Dore, J.
In December 1981, a jury convicted Dwayne Bartholomew of aggravated first degree murder and in a separate hearing the jury found no mitigating circumstances and sentenced him to death. The following November, this court affirmed the murder conviction, but invalidated the death sentence because of the unconstitutional admission of evidence, during the separate sentencing phase, regarding Bartholomew's previous criminal activity. State v. Bartholomew, 98 Wn.2d 173, 654 P.2d 1170 (1982) (Bartholomew I).
The United States Supreme Court vacated this judgment in Bartholomew I, and remanded this case in light of Zant v. Stephens, 462 U.S. 862, 77 L. Ed. 2d 235, 103 S. Ct. 2733 [846] (1983). Washington v. Bartholomew, 463 U.S. 1203, 77 L. Ed. 2d 1383, 103 S. Ct. 3530 (1983). We affirmed our previous holding in Bartholomew I alternatively on state and federal constitutional grounds and remanded to the Pierce County trial court with the following statement:
In deference to the view of the majority in our prior decision on the consequence of a reversal of the sentencing phase, this case is remanded to the trial court for a new sentencing hearing to consider anew whether to impose the death sentence.
State v. Bartholomew, 101 Wn.2d 631, 648, 683 P.2d 1079 (1984) (Bartholomew II).
On remand the Pierce County prosecutor decided not to seek the death penalty using a new jury sentencing phase. The prosecutor, instead, decided to have the trial court sentence the defendant to life imprisonment without parole. The prosecutor asserted that this court's holding in Bartholomew I and Bartholomew II deprived him of the evidence needed to rebut the mitigating circumstances, and therefore the defendant should receive the more lenient sentence.
The trial judge questioned the right of the prosecutor to decline to seek the death penalty at this time in the proceedings. The judge appointed special counsel to argue that the prosecutor lacked discretion to decide not to seek the death penalty. After argument, the judge denied joint motions by the prosecution and defense to enter a sentence of life, imprisonment without parole. The trial court cited our mandate in Bartholomew II. The parties petitioned this court to grant recall and clarifications of the mandate or discretionary review. We denied this motion by an order dated December 4, 1984.
Further proceedings were held before the Pierce County trial court at which the prosecution, defense, and special counsel argued as to whether the prosecution should proceed with the sentencing hearing. The trial court determined that a sentencing hearing must take place. The parties again petitioned this court for discretionary review, [847] which was granted.
Issue
The issue now before this court is whether the prosecuting attorney, after the penalty phase of an aggravated murder has been remanded to the trial court for a new jury deliberation solely on the death penalty issue, has the authority to commute defendant's sentence to life without the possibility of parole and bypass the jury and penalty phase of the trial.
Analysis
There are two provisions in the aggravated first degree murder statute that directly answer the question posed to us by this appeal. First, RCW 10.95.050(1) states that
If a defendant is adjudicated guilty of aggravated first degree murder, ... by verdict of a jury, ... a special sentencing proceeding shall be held if a notice of special sentencing proceeding was filed and served as provided by RCW 10.95.040. No sort of plea, admission, or agreement may abrogate the requirement that a special sentencing proceeding be held.
(Italics ours.) Here, both requirements were met: the prosecutor properly had filed a notice that he would seek the death penalty and a jury found the defendant guilty of aggravated first degree murder. In such instances the statute mandates that a special sentencing proceeding take place and it gives the prosecutor neither the power nor the discretion to short circuit the penalty phase of the proceeding. In fact, the statute specifically precludes any agreement on the part of the prosecution and defense which would "abrogate the requirement that a special sentencing proceeding be held." RCW 10.95.050(1). The jury is given the exclusive right to determine whether the defendant will live or die based on mitigating circumstances.
The second provision of the statute which is dispositive as to this issue is RCW 10.95.050(4) which provides in part:
if a retrial of the special sentencing proceeding is necessary for any reason including but not limited to a mis[848] trial in a previous special sentencing proceeding or as a consequence of a remand from an appellate court, the trial court shall impanel a jury of twelve persons plus whatever alternate jurors the trial court deems necessary.
(Italics ours.) This section shows that the Legislature anticipated the issue presented by this case and provided a remedy for it. The statute is clear, unambiguous, and requires that the trial court impanel a jury to decide the proper penalty after a remand on the death penalty question. The prosecutor has no discretion to determine unilaterally that the lesser penalty be imposed.
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Dore, J.
In December 1981, a jury convicted Dwayne Bartholomew of aggravated first degree murder and in a separate hearing the jury found no mitigating circumstances and sentenced him to death. The following November, this court affirmed the murder conviction, but invalidated the death sentence because of the unconstitutional admission of evidence, during the separate sentencing phase, regarding Bartholomew's previous criminal activity. State v. Bartholomew, 98 Wn.2d 173, 654 P.2d 1170 (1982) (Bartholomew I).
The United States Supreme Court vacated this judgment in Bartholomew I, and remanded this case in light of Zant v. Stephens, 462 U.S. 862, 77 L. Ed. 2d 235, 103 S. Ct. 2733 [846] (1983). Washington v. Bartholomew, 463 U.S. 1203, 77 L. Ed. 2d 1383, 103 S. Ct. 3530 (1983). We affirmed our previous holding in Bartholomew I alternatively on state and federal constitutional grounds and remanded to the Pierce County trial court with the following statement:
In deference to the view of the majority in our prior decision on the consequence of a reversal of the sentencing phase, this case is remanded to the trial court for a new sentencing hearing to consider anew whether to impose the death sentence.
State v. Bartholomew, 101 Wn.2d 631, 648, 683 P.2d 1079 (1984) (Bartholomew II).
On remand the Pierce County prosecutor decided not to seek the death penalty using a new jury sentencing phase. The prosecutor, instead, decided to have the trial court sentence the defendant to life imprisonment without parole. The prosecutor asserted that this court's holding in Bartholomew I and Bartholomew II deprived him of the evidence needed to rebut the mitigating circumstances, and therefore the defendant should receive the more lenient sentence.
The trial judge questioned the right of the prosecutor to decline to seek the death penalty at this time in the proceedings. The judge appointed special counsel to argue that the prosecutor lacked discretion to decide not to seek the death penalty. After argument, the judge denied joint motions by the prosecution and defense to enter a sentence of life, imprisonment without parole. The trial court cited our mandate in Bartholomew II. The parties petitioned this court to grant recall and clarifications of the mandate or discretionary review. We denied this motion by an order dated December 4, 1984.
Further proceedings were held before the Pierce County trial court at which the prosecution, defense, and special counsel argued as to whether the prosecution should proceed with the sentencing hearing. The trial court determined that a sentencing hearing must take place. The parties again petitioned this court for discretionary review, [847] which was granted.
Issue
The issue now before this court is whether the prosecuting attorney, after the penalty phase of an aggravated murder has been remanded to the trial court for a new jury deliberation solely on the death penalty issue, has the authority to commute defendant's sentence to life without the possibility of parole and bypass the jury and penalty phase of the trial.
Analysis
There are two provisions in the aggravated first degree murder statute that directly answer the question posed to us by this appeal. First, RCW 10.95.050(1) states that
If a defendant is adjudicated guilty of aggravated first degree murder, ... by verdict of a jury, ... a special sentencing proceeding shall be held if a notice of special sentencing proceeding was filed and served as provided by RCW 10.95.040. No sort of plea, admission, or agreement may abrogate the requirement that a special sentencing proceeding be held.
(Italics ours.) Here, both requirements were met: the prosecutor properly had filed a notice that he would seek the death penalty and a jury found the defendant guilty of aggravated first degree murder. In such instances the statute mandates that a special sentencing proceeding take place and it gives the prosecutor neither the power nor the discretion to short circuit the penalty phase of the proceeding. In fact, the statute specifically precludes any agreement on the part of the prosecution and defense which would "abrogate the requirement that a special sentencing proceeding be held." RCW 10.95.050(1). The jury is given the exclusive right to determine whether the defendant will live or die based on mitigating circumstances.
The second provision of the statute which is dispositive as to this issue is RCW 10.95.050(4) which provides in part:
if a retrial of the special sentencing proceeding is necessary for any reason including but not limited to a mis[848] trial in a previous special sentencing proceeding or as a consequence of a remand from an appellate court, the trial court shall impanel a jury of twelve persons plus whatever alternate jurors the trial court deems necessary.
(Italics ours.) This section shows that the Legislature anticipated the issue presented by this case and provided a remedy for it. The statute is clear, unambiguous, and requires that the trial court impanel a jury to decide the proper penalty after a remand on the death penalty question. The prosecutor has no discretion to determine unilaterally that the lesser penalty be imposed.
There is no question but that the above cited sections of the statute are mandatory, and that the jury must be impaneled to decide the death penalty upon remand. The applicable statute uses the words "the trial court shall impanel a jury". The general rule is that the word "shall" is presumptively imperative and operates to create a duty rather than conferring discretion. Crown Cascade, Inc. v. O'Neal, 100 Wn.2d 256, 668 P.2d 585 (1983). It is only where a contrary legislative intent is shown that "shall" will be interpreted as being directory instead of mandatory. Northwest Natural Gas Co. v. Clark Cy., 98 Wn.2d 739, 658 P.2d 669 (1983). Here, there is nothing in the statute which indicates that the Legislature did not intend to make the holding of the special sentencing proceeding mandatory when the two conditions were satisfied. Indeed, the Legislature used the word "shall" 67 times in RCW 10.95 while using "may" 15 times. This indicates that the Legislature intended the two words to have different meanings: "may" being directory while "shall" being mandatory. See State v. Huntzinger, 92 Wn.2d 128, 594 P.2d 917 (1979).
To allow the prosecution this discretion in a death penalty case absent specific statutory guidance could also give an unconstitutional delegation of authority to the prosecutor. See State v. Martin, 94 Wn.2d 1, 614 P.2d 164 (1980). The prosecutor does have discretion to decide whether to seek the death penalty at the charging phase of a case pur[849] suant to RCW 10.95.040(1). We have held this does not vest unconstitutional discretion with the prosecutor as the prosecutor must decide pursuant to the statute that sufficient mitigating circumstances to merit leniency do not exist. State v. Campbell, 103 Wn.2d 1, 25, 691 P.2d 929 (1984). The "discretion" the prosecutor possesses at the charging stage is narrowly focused. The prosecutor can only follow the statutory instructions.
In contrast, if the prosecutor can decide after trial whether to seek the death penalty, the prosecutor has unfettered discretion after a case is remanded for error in the penalty stage. No statute exists to give him any guidance whatsoever in administering such power. Consequently, the prosecution would have the power to refuse to take the case to the jury even though the defendant has already been convicted of aggravated first degree murder. Since no guidelines would control the prosecution's decision, it is possible under a factual situation that two defendants, who are convicted of aggravated first degree murder and who have their cases remanded on appeal due to error in the sentencing phase, can, on remand, be subject to different dispositions of their cases. The prosecutor, quite arbitrarily, can decide to take one case to a new sentencing jury while refusing to do the same with the other. Consequently, two defendants, in identical situations, may have their penalties decided differently because the prosecutor has unbridled discretion as to how each will be treated. This clearly violates the Fourteenth Amendment's equal protection clause. State v. Zornes, 78 Wn.2d 9, 475 P.2d 109 (1970).
Furthermore, if the prosecutor has unfettered discretion at this stage of the proceedings, it would permit him to usurp the jury's role. It is the jury, especially in capital cases, that maintains "a link between contemporary community values and the penal system — a link without which the determination of punishment could hardly reflect 'the evolving standards of decency that mark the progress of a maturing society."' Witherspoon v. Illinois, 391 U.S. 510, [850]*850519 n.15, 20 L. Ed. 2d 776, 88 S. Ct. 1770 (1968), quoting Trop v. Dulles, 356 U.S. 86, 101, 2 L. Ed. 2d 630, 78 S. Ct. 590 (1958). The community should decide whether death is the appropriate punishment for a defendant. The jury, and not the prosecutor, far better represents the community. The community should have its chance to weigh the mitigating factors in the case. The prosecutor should not take the decision on mitigation away from the jury. While we find no harm in allowing the prosecutor to express his own personal view to the jury that the defendant should receive mercy, the jury, and not the prosecutor, must make the ultimate decision, subject to automatic review by this court. RCW 10.95.100.
Conclusion
Because we believe that the jury is better suited for determining a defendant's sentence in a capital case, and because the statute is clear that after remand a new jury must be impaneled to determine an appropriate sentence, we remand this case with instructions that the prosecutor present this case to a sentencing jury for trial of the penalty phase of this case. The prosecution has no right, statutory or constitutional, to usurp the jury's functions to determine mitigation in this case, and make the decision whether the defendant should live or die. The prosecutor does have the right to appear before the jury and ask for mitigation and the sparing of defendant's life. The final decision, however, will rest with the jury, subject to review by this court.
Brachtenbach, Andersen, Callow, Goodloe, and Durham, JJ., concur.