Hennessey, C.J.
On January 9,1980, the plaintiff, in his capacity as district attorney for the Suffolk district, filed a complaint in the Supreme Judicial Court for Suffolk County seeking a declaratory judgment or, in the alternative, relief under this court’s general superintendence powers under G. L. c. 211, §3. The complaint sought a determination of the constitutionality of the recently enacted capital punishment statute, c. 488 of the Acts of 1979. The Commonwealth and the judges of the Superior Court were named as defendants. The single justice allowed the motion of the Attorney General to intervene as a defendant. The single justice also allowed the Attorney General’s motion to dis[650]*650miss filed on behalf of the Commonwealth and the judges of the Superior Court, and permitted the intervention of four men as defendants, all of whom are awaiting trial on first degree murder indictments which may subject them to the death penalty under the statute. The parties filed a statement of agreed facts. Thereafter, on a motion joined by all the parties, the single justice reserved and reported the case to the full bench of this court.
Two issues are before this court today: (1) whether the court may entertain a suit for a declaratory judgment concerning the validity of c. 488 of the Acts of 1979 during the pendency of a criminal prosecution brought pursuant to the contested chapter, and (2) whether c. 488 of the Acts of 1979 violates art. 26 of the Declaration of Rights of the Massachusetts Constitution. We conclude that under the particular circumstances of these cases declaratory relief is the appropriate vehicle for resolving the constitutionality of the statute in question. We conclude furthermore that c. 488 of the Acts of 1979 contravenes the prohibition against cruel or unusual punishment contained in art. 26 of the Declaration of Rights on each of two grounds: (1) the death penalty is unacceptably cruel under contemporary standards of decency, and (2) the death penalty is administered with unconstitutional arbitrariness and discrimination.2
[651]*651
The Statute
The general design of c. 488 is to provide a dual procedure when a defendant is charged with murder in the first degree. The first phase is to consist of trial of the charge. If the jury3 find the defendant guilty, then there is a second, separate presentencing hearing before the same jury in which argument and evidence may be adduced relevant to certain factors or standards described in the statute intended to single out those offenders who merit capital punishment. The jury are to decide on the evidence thus brought forward whether sentence of death, rather than life imprisonment, is to be imposed. When sentence of death is passed, there is a special review by the Supreme Judicial Court to guard further against arbitrary or capricious imposition of the death penalty.
To describe the four sections of the statute in greater detail: Section 1 prefaces the substantive requirements of the remaining three sections with a general declaration of the utility of capital punishment as a deterrent to crime and the appropriateness of such punishment being imposed by the Legislature. Section 2 amends c. 265 of the General Laws to provide that those convicted of murder in the first degree may only suffer the punishment of death pursuant to procedures set forth in those amendments to G. L. c. 279, §§ 53-56, enacted in § 3.
Section 3 of c. 488 would add to G. L. c. 279 the four new sections (§§ 53-56) mentioned above which describe the sentencing procedure. On the return of a verdict of guilty of murder in the first degree a presentencing hearing would be held before the same jury to determine the punishment to be imposed. Argument on both sides would be presented, the Commonwealth presenting the opening argument and the defendant presenting the closing argument, and evidence would be received to assist the jury in determining whether any mitigating or aggravating circumstances, as [652]*652defined in § 54, exist and whether to recommend that the death penalty be imposed. If the sentence of death is reversed on appeal for error found only in the presentencing hearing, any new trial would relate only to the issue of punishment (§ 53).
The imposition of the death penalty is limited to those cases in which one or more of the enumerated statutory aggravating offenses are found to exist beyond a reasonable doubt. Additionally, the jury are permitted to consider any other appropriate aggravating or mitigating circumstances, some of these mitigating circumstances being enumerated in the statute (§ 54 [&]). The jury must find a statutory aggravating circumstance before recommending a sentence of death, but need not find any mitigating circumstance in order to make a binding recommendation of mercy.
Included in the aggravating matter that might be entertained are twelve statutory aggravating circumstances which point more particularly to the nature of the offense or the kind of victim or offender (§ 54 [o]). Illustrative are: “(1) The offense of murder was committed on the victim who was killed while serving in the performance of his duties as a police officer, firefighter, or correctional officer; (2) The offense of murder was committed by a person who had previously been convicted of the crime of murder in the first degree”; “(11) The offense of murder was committed by a person in connection with the commission of rape or an attempt to commit rape on the victim.” (The other statutory aggravating circumstances are reproduced in the margin.4) Mitigating matter would include five statutory cir[653]*653cumstances (§ 54 [b]) of which the following are illustrative: “(1) The offense of murder was committed by one with no history of prior criminal activity”; “(5) The age or mental capacity of the defendant at the time of the crime.” (The other statutory mitigating circumstances are reproduced in the margin.5)
The appropriate statutory instructions must be given in writing to the jury for their deliberations (§ 54 [&]). The jury must designate in writing the aggravating circumstance or circumstances (of which at least one must be a statutory aggravating circumstance) which they find beyond a reasonable doubt and upon which they base their unanimous recommendation of death. Where such a statutory aggravating circumstance is found and a recommendation of death is made, the judge must impose the death sentence (§ 55). If a recommendation of death supported by a finding of at least one of the statutory aggravating circumstances is not made by the jury, then the judge may not impose the death sentence except that no finding of statutory [654]*654aggravating circumstance is necessary in offenses of treason or aircraft hijacking (§ 55).6
There would be an automatic review by the Supreme Judicial Court of any death sentence imposed (§ 56 [a]). Besides considering any errors of law claimed to have been committed in the sentencing proceeding (§ 56 [&]), the court would consider the propriety or fairness of the punishment itself according to stated criteria, one of which examines “whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor” (§ 56 [c] [1]). In order to comply with § 4 of the statute, the court must include in its decision “a reference to similar cases which it took into consideration” (§56 [e]), the records of such cases being accumulated and extracts being provided to the court by the executive secretary to the Justices of the Supreme Judicial Court. In addition to its authority regarding correction of errors, the Supreme Judicial Court has authority to affirm the sentence of death or to set aside the sentence of death and remand the case for resentencing by the trial judge (§ 56 [e]).
The Facts as to the Four Defendants.
The facts pertaining to each of the four defendants, as presented in the parties’ statement of agreed facts, can be summarized as follows. In January, 1980, the Suffolk County grand jury indicted the defendant James Watson for the crime of murder in the first degree. The indictment charges that “James J. Watson on the 16th of November, 1979, did assault and beat one Jeffrey S. Boyajian with intent to murder him and by such assault and beating did kill and murder the said Jeffrey S. Boyajian.” On January 24, 1980, the defendant Watson was arraigned and is currently awaiting trial. The district attorney has announced that he will seek the imposition of the death penalty for the defendant Watson on the basis that one of the statutory aggravating circumstances is present in this case, namely, that [655]*655“the offender committed the offense of murder for himself or another, for the purpose of receiving money or any other thing of monetary value.”
On February 6, 1980, the Suffolk County grand jury indicted the defendants Lawrence Licciardi and Michael Amann for the crimes of murder in the first degree, kidnapping, and two counts of rape of a child. The indictments each charge individually that Licciardi and Amann “on the 23rd of November, 1979, did assault and beat one Kathleen Boardman with intent to murder her and by such assault and beating did kill and murder the said Kathleen Board-man.” On February 7 and 19, 1980, the defendants Lic-ciardi and Amann, respectively, were arraigned in Superior Court and are currently awaiting trial. The district attorney has announced that in each case he will seek imposition of the death penalty as authorized by c. 488 of the Acts of 1979 when “the offense of murder [is] committed by a person in connection with the commission of rape or an attempt to commit rape on the victim.”
A Norfolk County grand jury has indicted John Real for murder in the first degree. The indictment charges Real with the murder of Vance J. Farmer on February 2, 1980. At that time Real was under sentence of imprisonment and, thus, if convicted of murder in the first degree, could be sentenced to death under the provision of c. 488 which designates this as one of the aggravating circumstances. Recent History of the Death Penalty.
The history of the death penalty and the debate between its proponents and opponents reaches back for generations. Prior to the 1960’s it was assumed in this country that death was a constitutionally permissible punishment which Legislatures could choose as the proper response to certain crimes. See McElvaine v. Brush, 142 U.S. 155 (1891); State v. Olander, 193 Iowa 1379 (1922); State v. Miller, 165 Kan. 228 (1948). During this period condemned defendants challenged primarily the means by which the death penalty was carried out, see, e.g., In re Kemmler, 136 U.S. 436 (1890) (electrocution is a permissible method of execution); [656]*656Wilkerson v. Utah, 99 U.S. 130 (1878) (public execution by shooting upheld), or the procedural propriety of the trial; cf. Coleman v. Alabama, 389 U.S. 22 (1967) (racial discrimination in jury composition). “As one author on the subject of capital punishment litigation in the 1960’s points out, if the condemned’s lawyer failed to see the procedural errors in a given case or if there were simply none, the condemned individual like the moneyless patient with a commonplace disease, was simply ‘out of luck.’” Note: Furman to Gregg: The Judicial and Legislative History, 22 How. L.J. 53, 65 (1979), quoting from M. Meltsner, Cruel and Unusual: The Supreme Court and Capital Punishment 19 (1974).
In October, 1963, Mr. Justice Goldberg published a dissenting opinion, jointed by Messrs. Justice Brennan and Douglas, in which he argued that the Supreme Court should decide whether infliction of the death penalty for rape was constitutional. See Rudolph v. Alabama, 375 U.S. 889 (1963). “Following the Rudolph dissent, a large number of cases were brought to the Supreme Court squarely presenting the issue of the constitutionality of the death penalty [, an issue] which . . . had never been explicitly presented to the Court or even raised in the lower courts.” Goldberg, The Death Penalty and the Supreme Court, 15 Ariz. L. Rev. 355, 365 (1973). At the same time, the procedural challenges to death penalty statutes continued with increasing success. In United States v. Jackson, 390 U.S. 570 (1968), the Supreme Court invalidated the death penalty provision of the Lindbergh Law (Federal Kidnapping Act, 18 U.S.C. § 1201[a]) because it impaired a defendant’s exercise of his Fifth Amendment right against self-incrimination and his Sixth Amendment right to a jury trial by making defendants risk death only if they went to trial before a jury instead of either pleading guilty or waiving their right to a jury trial. In Witherspoon v. Illinois, 391 U.S. 510 (1968), the Court held with full retroactive effect (id. at 523 n.22), that veniremen could not be eliminated from a jury merely because they had conscientious scruples against capital [657]*657punishment. Due to such decisions, and to the pendency of other procedural and substantive challenges to the constitutionality of the death penalty in the United States, executions throughout the nation were stayed by court orders.
In June, 1972, the Supreme Court rendered a five-to-four decision in the case of Furman v. Georgia, 408 U.S. 238 (1972), which has since become the touchstone for constitutional analysis of the death penalty. Two Justices (Marshall and Brennan) in the five judge majority expressed the view that capital punishment was per se unconstitutional as cruel and unusual punishment. The other three held that capital punishment as currently administered violated the Constitution because of its arbitrary imposition on a small percentage of eligible defendants due to the lack of standards to guide the discretion of juries and judges. As a result of this decision, many States enacted new death penalty statutes in an effort to comply with the somewhat vague requirements of Furman. Most of the statutes either made the death penalty mandatory for certain offenses or promulgated sets of “standards,” often presented in the form of aggravating or mitigating circumstances for the guidance of juries in the selection of those who were to die.
In July, 1976, the Supreme Court ruled on five selected capital sentencing cases,7 each involving a challenge to the constitutionality of a State statute passed in response to Fur-man. The Court upheld three of the State statutes (those of Georgia, Florida, and Texas), and struck down two (those of Louisiana and North Carolina). The principal distinction was that the valid statutes provided judges and juries with guidance, in the form of detailed mitigating and aggravating circumstances, for deciding whether the death sentence was appropriate in each case. A bare majority of the Court also held that the States may not impose manda[658]*658tory capital punishment laws requiring that every convicted murderer be sentenced to death. Woodson v. North Carolina, 428 U.S. 280, 301 (1976). Subsequent Supreme Court litigation regarding the death penalty has involved efforts to clarify the requirements and implications of Furman and its progeny, see Godfrey v. Georgia, 446 U.S. 420 (1980) (statutory aggravating circumstance excessively broad and vague as interpreted by the Supreme Court of Georgia), or efforts to challenge the procedural aspects of the imposition of the death penalty. See Beck v. Alabama, 447 U.S. 625 (1980) (death sentence may not constitutionally be imposed after jury verdict of guilty of capital offense where jury were not permitted to consider verdict of guilty of lesser included offense). In each case since Furman, Mr. Justice Marshall and Mr. Justice Brennan have continued to express their opinions that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments to the United States Constitution.
The history of the death penalty in the Supreme Judicial Court of Massachusetts consists basically of two matters. In the first of these, Commonwealth v. O’Neal, 369 Mass. 242 (1975) (O’Neal II), a majority of this court held that a mandatory death penalty for rape-murder constituted cruel or unusual punishment in violation of art. 26 of the Declaration of Rights of the Massachusetts Constitution. In Opinions of the Justices, 372 Mass. 912 (1977), the Justices were asked to express their opinions concerning the constitutionality of 1972 House Bill No. 3373, which contained essentially the same substantive provisions as c. 488 of the Acts of 1979 which is before the court today. In their opinion, five Justices of this court gave the following response: “Holding the same overriding view as was expressed by a majority of this court in O’Neal II, [369 Mass. 242 (1975)], the undersigned Justices answer that art. 26 of the Declaration of Rights — ‘No magistrate or court of law, shall . . . inflict cruel or unusual punishments’ — forbids the imposition of a death penalty in this Commonwealth in the absence of a showing on the part of the Commonwealth that the availability of [659]*659that penalty contributes more to the achievement of a legitimate State purpose — for example, the purpose of deterring criminal conduct — than the availability in like cases of the penalty of life imprisonment.” Opinions of the Justices, supra at 917.
Declaratory Relief Is Appropriate.
In order for a declaratory judgment to issue under G. L. c. 231 A, the plaintiff must demonstrate that an actual controversy exists and that he has legal standing to sue. Massachusetts Ass’n of Independent Ins. Agents & Brokers, Inc. v. Commissioner of Ins., 373 Mass. 290, 292 (1977). Both of these requirements are satisfied in the instant case. An actual controversy within the meaning of G. L. c. 231 A, § 1, is a “real dispute” caused by the assertion by one party of a duty, right, or other legal relation in which he has a “definite interest,” in circumstances indicating that failure to resolve the conflict will almost inevitably lead to litigation. Bunker Hill Distrib., Inc. v. District Attorney for the Suffolk Dist., 376 Mass. 142 (1978). Hogan v. Hogan, 320 Mass. 658, 662 (1947). An actual controversy can exist whether or not the plaintiff’s rights have already been impaired. School Comm. of Cambridge v. Superintendent of Schools of Cambridge, 320 Mass. 516, 518 (1946).
In the cases under consideration here, the plaintiff asserts and the defendants deny that c. 488 is consistent with art. 26 of the Declaration of Rights. Thus these cases come within the class of cases in which an actual controversy exists: “The cases in which an actual controversy concerning criminal statutes has been found generally involved constitutional challenges to the facial validity of legislation or to its validity as applied to a class of persons similarly situated.” Bunker Hill, supra at 145.
Ordinarily declaratory relief will not be granted during the pendency of a criminal prosecution. Norcisa v. Selectmen of Provincetown, 368 Mass 161, 170-172 (1975). The purpose of this limitation is to prevent “fragmentation and proliferation of litigation and disruption of] the orderly administration of the criminal law.” Id. at 172. However, [660]*660a declaratory judgment is appropriate, despite a pending criminal action in “very special circumstances.” Id. at 171. See P.B.I.C., Inc. v. District Attorney of Suffolk County, 357 Mass. 770, 771 (1970); Kenyon v. Chicopee, 320 Mass. 528, 535 (1946). We conclude that the cases at bar are clearly exceptional ones justifying declaratory relief to prevent disruption of the orderly administration of criminal justice.
A determination of the validity of c. 488 is of fundamental importance to the plaintiff because he is bound by the oath and duties of his office to enforce the law of the Commonwealth as enacted by the Legislature and is also required to uphold the Constitution of the Commonwealth as interpreted by this court. At the present time, the plaintiff’s duties with respect to the enforcement of c. 488 of the Acts of 1979 are uncertain. This statute will affect every district attorney in the Commonwealth and thus presents a matter of public importance beyond the parties. Under the statute all district attorneys will be responsible for requesting that certain extraordinary procedures be followed in first degree murder prosecutions, including holding a voir dire of each prospective juror concerning his or her view of the death penalty; deciding in which cases to hold a bifurcated trial; and presenting evidence at the second half of the bifurcated trial. Of course, none of these procedures will be necessary if c. 488 is held unconstitutional. The plaintiff also satisfies the standing requirement for pursuing declaratory relief since affording him declaratory relief pursuant to G. L. c. 231A would relieve him of uncertainty with respect to his duties in enforcing the law and in administering prosecutions of first degree murder cases in Suffolk County. Similarly, the four defendants charged with murder will be afforded declaratory relief from present uncertainties which in turn, to say the least, will affect major decisions in their defenses.
I. The Death Penalty Is Offensive to Contemporary Standards of Decency.
The particular standard we examine today is that established by art. 26 in its prohibition of cruel or unusual [661]*661punishment. While the word “unusual” may suggest the need for an ongoing comparison of punishments meted out for comparable crimes in similar cultures, we focus instead on the constitutional prohibition of “cruel” punishments. All punishments might be said to be cruel, but what we examine here is the question of punishment which is too cruel under constitutional standards. Also, we focus on the absolute and irreversible punishment of death, as distinguished from all lesser penalties.
The constitutional prerogatives and duties of this court permit, indeed require, a reexamination of the death penalty to determine whether it is unconstitutionally cruel in light of contemporary circumstances. “Certainly at the time of its adoption, art. 26 was not intended to prohibit capital punishment. Capital punishment was common both before and after its adoption. However, art. 26, like the Eighth Amendment, ‘must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.’ Trop v. Dulles, 356 U.S. 86, 101 (1958).” Commonwealth v. O’Neal, 367 Mass. 440, 451 (1975) (O’Neal I) (Wilkins, J., concurring). “A constitutional provision ‘is enacted, it is true, from an experience of evils, but its general language should not, therefore, be necessarily confined to the form that evil had theretofore taken. Time works changes, brings into existence new conditions and purposes. Therefore a principle to be vital must be capable of wider application than the mischief which gave it birth.”’ Furman v. Georgia, 408 U.S. 238, 263-264 (1972) (Brennan, J., concurring), quoting from Weems v. United States, 217 U.S. 349, 373 (1910). Clearly, “[t]he framers of our Constitution, like those who drafted the Bill of Rights, anticipated that interpretation of the cruel or unusual punishments clause would not be static but that the clause would be applied consistently with the standards of the age in which the questioned punishment was sought to be inflicted.” People v. Anderson, 6 Cal. 3d 628, 648, cert, denied, 406 U.S. 958 (1972). Therefore, if the death penalty is indeed unacceptable under contemporary moral stand[662]*662ards, it is tantamount to those punishments barred since the adoption of art. 26, and it is our responsibility to declare it invalid.
It is true that there is no unanimity of public opinion either favoring or opposing the death penalty. But public opinion, while relevant, is not conclusive in assessing whether the death penalty is consonant with contemporary standards of decency. “If the judicial conclusion that a punishment is ‘cruel and unusual’ ‘depend[ed] upon virtually unanimous condemnation of the penalty at issue,’ then, ‘[l]ike no other constitutional provision, [the Clause’s] only function would be to legitimize advances already made by the other departments and opinions already the conventional wisdom.’ We know that the Framers did not envision ‘so narrow a role for this basic guaranty of human rights.’” Furman v. Georgia, 408 U.S. 238, 268 (1972) (Brennan, J., concurring), quoting from Goldberg & Dershowitz, Declaring the Death Penalty Unconstitutional, 83 Harv. L. Rev. 1773, 1782 (1970).
Moreover, we think that what our society does in actuality is a much more compelling indicator of the acceptability of the death penalty than the responses citizens may give upon questioning. See Furman v. Georgia, 408 U.S. 238, 279 (1972) (Brennan, J., concurring). From the beginning of 1948 until the end of 1972 (the Furman case was decided in 1972) no person was executed in this Commonwealth. The death sentences of forty-three persons were commuted or reduced by executive action. See Opinions of the Justices, supra at 919, and sources cited. The complete absence of executions in the Commonwealth through these many years indicates that in the opinion of those several Governors and others who bore the responsibility for administering the death penalty provisions and who had the most immediate appreciation of the death sentence, it was unacceptable.
In its finality, the death penalty may cruelly frustrate justice. Death is the one punishment from which there can be no relief in light of later developments in the law or the [663]*663evidence. This court has recognized the anomalous results which may be wrought in criminal cases by changes in the law and has adjusted standards of appellate review accordingly. For example, in Commonwealth v. Stokes, 374 Mass. 583, 587-591 (1978), this court applied retroactively the constitutional requirement that the Commonwealth bear the burden of disproving self-defense,8 and declined to apply the rule that challenged jury instructions are unreviewable absent contemporaneous objection or exception. We reasoned that defendants should not be penalized for failure to anticipate changes in the law. The “irreversible finality of the execution of a criminal defendant,” O’Neal II, supra at 276 n.l (Wilkins, J., concurring), could frustrate such efforts to see that justice is applied equally when changes in the law occur or when new evidence is discovered. While this court has the power to correct constitutional or other errors retroactively by ordering new trials for capital defendants whose appeals are pending or who have been fortunate enough to obtain stays of execution or commutations, it cannot, of course, raise the dead.
The cruelty of the death penalty similarly inheres in its unparalleled effect on all the rights of the person condemned. “There is little doubt that life is a fundamental right ‘explicitly or implicitly guaranteed by the Constitution.’ San Antonio Independent Sch. Dist. v. Rodriguez, 411 U.S. 1, 33-34 (1973)____[T]he ‘ . . . right to live ... is the natural right of every man’ (quoting from Camus, Reflections on the Guillotine, in Resistance, Rebellion and Death 131, 221 [1969]), encompassing as it does ‘the right to have rights.’ Trop v. Dulles, 356 U.S. 86, 102 (1958). See Comment, The Death Penalty Cases, 56 Cal. L. Rev. 1268, 1354 (1968).” O’Neal II, supra at 245-246 (Tauro, C.J., concurring). “The calculated killing of a human being by the state involves, by its very nature, a denial of the execut[664]*664ed person’s humanity. The contrast with the plight of a person punished by imprisonment is evident. An individual in prison does not lose ‘the right to have rights.’ A prisoner retains, for example, the constitutional rights to the free exercise of religion, to be free of cruel and unusual punishments, and to treatment as a ‘person’ for purposes of due process of law and the equal protection of the laws.” Furman v. Georgia, 408 U.S. 238, 290 (1972) (Brennan, J., concurring).
Finally, and perhaps most conclusive, the death penalty is unacceptable under contemporary standards of decency in its unique and inherent capacity to inflict pain. The mental agony is, simply and beyond question, a horror. “Since the discontinuance of flogging as a constitutionally permissible punishment, Jackson v. Bishop, 404 F.2d 571 (CA 8 1968), death remains as the only punishment that may involve the conscious infliction of physical pain. In addition, we know that mental pain is an inseparable part of our practice of punishing criminals by death, for the prospect of pending execution exacts a frightful toll during the inevitable long wait between the imposition of sentence and the actual infliction of death.” Furman v. Georgia, supra at 287-288 (Brennan, J., concurring). “[T]he process of carrying out a verdict of death is often so degrading and brutalizing to the human spirit as to constitute psychological torture,” People v. Anderson, 6 Cal. 3d 628, 649, cert, denied, 406 U.S. 958 (1972), and “the onset of insanity while awaiting execution of a death sentence is not a rare phenomenon.” Solesbee v. Balkcom, 339 U.S. 9, 14 (1950) (Frankfurter, J., dissenting).
The fact that the delay may be due to the defendant’s insistence on exercising his appellate rights does not mitigate the severity of the impact on the condemned individual, and the right to pursue due process of law must not be set off against the right to be free from inhuman treatment. Moreover, it is often the very reluctance of society to impose the irrevocable sanction of death which mandates, “even against the wishes of the criminal, that all legal avenues be explored before the execution is finally carried out.” Fur-[665]*665man v. Georgia, supra at 289 n.37 (Brennan, J., concurring) . We conclude, therefore, from our examination of the actual operation of capital punishment provisions in Massachusetts, that the death penalty, with its full panoply of concomitant physical and mental tortures, is impermissibly cruel under art. 26 when judged by contemporary standards of decency.
II. The Death Penalty Is Arbitrarily Inflicted.
It is inevitable that the death penalty will be applied arbitrarily. Also, experience has shown that the death penalty will fall discriminatorily upon minorities, particularly blacks. For these reasons the death penalty is unconstitutionally cruel under art. 26 of the Declaration of Rights.9
We know that, each year during the decades of the 1930’s through the 1960’s, thousands of persons were convicted of criminal homicides in States where death was an authorized punishment for those crimes. However, death was inflicted in only a minute fraction of those cases. “When a country of over 200 million people inflicts an unusually severe punishment no more than 50 times a year, the inference is strong that the punishment is not being regularly and fairly applied. To dispel it would indeed require a clear showing of nonarbitrary infliction.” Furman v. Georgia, 408 U.S. 238, 293 (1972) (Brennan, J., concurring). No rational basis can be offered to explain why the few were executed and many others were not. It cannot be said that only the “worst” offenders were executed. All murderers are extreme offenders. Fine distinctions, designed to select a very few from the many, are inescapably capricious when applied to murders and murderers. As a consequence, the [666]*666death penalty is “wantonly and . . . freakishly” inflicted. Furman v. Georgia, supra at 310 (Stewart, J., concurring).
We think that arbitrariness in sentencing will continue even under the discipline of a post-Furman statute like the one before us. In 1972, in Furman v. Georgia, supra, the Supreme Court of the United States held that the Eighth Amendment (applied to the States through the Fourteenth) invalidated a Georgia statute which allowed the jury untrammeled discretion in choosing between death and life imprisonment as the penalty for the crime of murder. In July, 1976, the United States Supreme Court handed down a series of cases indicating that a majority of that Court are prepared, as far as the Federal Constitution is concerned, to validate State statutes which channel or regulate discretion in sentencing, thus curing those aspects of arbitrariness which concerned the Court in the Furman case. See Gregg v. Georgia, 428 U.S. 153 (1976); Proffitt v. Florida, 428 U.S. 242 (1976); Jurek v. Texas, 428 U.S. 262 (1976); Woodson v. North Carolina, 428 U.S. 280 (1976); Roberts v. Louisiana, 428 U.S. 325 (1976). “In summary, the concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance. As a general proposition these concerns are best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information.” Gregg v. Georgia, 428 U.S. at 195 (Stewart, J.).
The Legislature of Massachusetts clearly attempted, in the statute now before us, to follow the mandates of the Furman opinion and its progeny by promulgating a law of guided and channeled jury discretion. It may be that c. 488 would meet the Federal constitutional requirements, if tested, but here we appraise the statute under art. 26 of the Declaration of Rights of the State Constitution. We accept the Furman principle that untrammeled discretion in im[667]*667posing the death penalty is intolerable; we find unacceptable under the State Constitution the premise of the postFurman cases that statutory guidelines and standards may be entirely curative. As Mr. Justice Harlan wrote in McGautha v. California, 402 U.S. 183, 204 (1971): “Those who have come to grips with the hard task of actually attempting to draft means of channeling capital sentencing discretion have confirmed the lesson taught by . . . history ... . To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability.”
A basic criterion, for example, in “channeling” the death penalty decision lies in the choice between first and second degree murder. Mr. Justice Cardozo said of the distinction between degrees of murder, that it is “so obscure that no jury hearing it for the first time can fairly be expected to assimilate and understand it. I am not at all sure that I understand it myself after trying to apply it for many years and after diligent study of what has been written in the books. Upon the basis of this fine distinction with its obscure and mystifying psychology, scores of men have gone to their death.” Cardozo, What Medicine Can Do For Law, in Law & Literature 100-101 (1931).
Even if it were possible by statutory language to bring evenhandedness to the death penalty decisional process, we should still conclude that a statute (like c. 488) that presumably complies with the Furman principle is unconstitutional under art. 26. The Federal constitutional requirements are a constraint only upon certain aspects of jury discretion. Furman and subsequent cases do not address the discretionary powers exercised at other points in the criminal justice process. Power to decide rests not only in juries but in police officers, prosecutors, defense counsel, and trial judges.10 In the totality of the process, most life or [668]*668death decisions will be made by these officials, unguided and uncurbed by statutory standards. In any given case, decisions may rest upon such considerations as the level of public outcry.
Furman stands indifferent to the exercise of the prosecutor’s “untrammeled discretion.” For reasons which may be valid in the context of his duties, but which do not assist evenhandedness, the prosecutor in a homicide case may forgo a first degree murder indictment and seek an indictment for second degree murder or a lesser charge. Also, in a first degree murder case, perhaps pursuant to plea bargaining, the prosecutor may in his uncurbed discretion nol-pros that part of the indictment which charges murder in the first degree. Similarly, the judge may dismiss the first degree murder charge, in his sole discretion, pursuant to accepting a plea of guilty to a lesser offense.
We do not think that our comments denigrate the general administration of criminal justice, or the good will of those who administer the system. It can be said that these officials must necessarily have these discretionary powers in the exercise of most of their functions. Nevertheless, the criminal justice system allows chance and caprice to continue to influence sentencing, and we are here dealing with the decisions as to who shall live and who shall die. With regard to the death penalty, such chance and caprice are unconstitutional under art. 26.
The death penalty has been described by many commentators not only as arbitrary and capricious but also as discriminatory. For example, the President’s Commission on Law Enforcement and Administration of Justice concluded that “there is evidence that the imposition of the death sentence and the exercise of dispensing power by the courts and the executive follow discriminatory patterns. The death sentence is disproportionately imposed and car[669]*669ried out on the poor, the Negro, and the members of unpopular groups.” The Challenge of Crime in a Free Society, A Report by the President’s Commission on Law Enforcement and Administration of Justice 143 (1967). C. Black, Capital Punishment: The Inevitability of Caprice and Mistake (1974).
Examination of death sentences imposed in Florida, Georgia, and Texas under post-Furman statutes upheld by the Supreme Court in 1976 indicates that very little has changed as to arbitrariness and discrimination. The criminal homicide data from the date of the post-Furman statutes through 1977 indicate the following: In Florida, of 286 blacks who had killed whites, forty-eight (16.8%) were sentenced to death; of 111 whites who killed blacks, none were sentenced to death. In Georgia, of 258 blacks who killed whites, thirty-seven (14.3%) were sentenced to death; of seventy-one whites who killed blacks, two (2.8%) were sentenced to death. In Texas, of 344 blacks who killed whites, twenty-seven (7.8%) were sentenced to death; of 143 whites who killed blacks, none were sentenced to death.11 One commentator stated as to this post-Furman experience, “The conclusion is inescapable that the death penalty is reserved for those who kill whites, because the criminal justice system in these states simply does not put the same value on the life of a black person as it does on the life of a white.”12 Another commentator concluded that [670]*670“there is no evidence to suggest that post-Furman statutes have been successful in reducing the discretion which leads to a disproportionate number of nonwhite offenders being sentenced to death.”13
We reject any suggestion that racial discrimination is confined to the South or to any other geographical area. The experience of Ohio under a post -Furman statute through 1977 shows that, of 173 black persons who killed white persons, thirty-seven of them (21.4%) were sentenced to death. Of forty-seven whites who killed blacks, none were sentenced to death.14 Moreover, the existence of racial prejudice in some persons in the Commonwealth of Massachusetts is a fact of which we take notice. Cf. Commonwealth v. Soares, 377 Mass. 461, cert, denied, 444 U.S. 881 (1979); Commonwealth v. Franklin, 376 Mass. 885, 891-892 (1978).
From the foregoing discussion, it follows that we accept the wisdom of Furman, that arbitrary and capricious infliction of the death penalty is unconstitutional. However, we add that such arbitrariness and discrimination, which inevitably persist even under a statute which meets the demands of Furman, offend art. 26 of the Massachusetts Declaration of Rights.
We have a response to those who might argue that our comments as to arbitrariness and discrimination apply as well to all punishments, not merely to the death penalty. While other forms of punishment may also be arbitrary in some measure, the death penalty requires special scrutiny for constitutionality. “The penalty of death differs from all other forms of criminal punishment, not in degree but in kind.” Furman, supra at 306 (Stewart, J., concurring). Accord, O’Neal II, 369 Mass. 242-249 (Tauro, C.J., concurring). “[T]he penalty of death is qualitatively different [671]*671from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two.” Woodson v. North Carolina, 428 U.S. 280, 305 (1976). Our society’s failure to bring evenhandedness to the entire spectrum of criminal punishment calls for great and persistent effort toward improvement. However, we are not required to abandon all such punishments on constitutional grounds. At the same time, the supreme punishment of death, inflicted as it is by chance and caprice, may not stand.
III. Conclusion.
There is an impetus to respond in kind in punishing the person who has been convicted of murder, but the death penalty brutalizes the State which condemns and kills its prisoners. “Revenge is a kind of wild justice; which the more man’s nature runs to, the more ought law to weed it out.”15 Moreover, this brutality assumes new dimensions in its virtually random selection of those who are to be executed. “I shall ask for the abolition of the punishment of death until I have the infallibility of human judgment demonstrated to me.”16
A judgment shall enter in the county court declaring that c. 488 of the Acts of 1979 is unconstitutional under art. 26 of the Declaration of Rights of the Constitution of Massachusetts.
So ordered.