B.	Absolute Discretion Is Conferred to Each Individual District Prosecutor to Indiscriminately Seek or Forego the Death Penalty In Violation of Principles Set Out in Bush v. Gore.1
	Prosecutors in Tennessee have unlimited discretion as to whether or not to seek the death penalty in a given case.  There are no statewide guidelines and no procedures for pretrial judicial review of the prosecutorial decision.  Some prosecutors are more zealous, vengeful or punitive than others.  
	Because of the unlimited discretion vested in the prosecutor, persons convicted of identical crimes are subject to wholly different punishments:  "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, supra at 428 U.S. 305, 96 S.Ct. 2991.  Due to the extreme disparity between a death sentence and a life sentence, for the prosecution to have the absolute discretion in this regard violates the state and federal guarantees of equal protection and results in the same wanton and freakish imposition of the death penalty that was condemned in Furman.  
	In addition, the prosecutor's unfettered discretion to subject any defendant charged with first degree murder to a capital sentencing hearing constitutes an improper delegation of judicial power in violation of Article II, § 2 of the Tennessee Constitution.  It is also a violation of Article II, Section 2 in that the prosecutor assumes a legislative power:  to obligate the State of Tennessee to spend millions of dollars in future litigation and other costs.  It is a legislative function to appropriate revenue, yet no comprehensive study has been done regarding the economic impact of the death penalty in Tennessee. 
	In order to avoid disproportionate and arbitrary infliction of the death penalty, the nature of the defendant, as well as the nature of the crime, must be considered.  Tenn. Code Ann. §  39-13-206(c)(1)(D).  But prosecutors in Tennessee are not required to consider the presence of mitigating circumstances in the course of deciding whether to seek the death penalty.  Because the aggravating circumstances are over-inclusive, see, Tenn. Code Ann. § 39-2-203(i)(1982)[Repealed 1989], the pool of violent offenders from which the prosecutor may choose is a large one.  Statewide, the selection of candidates for the death penalty is, at best, inconsistent and random.
	There are 31 judicial districts and 31 decision-makers, each with different values and subject to different motivations and influences.  Each office is free to establish its own policy as to when capital sentencing hearings will be requested.  With no requirement to examine both sides of the scale, no uniform standards to guide the decision-making process, and no judicial check on the prosecutor's discretion, the selection of who will be subject to a capital sentencing hearing in Tennessee is influenced by diverse political factors which cause the system as a whole to be arbitrary and capricious.2  See also, Bush v. Gore, 531 U.S. 98, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000)(equal protection clause requires that fundamental right be administered uniformly within a state). 
 	According to the 1980 Census, Tennessee's population of 4,132,353 is comparable to Washington's population of 4,591,120, and yet, as of January, 1991, Washington's death row stood at 8.  Part of the reason for this astonishing difference is that Washington's death penalty statute limits prosecutorial discretion to call for a sentencing hearing.  Such a hearing can only occur in a case of aggravated first degree murder "when there is reason to believe that there are not sufficient mitigating circumstances to merit leniency."  R.C.W. § 10.95.040 (1981).  
	This judicial check ensures that only Washington's most "blameworthy" offenders will be subject to a capital sentencing hearing, and it provides some assurance of statewide uniformity in the decision-making process.  By contrast, a prosecutor in Tennessee, at most, need only demonstrate that there is sufficient evidence of a single aggravating circumstance to take the case to trial before a death-qualified jury.
	The chances are good that a prosecutor, who seeks the death penalty, will get what he asks for from a death-qualified jury.  In order to eliminate arbitrary and capricious action from the process, it is as necessary to limit and direct the discretion of the prosecutor as it is to channel the discretion of the sentencer.
	C.	The Death Sentence Is Unconstitutional, Because it Infringes upon Mr. Hines’ Fundamental Right to Life, and Imposition of the Death Penalty Is Not Necessary to Promote Any Compelling Tennessee State Interest and Because it Violates International Law. " \l 3
	Pursuant to the Fourth, Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution, Article I §§ 6, 7, 8, 9, 16 and 17 of the Tennessee Constitution, the death sentence should also be set aside because it unconstitutionally impinges upon Mr. Hines’s fundamental right to life.  The death sentence must be reversed because petitioner's right to life is a fundamental constitutional right, and the punishment of death is not necessary to promote any compelling state interest in punishing him, nor has the State shown that there are no less restrictive means of punishing him.  In this case, the State itself did not find the punishment of death necessary and offered a life term.  See, State v. Hines, 919 S.W.2d at 577-578.
	That the death penalty denies a fundamental right to life and therefore violates the state and federal constitutions is the necessary conclusion that must be drawn from both domestic case law and from international law.  Since, this issue is one of primary importance and goes to the structure of the penalty in this case, appellate counsel provided ineffective assistance of counsel by not raising and arguing this issue.  That convicted murderers retain a fundamental right to life under the Eighth and Fourteenth Amendments to the United States Constitution was recognized in Ford v. Wainwright, 477 U.S. 399, 409, 106 S.Ct. 2595, 2601, 91 L.Ed.2d 335 (1986).  
	Fundamental constitutional rights are those rights “explicitly or implicitly guaranteed in the Constitution.”  San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 33-34 (1973). The United States Constitution explicitly recognizes the right to life as fundamental in both the due process clause of the Fifth Amendment and the Due Process Clause of the Fourteenth Amendment.  The Due Process Clause of the Fifth Amendment provides that "no person shall . . . be deprived of life, liberty, or property without due process of law."  U.S. Const. Amend. V.  Similarly, the due process clause of the Fourteenth Amendment provides, "nor shall any State deprive any person of life liberty, or property, without due process of law."  U.S. Const. Amend. XIV.  So, too, Article I § 8 of the Tennessee Constitution acknowledges life as a fundamental right.
	The fundamental right to life is also recognized by International law.  Article 6 of the International Covenant on Civil and Political Right (ICCPR), G.A. res 2200A (XXI), 21 U.N. GAOR Supp. (No.16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976, provides that “Every human being has the inherent right to life . . . sentence of death may only be imposed for the most serious of crimes ... .”  Article 7 states that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”  At least one Justice in the United States Supreme Court has suggested the that long delays inherent in the review of death sentences violates this provision of the ICCPR.  See, Knight v. Florida, 528 U.S. 990(Mem), 120 S.Ct. 459, 145 L.Ed.2d 370 (1999)(Breyer, dissenting from the denial of certiorari).   
	Due to the fundamental nature of the right to life and a lack of necessary to destroy Mr. Hines’ life, the Court should grant permission to appeal and review this issue.