(dissenting):
I. CUMULATIVE ERROR-INADEQUACY OF COUNSEL
I have become convinced that the State of Utah is prepared to execute a man who, because of ineffective legal representation, may not have had a fair opportunity to avoid the death penalty in the sentencing phase of his original trial. That it has taken so many years for this problem to confront this court is a function of historical context and failures in defendant’s post-conviction review process, some of which may fairly be attributed to counsel and some to the courts, but none of which justifies this court’s present refusal to review defendant’s claims on the merits, or at the least to require that a trial court do so at an evidentiary hearing.1
In 1974, when defendant Andrews was convicted and sentenced to death, Utah’s death penalty statute was newly enacted, in the wake of the United States Supreme Court’s decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), which had rendered Utah’s former statute unconstitutional. Thus, Andrews’ and his co-defendant Dale Selby’s death sentences were the first under the new statute, and their direct appeal represented this court’s first consideration of the death penalty after a dramatic shift in federal constitutional law. For nearly ten years after Furman, federal case law generated subtle, complex, and unpredictable development in capital punishment doctrine, and parallel treatment of the problems occurred in state law (both statutory and judicial). Andrews’ case became enmeshed in the delays necessitated by the development of the law in this area to an unprecedented extent. It has become common in the media and public discussion to characterize this case as “typical” of confusion and delay in death penalty cases in Utah, because of the numerous petitions for collateral relief Andrews and his former co-defendant (who was executed in 1987) have filed in state and federal court, each of which has required time-consuming review. I would like to emphasize for the record that, because of its peculiar historical placement, and in part because of the omissions of Andrews’ counsel, this case is not “typical” or in any way institutionally representative; it is unique. During its pendency, a number of other death penalty sentences, imposed at a time when death penalty law had become more settled and- predictable, have been processed to finality in the state or federal systems, or both. See State v. Bishop, 753 P.2d 439 (Utah 1988) (affirming death sentence; Bishop subsequently executed); State v. Norton, 675 P.2d 577 (Utah 1984) (vacating death sentence); Codianna v. Morris, 660 P.2d 1101 (Utah 1983) (noting trial court’s reduction of death sentence to life for three co-defendants); State v. Wood, 648 P.2d 71 (Utah 1981) (vacating death sentence); State v. Brown, 607 P.2d 261 (Utah 1980) (reducing *1036death sentence to life); Gilmore v. Utah, 429 U.S. 1012, 97 S.Ct. 436, 50 L.Ed.2d 632 (1976) (denying rehearing; Gilmore subsequently executed). Furthermore, finality in the companion case regarding Dale Selby was achieved five years ago. See Pierre v. Shulsen,2 802 F.2d 1282 (10th Cir.1986) (final affirmation of death sentence; Selby subsequently executed).
I make the foregoing observation in response to the State’s forcefully made argument in this proceeding, which I fear may have unduly influenced the majority, that the need for finality in this case must override all other concerns. The tragic consequences of delay, especially for the survivors of this crime (including the families of the murdered victims) are matters of grave concern. But delay in the service of fundamental fairness in the imposition and execution of the death penalty is a cost imposed upon us all by our constitutional system. We are all diminished by this grim process. But we would be further diminished if we were to allow the State to put people to death without it. The State has urged this court to refuse review of Andrews’ substantive claims because the integrity of the courts requires finality. We must not forget, however, that this same integrity also requires, perhaps more urgently, that no defendant be put to death when confidence in the fundamental fairness of the process by which he was sentenced to die has been undermined. “[T]he penalty of death is qualitatively different from a sentence of imprisonment, however long.... Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.” Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976).
My confidence in the reliability and integrity of this death sentence has been seriously undermined by the following considerations:
1. Andrews’ trial and initial appellate counsel was very recently out of law school and had no significant experience in felony defense and no experience at all in capital crimes. He appears to have relied very heavily on the experience and performance of counsel for co-defendant Dale Selby. The result at trial and on appeal was that Andrews’ defense was “tied” to Selby's; Andrews’ counsel mounted almost no separate defense. Andrews’ proper defense, however, given his more limited participation in the homicides, should have been to distinguish his case as much as possible from Selby’s, not to merge the two. Additionally, reliance on Selby’s counsel created a significant conflict of interest, given that Andrews could have argued in mitigation that he had acted under the psychological control of Selby. Plainly, however, Selby’s counsel would not have assisted Andrews in arguing that Selby was the significantly more evil perpetrator.
2. The merging of Andrews’ case with Selby’s, in terms of theory, evidence, and strategy, continued uncorrected and virtually unperceived by the courts until after Selby’s death, when a clearer focus of the distinct circumstances affecting Andrews began to emerge. I am convinced that this court, during the direct appeals and the first two reviews on collateral attack, had a minimal basis for evaluating Andrews’ claims independently from Selby’s. See Andrews v. Morris, 677 P.2d 81 (Utah 1983); Andrews v. Morris, 607 P.2d 816 (Utah 1980); State v. Andrews, 576 P.2d 857 (Utah 1978); State v. Andrews, 574 P.2d 709 (Utah 1977). Examination of our opinions reveals little or no close analysis of the facts related to Andrews’ actions as distinguished from those of Selby. In Andrews’ direct appeal, for example, Andrews’ counsel filed a seven-page brief containing no arguments about mitigation of Andrews’ guilt. For the most part, Andrews’ pleadings and briefs incorporated those of Selby, and scant attention was paid therein to the distinctions between *1037their specific actions during the course of the crime. This lack of specific and individualized focus on Andrews was, in my view, the result of the focus of the briefs3 of the parties and a concentration on the part of the court on significant, abstract problems related to death penalty doctrine. As an example of this obscured perspective, I cite to the fact summary appended to my own opinion in Andrews v. Morris, 677 P.2d 81, 98-99 (Utah 1983). In that summary, the court described the horrifying details of the crime, including the rape of a teenaged girl and acts of vicious torture, and then said, “Petitioner Andrews was present and either assisted or observed Pierre [Selby] during all of the events described herein.” Id. at 98 (emphasis added). There is now reason to believe that that statement is inaccurate and exaggerates the degree and nature of Andrews’ complicity in the torture of the victims and the shootings themselves. Even based on a careful review of the record at trial, the statement is misleading: Andrews was present on the premises of the store when the rape, the shootings, and some of the torture took place. So, presumably, was the third co-defendant Roberts, who helped transport stolen merchandise (and who was not convicted of homicide). Andrews was not, however, in the presence of Selby and the victims during the rape and shooting (and the strangling and assault of Orren Walker), nor did he “observe” these terrible acts. The failure of this court to note the significance of this factual distinction is symptomatic, in my view, of the degree to which counsel treated, and we viewed, Andrews and Selby as a unit at that stage of the proceedings.
A review of this court’s analyses in the original Andrews and Selby appeals also reveals a conflation of the two defendants in areas in which the court should have viewed them separately. For example, the court addressed “whether the standard of proof applied by the District Court in the defendant’s penalty phase violated due process.” State v. Andrews, 574 P.2d 709, 710 (Utah 1977). A close reading of the Andrews and Pierre opinions in tandem reveals that the court gave Andrews’ claim short shrift and unnecessarily merged the analysis of the two defendants into merely an analysis of Selby’s claims and a dismissal of Andrews’ claim based on that analysis. After raising the standard of proof regarding aggravating and mitigating factors in the Andrews opinion, the court simply states, “As to [this matter], the reasons and conclusions stated in Pierre, supra, concerning [it] apply and control here.” Id. In the Pierre opinion, the court ruled against the burden-of-proof argument regarding aggravating and mitigating factors. It stated:
We hold that in the penalty phase of capital offenses the burden of proof necessary for a verdict of death over life imprisonment is on the State and that the totality of evidence of aggravating circumstances must therefore outweigh the totality of mitigating circumstances. We believe the District Court’s instruction thereon satisfied that requirement in this case. And in our appellate review of this matter we conclude that the aggravating circumstances were overwhelmingly present against the defendant and the mitigating circumstances favoring him most minimal — even from the point of view of inference.
State v. Pierre, 572 P.2d 1338, 1347-48 (Utah 1977) (emphasis in original). The court made no separate mention or analysis of the aggravating and mitigating circumstances as they applied to Andrews. I can *1038only infer that, in the court’s view, the aggravating and mitigating circumstances were identical for the two defendants, despite the fact that Andrews did not actually administer Drano, shoot, or rape any of the victims; Andrews was younger than Selby, had no violent history, and although the court apparently was unaware of this at the time, may have had significant mental deficiencies.
Furthermore, language in a concurring opinion suggests that its author may not have been entirely open to the defense’s arguments on appeal:
In addition to what is said about the charged errors, they impress me as no more than the usual and to be expected attempts to claim error on every possible pretext. I think it particularly applicable here to state that the declared policy of our law is that it should not be obstructed by unsubstantial technicalities....
Pierre, 572 P.2d at 1356 (Crockett, J., concurring). In that appeal, Andrews had raised claims regarding, among other things, the constitutionality of the recently enacted death penalty statute, prejudicial pretrial publicity, and the trial court’s refusal to grant motions for separate trials and change of venue. Such arguments are hardly “pretexts]” or “unsubstantial technicalities.”
3. There were other significant and prejudicial consequences of the ineffectiveness of Andrews’ counsel, a number of which were noted in the dissenting opinion of Judge McKay of the Tenth Circuit Court of Appeals in Andrews v. DeLand, 943 F.2d 1162 (10th Cir.1991). I quote the following from that opinion:
(1)Counsel failed to interview [Andrews’] co-worker, a principal witness against his client, or to discover the inconsistent statement he had made when he was first contacted by the police.
(2) Counsel failed to cross-examine the eyewitness using his testimony at a preliminary hearing to demonstrate the several significant ways in which his trial testimony magnified petitioner’s apparent role in the crime.
(3) Counsel did not prepare for the penalty phase by contacting witnesses to demonstrate the deprivations that Mr. Andrews suffered as a child. Nor did he request that his client undergo psychological examinations or investigate his client’s background or schooling to discover that his client was a lifelong follower whose childhood IQ tests placed him in the range of mental retardation.[4]
(4) On appeal, counsel filed a brief that totalled seven pages and contained a single and inaccurate citation of authority. The brief erroneously states that both petitioner and co-defendant [Selby] “were administering the caustic fluid.” It fails to note that petitioner twice refused his co-defendant’s orders, saying “I can’t do it, I’m scared.” It does not address petitioner’s limited participation in the binding of the eyewitness or another victim nor address the taping of the victims’ mouths.
(5) Counsel joined in eight of the arguments presented by his co-defendant on appeal without even seeing the brief. Yet counsel inexplicably failed to join in the lesser included offense argument.
(6) Counsel mentioned no mitigating evidence on appeal. Nor did he make argument to the disproportionate sentence.
Id. at 1198.
The claims raised before the Tenth Circuit in the foregoing case detailing the nature and extent of counsel’s ineffectiveness have never, before the current petition, been brought to the attention of this court. The majority opinion in the Tenth *1039Circuit case concludes that this court had declared those same claims to be procedurally barred in Andrews v. Shulsen, 773 P.2d 832, 833 (Utah 1988). See Andrews v. DeLand, 943 F.2d at 1188. That conclusion was incorrect. A close reading of our opinion shows that the issue raised in that petition for postconviction relief was the failure of the original trial court to give an instruction on a lesser included offense on behalf of Andrews; the ineffectiveness of trial counsel was raised only in the context of his failure to request the instruction at trial and to present arguments on that question on appeal. Thus, the Tenth Circuit majority was wrong in concluding that the full complement of ineffectiveness claims and arguments before it had ever been considered and rejected, even on grounds of procedural default, by this court.
I note that I dissented in 1988 from this court’s denial of review of the claims that were raised in that petition, arguing that reliance on procedural default, given the complexities of the legal issues involved, raised the “terrible possibility that a defendant’s life may be taken without fundamental fairness and due process.” Andrews v. Shulsen, 773 P.2d at 834 (Durham, J., dissenting). Having been presented now for the first time with a fully developed argument on a spectrum of ineffectiveness claims, I am even more convinced that the majority errs in refusing to afford them either an evidentiary hearing or review on the existing record.
The State legitimately asks why it took so many years for the ineffectiveness issues to surface, and urges us to rely on procedural default to deny review. As I have indicated above, I believe the answer lies in the failure of defense counsel (including appellate counsel) and this court, prior to the death of Dale Selby, to focus adequately on the separate and distinct claims of William Andrews. It appears to me that that was done for the first time in 1990, in collateral proceedings in the federal district court. Andrews v. Barnes, 743 F.Supp. 1496 (D.Utah 1990). That failure is unfortunate and probably lamentable, but I do not believe that Andrews may fairly be charged with its consequences when they include death. The bottom line is that Andrews has a strong factual claim that he did not have a fair opportunity to avoid the death penalty, and this court is refusing to review that claim on the merits. As I wrote in the opinion referred to earlier:
There is no suggestion in this case of deliberate withholding of claims [regarding the lesser included offense instruction], and I view counsel’s procedural default as excusable neglect under the circumstances. Indeed, in a death penalty case, I am inclined to think such neglect, to which the defendant himself cannot have contributed, must be excused.
Andrews v. Shulsen, 773 P.2d at 834 (Durham, J., dissenting).
As I indicated earlier, the majority of the court has refused to grant a stay of execution, and the record in this case has not been filed with us. I have therefore not undertaken in this opinion a full, independent analysis of Andrews’ ineffectiveness claims. I am convinced, however, by Judge McKay’s analysis, by my review of the briefs and opinions on file in this court for each of the proceedings before us, and by my recollection of the review of the record I undertook in preparation of the court’s opinion in Andrews v. Morris, 677 P.2d 81 (Utah 1983), that those claims are meritorious. I would grant the petition, vacate defendant’s death sentence, and remand for a resentencing proceeding.
II. CONSTITUTIONAL IMPACT OF UTAH’S NEW SENTENCING STATUTE
I concede that by its terms, Utah’s new capital sentencing statute does not apply to Andrews and was not intended to be applied to his case. For the legislature to have prohibited application of this change in the law to Andrews, however, results in a death penalty scheme that violates constitutional rights to fundamental fairness and humane treatment. Because of the paramount concern for fundamental fairness in *1040all capital sentencing proceedings, see, e.g., Caldwell v. Mississippi, 472 U.S. 320, 329, 105 S.Ct. 2633, 2639, 86 L.Ed.2d 231 (1985), the death penalty imposed on Andrews in 1974 should not stand. The majority opinion entirely fails to address these constitutional problems, raised both in Andrews’ brief and at oral argument.5 The majority permits a miscarriage of justice in allowing the State to execute Andrews in 1992 based upon an eighteen-year-old justification that has now, because of a change in our law, disappeared.
In 1974, the prosecution argued to the sentencing jury that if it did not return a sentence of death, Andrews would be eligible for parole, that capital convicts paroled in Utah served an average of thirteen years in prison, that capital parolees often commit other homicides, and that the only way the jury could avoid this risk was to sentence Andrews to death. The State even introduced evidence of persons previously incarcerated for homicide who were paroled and who killed again. At the time, this evidence and attendant argument were at least factually accurate. Today they are not. Because Andrews continues to live and could now be sentenced to life without parole, it is fundamentally unfair to permit his execution to occur pursuant to the old law. If Andrews’ jurors sentenced him to death in part or in whole because they were afraid to let him live in view of the risk of parole, the basis of their judgment has been rendered void by the recent change in Utah’s law. Given the extent of the State’s reliance on its “parole threat” arguments and my own assessment of its likely impact on jurors, I conclude that it almost certainly constituted a major factor in their deliberations.
The eighth amendment of the United States Constitution and article I, section 9 of the Utah Constitution prohibit the infliction of “cruel and unusual punishments.” U.S. Const. amend. VIII; Utah Const. art. I, § 9. It is cruel and unusual within the meaning of both provisions to execute a defendant who has spent eighteen years on death row because a jury was afraid he would be paroled after thirteen years when those fears have been rendered groundless by a change in the law regarding parole. Having just abandoned a major justification for Andrews’ execution, on which it relied heavily at his trial, the State nonetheless seeks to send him to his death. Andrews undoubtedly perceives, as should this court, the irony and callousness inherent in this process. Having now made it explicitly possible for capital defendants to be sentenced to life without parole, the State cannot humanely execute a defendant who was in all likelihood condemned to die so he could never be paroled.
The Utah Constitution also prohibits treating criminal defendants and convicts with “unnecessary rigor.” Utah Const. art. I, § 9. Although we have never explicitly articulated what constitutes unnecessary rigor, we have acknowledged that particular sentences themselves may violate this provision. See State v. Russell, 791 P.2d 188, 190-91 (Utah 1990). In Andrews’ case, unnecessary rigor is manifest in two aspects of his current death sentence. It first exists in the legislature’s refusal to extend the life without parole option to individuals who remain under a valid sentence of death entered prior to April 27, 1992. The choice to justify an execution on the basis that it is the only way to incapacitate a defendant — the “parole threat” argument — is an unnecessary legislative choice, as the recent legislative change confirms. Incapacitation (also known as specific deterrence) can be achieved through means less rigorous than death. Utah’s death penalty statute prior to the recent changes violated the unnecessary rigor provision because it permitted the State to seek death sentences (as it did in this case) on the basis that death was the only way to inca*1041pacitate a defendant. Utah’s new sentencing statute perpetuates this violation as to all individuals who remain under a sentence of death entered prior to April 27, 1992.
Second, apart from the foregoing argument that Utah’s sentencing scheme is itself one of unnecessary rigor, unnecessary rigor also results from the majority’s failure to require resentencing of Andrews in light of the constitutional problems the new statute creates. Despite the existence of the new sentencing options, the majority evidently concludes that it is constrained to permit Andrews’ execution to go forward pursuant to the 1974 sentencing proceeding. But no such necessity exists. The new statute does not preclude Andrews, if his previous sentence is vacated, from receiving a new sentence under the life without parole option of the revised version of section 76-3-207. The fundamental unfairness of imposing an eighteen-year-old death sentence in the face of changed legal standards, and in the face of residual (and increasing) doubts about the adequacy of the proceedings to date, gives this court constitutional, not statutory, grounds for resentencing. Because the new statute by its own terms would then apply to Andrews, a major part of the justification for Andrews’ death sentence — incapacitation— no longer would be part of the calculus his sentencer could consider. Because it is possible to resentence Andrews within the bounds of the new statute, this court treats Andrews with “unnecessary rigor” by refusing to do so and by permitting him to be executed on the basis of the 1974 hearing.
Accordingly, I conclude that Andrews’ death sentence can no longer be legally or morally justified. The new statutory sentencing option does not apply to him. But having created an option of life without parole, the legislature has now made it obvious that a sentencing scheme that lacks a life-without-parole option as a means of achieving incapacitation (namely, the statute under which Andrews was sentenced) is unnecessarily rigorous. Furthermore, “cruelty” and “fairness” are constitutional principles, and their requirements cannot be “trumped” by rules of statutory construction. Capital punishment has enormous constitutional ramifications, implicating moral as well as legal principles, and the enactment of Utah’s new sentencing statute has altered the constitutional balance. Because of the constitutional requirements that capital punishment be “consistent and principled [and] humane and sensible to the uniqueness of the individual,” Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 874, 71 L.Ed.2d 1 (1982)—requirements that “give[ ] rise to a special ‘need for reliability in the determination that death is THE appropriate punishment,’ ” Johnson v. Mississippi, 486 U.S. 578, 584, 108 S.Ct. 1981, 1985, 100 L.Ed.2d 575 (1988) (quoting Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976)) (emphasis added) — I am unable to sustain an unex-ecuted death sentence that current law renders unreliable.
. The majority of the court has refused to issue a stay of execution (currently scheduled for July 30, 1992). Therefore, the time available for preparation of the opinions herein has been severely limited. I think such haste in such matters is unseemly, and I hope it will not prove to have detracted too seriously from the quality of our analysis.
. Selby "filed his federal habeas petition as ‘Dale S. Pierre’ [and] had been known throughout the state trial and state appeals as Mr. Pierre. Somewhere during the federal habeas proceedings, his attorney began referring to him as Mr. Selby.” Pierre v. Shulsen, 802 F.2d 1282, 1282 n. 1 (10th Cir.1986). I refer to him throughout as Selby.
. The arguments in Andrews' brief on direct appeal rested almost entirely on those in Selby’s brief. The only separate argument Andrews made was that the trial court’s refusal to require jury sequestration was an abuse of discretion. See Brief of Appellant at 4, State v. Andrews, 574 P.2d 709 (Utah 1977) (No. 13902). Aside from a two-and-a-half-page discussion of that argument, Andrews relied on Selby’s brief, thereby furthering the impression that the two defendants were a unit. The court observed in State v. Pierre, 572 P.2d 1338, 1351 (Utah 1977), "All parties cooperated fully in urging substantially the same objections and, for the most part, incorporating or joining in common motions, and points of error.” All this contributed to the general sense, in the media and the public, among the lawyers, and most importantly, even in this court itself, that the two defendants acted as a unit.
. This factor is extremely significant in my view. One of the aggravating factors relied on by the State at Andrews’ penalty hearing and by the courts that subsequently reviewed the sentence was Andrews’ "marginal performance” in the military. If Andrews was suffering from a significant intellectual deficit at the age of nineteen because of his deprived background, his inability to perform adequately as an airman would more properly have been seen as a mitigating factor than an aggravating one. Counsel's failure to pursue this argument may (literally) have been fatal to Andrews' case, given the paucity of mitigating circumstances before the trial jury and the failure to argue mitigation on appeal.
. The majority opinion does treat Andrews’ eighth amendment claim that imprisonment on death row for eighteen years in itself constitutes cruel and unusual punishment. The constitutional issues I address here are entirely distinct. Furthermore, my cruel-and-unusual-punishment analysis herein pertains to the process by which the State imposes a penalty rather than to the proportionality of a given sentence, as is the focus of the majority’s cruel-and-unusual-punishment analysis.