concurring specially.
I concur with the lead opinion and write only to comment on Parts II (Instruction No. 24A), VIII(A) (Constitutionality of Aggravating Circumstances) and IX (Proportionality).
INSTRUCTION NO. 24A.
The felony murder provision contained in I.C. § 18-4003(d) has come down to us virtually unchanged since territorial days. In 1882 the Supreme Court of the Territory of Idaho described the policy behind felony murder and noted the role that the commission of one of the enumerated felonies plays in the proof of first degree murder:
It is competent for the legislature to prescribe what felonious homicides shall be deemed murder, and to define the degrees. It is the policy of the law to hold persons engaged in felonies, or attempts to commit felonies, responsible for all the consequences of their felonious acts, whether such consequences were definitely intended or not; the intent to commit a felony standing in the place of the malice in ordinary cases of murder.
People v. Mooney, 2 Idaho 17, 18, 2 P. 876 (1882) (emphasis added).
Under this reading of the statute, Instruction No. 24A correctly instructed the jury that proof of the perpetration or attempted perpetration of a robbery would stand in the place of malice in proving first degree murder.
Lankford attempts to persuade us that the instruction was incorrect, because in his brother’s case this Court referred to the commission of the robbery as “a substitute for specific proof of premeditation.” State v. Lankford, 113 Idaho 688, 695, 747 P.2d 710, 717 (1987); vacated, 486 U.S. 1051, 108 S.Ct. 2815, 100 L.Ed.2d 917 (1988); affirmed, State v. Lankford, 116 Idaho 279, 775 P.2d 593 (1989). A careful reading of the opinion in that case indicates that what the Court was considering there was not a distinction between malice and premeditation. Instead, the Court was considering the argument of Lankford’s brother that a felony murder instruction relieved the State of proving intent. The instruction may be found in a footnote to the opinion. 113 Idaho at 694 n. 5, 747 P.2d at 716 n. 5. The Court erroneously, I believe, held that the instruction did not state “that killing in perpetration of a robbery is malice per se.” Id. at 695, 747 P.2d at 717. The Court interpreted the instruction as advising the jury “that malice can be implied in some situations.” Id.
In my view, proof of a first degree murder under I.C. § 18-4003(d) does not require proof of premeditation or express malice. Premeditation is an element of first degree murder under I.C. *880§ 18-4003(a). (“All murder ... which is perpetrated by any kind of wilful, deliberate and premeditated killing is murder of the first degree.”) Malice is supplied by the perpetration or attempted perpetration of one of the enumerated felonies. This conclusion is supported by State v. Paradis, 106 Idaho 117, 125, 676 P.2d 31, 39 (1984) and State v. Windsor, 110 Idaho 410, 419, 716 P.2d 1182, 1191 (1985). In Paradis we said:
Under the felony murder rule, a defendant who participates in a robbery can be held liable for the death of any person killed during the commission of that robbery, regardless of the individual defendant’s intent that a death occur.
Lankford challenges Instruction 24A as violating the rule of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). Substantial doubt has been cast on the validity of felony murder convictions under Sandstrom. E.g., Roth and Sundby, The Felony-Murder Rule: A Doctrine at Constitutional Crossroads, 70 Cornell L.Rev. 446, 460-471 (1985). However, as recently as June 21, 1989, the Supreme Court of Wyoming pointed out: “No jurisdiction has held that a felony murder statute violates the rule of Sandstrom v. Montana,____” Murray v. State, 776 P.2d 206, 1989 WL 67582 (Wyo.1989).
CONSTITUTIONALITY OF AGGRAVATING CIRCUMSTANCES.
The lead opinion upholds the constitutionality of the aggravating factor that “the murder was especially heinous, atrocious or cruel, manifesting exceptional depravity,” on the ground that judges, not juries, impose death sentences in Idaho. The constitutionality of this factor was upheld on other grounds in State v. Charboneau, 116 Idaho 129, 774 P.2d 299, 321 (1989). We said in Charboneau in addressing a different issue: “Although we have upheld sentencing by district judges in death penalty cases, we are not prepared to interpret the eighth amendment to give judges more latitude than juries in making their decisions as to whether a defendant should be executed.” 116 Idaho at 150, 774 P.2d at 320.
PROPORTIONALITY OF THE DEATH SENTENCE.
While I concur with the conclusion that the sentence of death imposed against Lankford was not disproportionate or unjust compared to the sentences in other recent capital cases, I object to the rote citation of the cases we have supposedly considered. While some of the many cases cited are well known, others are inapposite and some are outdated. I particularly object to the citation of cases in which the death penalty was not at issue. E.g., State v. Stormoen, 103 Idaho 83, 645 P.2d 317 (1982) (indeterminate life sentence based on a plea to second degree murder). Also, over half of the cases cited involve sentences that were handed down before our present death sentencing statute was enacted in 1977. For myself, I have personally reviewed the cases since 1977 that I believe are comparable to this one. I suggest that we discontinue the practice of routinely citing cases which are not in point and which are outdated.
Appendix “A”
HUNTLEY, Justice, concurring and dissenting [in State v. Charboneau ].
While I support the death penalty and concur in the bulk of the majority opinion, I respectfully suggest that Idaho’s present capital sentencing procedure is unconstitutional because it removes the jury from its constitutional fact-finding role. Our process violates the federal constitution for the reasons stated in Adamson v. Ricketts, 865 F.2d 1011 (9th Cir.1988) and violates the Idaho Constitution for the reasons I have articulated in State v. Creech, 105 Idaho 362, 670 P.2d 463 (1983) and State v. Sivak, 105 Idaho 900, 674 P.2d 396 (1983). I will discuss each analysis in turn.
I.
The Jury as Fundamental to Preserving Democracy
The determination of the issue presented on appeal should be made in the context of *881the history and purposes of the right to trial by jury. Our forefathers wisely provided in Article 1, Section 7 of the Idaho Constitution: “The right to trial by jury shall remain inviolate ...” They so provided because they recognized that the jury system is the single most important guardian of the people’s right to be protected from oppressive and overreaching government.
New Americans realize that the right to jury trial in civil cases has almost been lost in England. English judges, with the acquiescence of a compliant bar, have totally eliminated the right to trial by jury in civil cases, except in cases of libel or slander. The English themselves seem to have forgotten the words of their eminent jurist, Blackstone, who wrote that trial by jury is:
... the glory of the English law ... [i]t is the most transcendent privilege which any subject can enjoy, or wish for, that he cannot be affected in his property, his liberty, or his person but by the unanimous consent of twelve of his neighbors and equals.
Blackstone Commentaries 79.
Some American judges and legislators have similarly lost touch with the following language in our Declaration of Independence:
[George III] has combined with others to subject us to a jurisdiction foreign to our Constitution, and unacknowledged by our laws; giving his assent to their acts of pretended legislation: ... For depriving us, in many cases, of the benefits of trial by jury ...
The French philosopher and essayist, de Tocqueville, who understood and appreciated democracy in America with keener insight than any other observer of the Nineteenth Century, stated that the jury system in America:
... places the real direction of society in the hands of the governed ... and not in ... the government... He who punishes the criminal ... is the real master of society. All the sovereigns who have chosen to govern by their own authority and to direct society, instead of obeying its direction, have destroyed or enfeebled the institution of the jury.
Those who believe in strict construction of our Constitution recognize that the judiciary’s oath to “support and defend the Constitution” requires that we resist the temptation to enhance judicial power through encroachment into the provinces constitutionally delegated to the jury.
II.
The Federal Right to Jury Fact Finding in Capital Cases
In Adamson v. Ricketts, the 9th Circuit stated the issue:
Adamson also contends that the Arizona statutory scheme for imposing the death penalty erroneously lists elements of the offense as factors to be determined by the sentencing judge, thus depriving him of his right to a jury decision on the elements of the crime in violation of the Sixth and Fourteenth Amendments. We agree.
The Idaho sentencing procedure under I.C. § 19-2515 is virtually identical in all material respects to the defective Arizona statutory scheme. Noteworthy is the fact that Idaho and Arizona are two of only four states which have the death penalty which have taken the jury out of the fact-finding process of making the ultimate determination as to whether the death penalty is appropriate. The fact that thirty-one of the thirty-five states which have the death penalty utilize the jury in making that determination speaks volumes as to what our Anglo-American traditions and constitutions require.
As the Adamson court noted:
An aggravating “circumstance” which elevates a murder to a “death-eligible” murder in the penalty phase, remarkably mirrors the attributes of an essential element of the offense during the guilt phase of a trial. Like an element of a crime, an aggravating circumstance in the Arizona scheme informs the prosecutor what facts must be proven to obtain a conviction. The circumstance must be proven beyond a reasonable doubt. The *882hearing is adversarial, with oral argument and the prosecution’s presentation of evidence governed by the usual rules of evidence. The presiding trial judge must make findings on the existence or nonexistence of each of the statutory aggravating and mitigating circumstances. If the judge finds an aggravating circumstance, the burden then shifts to the defendant who must put on sufficient evidence of mitigation or the death penalty will be imposed. A.R.S. § 13-703; see also Arizona v. Rumsey, 467 U.S. 203, 210 [, 104 S.Ct. 2305, 2309, 81 L.Ed.2d 164] (1984). If the prosecution is unable to prove the existence of a single aggravating circumstance, like not proving an essential element, the defendant cannot be put to death. Cf. Poland v. Arizona, [476 U.S. 147,] 106 S.Ct. 1749, 1754[, 90 L.Ed.2d 123] (1986) (Court framed the relevant [*39] inquiry as “whether the sentencing judge or the reviewing court has “decid[ed] that the prosecution has not proved its case for the death penalty and hence has ‘acquitted’ petitioners”); Rumsey, 467 U.S. at 212[, 104 S.Ct. at 2310] (where findings of fact at sentencing hearing were all favorable to defendant, he was “acquitted” of the death penalty).
Although Idaho’s majority in Charboneau, similarly to the judiciary in Arizona and the prosecutors in both states, urge that a trial court in finding facts as to aggravating circumstances is exercising a “sentencing determination” as distinguished from finding the elements of a death-eligible murder, their use of the language in justifying that position frequently results in Freudian slips which indicate otherwise. In fact, to rule for the state’s position it is necessary to do exactly what the majority did in this case, that is, engage in a circular argument, the majority reasoning 116 Idaho at page 146, 774 P.2d at page 316.
To accept Jaimi’s argument that the jury must be involved in determining whether aggravating circumstances exist, we would have to conclude that the aggravating circumstances listed in I.C. § 19-2515(g) are elements of first degree murder. We are unable to reach that conclusion. The circumstances listed in the statute are clearly circumstances to be considered in sentencing and not elements of first degree murder. It is not unconstitutional for a judge, instead of a jury, to determine whether any of the aggravating circumstances listed in the statute exist.
The sentence I have underscored is totally circular. Of course, if one can pronounce that the circumstances are part of sentencing and not part of the elements of a death penalty crime, then they are not elements of a death penalty crime.
The plain fact is, before a person is eligible to be executed, a finding must be made that the aggravating circumstance existed. That finding is typically a jury finding, it was a jury function in Idaho from territorial days through 1977, and is a fact to be found by the jury in all but four of the states which have the death penalty.
It could of course be argued that my position is circular if I were to take the underscored sentence from the majority opinion, supra, and restate it as follows:
The circumstances listed in the statute are not circumstances to be considered in sentencing but are elements of death-eligible murder.
However, I would submit that the issue is best resolved by recognizing that it is traditional and accepted jurisprudence that every factor required to prove a crime is considered an element of that crime. One cannot be sentenced to death without the finding of the aggravating circumstances having taken place and, thus, they would appear to be essential elements of the crime rather than some less important procedural matters occurring during sentencing.
The United States Supreme Court has not passed directly upon the issue presented in this case, but what it has written about the jury and its function in death penalty cases indicates that the process would be best served by bringing the four states in line at this time.
Since the Court has held that death sentences must comport with the community’s *883sense of evolving standards of decency and its legitimate desire for moral retribution, an essential question is whether judges alone can reliably reflect the communal values that are the source of the constitutionality of capital punishment.
By definition, juries, not judges, are “the cross-section of the community,” reflecting community values. Duren v. Missouri, 439 U.S. 357, 359 99 S.Ct. 664, 666, 58 L.Ed.2d 579 (1979). Only a representative jury assures “meaningful community participation.” Ballew v. Georgia, 435 U.S. 223, 235 98 S.Ct. 1029, 1036, 55 L.Ed.2d 234 (1978) (plurality opinion). Jurors, unlike judges, are selected to enhance the likelihood that they represent the whole range of community beliefs and backgrounds, Taylor v. Louisiana, 419 U.S. 522, 531-33, 95 S.Ct. 692, 698-699, 42 L.Ed.2d 690 (1975); the different segments of the community bring to the representative jury “perspectives and values that influence both jury deliberation and result,” id. at 532 n. 12, 95 S.Ct. at 698 n. 12. See Humphrey v. Cady, 405 U.S. 504, 509, 92 S.Ct. 1048, 1052, 31 L.Ed.2d 394 (1972). Moreover the sheer difference in size between a twelve-member jury panel and a single judge may bear significantly on the validity of a sentencing decision under the Eighth Amendment. Canvassing expert empirical studies, the United States Supreme Court has concluded that the likelihood that a decision in a criminal case correctly applies “the common sense of the community to the facts” increases with the number of decisionmakers. Ballew v. Georgia, supra, 435 U.S. at 232, 98 S.Ct. at 1035.1 Twelve individuals are obviously more likely to reflect the prevailing views of society than one person.2
A jury need not engage in questionable speculation to determine what community sentiment would say in a particular case. Its very function is to bespeak that community sentiment by exercising its own judgment. The jury’s response is society’s response. Witherspoon v. Illinois, supra, 391 U.S. 510 at 519-20, 88 S.Ct. 1770 at 1775-1776, 20 L.Ed.2d 776 (1968). “The jury ... is a significant and reliable objective index of contemporary values because it is so directly involved,” Gregg v. Georgia, supra, 428 U.S. 153 at 181, 96 S.Ct. 2909 at 2928, 49 L.Ed.2d 859 (1976). By contrast, judges cannot themselves speak for community sentiment. If they are to fulfill the demands of the Eighth Amendment by bringing evolving standards of decency and principles of retribution to bear in a capital punishment case, they can do so only indirectly since “[CJourts are not representative bodies. They are not designed to be a good reflex of a democratic society. Their judgment is best informed, and therefore most dependable, within narrow limits.” Dennis v. United States, 341 U.S. 494, 525, 71 S.Ct. 857, 875, 95 L.Ed. 1137 (1951) (Frankfurter, J., concurring). Unable to represent community sentiment, a judge must undertake to ascertain it. That is necessarily a difficult task,3 made *884even more difficult because judges — whether considered in terms of race, sex, or economic class — do not reflect the wide range of backgrounds or beliefs within the community.4 “[T]he reluctance of juries in many cases to impose the sentence [of death] may well reflect the humane feeling that this most irrevocable sanction should be reserved for a small number of extreme cases,” Gregg v. Georgia, supra, 428 U.S. at 182, 96 S.Ct. at 2929. For a variety of reasons, judges appear less likely to reflect that same reluctance.5
As a means of reliably reflecting community sentiment on capital punishment,. bringing lay jurors into the sentencing process “ ‘places the real direction of society in. the hands of the governed ... and not in ... the government.’ ” Powell, Jury Trial of Crimes, 23 Wash. & Lee L.Rev. 1, 5 (1966) quoting de Tocqueville, Democracy in America 282 (Reeve Tran.1948). Quintessentially, the right to a jury “is granted to criminal defendants in order to prevent oppression by the government,” Duncan v. Louisiana, 391 U.S. 145, 155, 88 S.Ct. 1444, *8851450, 20 L.Ed.2d 491 (1968), and to protect against “arbitrary action” by the compliant, biased, or eccentric judge. Id. at 156, 88 S.Ct. at 1451. It “reflects a fundamental decision about the exercise of official power — a reluctance to entrust plenary powers over the life and liberty of the citizens to one judge or to a group of judges.” Ibid.6 These concerns are even more compelling where life stands immediately in the balance.
III.
The Idaho Constitutional Mandate
The Idaho Constitution, as first approved on July 3, 1890, and as it reads today, provides in Art. 1, § 7:
“Right to trial by jury. — The right of trial by jury shall remain inviolate____” That right of trial by jury as it existed at the time our constitution was adopted, provided for jury participation in the capital sentencing process. Section 17 of the Criminal Practice Act of 1864 provided in pertinent part:
[A]nd the jury before whom any person indicted for murder shall be tried, shall, if they find such person guilty thereof, designate by their verdict, whether it be murder of the first or second degree; but, if such person shall be convicted on confession in open court, the court shall proceed, by examination of witnesses, to determine the degree of the crime, and give sentence accordingly. Every person convicted of murder of the first degree, shall suffer death, and every person guilty of murder in the second degree is punishable by imprisonment in the territorial prison for a term not less than ten years, and which may be extended to life.
Section 17 was carried over verbatim into Revised Statute § 6563 (1887) enacted two years before the adoption of the Constitution.
In other words, the jury, by determining whether the party was guilty of either first or second degree murder, determined whether or not the death penalty would be imposed.
In Blue Note Inc. v. Hopper, 85 Idaho 152, 157, 377 P.2d 373 (1962), we stated:
The provisions of the constitution pertaining to the right to trial by jury are construed to apply as it existed at the date of the adoption of the constitution.
Accord. Anderson v. Whipple, 71 Idaho 112, 227 P.2d 351 (1951); Christensen v. Hollingsworth, 6 Idaho 87, 53 P. 211 (1898); Comish v. Smith, 97 Idaho 89, 540 P.2d 274 (1975).
Idaho continued to employ the jury in the capital sentencing process during all of the intervening years until the Supreme Court of the United States struck down the death penalty statutes of most states through its 1972 decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346.
At the time of Furman, I.C. § 18-4004 read:
Punishment for murder. — Every person guilty of murder in the first degree shall suffer death or,be punished by imprisonment in the state prison for life, and the jury may decide which punishment shall *886be inflicted. Every person guilty of murder in the second degree is punishable by imprisonment in the state prison not less than ten • years and the imprisonment may extend to life.
In its first post-Furman session (1973), the Idaho legislature deleted the jury function from I.C. § 18-4004 and made all convictions of first degree murder subject to the death penalty. This was done in an attempt to remove the “cruel and unusual punishment” aspects disapproved in Fur-man. I.C. § 18-4004 was amended by striking out the words as lined out below:
18-4004. PUNISHMENT FOR MURDER. — Every person guilty of murder in the first degree shall suffer death or be punished by imprisonment in — the state prison for life, and the jury may decide which — punishment—shall—he—inflicted* Every person guilty of murder in the second degree is punishable by imprisonment in the state prison not less than ten years and the imprisonment may extend to life.
The 1973 Amendment restored the law to its 1864 standing.
After the United States Supreme Court in a series of cases declared statutes of other states which were similar to Idaho’s 1973 version unconstitutional, the Idaho legislature responded in 1977 with the present statutory scheme providing for inquiry into mitigating or aggravating circumstances as set forth in I.C. § 19-2515 et seq. That amendment changed the statute back to its pre-1973 language except that it omitted restoring the jury function and added the reference to I.C. § 19-2515:
18-4004. PUNISHMENT FOR MURDER. Every Subject to the provisions of 19-2515, Idaho Code, every person guilty of murder in of the first degree shall suffer be punished by death or by imprisonment for life. Every person guilty of murder in of the second degree is punishable by imprisonment in the state prison not less than ten (10) years and the imprisonment may extend to life.
Except for four states which entirely abolished capital punishment in the nineteenth century, every American jurisdiction has at least at some time employed jury sentencing in capital cases. McGautha v. California, 402 U.S. 183, 200 n. 11, 91 S.Ct. 1454, 1463 n. 11, 28 L.Ed.2d 711 (1971). During a period of over a century, beginning in 1838, jurisdiction after jurisdiction that retained the death penalty replaced its mandatory capital punishment law with discretionary jury sentencing, Woodson v. North Carolina, 428 U.S. 280, 291-92, 96 S.Ct. 2978, 2985, 49 L.Ed.2d 944 (1976) (plurality opinion). By the time of the Furman decision in 1972, Colorado was the only state in the nation to impose capital punishment without jury involvement in the sentencing process.
Despite the long history at common law and under statutory law of the states throughout this nation of involving jury in the capital sentencing process, the Idaho legislature in the present statute enacted in 1977 totally excluded the jury from its traditional function. The legislative history shows that the legislature was not even presented with a bill which provided for jury participation. The only bill presented, was one drafted by the attorney general, Senate Bill 1082, which was presented to the legislature with the following statement of purpose:
RS 1954
S 1082
STATEMENT OF PURPOSE
Only a few years ago, the United States Supreme court made new “rules” concerning the imposition of the death penalty for serious crimes. So that we conformed with this U.S. Supreme Court interpretation of the federal Constitution, the Idaho Legislature enacted in 1973 our present death penalty Section 18-4003 and 18-4004, Idaho Code.
Then, last year, the United States Supreme court again changed the rules relating to capital punishment — after many states, like Idaho, had acted in response to its previous decision. The Court, in five cases, set forth new, more definitive rules concerning sentencing where the death penalty was sought to be imposed. *887The purpose of this bill is to codify into Idaho law these present requirements imposed on the states by these most recent United States Supreme Court decisions on capital punishment so that we will conform with this latest expression of the law. (Emphasis supplied.)
The statement of purpose is misleading insofar as it suggests that the Supreme Court decisions mandated the removal of the jury from its traditional powers and functions; the United States Supreme Court never at an earlier time or in this “latest expression of the law” required jury non-involvement.
Since jury participation in the capital sentencing process is part of the right to “trial by jury” as guaranteed inviolate by Art. 1, § 7 of the Idaho Constitution, I would reverse and remand for proper sentencing and would urge the legislature to amend the statutes to provide for proper jury participation in order that future capital punishment cases will not be subject to this serious defect.
. Ballew also amassed considerable empirical evidence to prove that reducing the number of decisionmakers in a criminal case impairs the accuracy, fairness, thoroughness and consistency of the decision, generally to the detriment of the defendant. Ballew v. Georgia, 435 U.S. 223, 232-39 [98 S.Ct. 1029, 1035-38, 55 L.Ed.2d 234] (1978) (plurality opinion).
. Significantly, every state authorizing jury involvement in capital sentencing appears to require a jury of twelve persons.
. Judges may theoretically have access to community sentiment through social contact, as well as through such sources as polls, editorials, journals, and newspaper reports. Cook, Public Opinion and Federal Judicial Policy, 21 Am.J. Pol.Sci. 567, 576 (1977). Unfortunately, these sources greatly overstate the willingness of members of the community to impose the death penalty on specific defendants for specific crimes. Research on jury behavior reveals that jurors are substantially more lenient when trying an actual case and sitting through deliberations than they will otherwise indicate. Aeisel & Diamond, The Effect of Peremptory Challenges on Jury and Verdict: An Experiment in a Federal District Court, 30 Stan.L.Rev. 491, 511-12 (1978) (shadow juries drawn randomly and not subject to peremptory challenges vote guilty far more often than real juries; probably because the defendant’s liberty was not in their hands). People who favor the death penalty in the abstract are more lenient when presented with descriptions of actual cases.
. As of 1979 judges in state courts of general trial jurisdiction earned salaries ranging from $24,000 in Oklahoma to $54,205 in California, with a mean of approximately $41,000. Nat’l Center for St. Cts., Survey of Judicial Salaries 1 (Sept.1979). As of 1977 in these general jurisdiction courts, only 2.5 percent of the 5,155 judges were women, and 20 states had no women at all on these courts. Cook, Women Judges: The End of Tokenism, in Women in the Courts, 84, 87-88 (Nat’l Center for St. Cts. 1978). It appears that as of 1977 only 2.6 percent of the judges on these general trial courts were black. G.W. Crockett, Number and Distribution of Black Judges (March 1977) (unpublished charts on file with Nat’l Center for St. Cts.). Finally, the rigorous educational requirements for admission to the bar make it inevitable that the average educational attainment of judges will far exceed that of the community in general.
. Kalven and Zeisel’s classic report shows that judges and juries disagree in a substantial number of cases. In a study of 3576 trials, judge and jury reached the same decision about a criminal defendant only 72 percent of the time. H. Kalven & H. Zeisel, The American Jury, 68 (1966). In their specific study of the death penalty, the authors report that judge and jury disagreed about the imposition of a death sentence in 19 percent of the cases, id, at 436. To view the results yet another way, in those cases where one or both recommended death, judge and jury disagreed 60 percent of the time. In those cases in which either the judge or jury or both would have voted for the death penalty, in 40 percent, judge and jury agreed, and in 40 percent only the judge would have voted for the death penalty, yet in only 20 percent of the cases would the jury' but not the judge vote for execution. Thus, the juries were essentially twice as lenient as the judges. Ibid. As a United Nations Report concludes:
"[Ajmong the leading authorities in penal science, the supporters of abolition appreciably outnumber those who favour the retention of capital punishment. The specialists of the social sciences, penologists, doctors and writers on social science or criminology are, in their great majority, abolitionists. The supporters of capital punishment, apart from a number of political figures and persons holding high public office, are generally jurists with a traditional training and judges.”
United Nations, Dept, of Economic and Social Affairs, Capital Punishment (ST/SOA/SD/9-10-64) (1968).
The reason for these differences may lie in the greater reluctance of judges to depart from what they perceive to be the letter of the law. See, e.g., Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). Kalven and Zeisel discovered in more than one judge “a kind of envy of the freedom of the jury to reach a decision which he as a judge could not reach” Kalven & Zeisel, supra, at 428. The judge's role as a strict enforcer even restricts his discretion in sentencing decisions where that discretion would seem to be wholly lawful. As one judge said of draft evasion cases: "I am opposed to conscription. I also believe that the war in Vietnam is both immoral and impractical. My sentencing policies are based upon the fact that as long as law exists, it should be imposed to effectuate its intent and purpose.” Cook, Sentencing Behavior of Federal Judges: Draft Cases —1972, 42 Cinn.L.Rev. 597, 623 (1973). At the same time, Cook’s study also reveals that as judges (unlike individual jurors) accrue experience in a given type of case, their sentencing settles into distinct and regular patterns of severity or leniency, id., at 602-03, so that the judge’s first decision whether a person lives or dies may inspire far more deliberation and consideration than subsequent decisions. For individual jurors, however, the gravity with which they approach their decisions in capital cases will rarely be affected by such routinization.
Florida studies report that sentencing judges were significantly more inclined to impose death than the juries that recommended sentences to them. The studies also show that the judges’ decisions seem to correlate with the race, sex, and social background of the defendant and victim, while the juries showed no evidence of any such biases.
. The Proffitt plurality’s speculation that "judicial sentencing should lead, if anything, to even greater consistency in the imposition at the trial court level of capital punishment, since a trial judge is more experienced in sentencing than a jury and therefore is better able to impose sentences similar to those imposed in analogous cases,” Proffitt v. Florida, 428 U.S. 242, 252, 96 S.Ct. 2960, 2966, must, of course, be read in the context in which it was made: as a statement of the probable result of the Florida system in which an advisory jury sentence may be mitigated at the discretion of the trial judge, or increased from life imprisonment to death only where a life sentence would be manifestly unreasonable. Id. at 249-50, 96 S.Ct. at 2965-2966. Moreover, empirical evidence suggests that individual state trial judges are not likely to achieve consistency among death sentences meted out across the state. Cook, Public Opinion and Federal Judicial Policy, 21 AmJ.Poli.Sci. 567, 623 (1977). Rather the state can better take advantage of the purported ability of judges to ensure consistency in capital sentencing, at no cost to the defendant’s right to jury sentencing, by relying on the automatic appeal procedure by which this Court must review each death sentence in comparison to other cases involving similar crimes or defendants. I.C. § 19-2827. See, Gregg v. Georgia, 428 U.S., at 204-06, 96 S.Ct. at 2939-2940; id, at 211-12, 96 S.Ct. at 2942-2943 (White, J., concurring).