¶1concurs:
¶2When I assumed duties as a trial judge in 1958, my experience had been that of a lawyer with some criminal matters scattered in a general law practice. I felt then that the death penalty served a purpose. Now, many years later, I do not have the same opinion.
¶3The purposes of imposing penalties upon convicted criminals are to punish, to rehabilitate, or to deter them and others from repeating the offenses in the future. It is questionable that the imposition of death for a capital crime does anything more than punish the criminal for the period of confinement until his life is taken away. The time waiting for execution may be punishing, but once the event takes place, for him it is all over. As a worldly being he suffers no more. So too rehabilitation in a capital case serves no purpose. The murderer will either lose his life or his freedom; either is terminal so far as his living in a free society is concerned.
¶4There might be a deterrence value, but if we only knew. Statistics that the death penalty does or does not discourage capital crime are not reliable. Public figures have been assassinated, their executioners put to death, yet assassinations still occur. *274Threat of the death penalty did not reduce airplane hi-jacking; in the long run strict security measures at airports accomplished the purpose. Murders are still committed in the few communities where executions have been carried out.
¶5Public televising of executions might serve some deterring value; yet even supporters of the death penalty shudder at the thought pf watching an execution. Killing in exchange for killing does not provide the solution to capital crime.
¶6Life imprisonment without possibility of parole should be our maximum penalty, but the words must mean what they say. Life without freedom is no life at all. Some prisoners prefer death to a life in prison, but to the contrary, of course, it can be argued that life in prison has not been significantly deterring either.
¶7The fact remains that my oath of office requires that I uphold the laws of the State of Nevada as those laws have been defined by the Supreme Court of the United States. Shuman was sentenced to death under a statute that in some part was declared unconstitutional by the United States Supreme Court but not completely. See Smith v. State, 93 Nev. 82, 560 P.2d 158 (1977). In this case, he should have been afforded the bifurcated penalty hearing; still, since Shuman testified at his trial, the jury knew all of the circumstances of the crime. If there was basis for mitigation, he would have gotten it. He does, therefore, fall within the unique situation of a prisoner serving life imprisonment without possibility of parole for one killing who has committed another.
¶8Sentencing Shuman to the same penalty would be useless. Arguably he can be placed in solitary confinement for the rest of his life and deprived of any other prison privileges; but consider the incongruity of severe prison punishment being cruel and inhuman, but taking his life is not.
¶9I do not believe capital punishment has a place in our cultured, society, but I must reluctantly concur that the law is as stated in the majority opinion.