of mind. Subsection 6 identifies as a mitigating factor evidence that, "at the time of the murder, the capacity of the defendant to appreciate the wrongfulness of his or her conduct or to conform his or her conduct to the requirements of law was substantially impaired as a result of mental disease or defect". RCW 10.95.070(6). This provision is similar to Washington's insanity defense. See RCW 9A.12.010. However, RCW 10.95.070, unlike the insanity defense, is not concerned with whether the defendant should be held responsible for the crime. "[Mitigating circumstances are those which] do not constitute a justification or excuse of the offense in question, but which, in fairness and mercy, may be considered as extenuating or reducing the degree of moral culpability. ” *783(Brackets in original.) Bartholomew II, at 647. A jury has already determined the defendant is legally accountable; the question raised by RCW 10.95.070(6) is to what extent the defendant should be punished. The Legislature, then, in enacting subsection 6 contemplated a situation in which the defendant's mental state was not sufficiently impaired so as to render him legally innocent but yet still was sufficiently impaired so as to mitigate the severity of his punishment.
If a subsection 6 "mental disease or defect” does not rise to a level requiring acquittal, then similarly a subsection 2 "extreme mental disturbance" does not rise to the level of a subsection 6 substantial impairment. In other words, the subsection 2 "extreme mental disturbance" is not the kind of mental impairment so serious as to be considered a "disease or defect" that would suggest acquittal or even just leniency under RCW 10.95.070(6).
Rupe's commission of the murders presented a sharp break with his past conduct. By all accounts — and the evidence was overwhelming — he had been an ordinary, law-abiding, and sympathetic person. The crime itself illustrated Rupe's mental disturbance: he left his checkbook at the scene, and soon after he actively sought to assist the police investigating the crime. He gave inconsistent stories, confessed several times to the police, and confessed to his friends. He then mounted an alibi defense that strains credulity, particularly in light of his inconsistent stories and the admission at trial of his confessions. It is impossible to review the evidence in this case without concluding that the person committing these murders lost some of his grip on reality.
Although the evidence demonstrates Rupe's extreme mental disturbance, this mitigating circumstance must be weighed against the aggravating factors. Of the three aggravating factors in this case, only one concerns human suffering: the multiplicity of victims. The other factors, that the murders were committed in the course of a robbery and to conceal the perpetrator's identity, did not increase the *784quantity of human misery and death.
This case does not evidence many of those aggravating factors which do increase the human suffering. The victims were not tortured, nor were they subject to the vicious brutality marking other crimes. See State v. Campbell, 103 Wn.2d 1, 5-6, 691 P.2d 929 (1984), cert. denied, 471 U.S. 1094 (1985); see also cases discussed in State v. Harris, supra, 106 Wn.2d at 803-04 (Utter, J., dissenting) (in one case defendant kicked victim in face, badly breaking nose, shot victim four times in head, and stomped victim's chest in; in second case, victim "had been badly beaten and had been strangled", victim's neck broken, victim had been shot twice, and he was discovered with his slacks "below his knees, the zipper and catch undone and his belt torn open . . . [h]is hands and feet . . . bound with telephone cord and strapping tape"; in neither case was death penalty sought). The killings here occurred in a single episode; we are not faced with a serial killer whose mental disturbance led to successive murders. Finally, the murders did not manifest the cold, chillingly calculated state of mind we saw in the Wah Mee case, where 14 people were methodically hog-tied and shot. See State v. Mak, 105 Wn.2d 692, 697, 718 P.2d 407, cert. denied, 107 S. Ct. 599 (1986). The cool-headed perpetrators of the latter crime were not likely to have left incriminating identification, such as a checkbook, at the crime scene.
It is conceivable that if the Mitchell Rupe of years ago had re-emerged at trial and displayed horror and remorse for these murders, his mental disturbance would have elicited more sympathy from the jury. But the fact that Rupe's mental disturbance appears to have persisted — evidenced in part by his senseless adherence to the alibi defense— does not alter the fact that that mental disturbance existed during commission of the crime.
The Legislature intended that the sentence of life imprisonment without possibility of parole be reserved for those crimes so grievous that their perpetrators have relinquished all right to liberty for every remaining moment of *785their lives. Mitchell Rupe will never again experience a day outside prison, and no argument is made that he should, for he deprived two human beings of life entirely. However, I believe the Legislature reserved the death penalty for those persons who not only have committed grievous crimes but also who have little to offer in way of mitigation. I do not believe the death penalty was designed for crimes as aberrant as this one: where an ordinary citizen suddenly acts in a manner inconsistent with his entire personal history and commits a sudden, confused, and single brief episode of violence. Where no torture, viciousness, or sadism is present, where the murders are not part of a string of killings by a serial murderer, where the deaths were not carried out with cold and systematic calculation, a defendant's extreme mental disturbance must weigh heavily in mitigation. Thus, even when one examines the evidence in a light most favorable to the State, the State cannot be said to have proved, beyond a reasonable doubt, that leniency is unwarranted.
Finally, this death sentence requires reversal because it is disproportionate to the sentences meted out in similar cases. As I noted ante, the review of a sentence for proportionality is a separate and distinct inquiry from the review of mitigating factors. Under the proportionality review, we assume for the sake of argument that the evidence in mitigation was insufficient to require leniency; we focus instead on whether other defendants in similar cases also received the same penalty.
This court has failed to set forth a satisfactory methodology for conducting a proportionality review. Admittedly, even a cursory examination of the 45 other cases of aggravated first degree murder brought under the current death penalty statute reveals a multitude of combinations of mitigating factors and aggravating circumstances which makes meaningful comparisons difficult. However, some comparisons are possible.
One approach is to begin by classifying a case in terms of its salient aggravating factors. A murder committed in the *786course of a robbery would be compared with other robbery-murders; a theft-murder would be compared with other theft-murders. Once the appropriate set of defendants is identified for comparison, the comparison would be for special heinousness and for factors in mitigation. Certain facts would indisputably increase the heinousness of a crime: if there was more than one victim, if the victim was conscious for any significant length of time of his or her impending death, and if the victim was physically abused or tortured. Certain facts in mitigation also are indisputable: serious mental impairment and emotional disturbance. When all other factors are equal, defendants who do not torture their victims should not receive the death penalty if those who do torture their victims consistently receive a prison sentence. Defendants who have committed a single murder should not receive worse treatment than those committing multiple murders. Moreover, these sets composed of various aggravating circumstances should be compared one to the other. For example, all else being equal, defendants whose aggravating circumstance was first degree robbery should not be treated worse than defendants whose aggravating circumstance was first degree rape, for the Legislature had defined first degree rape as a more serious offense.3 See RCW 9.94A.320 (setting forth "seriousness" levels for offenses under the sentencing reform act).
In the instant case, the defendant committed the murders in the course of a first degree robbery. There were two victims, a factor that enhances the heinousness of the crime. There was essentially no conscious suffering by the victims and no torture. As a factor in mitigation, the defendant acted under the influence of an extreme mental disturbance.
Examination of the 45 other cases of aggravated first *787degree murder yields 4 in which the defendant acted in the course or furtherance of a first degree robbery and killed multiple victims: State v. Mak, supra; State v. Ng, 104 Wn.2d 763, 713 P.2d 63 (1985); State v. Strandy, Clark County cause 85-1-00487-6 (sentenced October 4, 1985); State v. Hazen, Clark County cause 85-1-00322-5 (sentenced April 16, 1986).4 Two defendants — Mak and Hazen — received the death penalty; the other two did not. Unlike Rupe, all four of these defendants inflicted conscious suffering on their victims, making their crimes the more heinous. Two of the defendants — Ng and Hazen— offered some evidence of psychological disorders, but Ng, who participated in the execution-style slaying of 13 persons, was spared the death penalty. Strandy, who also was spared the death penalty, had no apparent mental disorder; in addition, he had a prior history of burglary, first degree robbery, and prison riot.
Even if we ignore a systematic approach to the proportionality review, we cannot help but recognize that Rupe's case presents an odd contrast with the cases of other defendants on death row. In five of these cases the defendants were convicted of killing more than one victim. See State v. Campbell, 103 Wn.2d 1, 691 P.2d 929 (1984), cert. denied, 471 U.S. 1094 (1985); State v. Mak, supra; State v. Jeffries, 105 Wn.2d 398, 717 P.2d 722, cert. denied, 93 L. Ed. 2d 301 (1986); State v. Hazen, supra; State v. Rice, King County cause 85-1-01004-0 (sentenced July 21, 1986).5 In all but one of these five cases — Jeffries—there was substantial conscious suffering prior to death. Jeffries may be explained by the fact that there was no evidence of mental disturbance; in addition, the defendant had an *788extensive criminal history spanning almost 20 years and containing 15 convictions. In two other cases — Hazen and Rice — there apparently was evidence of mental disturbance. However, these cases also appear to show some differences from Rupe's. Hazen had committed not only a first degree robbery but also a first degree rape, a more serious offense under the sentencing reform act. Rice's crime had four victims and was marked by serious brutality.
It is difficult to reconcile many of these differences. Ng killed 13 persons who lay hog-tied knowing they were about to die. Strandy also tied and gagged his victims. Neither of these defendants received the death penalty, and Strandy gave no signs of any mental disturbance that would lessen his culpability. Rupe's case differs from similar cases on death row in that the victims in these cases suffered prior to their deaths. Moreover, the other cases generally gave no suggestion of mental disturbance on the part of the defendant. Rupe's case is the sole case in which the victims did not suffer prior to death and the defendant acted under the influence of an extreme mental disturbance. Just as the murders in this case were wanton and freakish in light of Rupe's entire personal history, so the imposition of the death penalty is wanton and freakish in light of the treatment of other defendants.
For these reasons I dissent.
Williams, J. Pro Tern., concurs with Pearson, C.J.Reconsideration denied November 24, 1987.
The California Supreme Court has held that jury consideration of commutation is prejudicial error even when such consideration is part of the state's capital sentencing scheme. See California v. Ramos, 463 U.S. 992, 77 L. Ed. 2d 1171, 103 S. Ct. 3446 (1983), on remand, People v. Ramos, 37 Cal. 3d 136, 689 P.2d 430, 207 Cal. Rptr. 800 (1984), cert. denied, 471 U.S. 1119 (1985). A reference to commutation of a life sentence violates the principle of fundamental fairness by being misleading: it implies that the governor does not have the power also to commute a death penalty sentence.
[T]he pernicious effect of [such a one-sided reference to commutation] is that it may lead a jury that does not believe that the death penalty is necessary, but fears a future commutation, to return a death penalty in the mistaken *775belief that that sentence alone will preclude any possible release. Because an accurately informed jury would at least realize that the possibility of [commutation] cannot be avoided in any event, it is less likely to return a death sentence when it is not convinced that death is warranted.
People v. Ramos, supra at 154.
In addition, reference to commutation is improper because it turns the jury's attention to matters that should not influence the death penalty determination. The future dangerousness of the defendant and the likelihood of a future commutation are both matters purely speculative in nature. As the Louisiana Supreme Court stated,
"When a jury's attention is . . . thrust into speculation about the future action of as yet unknown actors, a serious possibility arises that each death sentence imposed under such conditions is the result of an interjection of an unquantifiable factor into the deliberation process, thereby rendering the decision arbitrary. ..."
People v. Ramos, at 157 (quoting State v. Lindsey, 404 So. 2d 466, 487 (La. 1981)); see also Farris v. State, 535 S.W.2d 608, 614 (Tenn. 1976) ("This is trial 'by guess and by golly' . . . which offends every sense of fairness and every precept of due process.").
Finally, jury consideration of a defendant's possible release into society is a violation of separation of powers principles. Under California law, as under Washington law, the power to commute a sentence is vested in the executive branch. See People v. Ramos, supra at 153; Const, art. 3, § 11. A jury persuaded to choose the death penalty to avoid a commutation would be preempting the executive's constitutional authority. See People v. Ramos, supra at 158 (citing State v. Lindsey, supra at 487; State v. White, 27 N.J. 158, 177-78, 142 A.2d 65 (1958)).
Our own court was one that recognized, in the context of jury instructions under a prior death penalty statute, that turning the jury's attention to parole possibilities can place "undue emphasis" on those possibilities. State v. Todd, 78 Wn.2d 362, 376, 474 P.2d 542 (1970). "By instructing the jury concerning the possible minimum sentence which the defendant might serve, the court suggests to the jury that it should give great weight to that possibility in reaching its verdict." Todd, at 376; see also State v. Grisby, 97 Wn.2d 493, 499-500, 647 P.2d 6 (1982) *777(when statute expressly required jury to consider life imprisonment with parole, instruction on parole was not error provided trial court carefully instructed jury so as to ensure no undue emphasis placed on instruction), cert, denied sub nom. Frazier v. Washington, 459 U.S. 1211 (1983); State v. Music, 79 Wn.2d 699, 709-10, 489 P.2d 159 (1971) (additional jury instructions on consequences of verdict of not guilty by reason of mental irresponsibility and of sentence of life imprisonment went beyond Legislature's intent and thus placed undue emphasis on such facts), vacated in part on other grounds, 408 U.S. 940 (1972).
In examining the special circumstances in death penalty cases, we have a substantial record before us, but in comparing death penalty cases to those in which the death penalty was not imposed we are limited to the facts elicited from the trial court by this court's standard questionnaire. See RCW 10.95.120(1)-(4).
The sentence in this case has not yet been reviewed by the Supreme Court, and my remarks here should not be construed as any prejudgment of the issues in the case.
The sentence in this case has not yet been reviewed by the Supreme Court, and my remarks here should not be construed as any prejudgment of the issues in this case.