HOROWITZ, J. (specially concurring)

I concur in the conclusions of the majority opinion for the reasons independently considered, which are next set forth.

This case principally considers a defendant's right to plead guilty to a charge of first degree murder and the consequences of such a plea.

The petitioner, Donald Jerry Martin, asserts a right to plead guilty to first degree murder and thus, under the provisions of Washington's death penalty act, RCW 10.94, avoid the possible imposition of the death penalty after a jury trial. Respondent State argues that the defendant in a capital case cannot plead guilty or, alternatively, that after the defendant has pleaded guilty a special sentencing procedure must exist to allow imposition of the death penalty in appropriate cases. The State bases its argument on implied repeal of judicial court rules and a misreading of RCW 10.01.060.

I therefore cannot agree with the State. A thorough consideration of the historical, legislative, and constitutional aspects of the defendant's right to plead guilty and the State's right to trial make it clear that Washington's present death penalty statute does not impair the defendant's traditional right, sought to be exercised by Martin in this case under CrR 4.2(a), to plead guilty to the crime with which he is charged. It is equally clear that RCW 10.94 is an unconstitutional sentencing scheme because it is violative of the defendant's right to trial by jury on the charge of first degree murder. United States v. Jackson, 390 U.S. 570, 20 L.Ed.2d 138, 88 S.Ct. 1209 (1968).

A brief review of the facts will bring into focus the statutory and constitutional issues which must be decided in this case.

On July 3, 1979, the petitioner Martin was arraigned in King County Superior Court on a charge of first degree murder in the death of Ivy Brown. Martin appeared at the arraignment prepared to plead guilty if the court would advise him, pursuant to CrR 4.2(d), that the maximum sentence he could receive on a plea of guilty would be life imprisonment with possibility of parole. RCW 9A.32.040(3); 9.95.115. Martin asserted that as a matter of law life imprisonment is the maximum sentence imposable on a guilty plea because Washington's death penalty statute does not explicitly provide a procedure for imposition of the death penalty after a plea of guilty.

Arguing that RCW 10.94.010 gave the prosecutor 30 days after arraignment to file a notice of intent to request the death penalty, the prosecutor urged the court not to deliver such an assurance. The State asserted a right to preclude the defendant from pleading guilty or a right to seek the death penalty regardless of his plea.

The arraignment was continued to allow further briefing on the issue thus raised. On July 17, 1979, the trial judge declined to accept Martin's guilty plea, stating that the prosecutor's right to request the death penalty prevented the proffered admission of guilt. Accordingly, no plea has been entered to this charge for the murder of Ivy Brown. On July 20, 1979, the prosecutor filed death penalty requests in the Brown murder case and in the murder of John Haasager, with which Martin was charged on the same date in an amended information charging additional counts not included in the original information. Martin was arraigned on the amended information on July 23, 1979. Martin pleaded not guilty to all of the new charges but the Haasager murder charge, on which he stood mute because of the court's refusal to accept his earlier guilty plea in the Brown murder case. The court therefore entered a not guilty plea for him.

The proceedings in the trial court were stayed pending a motion for discretionary review in this court. Defendant continues to assert a right to plead guilty and thus avoid the death penalty. In fact, the defendant's obvious reason for the plea is the defendant's ability to avoid the death penalty if he pleads guilty to first degree murder. The question implicit in his proffered plea is whether a statutory scheme which prevents imposition of the death sentence on defendants who plead guilty unconstitutionally penalizes the exercise of defendant's right to trial by jury on the charge of first degree murder. This case, in which the defendant attempts to enter an unbargained-for plea, raises the constitutional issue even more clearly than did Jackson, supra, in which the violation of the defendant's constitutional rights in this type of case was established even though the defendant had entered no plea at all. See State v. Funicello, 60 N.J. 60, 286 A.2d 55, 70 (1972) (Francis, J., dissenting). "A case brought before this court should be governed by the applicable law even though the attorneys representing the parties are unable or unwilling to argue it." Maynard Inv. Co. v. McCann, 77 Wn.2d 616, 623, 465 P.2d 657 (1970). The question remains, too, through the remand of Martin's prosecution on both murder charges brought against him. A "not guilty" plea was entered for him on the latter Haasager murder charge. To avoid the possibility that an unconstitutional death sentence will be imposed, I therefore later consider the constitutionality of RCW 10.94.

I RIGHT TO PLEAD GUILTY

Few cases have considered a criminal defendant's right to plead guilty to the crime with which he is charged. Analytically, adoption of the State's assertion that it can prevent the defendant from pleading guilty in effect creates a governmental "right" to jury trial which the law has never recognized.

The right to jury trial has been the subject of extensive judicial comment. The right to jury trial has historically been a personal right of the defendant intended to be asserted against the State. Blackstone speaks of the trial by jury as the Englishman's "grand bulwark of his liberties" placed "between the liberties of the people and the prerogative of the Crown." 4 W. Blackstone, Commentaries on the Laws of England [*]349. The State could not assert a right to jury trial. Indeed, at earliest common law, the defendant could not be forced to go before a jury, although the alternative was a tortuous prison sentence. 1 W. Holdsworth, History of English Law 326 (6th ed. 1938). The United States Supreme Court in Duncan v. Louisiana, 391 U.S. 145, 155, 20 L.Ed.2d 491, 88 S.Ct. 1444 (1968) stated that the "right to jury trial is granted to criminal defendants in order to prevent oppression by the Government."

These conceptions of the right to jury trial are inconsistent with any intrinsic governmental right to force the unwilling defendant to jury trial, since the jury system itself was established for the individual's, not the State's benefit.

A defendant's right to plead guilty is not absolute, as is, for example, his right to put the State to its proof at trial. See, e.g., Corbitt v. New Jersey, 439 U.S. 212, 223, 58 L.Ed.2d 466, 99 S.Ct. 492, 499 (1978) ("The States and the Federal Government are free to abolish guilty pleas and plea bargaining"); North Carolina v. Alford, 400 U.S. 25, 38 n. 11, 27 L.Ed.2d 162, 91 S.Ct. 160 (1970) ("Our holding does not mean that a trial judge must accept every constitutionally valid guilty plea merely because a defendant wishes so to plead. A criminal defendant does not have an absolute right under the Constitution to have his guilty plea accepted . . . although the States may by statute or otherwise confer such a right."); Lynch v. Overholser, 369 U.S. 705, 719, 8 L.Ed.2d 211, 82 S.Ct. 1063 (1962) ("This does not mean, of course, that a criminal defendant has an absolute right to have his guilty plea accepted by the court."). As noted by the United States Supreme Court in Alford, however, the State may confer on the defendant a right to plead guilty. In Washington, the arraignment and plea system establish such a right and facilitate the defendant's plea. CrR 4.2(a) provides that the "defendant may plead not guilty, not guilty by reason of insanity or guilty" at arraignment; RCW 10.40.060 requires the defendant to plead within 1 day of arraignment.

Our rules do not explicitly state when the trial court may decline to accept a plea. However, unlike provisions in some other states, Washington rules and statutes nowhere suggest that prosecutorial approval is required before a defendant may plead guilty.

Thus, the criminal defendant in Washington has a right to plead guilty unhampered by the prosecutor's opinions or desires. The State suggests that RCW 10.94 may impliedly overrule CrR 4.2(a) if the statutory death penalty scheme is inconsistent with the criminal rule on guilty pleas. But nothing in RCW 10.94 is inconsistent with the defendant's right to plead guilty. The State's analysis rests on an unverified assumption that the legislature must have intended to repeal CrR 4.2(a). Implied repeals are to be avoided, Jenkins v. State, 85 Wn.2d 883, 886, 540 P.2d 1363 (1975), especially in a case such as this in which the relevant provisions of RCW 10.94, CrR 4.2(a), and the earlier procedural statute RCW 10.01.060 do not conflict.

RCW 10.01.060 sets out various methods of proving guilt. The statute contains two phrases. The first, enacted as Rem. Rev. Stat. § 2309 in 1909 and present in little-modified language in the law of this state since 1854, provides three different methods of assessing the defendant's guilt:

No person informed against or indicted for a crime shall be convicted thereof, unless by admitting the truth of the charge in his plea, by confession in open court, or by the verdict of a jury, accepted and recorded by the court . . .

This provision merely reaffirms the general rule that the defendant may plead guilty.

The State relies on the second clause of RCW 10.01.060. The provision, an amendment dating from 1951, expands the methods of assessing guilt to include trial by a judge except in capital cases:

[E]xcept in capital cases, where the person informed against or indicted for a crime is represented by counsel, such person may, with the assent of the court, waive trial by jury and submit to trial by the court.

This court has interpreted the statute as amended to prevent the defendant upon whom the death penalty might be imposed from waiving jury trial in favor of trial before a court. Brandon v. Webb, 23 Wn.2d 155, 160 P.2d 529 (1945); State v. Baker, 78 Wn.2d 327, 474 P.2d 254 (1970). It thus limits the trial options available to the capital case defendant.

But the clause does not, as erroneously asserted by the State, affect the other two methods of assessing guilt set out in RCW 10.01.060 — the guilty plea and confession in open court. This court has never interpreted RCW 10.01.060 to prohibit the capital defendant from pleading guilty. Indeed, former RCW 10.49.010, in effect in 1951 when the clause was enacted, implicitly anticipates the guilty pleas of murder defendants. That statute provided that "if the defendant plead guilty to a charge of murder, a jury shall be impaneled to . . . determine the degree of murder and the punishment therefor." See State v. Horner, 21 Wn.2d 278, 150 P.2d 690 (1944).

To now interpret RCW 10.01.060 as contended by the State to fill the claimed gap in RCW 10.94 and prevent the capital defendant from pleading guilty would have the effect of enacting a new statute that is inconsistent with decades of practice in this state. Murder defendants have pleaded guilty for decades under prior capital sentencing schemes. Defendants continue to plead guilty under the provisions of Washington's present death penalty statute. Nothing in RCW 10.01.060 prevents the defendant in a capital case from asserting the benefits of this state's general rules allowing the criminal defendant to plead guilty to the crime with which charged. Thus, petitioner Martin should have been allowed to plead guilty to the Brown murder charge if the court could be satisfied that his plea was knowing and voluntary. He then would have been sentenced to life imprisonment with possibility of parole. RCW 9A.32.040(3); 9.95.115.

The State next contends that Martin's plea was not unconditional. The defendant's plea did rely on a correct interpretation of the statutory scheme that prevents imposition of the death penalty when the defendant pleads guilty. But to describe his request as a condition which made his proffered plea not unconditional would require either an unwarranted extension of the rules limiting the court's acceptance of guilty pleas to those pleas which actually freely acknowledge guilt or an unjustified limitation of the defendant's right, established by court rule and the constitution, to know the possible sentencing consequences of his guilty plea before waiving his rights to jury trial, to remain silent, and to confront his accusers. CrR 4.2; Boykin v. Alabama, 395 U.S. 238, 23 L.Ed.2d 274, 89 S.Ct. 1709 (1969).

Doubtless it is not intended that the word "unconditional" be equated with "unequivocal."

A guilty plea "must be freely, unequivocally, intelligently and understandingly made in open court by the accused person with full knowledge of his legal and constitutional rights and of the consequences of his act." Woods v. Rhay, 68 Wn.2d 601, 605, 414 P.2d 601 (1966). A plea is "equivocal", and cannot be accepted by the court, "whenever a defendant attempts to make a plea which by its very wording couples a protestation of innocence with an assertion of guilty . . ." State v. Stacy, 43 Wn.2d 358, 363, 261 P.2d 400 (1953). The courts of this state have always refused a plea as "equivocal" only when the defendant raises factual doubt as to his guilt while attempting to plead. See State v. Mullin, 66 Wn.2d 65, 66, 400 P.2d 770 (1965) ("the defendant made statements indicating a protestation of innocence"); State v. Knutson, 11 Wn. App. 402, 404, 523 P.2d 967 (1974) ("a plea of guilty may not be accepted if it is accompanied by equivocation by the defendant as to his actual guilt"); State v. Watson, 1 Wn. App. 43, 45, 459 P.2d 67 (1969) ("comments . . . evidence a possible claim of self-defense and an assertion that defendant's actions were justified. A plea of `guilty' coupled with a claim of justification is equivocal"). This characterization obviously does not apply to Martin's proffered plea in this case.

The defendant expressed no unwillingness to acknowledge his responsibility for the homicide; he merely required and requested the court to inform him of the sentencing consequences of his plea, i.e., life imprisonment with possibility of parole. RCW 9A.32.040(3); 9.95.115. If the State objects to Martin's attempts to ascertain the maximum punishment should he plead guilty, it is clear that defendant had a right to be informed of the sentence which might be imposed after his acknowledgment of guilt, and thus his plea could not be considered "conditional" for this reason. The court must inform the defendant of the consequences of his plea of guilty before the plea can be accepted. CrR 4.2; Woods v. Rhay, supra. Had the trial court correctly advised him that the maximum sentence imposable on a plea of guilty to first degree murder is life imprisonment with possibility of parole, the defendant could and would have entered an unconditional guilty plea.

II SPECIAL SENTENCING PROCEEDINGS

The State contends that, if the defendant can plead guilty to first degree murder, the trial judge still did not err in refusing to accept Martin's plea because he remained subject to the death penalty. The prosecutor argues that a special sentencing provision in which the death penalty can be imposed must be implied to determine the punishment of the pleading defendant. However, an appropriate analysis of Washington's death penalty statute, RCW 10.94, cannot accommodate such a special sentencing provision. RCW 10.94.020(2) provides that "the same trial jury" that "returns a verdict of murder" shall "reconvene" to determine whether the death penalty will be imposed. If guilt is determined by plea rather than by jury verdict, the jury cannot be "reconvened" to assess punishment. Thus it appears that when a guilty plea to first degree murder is entered and accepted, the death penalty cannot be imposed. The statutory scheme does not state what sentencing procedure is to be followed when a guilty plea is entered.

The prosecutor suggests that a special jury be impaneled to assess punishment when the defendant pleads guilty. He cites cases requiring the impaneling of a sentencing jury in cases in which the defendant pleads guilty. E.g., State v. Baker, 78 Wn.2d 327, 334, 474 P.2d 254 (1970). But the present death penalty scheme is unlike that considered in this court's earlier cases requiring the jury to determine punishment in murder cases even when the defendant had pleaded guilty. Unlike the first degree murder statutes then in effect, no such provision for impaneling a special sentencing jury now exists.

It has been suggested that former RCW 10.49.010 may provide support for a special sentencing procedure to determine punishment in first degree murder cases. But as next demonstrated, that statute clearly does not apply to this situation under the new death penalty statute, RCW 10.94.

RCW 10.49.010 is inconsistent with the scheme of RCW 10.94 and is inadequate to constitutionally allow the jury to assess the death penalty if considered alone. RCW 10.94.020(2) quite clearly anticipates only that the trial judge shall reconvene "the same trial jury [which returns a verdict of murder in the first degree] to determine in a separate special sentencing proceeding" whether the death penalty should be assessed." (Italics mine.) The rest of the statute concerns how that "same" jury shall engage in the deliberation, and provides no guidance for the seating, presentation of evidence to, or deliberation of a special sentencing jury of the sort urged by the State. The provisions of RCW 10.49.010 also clearly do not provide adequate guidance for that procedure.

The United States Supreme Court was asked in United States v. Jackson, 390 U.S. 570, 20 L.Ed.2d 138, 88 S.Ct. 1209 (1968) to infer a special sentencing procedure where none was provided by statute. The Supreme Court refused to take on that legislative task:

[E]ven on the assumption that the failure of Congress to [expressly authorize the infliction of capital punishment upon defendants convicted without a jury] here was wholly inadvertent, it would hardly be the province of the courts to fashion a remedy. Any attempt to do so would be fraught with the gravest difficulties . . .

It is one thing to fill a minor gap in a statute — to extrapolate from its general design details that were inadvertently omitted. It is quite another thing to create from whole cloth a complex and completely novel procedure and to thrust it upon unwilling defendants for the sole purpose of rescuing a statute from a charge of unconstitutionality.

United States v. Jackson, supra at 579-80. See also Gregg v. Georgia, 428 U.S. 153, 49 L.Ed.2d 859, 96 S.Ct. 2909 (1976).

In addition, the legislative history of the present death penalty statute shows that the legislature expressly rejected a proposed provision that would have authorized the impaneling of a capital sentencing jury in cases in which the defendant pleads guilty. House Bill 615, the original version of the statute, provided that: "If the trial jury has been waived, or if the defendant pleaded guilty to murder in the first degree, the death penalty proceeding shall be conducted before a jury impaneled for that purpose and such jury cannot be waived." House Bill 615, § 68. In enacting the bill, the legislature eliminated this provision. See RCW 10.94.020.

The significance of this rejection should not be overlooked in ascertaining legislative intent. Consideration of the legislative history of an enactment has long been held to be a legitimate method of determining the legislature's intent. Ropo, Inc. v. Seattle, 67 Wn.2d 574, 409 P.2d 148 (1965); State ex rel. Fair v. Hamilton, 92 Wn. 347, 159 P. 379 (1916). The majority in Hama Hama Co. v. Shorelines Hearings Bd., 85 Wn.2d 441, 536 P.2d 157 (1975), acknowledged the value in appropriate circumstances of considering sequential drafts of a bill. Hama Hama Co. v. Shorelines Hearings Bd., supra at 450. Unlike the enactment considered in that case, RCW 10.94 is not "replete with inconsistencies, errors, and apparent oversights," and thus it is clear some insight can be gained from examining the death penalty statute's legislative history. It is presumed that members of the legislature were aware of the state of the law and of prior drafts of the bill at the time RCW 10.94 was enacted. See State v. Fenter, 89 Wn.2d 57, 569 P.2d 67 (1977); State ex rel. Fair v. Hamilton, supra at 352; 2A C. Sands, Sutherland's Statutes and Statutory Construction § 48.04, at 197 (4th ed. 1973). It therefore is presumed that the legislature did not intend to allow a special sentencing procedure for infliction of the death penalty on a first degree murder defendant who pleads guilty. There is no evidence which overcomes this presumption.

Regardless of the message to be inferred from the legislative history of RCW 10.94, it is uncontroverted that the legislature provided no other means of establishing a special sentencing jury in cases in which the defendant chooses to plead guilty to first degree murder. Omissions from statutes are presumed to be intentional, and implication of a special sentencing procedure not provided for in RCW 10.94 is therefore inappropriate. It is not this court's function to supply a claimed omission in the content of legislation. Department of Labor Indus. v. Cook, 44 Wn.2d 671, 269 P.2d 962 (1954); In re Phillips' Estate, 193 Wn. 194, 74 P.2d 1015 (1938). As demonstrated above, the legislature did not rely on the existence of a special sentencing procedure in former RCW 10.49.010 in eliminating the proposed special sentencing procedure in House Bill 615, § 68.

The inappropriateness of the analysis advanced by the State cannot be overemphasized. To adopt the State's position, we would have to find in the structure of RCW 10.94 either an absolute prohibition of the defendant's traditional right to plead guilty or an implied provision for a special sentencing procedure if the defendant is allowed to plead guilty. It should first be noted that implication of a special sentencing procedure will have the practical effect of prohibiting guilty pleas, since no lawyer would advise his client to take such a plea where he is faced with a possible death penalty. But beyond that practical effect, the analysis violates one of the cardinal rules of statutory construction:

The majority is apparently convinced that the legislature should have provided [a certain remedy]. If the legislature thought that [the remedy] should be provided for, it inadvertently omitted any language expressing that intent. Since we are not a legislative body, it is our settled rule that we cannot and will not read into a statute anything which we may conceive that the legislature has unintentionally left out.

Leschi Improvement Council v. State Highway Comm'n, 84 Wn.2d 271, 300, 525 P.2d 774 (1974) (Rosellini, J., dissenting). In this case, the legislature may have intended to prohibit guilty pleas or provide for special sentencing procedures in first degree murder cases. But the legislature did not so provide. Whether that omission in the death penalty scheme of RCW 10.94 was intentional or unintentional, it is a matter for the legislature, and not for this court, to correct.

The need for interpretative restraint is greatly increased in this case because of the subject matter of the court's claimed implied repeal of the defendant's right to plead guilty and claimed provisions for a special sentencing jury if the defendant does plead. The United States Supreme Court has more than once reminded us of the indisputable fact that "death is different," and that this difference must impact on the court's decision making, requiring the utmost solicitousness for the defendant's position. See Gregg v. Georgia, supra at 187; Woodson v. North Carolina, 428 U.S. 280, 305, 49 L.Ed.2d 944, 96 S.Ct. 2978 (1976); Hamilton v. Alabama, 368 U.S. 52, 54-55, 7 L.Ed.2d 114, 82 S.Ct. 157 (1961); Reid v. Covert, 354 U.S. 1, 77, 1 L.Ed.2d 1148, 77 S.Ct. 1222 (1951). To force the defendant to face the death penalty on the basis of claimed implied provisions of an otherwise unconstitutional death penalty scheme does not adequately respect that difference. See also State ex rel. McDonald v. Whatcom County District Court, 92 Wn.2d 35, 593 P.2d 546 (1979); State v. Grant, 89 Wn.2d 678, 685, 575 P.2d 210 (1978); State v. Arndt, 87 Wn.2d 374, 385, 553 P.2d 1328 (1976) ("rule of lenity" requires that ambiguous criminal statutes be construed in favor of the defendant).

III RIGHT TO JURY TRIAL AFFECTED BY DEATH PENALTY SCHEME

As is clear from a reading of RCW 10.94, it contains no limitation on the capital defendant's right to plead guilty and no special sentencing procedure to impose the death penalty on a pleading defendant. This, in effect, is merely an acknowledgment of the clear language of the provisions of RCW 10.94. When the language of a statute is clear, there is no need for judicial interpretation. State v. Roth, 78 Wn.2d 711, 479 P.2d 55 (1971). The defendant can be sentenced to death only after a trial jury returns a verdict of guilty. In addition, the prosecutor cannot prohibit the defendant from pleading guilty by requesting the death penalty merely because the punishment is imposable only by the trial jury which determined guilt. The practical effect of any defendant's assertion of a right to plead guilty and consequent avoidance of the death penalty necessarily raises questions of the constitutionality of Washington's death penalty statute. It is clear that the first degree murder sentencing scheme invalidly penalizes the defendant's constitutional right to trial by jury.

United States v. Jackson, 390 U.S. 570, 20 L.Ed.2d 138, 88 S.Ct. 1209 (1968) invalidated a statute which permitted the imposition of the death penalty only upon conviction following a plea of not guilty and a jury trial. The Supreme Court explained the statutory scheme "needlessly encourages" guilty pleas and thus penalized the exercise of the defendant's right to jury trial.

Jackson has been limited in a series of federal and state decisions. The Supreme Court has refused to rule that guilty pleas are per se invalid simply because they were induced by fear of the death penalty or entered pursuant to plea bargains averting the death penalty. See, e.g., Tollett v. Henderson, 411 U.S. 258, 36 L.Ed.2d 235, 93 S.Ct. 1602 (1973); Brady v. United States, 397 U.S. 742, 25 L.Ed.2d 747, 90 S.Ct. 1463 (1970); Parker v. North Carolina, 397 U.S. 790, 25 L.Ed.2d 785, 90 S.Ct. 1458 (1970). Many state courts, in upholding their statutory death penalty schemes and pleas entered pursuant to them, have relied on the fact that the death penalty may be imposed whether guilt is determined by jury or not. Prothro v. State, 370 So.2d 740, 743 (Ala.Crim.App. 1979) (statute provides for jury assessment of punishment if defendant pleads guilty); Commonwealth v. Bhillips, 475 Pa. 427, 429 n. 2, 430 n. 3, 380 A.2d 1210 (1977); State v. Nabozny, 54 Ohio St.2d 195, 375 N.E.2d 784, 789 (1978). See also Lyons v. Howard, 434 F.2d 632 (6th Cir. 1970) (Kentucky law); United States ex rel. Madison v. Rundle, 422 F.2d 49 (3d Cir. 1970) (Pennsylvania law); Sims v. Eyman, 405 F.2d 439 (9th Cir. 1969) (Arizona law). Thus, the effect of Jackson has been lessened, and case-by-case plea bargaining that averts the death penalty has regularly been allowed.

However, in Corbitt v. New Jersey, 439 U.S. 212, 58 L.Ed.2d 466, 99 S.Ct. 492 (1978), the Supreme Court made clear that Jackson still invalidates the inappropriately drafted statutory scheme. In refusing to extend Jackson to Corbitt, and thus upholding the New Jersey murder punishment scheme, that provides the same maximum life term sentences for all defendants but allows the judge to assess a shorter term when the defendant pleads, the Supreme Court noted Jackson's distinguishing characteristics:

We agree with the New Jersey Supreme Court that there are substantial differences between this case and Jackson, and that Jackson does not require a reversal of Corbitt's conviction. The principal difference is that the pressures to forego trial and to plead to the charge in this case are not what they were in Jackson. First, the death penalty, which is "unique in its severity and irrevocability," Gregg v. Georgia, 428 U.S. 153, 187 [ 49 L.Ed.2d 859, 96 S.Ct. 2909] (1976), is not involved here. . . . [I]t is a material fact that under the New Jersey law the maximum penalty for murder is life imprisonment, not death. Furthermore, in Jackson, any risk of suffering the maximum penalty could be avoided by pleading guilty. Here, although the punishment when a jury finds a defendant guilty of first-degree murder is life imprisonment, the risk of that punishment is not completely avoided by pleading non vult because the judge accepting the plea has the authority to impose a life term. New Jersey does not reserve the maximum punishment for murder for those who insist on a jury trial.

(Footnote omitted.) Corbitt v. New Jersey, supra at 217.

Although these differences prevented application of Jackson to the facts in Corbitt, they mandate Jackson's application to this state's statutory scheme. The instant case demonstrates the constitutional flaw in the death penalty statute. RCW 10.94. The defendant Martin wishes to plead guilty and waive his right to trial by jury because it is the only way under RCW 10.94 that he is assured he can avoid the death penalty. The death penalty statute unnecessarily and by its very nature compels the defendant to plead guilty, and thus is unconstitutional under the holding in Jackson.

Washington's statutory scheme "reserve[s] the maximum punishment for those who insist on a jury trial" by allowing the defendant to plead guilty and thus avoid any statutorily prescribed scheme for assessment of the death penalty. As in Jackson, if this statute is not struck down, the situation in this state is that "[i]ndividuals forced to defend their lives in proceedings tailor-made for the occasion must do so without the guidance that defendants ordinarily find in a body of procedural and evidentiary rules spelled out in advance of trial." United States v. Jackson, supra at 580. The faulty legislation has made the 30-day grace period to request the death penalty an extraordinary weapon in the hands of a prosecutor seeking a deal with a murder defendant. No statutory provision for the death penalty exists when the defendant pleads guilty; none can be implied by us today. We cannot "extend the capital punishment provision . . . in a new and uncharted direction, without the compulsion of a legislative mandate and without the benefit of legislative guidance." United States v. Jackson, supra at 581. Washington's death penalty sentencing scheme is unconstitutional.

In sum, the trial court judge should have informed the defendant when he attempted to plead guilty that the maximum punishment for first degree murder on a plea of guilty is life imprisonment with possibility of parole. RCW 9A.32.040(3); 9.95.115. The court should have accepted Martin's guilty plea under CrR 4.2 and sentenced him to life imprisonment with possibility of parole. Even had he gone to trial, Martin could only have been sentenced to life imprisonment without parole, RCW 9A.32.047, and not death, since RCW 10.94, which sets out the procedure for assessment of the death penalty, is clearly unconstitutional under Jackson.

UTTER, C.J., concurs with HOROWITZ, J.