OPINION
STEPHENSON, Justice.
These consolidated cases raise the question whether the New Mexico death penalty statute, § 40A-29-2, N.M.S.A.1953 (Supp.1975)
is unconstitutional under the eighth or fourteenth amendments to the Constitution of the United States or under Article II, § 13 or 18 of the Constitution of New Mexico.
On September 11, 1974, the respondent, in State v. Edington, Criminal No. 1086 (Sixth Judicial Dist., Hidalgo County, N. M.),
held by memorandum opinion that “Section 40A-29-2 is unconstitutional under the decision of Furman v. Georgia/’
that the law prior to 1973
would apply
and that, therefore, the maximum penalty if Edington were convicted of first degree murder would be life imprisonment.
Subsequently, the petitioner was informed by respondent that the Edington decision would also apply in State v. Sierra, Criminal No. 11912 (Sixth Judicial Dist., Grant County, N.M.)
and in State v. Apodaca, Criminal No. 2929 (Sixth Judicial Dist., Luna County, N.M.).
Pursuant to Article VI, § 3 of the New Mexico Constitution and Rule 12 of the Rules Governing Appeals,
petitioner successfully sought alternative writs of prohibition to preclude respondent from proceeding in the Edington, Sierra and Apodaca cases and now seeks to have the writs of prohibition made permanent by the exercise of this court’s power of superintending control. See State v. Zinn, 80 N.M. 710, 460 P.2d 240 (1969).
Petitioner alleges there is a conflict in the New Mexico judicial districts as to whether or not the death penalty as written by the Legislature in 1973 is constitutional, that several persons in other judicial districts have been convicted of first degree murder and sentenced to death, and that allowing the ruling of respondent to stand will result in the rendering of unequal justice in New Mexico unless the question of the constitutionality of the death penalty is resolved prior to the trial of these cases.
The defendant Edington (we will refer to the real parties in interest as “defendants”) and the Public Defender Department in its amicus brief argue that prohibition will not lie in these cases, or that we should not in our discretion make the alternative writs permanent or exercise our powers of superintending control.
We do not agree. Because of the great public interest involved and the importance of this question to the criminal justice system, we deem it imperative to decide the issue presented here. See State v. Scarborough, 75 N.M. 702, 410 P.2d 732 (1966); cf. State ex rel. Sego v. Kirkpatrick, 86 N.M. 359, 524 P.2d 975 (1974). We hold that the alternative writs of prohibition were not improvidently issued, and will consider whether the writs should be made permanent on the merits.
The defendants also argue that the death penalty statute, as enacted, is unconstitutional, violating Article IV, §§ 16
and 18
of the New Mexico Constitution. This court has meanwhile held that such is not the case. State v. Trivitt, N.M., 548 P.2d 442 (1976).
We are confronted only with the following issues of substance:
A. Does the death penalty, in and of itself, amount to cruel and unusual punishment within the prohibition of:
(1) The eighth amendment to the Constitution of the United States;
or
(2) Article II, § 13 of the New Mexico Constitution;
or
(3) Both?
If any of the foregoing queries are answered in the affirmative, we need go no further. If we reach negative answers, we must consider:
B. Do procedures imposing the death penalty provided by § 40A-29-2 offend these constitutional provisions ?
We first consider whether capital punishment constitutes cruel and unusual punishment within the proscription of the eighth amendment to -the United States Constitution. It obviously does not for a variety of reasons. Certainly nothing said within the four corners of the document prohibits it. Capital punishment was in use in England and the Colonies under sanction of law at the time of adoption of the United States Constitution. This has been stated and its significance discussed so frequently that we decline to add to the literature on the subject.
The United States Constitution authorizes, or clearly contemplates, the imposition of the death penalty. The fifth amendment is a notable example. It provides in its opening sentence that “[n]o person shall be held to answer for a capital * * * crime, unless on a presentment or indictment of a Grand Jury, * * (emphasis added). Thus, one may be held to answer for a capital offense upon a presentment or indictment. Similarly, the double jeopardy clause of that amendment provides that no person shall “be subject for the same offense to be twice put in jeopardy of life * * (emphasis added). The clear implication of this is that a person may once be put in jeopardy of life for an offense. Even more obvious are the due process clauses of the fifth and fourteenth amendments. If the federal and state governments are precluded from depriving any person of life without due process of law, then it logically follows that any person may be deprived of life with due process of law. These examples illustrate the simple truth that the imposition of the death penalty is contemplated by the United States Constitution.
Moreover, no court whose decision is binding upon us has ever held that capital punishment is per se cruel and unusual. “Cruel” as used in the eighth amendment has been said to prohibit punishments which inflict unnecessary pain or cruelty, torture, or lingering death. The punishment must be inhuman or barbarous to fall within the prohibition. In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519 (1890); Wilkerson v. Utah, 99 U.S. 130, 25 L.Ed. 345 (1879). The framers of the amendment were basically concerned with torture.
As to the meaning of “unusual,” the cases are not so clear. Most courts have considered the entire phrase, “cruel and unusual,” without discussion of the word “unusual.” See, e. g., Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910); O’Neil v. Vermont, 144 U.S. 323, 339-40, 125 S.Ct. 693, 36 L.Ed. 450 (1892) (dissenting opinion) ; Wilkerson v. Utah, supra. We are unwilling to believe that the phrase simply uses two words where one would do. Probably it would be held to preclude the imposition of some form of punishment which was unknown to the history of the law, or at least rare in modern times — e. g., a punishment devised by him who would impose it and not sanctioned by law.
We need not attempt to define the constitutional parameters of the word “unusual.” The United States Supreme Court has not done so, but has rather considered the phrase of which the word is a part on a case-by-case basis. Weems v. United States, supra; O’Neil v. Vermont, supra; Wilkerson v. Utah, supra. No such definition is necessary to a resolution of the issues here.
If the constitutional definition of “unusual” is troublesome, certain features of the word and its use are clear. It does not appear to either enlarge or restrict the word “cruel.” From its context in the document and in history, it rather clearly refers to the nature of the punishment under consideration rather than to the infrequency of its imposition.
This is the meaning which we attribute to the word as used not only in the eighth amendment but also in Article II, § 13 of the New Mexico Constitution.
Finally, we observe cases in which the United States Supreme Court has directly or implicitly held that capital punishment is not per se cruel and unusual. In re Kemmler, supra (dictum); Wilkerson v. Utah, supra; Francis v. Resweher, 329 U. S. 459, 464, 67 S.Ct. 374, 91 L.Ed. 422 (1947). In Trop v. Dulles, supra note 17, Chief Justice Warren speaking for four of the court said:
Whatever the arguments may be against capital punishment, both on moral grounds and in terms of accomplishing the purposes of punishment — and they are forceful — the death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty.
356 U.S. at 99, 78 S.Ct. at 597.
Some mention must be made of Furman v. Georgia, supra.
The opinions demonstrate that only two
of nine justices believed that capital punishment was prohibited by the eighth amendment for all crimes and in all situations. The remaining three justices
who joined in the majority opinion predicated their result upon shortcomings of the practices and procedures by which the death penalty had been imposed in the three consolidated cases under consideration. Although their reasoning would seem to lead them toward a holding that under the facts of those cases there was a violation of the due process clause, they nevertheless said that their ruling was predicated on the eighth amendment.
However, it is perfectly clear that they were concerned with practice and procedure.
The significance of Furman in the area under discussion is that the opinions of Justices Brennan and Marshall gather together most of the arguments normally advanced in the attack on capital punishment as being per se cruel and unusual. The briefs which are before us, in the main, focus on the content of. those two opinions.
The Brennan and Marshall opinions dwell upon capital punishment’s supposed lack of deterrent effect. Although such matters are rather obviously for state legislative decision, the defendants would seemingly have us find as a fact that capital punishment is not an effective deterrent as a predicate for holding it cruel and unusual. This we decline to do. The deterrent effect of capital punishment is not subject to empirical measurement. How can the number of murders that were not committed because of a fear of execution be known?
The theory that capital punishment does not deter murder is but a facet of a larger argument that punishment does not deter crime. We are not persuaded that such is the case. The idea runs counter to the ancient wisdom of mankind and its common experience.
The Brennan opinion argues that a punishment is cruel and unusual if it does not comport with human “dignity.” This concept is the subject of elaborate argument in the briefs, extending even to graphic and detailed descriptions of the physical reactions and facial expressions of persons being executed. The briefs contain no description of the reactions and expressions of the victims. It may be conceded that being executed, in common with other ordeals and vicissitudes, is essentially undignified. So, we suppose, is being murdered.
The prime thrust of the Marshall opinion asserts that capital punishment “is morally unacceptable to the people of the United States at this time in their history.” 408 U.S. at 360, 92 S.Ct. at 2788. In the short lapse of time since Furman was handed down, not less than thirty-five states and the federal government have replaced or modified their statutes regarding the procedures by which the sentence of death is imposed.
This massive legislative endeavor was a concerted effort to comply with Furman, to the end that capital punishment could be constitutionally imposed.
Moreover, “the people” have expressed themselves even more directly by referendum or initiative on three occasions, following the decision in Furman
In each case the vote favored capital punishment by a wide margin.
Is any institution of government more closely attuned to the people’s morals than the people ?
Guided by decisions of the United States Supreme Court, we hold that the death penalty is not, per se, cruel and unusual punishment within the proscription of the eighth amendment to the Constitution of the United States.
We now consider Article II, § 13 of the New Mexico Constitution. We do so as the ultimate arbiters of the law of New Mexico. We are not bound to give the same meaning to the New Mexico Constitution as the United States Supreme Court places upon the United States Constitution, even in construing provisions having wording that is identical, or substantially so, “unless such interpretations purport to restrict the liberties guaranteed the entire citizenry under the federal charter.” People v. Brisendine, 13 Cal.3d 528, 548, 119 Cal.Rptr. 315, 328, 531 P.2d 1099, 1112 (1975).
The Kearny Bill of Rights of 1846 in its 7th Article provided “[t]he accused cannot be compelled to give evidence against himself, or be deprived of life, liberty, or property but by a verdict of a jury and the laws of the land.” In the Kearny Code, Crimes and Punishments, Article 1, § 1, also promugated in 1846, it provided that “[i]f any person shall be convicted of the crime of willful murder, such person shall suffer death. * * *” The Organic Act establishing the Territory of New Mexico in 1850 provided in § 19 that “[n]o citizen of the United States shall be deprived of his life, liberty or property, in said territory, except by the judgment of his peers and the laws of the land.” In Article II,- § 18 of the New Mexico Constitution the same thought is expressed in the following language: “No person shall be deprived of life, liberty or property without due process of law * *
It is evident that the framers of the laws governing the Territory and the framers of the New Mexico Constitution contemplated that the death penalty might or could be imposed as a penalty for certain specified offenses. The reasonable and ordinary meaning of these quotations makes it clear that under certain circumstances a citizen’s life may be forfeited pursuant to due process of law and all other constitutionally guaranteed rights.
This court has handed down two opinions on the subject which are worthy of mention. The issue was before us in Territory v. Ketchum, 10 N.M. 718, 65 P. 169 (1901). That case considered whether the death penalty imposed for train robbery was cruel and unusual punishment within the prohibition of the eighth amendment to the Constitution of the United States. The court extensively analyzed Wilkerson v. Utah, supra, and concluded that legislative discretion in determining the severity of the punishment would not be interfered with so long as torture was avoided, and that it was doubtful that the court had the power to review such legislative discretion.
Finally, we mention State v. Pace, 80 N.M. 364, 456 P.2d 197 (1969). Again the issue was squarely raised as to whether the death penalty, by whatever means death is brought about, should be declared to be contrary to the eighth amendment. The court cited Territory v. Ketchum, supra, and said that since that time nothing had transpired which required the court to depart from that holding, and
[i]f the law is to be changed, it is for the legislature to do it — not us. (citation omitted). We are not heedless of the plea that this is a more enlighted day than were those of years gone by, and that views of what is and what is not right have changed with the passage of time. However, we perceive our responsibility as being confined to interpreting the law as we understand it, not to making of new law to satisfy our conceptions of right or wrong, (emphasis added).
80 N.M. at 371, 456 P.2d at 204.
We join in those views and hold that capital punishment is not per se “cruel and unusual” within the proscription of Article II, § 13 of the Constitution of New Mexico, and turn to a consideration of the practice and procedure by which the death penalty is provided to be imposed under our statute.
In their argument on this issue the defendants and those aligned with them, building upon Furman, by analogy seek to extend it to areas not dealt with in that case. In attempting to isolate the single grievance common to the majority opinions in Furman, we agree with Chief Justice Burger, who summarized it in his dissent:
The decisive grievance of the [concurring opinions] * * * is that the pres-sent system of discretionary sentencing in capital cases has failed to produce evenhanded justice * * *.
408 U.S. at 398-99,92 S.Ct. at 2808.
The defendants say that Furman renders unconstitutional every death sentence imposed pursuant to procedures which allow selectivity to determine whether a defendant will live or die for a purportedly capital crime, and that discretionary death penalties are unconstitutional. They say that Furman means that any arbitrary imposition of capital punishment offends the eighth amendment, whatever the source. From this premise, they urge that although § 40A-29-2 ostensibly makes death the only punishment for a capital crime, nevertheless its implementation requires the exercise of a broad range of uncontrolled selective discretion by district attorneys, trial judges, juries and the governor in choosing which defendants will live and which will die in cases where the death penalty is potentially applicable. They say the cumulative effect of these considerations is to produce an extreme uncertainty and unpredictability in capital sentencing that falls within Furman’s ban.
More specifically, they point out that prosecuting officials have areas of discretionary determination as to whether a charge will be filed, how it will be initiated and what crime will be charged. They conclude that this prosecutorial discretion makes hollow the claim that New Mexico’s death penalty is mandatory. Similarly, as to plea bargaining they urge that in New Mexico the district attorney has unfettered power to accept a plea of guilty to a lesser or other offense from a capitally charged defendant, and that this power effectively undercuts the mandatory nature of the statute, resulting in the arbitrary selectivity condemned in Furman.
Furthermore, they argue that a trial jury has essentially uncontrollable power to spare the life of a capital defendant by convicting of a lesser offense or acquitting him notwithstanding overwhelming evidence. From this they reason that a jury has de facto sentencing discretion in homicide cases.
Finally it is urged that the pardoning power in the governor created by Article V, § 6 of the New Mexico Constitution is an unfettered power to spare the lives of condemned defendants, unrestricted by any requirement to act consistently in like cases and with no review of clemency decisions for arbitrariness. It is said that the inevitable result of this system is that a randomly selected number of those convicted of like crimes will be spared execution, and that an uncontrolled power of commutation in the hands of a single official is arbitrary and will result in the death of a capriciously selected handful of defendants.
The defendants do not claim that they have been treated selectively or that any official has been arbitrary and capricious in their cases. They argue, in a generalized way, that the threat exists. These contentions strike at the structure of our criminal justice system. For if it is deficient in capital cases for the reasons advanced by the defendants, it is similarly deficient in all criminal cases in which punishment or sanctions may be imposed.
The framers of our constitutions necessarily contemplated that the ancient rights imbedded in the documents would be implemented by persons who would conscientiously perform their duties in a reasonable way. How else could any department or institution of government function? The result has been a system which was not created simply to secure convictions or impose punishments. Its chief objectives are to obtain justice and grant mercy where merited, by an exercise of judgment, discretion and conscience by a succession of persons or groups with differing skills, backgrounds and viewpoints.
The defendants label as “arbitrary and capricious” each exercise of judgment, professional skill, discretion or mercy which can affect the final sentence. Each occasion in which these processes of cerebration, hitherto thought admirable, are permitted to operate is suspect. They would have us hold that only perfection statisfies the constitution in capital cases. And if this be so in capital cases, it must be true in all other cases. Thus, if we accept that in any enterprise administered by humans, perfection will not be achieved, the defendants’ proposition by simple logical progression brings us to the result that no person can be punished for any crime in a system managed by human beings.
Having in mind that the United States Supreme Court’s action in Furman was directed solely at discretionary sentencing, we are not persuad.ed that the eighth amendment requires us to extend the supposed rationale of that case into the areas of charging, plea bargaining, jury verdicts and pardons merely because a possibility of selectivity exists.
As we have said, a number of states amended their statutes relating to the imposition of the death penalty, and several techniques have been used. These acts represent an attempt by the legislatures of the various states to permit the imposition of the death penalty in conformance with Furman. One type of statute imposes death for all convictions of a certain crime like first degree murder.
New Mexico’s statute is of this type.
It proceeds upon the theory that no discretion whatever is left concerning the determination of the sentence. Other states have provided mandatory death sentences only for certain specified acts, which are elements of the crime, such as the killing of a prison guard, etc.
A third group of states permits the imposition of a death sentence only after a finding of a specific fact after conviction, such as the killing of another for remuneration.
These statutes are essentially identical to the second type. Finally, some states require consideration of aggravating circumstances, mitigating circumstances, or both.
Several state appellate courts of last resort have considered the constitutionality of their statutes and with surprising unanimity, except for a Massachusetts case,
have concluded that their statutes measured by Furman, do not offend the eighth amendment to the United States Constitution and similar state constitutional provisions. We are particularly impressed with the opinion of Justice Lake of the Supreme Court of North Carolina upholding the constitutionality of the North Carolina mandatory death sentence statute, which is similar to ours. See State v. Jarrette, 284 N.C. 625, 202 S.E.2d 721 (1974). The same conclusion was reached as to statutes imposing mandatory death sentences for specific enumerated crimes in State v. Sheppard, 331 A.2d 142 (Dela.1974), State v. Hill, 297 So.2d 660 (La.1974), cert. denied, 419 U.S. 1090, 95 S.Ct. 682, 42 L.Ed.2d 683 (1975), Williams v. State, 542 P.2d 554 (Okla.Crim.App.1975), and Jefferson v. Commonwealth, 214 Va. 747, 204 S.E.2d 258 (1974). A statute requiring a finding of fact after conviction was upheld in Jurek v. State, 522 S.W.2d 934 (Tex.Crim.App.1975), cert. granted, 423 U.S. 1082, 96 S.Ct. 1090, 47 L.Ed.2d 93 (1976). State courts have also reached the same result as to statutes which require taking into account aggravating circumstances or both aggravating and mitigating circumstances prior to the imposition of a sentence. State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974); Coley v. State, 231 Ga. 829, 204 S.E.2d 612 (1974).
Except for the Massachusetts case, only the Illinois Supreme Court has held such a statute unconstitutional. In People ex rel. Rice v. Cunningham, 61 Ill.2d 353, 336 N. E.2d 1 (1975) a statute which took into account aggravating circumstances prior to the imposition of the death penalty was struck down as being unconstitutional. However, the vice in that statute was that the method of sentence review by a three-judge panel offended the state constitutional provision that an appeal of a death sentence must be taken directly to the Supreme Court of Illinois. We have no such intermediate appellate review in our statute.
Some of the briefs mention, in passing, an asserted deprivation of fourteenth amendment due process rights. We do not consider this an issue of substance, but observe that after the briefs were filed, opinions were handed down by the Supreme Judicial Court of Massachusetts in which a majority actually held that mandatory capital punishment was a deprivation of due process. Commonwealth v. O’Neal, 339 N.E.2d 676 (Mass.1975). In that rather curious case the court had previously affirmed the defendant’s conviction for rape-murder and declined to hold the penalty statute unconstitutional on several theories. Commonwealth v. O’Neal, 327 N.E. 2d 662 (Mass.1975). The court then directed the filing of briefs on the issue of whether a compelling state interest was served by imposition of the death penalty in rape-murder cases. At this juncture, the case seems to have metamorphosed into a factfinding procedure without, so far as appears from the opinion, the introduction of evidence. The majority, while adopting a stance against rape-murder, reasoned that the State had the burden of demonstrating a compelling state interest in imposing capital punishment in such cases and apparently found as a fact that some other punishment would serve as well.
So far as we know the case stands alone. None of the Furman opinions adopt this position. We believe the issue must be resolved by construction of the eighth amendment, made applicable to the states by the fourteenth, and the parallel state constitutional provision. If the mentioned rationale were correct, any criminal sanction could be similarly attacked. The State would be burdened with demonstrating a compelling state interest in each, with the court sitting as a super-legislature weighing the wisdom of legislative enactments. We are persuaded that the dissent of Justice Reardon in O’Neal correctly states the law. 339 N.E.2d at 698.
Therefore, we hold that § 40A-29-2, N.M.S.A.1953 (Supp.1975)' is not unconstitutional by offending the eighth amendment of the United States Constitution or Article II, § 13 of the Constitution of New Mexico.
The alternative writs of prohibition issued in State v. Edington, No. 10187 and State v. Sierra, No. 10194 are made permanent.
IT IS SO ORDERED.
OMAN, C. J., and McMANUS and MONTOYA, JJ„ concur.
SOSA, J., not participating.