State v. Loftin

724 A.2d 129 (1999)

157 N.J. 253

STATE of New Jersey, Plaintiff-Respondent,

v.

Donald LOFTIN, Defendant-Appellant.

Supreme Court of New Jersey.

Argued March 18, 1997.

Decided February 1, 1999.

*132 Mordecai D. Garelick and Daniel V. Gautieri, Assistant Deputy Public Defenders, for defendant-appellant (Ivelisse Torres, Public *133 Defender, attorney; Mr. Garelick, Mr. Gautieri and Claudia Van Wyk, Deputy Public Defender II, on the briefs).

Paul H. Heinzel, Deputy Attorney General, for plaintiff-respondent (Peter Verniero, Attorney General of New Jersey, attorney).

Lawrence S. Lustberg for amici curiae Association of Criminal Defense Lawyers of New Jersey and New Jersey State Conference of NAACP Branches (Gibbons, Del Deo, Dolan, Griffinger & Vecchione, attorneys; Mr. Lustberg, James E. Ryan and Laura K. Abel, on the briefs). *130

*131 The opinion of the Court was delivered by PORITZ, C.J.

TABLE OF CONTENTS

I. The Origin and History of Proportionality Review ..............................135

A. From Furman to Pulley ......................................................135

B. Proportionality Review in Other States .....................................136

C. Proportionality Review in New Jersey .......................................139

II. The Constitutionality of N.J.S.A. 2C:11-3e as Amended .........................141

A. Pending Appeals ............................................................141

B. The Supreme Court's Appellate Review Function ..............................142

C. Application of Proportionality Review ......................................145

1. The Scope of the Statistical Universe of Comparison Cases ...............146

2. Individual Proportionality Review .......................................148

a. Frequency Analysis ...................................................148

i. Salient-Factors Test ............................................148

ii. Numerical-Preponderance-of-Aggravating-and-Mitigating-Factors

Test ...............................................149

iii. Index-of-Outcomes Test ..........................................150

b. Precedent-Seeking Review .............................................150

3. Systemic Proportionality Review and Possible Racial Disparity in the

Imposition of the Death Penalty .......................................151

a. Race as a Predictor of Outcome........................................152

b. Review of the Statistical Models .....................................153

4. Proportionality Review and Its Status as a Separate Proceeding in

Death Penalty Appeals .................................................160

III. Application of the Methods of Individual Proportionality Review to Loftin .....161

A. Facts ......................................................................161

B. Focus of Review ............................................................163

1. The Universe of Cases ...................................................164

2. Method of Classifying Cases .............................................164

C. Comparison of Cases ........................................................164

1. Comparison Group ........................................................165

2. Frequency Analysis ......................................................166

a. Salient-Factors Test .................................................166

b. Index-of-Outcomes Test ...............................................167

c. Frequency-Analysis Conclusion ........................................170

3. Precedent-Seeking Review ................................................170

a. Assessment of Defendant's

Culpability ........................................................171

i. Moral Blameworthiness ...........................................171

ii. Degree of Victimization .........................................172

iii. Character of Defendant ..........................................172

b. Comparison of Defendant's Case to the B Cases ........................172

D. Other Arguments ............................................................175

IV. Conclusion .....................................................................176

Appendix A......................................................................176

Appendix B......................................................................178

*134

Appendix C...................................................................178

Comparison Case Summaries

I. Prior Murderers with Two Additional Aggravating Factors

or Particular Violence/Terror: B(1) ......................178

A) George Booker (1 and 2) .................................178

B) John Fauntenberry .......................................179

C) Richard Feaster (2) .....................................180

D) James Koedatich (1A) ....................................181

E) James Koedatich (1B) ....................................181

II. Prior Murderers with One Additional Aggravating Factor

or Particular Violence/Terror: B(2) ......................181

A) Marko Bey (2B) ..........................................181

B) Richard Biegenwald (1A) .................................182

C) Richard Biegenwald (1B) .................................183

D) Richard Biegenwald (1C) .................................183

E) Bryan Coyle (1A) ........................................183

F) Bryan Coyle (1B) ........................................184

G) Samuel Erazo (1A) .......................................184

H) Samuel Erazo (1B) .......................................184

I) William Godette .........................................184

J) Frank Pennington ........................................185

K) Frank Pennington (1B) ...................................186

L) Braynard Purnell (1A) ...................................186

M) Braynard Purnell (1B) ...................................186

N) Thomas Ramseur ..........................................187

O) Carlos Vasquez ..........................................187

III. Prior Murderers with No Other Aggravating Circumstances

or Particular Violence/Terror: B(3) ................188

A) Richard Biegenwald (2) ..................................188

B) Jihad Muhammed ..........................................188

C) Alberto Nieves ..........................................189

D) Thomas Williams .........................................189

In State v. Loftin, 146 N.J. 295 , 680 A. 2d 677 (1996) ( Loftin I ), we affirmed defendant Donald Loftin's conviction and sentence of death for the murder of Gary Marsh. We also acknowledged defendant's request for proportionality review of his death sentence pursuant to N.J.S.A. 2C:11-3e. Id. at 397 , 680 A. 2d 677 . This appeal requires us first to consider the constitutionality of an amendment to N.J.S.A. 2C:11-3e that limits proportionality review to a specific group of similar cases in which a jury has sentenced the defendant to death and, then, to conduct defendant's review.

Proportionality review, although statutory in origin, is carried out by this Court in the exercise of its general authority as an appellate tribunal, N.J. Const. art. VI, § 2, ¶ 2, and its specific exclusive jurisdiction over capital causes, id. at § 5, ¶ 1(c). This authority is central to our primary function as the Court of last resort in the state judicial system and carries with it the power to determine the scope and content of appellate review. The integrity of appellate review by the Court is critical to the judiciary as an independent and coequal branch of government, and to the separation of powers among the executive, legislative and judicial branches. In exercising its authority in this case, the Court must ultimately decide whether the limitation on the proportionality review universe imposed by the Legislature precludes meaningful appellate review.

Prior to this case, we established the size of the proportionality review universe to include both death-eligible defendants and defendants who proceed to a penalty trial. State v. Marshall, 130 N.J. 109, 134, 137 , 613 A. 2d 1059 (1992) ( Marshall II ), cert. denied, *135 507 U.S. 929 , 113 S.Ct. 1306 , 122 L.Ed. 2d 694 (1993). We anticipated that such broad categories would provide the most useful information about how decisions are made in the capital sentencing system by prosecutors and by juries. Id. at 132-37, 613 A. 2d 1059 . We also decided to conduct our review in two parts: a statistical comparison we call "frequency review," and a descriptive analytic comparison of like cases described as "precedent-seeking review." Id. at 152-59 , 613 A. 2d 1059 . Always, we have sought a principled, careful approach "to ensure that the death penalty is being administered in a rational, non-arbitrary, and evenhanded manner, fairly and with reasonable consistency." Id. at 131 , 613 A. 2d 1059 .

Despite these efforts, many questions have been raised by our early cases, the parties, the Special Master appointed to consider Loftin's allegations of racial disparity, and the Administrative Office of the Courts (AOC) about our present system of proportionality review. These questions cover a broad range of factual issues that must be resolved before we can rule on whether the statutory limitation unduly restricts appellate review by this Court. To this end, we are remanding these issues to a Special Master, appointed to hear and take testimony and to report to the Court. His general charge is to examine the proportionality review methodology used by the Court since Marshall II was decided over six years ago, and to test the assumptions on which the current system is based. Through a remand, a record can be developed that will enable us to consider the effect of the statute on our review function, including our ability to address any future claims that New Jersey's system of capital punishment operates in an invidiously discriminatory manner.

We are cognizant of the Legislature's clearly expressed intent to limit the boundaries of proportionality review and would not lightly reject its views. Our consideration of those boundaries must, however, await the findings and recommendations of the Special Master. Until we have had the benefit of his report, due pursuant to our Order on May 14, 1999, we will continue, with one exception described below, see infra at 294-295, 724 A. 2d at 149-150 , to carry out proportionality review as before. Based on our proportionality review herein, we hold that defendant has not shown his death sentence to be disproportionate to the penalty imposed in similar cases.

I

The Origin and History of Proportionality Review

In Marshall II, we observed that "[t]he best way to understand the concept of proportionality review is to understand its origin." 130 N.J. at 124 , 613 A. 2d 1059 . That observation remains true today. It is helpful, also, to consider the history of proportionality review both in this state and in our sister states to gain perspective on the role of this form of review in New Jersey's death penalty scheme.

A. From Furman to Pulley

Proportionality review arose in response to the United States Supreme Court's decision in Furman v. Georgia, 408 U.S. 238 , 92 S.Ct. 2726 , 33 L.Ed. 2d 346 (1972), wherein the Court held that a Georgia statute permitting defendants to be sentenced to death at the unfettered discretion of the judge or jury violated the Eighth Amendment prohibition on cruel and unusual punishment. Id. at 239-40 , 92 S.Ct. at 2727 , 33 L.Ed. 2d at 350 ; see also U.S. Const. amend. VIII ("Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted"). Justice Stewart, in his concurring opinion, described "legal systems that permit ... [the death] penalty to be so wantonly and so freakishly imposed" as "cruel and unusual in the same way that being struck by lightening is cruel and unusual." Furman, supra, 408 U.S. at 309-10 , 92 S.Ct. at 2762-63 , 33 L.Ed. 2d at 390 (Stewart, J., concurring).

Four years later, the United States Supreme Court upheld statutes passed in response to Furman by Georgia, Texas and Florida, finding that the procedural safeguards provided by those statutes would prevent the death penalty from being imposed "capriciously or in a freakish manner." *136 Gregg v. Georgia, 428 U.S. 153, 195 , 96 S.Ct. 2909, 2935 , 49 L. Ed. 2d 859, 886-87 (1976); see also Jurek v. Texas, 428 U.S. 262 , 96 S.Ct. 2950 , 49 L.Ed. 2d 929 (1976); Proffitt v. Florida, 428 U.S. 242 , 96 S.Ct. 2960 , 49 L.Ed. 2d 913 (1976).

The Georgia statute sustained by the Court in Gregg bifurcated capital proceedings into separate guilt-phase and penalty-phase trials, and provided that during the penalty phase the judge or jury would hear evidence of mitigating and aggravating factors. 428 U.S. at 163-64, 96 S.Ct. at 2920-21, 49 L.Ed. 2d at 869-70. The defendant could be sentenced to death only if the judge or jury found that at least one of the statutory aggravating factors was present and outweighed the mitigating factors. Id. at 165-66, 96 S.Ct. at 2921-22, 49 L.Ed. 2d at 870. The Georgia statute also provided for direct appeal to the state supreme court which, among other things, was to conduct a proportionality review to determine "`[w]hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant'." Id. at 166-67, 96 S.Ct. at 2922, 49 L.Ed. 2d at 871 (quoting Ga.Code Ann. § 27-2537 (Supp.1975)).

States seeking to enact constitutional death penalty statutes followed the statute upheld in Gregg like a recipe, careful to include provisions for appellate proportionality review. See infra at 268, 724 A. 2d at 136 . Six years later, however, in Pulley v. Harris, 465 U.S. 37 , 104 S.Ct. 871 , 79 L.Ed. 2d 29 (1984), the United States Supreme Court held that proportionality review was not "indispensable" to a constitutionally acceptable capital punishment statute. Id. at 45 , 104 S.Ct. at 876 , 79 L.Ed. 2d at 37 .

B. Proportionality Review in Other States

Gregg did "not intend to suggest that only... procedures [similar to the Georgia procedures] would be permissible under Furman or that any sentencing system constructed along ... [such] general lines would inevitably satisfy the concerns of Furman . " 428 U.S. at 195, 96 S.Ct. at 2935, 49 L.Ed. 2d at 887. Nonetheless, in the 1970s and early 1980s, twenty-five states enacted capital punishment statutes that required appellate proportionality review in all capital cases. See Ala.Code § 13A-5-53(b)(3) (enacted 1981); Conn. Gen.Stat. § 53a-46b (enacted 1980); Del.Code Ann. tit. 11 § 4209(g)(2)(a) (enacted 1977); Ga.Code. Ann. § 17-10-35(c)(3) (enacted 1973); Idaho Code § 19-2827 (c)(3) (enacted 1977); Ky.Rev.Stat. Ann. § 532.075(3)(c) (enacted 1976); La.Code Crim. Proc. Ann. art. 905.9 (enacted 1976); Md. Ann.Code, art. 27, § 414(e)(4) (enacted 1978); Mass. Gen. Laws Ann. ch. 279, § 71 (enacted 1982); Miss.Code Ann. § 99-19-105(3)(c) (enacted 1977); Mo. Ann. Stat. § 565.035 (enacted 1983); Mont.Code. Ann. § 46-18-310(1)(c) (enacted 1977); Neb.Rev. Stat. § 29-2521.03 (enacted 1978); Nev.Rev. Stat. § 177.055(2)(d) (enacted 1977); N.M. Stat. Ann. § 31 -20A-4(C)(4) (enacted 1979); N.C. Gen.Stat. § 15A-2000(d)(2) (enacted 1977); Ohio Rev.Code. Ann. § 2929.05(A) (enacted 1981); Okla. Stat. Ann. tit. 21, § 701.13 (C)(3) (enacted 1976); 42 Pa. Cons. Stat. Ann. § 9711(h)(3)(iii) (enacted 1974); S.C.Code Ann. § 16-3-25(C)(3) (enacted 1977); S.D. Codified Laws § 23A-27A-12(3) (enacted 1979); Tenn.Code Ann. § 39-13-206(c)(1)(D) (enacted 1977); Va.Code. Ann. § 17-110.1(C)(2) (enacted 1977); Wash. Rev. Code Ann. § 10.95.130 (2)(b) (enacted 1981); Wyo. Stat. Ann. § 6-2-103 (d)(iii) (enacted 1982). These statutes were passed because of the then widely-held perception that the Supreme Court would not uphold state capital punishment legislation that lacked such provisions. See Leigh B. Bienen, The Proportionality Review of Capital Cases by State High Courts After Gregg: Only "The Appearance of Justice"?, 87 J.Crim. L. & Criminology 130, 140 (1996).

After Pulley , nine states repealed their proportionality review requirements. See 1995 Conn. Legis. Serv. P.A. 95-16(West); 1994 Idaho Sess. Laws ch. 127; 1992 Md. Laws ch. 331; 1985 Nev. Stat. ch. 527 § 1; 1985 Okla Sess. Laws ch. 265 (West), § 1; 1997 Pa. Legis. Serv. Act 1997-28 (West); 1992 Tenn. Pub. Acts ch. 952; 1998 Va. Acts ch. 872; 1989 Wyo. Sess. Laws ch. 171, § 2. A substantial number of jurisdictions, however, conduct proportionality review today pursuant *137 to express statutory authority. In addition to the twenty-five states that enacted proportionality review provisions in the 1970s and early 1980s, three states passed similar statutes subsequent to Pulley , including Tennessee after having repealed its earlier statute, see N.H.Rev.Stat. Ann. § 630:5(XI) (enacted 1986); N.Y.Crim. Proc. Law § 470.30 (enacted 1995); Tenn.Code Ann. § 39-13-206(c)(1)(D) (enacted 1992). Today, twenty states, including New Jersey, conduct statutory proportionality review. In one state, Florida, the state supreme court has declared the court's intention to conduct comparative review on its own initiative. See Sinclair v. Florida, 657 So. 2d 1138, 1142 (Fla.1995).

As might be expected, the absence of any uniform requirements enforceable under the federal Constitution has led, over the years, to variation in the conduct of proportionality review. Thus, for example, the scope of the pool or "universe" of comparison cases used for proportionality review varies among the states. New York and Washington have defined broad universes encompassing some homicide cases that were not capitally prosecuted. See N.Y. Jud. Law § 211 -a; N.Y. Ct. Rules § 510.18 (authorizing collection of case data for every criminal action in which defendant is indicted for first-degree murder); Wash. Rev.Code Ann. §§ 10.195.120, 10.195.130(2)(b) (authorizing collection of case data for every criminal action in which defendant is convicted of aggravated first-degree murder, regardless of whether defendant is capitally prosecuted).

Some states have limited the universe of comparison cases to those cases advancing to a penalty-phase trial. See, e.g., South Dakota v. Rhines, 548 N.W. 2d 415, 455-56 (S.D.), cert. denied, 519 U.S. 1013 , 117 S.Ct. 522 , 136 L.Ed. 2d 410 (1996) (finding that "`[b]ecause the aim of proportionality review is to ascertain what other capital sentencing authorities have done with similar capital murder offenses, the only cases that could be deemed similar ... are those in which imposition of the death penalty was properly before the sentencing authority for determination' ") (quoting Tichnell v. Maryland, 297 Md. 432 , 468 A. 2d 1, 15-16 (Md.1983), cert. denied, 466 U.S. 993 , 104 S.Ct. 2374 , 80 L.Ed. 2d 846 (1984), and citing Flamer v. Delaware, 490 A. 2d 104, 139 (Del.), cert. denied, 464 U.S. 865 , 104 S.Ct. 198 , 78 L.Ed. 2d 173 (1983), and cert. denied, 474 U.S. 865 , 106 S.Ct. 185 , 88 L. Ed. 2d 154 (1985)); Flamer, supra, 490 A. 2d at 139 (declaring "it inherently fair, logical and necessary to prevent disproportionate sentencing that this Court compare the sentence below to the facts and circumstances of cases in which a capital sentencing proceeding was actually conducted, whether the murderers have been sentenced to life imprisonment or death"); Missouri v. Bolder, 635 S.W. 2d 673, 685 (Mo. 1982) (finding court's "inquiry would be unduly slanted were [the court] to compare only those cases in which the death penalty has been imposed" and determining "as similar [t]hose cases in which both death and life imprisonment were submitted to the jury") (internal quotation marks omitted) (alteration in original), cert. denied, 459 U.S. 1137 , 103 S.Ct. 770 , 74 L.Ed. 2d 983 (1983). Other states have defined the universe of comparison cases to include only those cases in which a death sentence was imposed. See, e.g., Sanborn v. Kentucky, 892 S.W. 2d 542, 556 (Ky.1994) (considering all cases in which death penalty was imposed, as required by statute), cert. denied, 516 U.S. 854 , 116 S.Ct. 154 , 133 L.Ed. 2d 98 (1995); Nebraska v. Palmer, 224 Neb. 282 , 399 N.W. 2d 706, 737 (1986) (finding universe of death-sentenced cases to be "a threshold requirement for comparative study"), cert. denied, 484 U.S. 872 , 108 S.Ct. 206 , 98 L.Ed. 2d 157 (1987); South Carolina v. Copeland, 278 S.C. 572 , 300 S.E. 2d 63, 74 (S.C.1982) (relying only on death-sentenced cases because "[f]act findings of the trial court ... provide a fundamental line of demarcation" and because larger universe would cause court to "enter a realm of pure conjecture" and to engage in "intolerable speculation"), cert. denied, 460 U.S. 1103 , 103 S.Ct. 1802 , 76 L.Ed. 2d 367 (1983).

Similarly, there is considerable variation among the states in respect of the methods used both to select cases for comparison purposes and to make factual comparisons among selected cases. By way of illustration, the Tennessee Supreme Court has identified at least seventeen separate factors to *138 be used in selecting and comparing similar cases including, among others, the means of death, the manner of death, the motivation for the killing, the absence or presence of premeditation, the defendant's prior criminal record or prior criminal activity, the defendant's cooperation with authorities, and the defendant's remorse. Tennessee v. Bland, 958 S.W. 2d 651, 667 (Tenn.1997), cert. denied, ___ U.S. ___, 118 S.Ct. 1536 , 140 L.Ed. 2d 686 (1998). The Washington Supreme Court considers four factors: "(1) the nature of the crime, (2) the aggravating circumstances, (3) the defendant's criminal history and (4) the defendant's personal history." Washington v. Brown, 132 Wash. 2d 529 , 940 P. 2d 546 , 562 (Wash.1997), cert. denied, ___ U.S. ___, 118 S.Ct. 1192 , 140 L.Ed. 2d 322 (1998). In contrast, many courts have issued proportionality determinations without a particularized statement describing the comparative process. See, e.g., DeYoung v. Georgia, 268 Ga. 780 , 493 S.E. 2d 157, 168 (Ga.1997) (referring without discussion to appendix listing similar cases where death penalty upheld), cert. denied, ___ U.S. ___, 118 S.Ct. 1848 , 140 L.Ed. 2d 1097 (1998); Sanborn, supra, 892 S.W. 2d at 556-57 (incorporating by reference list of cases cited in previous decisions and referring to list of five additional cases); Davis v. Mississippi, 660 So. 2d 1228, 1261-62 (Miss.1995) (referring without discussion to appendix with list of capital cases court previously affirmed), cert. denied, 517 U.S. 1192 , 116 S.Ct. 1684 , 134 L.Ed. 2d 785 (1996); Pennsylvania v. Uderra, 550 Pa. 389 , 706 A. 2d 334, 342 (Pa.1998) (making passing reference to statistical data without mention of similar cases).

Although eleven state supreme courts have vacated death sentences as disproportionate, most have done so rarely. See, e.g., Hall v. Georgia, 241 Ga. 252 , 244 S.E. 2d 833, 839 (Ga.1978) (only one aggravating factor and co-defendant received life sentence); Idaho v. Pratt, 125 Idaho 546 , 873 P. 2d 800, 806 (Idaho 1993) (no prior criminal record); Missouri v. McIlvoy, 629 S.W. 2d 333, 341 (Mo.1982) (minimal juvenile criminal record, limited education, limited intelligence, substantial alcohol problems, weak follower of co-defendant who received life sentence, and promptly turned himself in to police). The Florida Supreme Court, however, has vacated over thirty death sentences based on proportionality review, see, e.g., Williams v. Florida, 707 So. 2d 683 (Fla.1998); Jones v. Florida, 705 So. 2d 1364 (Fla.1998); Voorhees v. Florida, 699 So. 2d 602 (Fla.1997); Curtis v. Florida, 685 So. 2d 1234 (Fla.1996), cert. denied , ___ U.S. ___, 117 S.Ct. 2521 , 138 L.Ed. 2d 1022 (1997); Sinclair, supra, and the North Carolina Supreme Court has vacated at least seven death sentences on proportionality grounds, see, e.g., North Carolina v. Benson, 323 N.C. 318 , 372 S.E. 2d 517 (N.C.1988); North Carolina v. Stokes, 319 N.C. 1 , 352 S.E. 2d 653 (N.C.1987); North Carolina v. Rogers, 316 N.C. 203 , 341 S.E. 2d 713 (N.C.1986). It is perhaps significant that Florida and North Carolina have relatively large death-row populations compared to other states, see Bienen, supra, 87 J.Crim. L. & Criminology at 169; more important, in those states proportionality review functions as a check against the arbitrary imposition of the death penalty.

The experience of other states is instructive, if only because it demonstrates the diverse responses to questions about the conduct of proportionality review. For example, the propriety of courts utilizing quantitative methods has been vigorously debated. Compare Washington v. Pirtle, 127 Wash. 2d 628 , 904 P. 2d 245, 277 (Wash.1995) (noting that quantitative approach—comparing number of aggravating circumstances, victims and prior convictions in similar cases—"can point to areas of concern" and help court "to be as objective as possible"), cert. denied, 518 U.S. 1026 , 116 S.Ct. 2568 , 135 L.Ed. 2d 1084 (1996), and Governor's Memorandum of Approval of 1995 N.Y. Laws, c. 1, reprinted in N.Y. Correct L. § 650 (approving consideration of statistical evidence in conducting proportionality review to determine whether race is "having a significant impact upon the imposition of the death penalty"), with Connecticut v. Webb, 238 Conn. 389 , 680 A. 2d 147, 209 (Conn.1996) (rejecting New Jersey Supreme Court's statistical methods as unworkable attempt to "quantify the unquantifiable"), [1] and *139 Bland, supra, 958 S.W. 2d at 665 (criticizing New Jersey Supreme Court's use of statistics as departure from jurisprudence of "individualized consideration"). Despite the concerns expressed by some courts about these methods, several states remain committed to a form of quantitative proportionality review to detect possible racial bias. See N.Y.Crim. Proc. Law § 470.30 (requiring proportionality review if request based on race of defendant or victim); Connecticut v. Cobb, 234 Conn. 735 , 663 A. 2d 948, 961-62 (Conn.1995) (recognizing statutory basis for statistical claim of racial disparity in imposition of death penalty); [2] Washington v. Gentry, 125 Wash. 2d 570 , 888 P. 2d 1105, 1154 (Wash.) (utilizing proportionality review to examine patterns in death sentencing based on race), cert. denied, 516 U.S. 843 , 116 S.Ct. 131 , 133 L.Ed. 2d 79 (1995). Yet, statistical claims of racial bias in the administration of the death penalty present legal and methodological issues of exceptional complexity. We keep in mind the dialogue engendered by these difficult questions when considering how we might answer them ourselves.

We turn now to our own experience in applying proportionality review in capital cases.

C. Proportionality Review in New Jersey

When the New Jersey Legislature reintroduced the death penalty in 1982, it too substantially incorporated the procedural safeguards in the Georgia law sustained by the United States Supreme Court in Gregg , including the provision for proportionality review. See State v. Ramseur, 106 N.J. 123, 202-03 , 524 A. 2d 188 (1987). The New Jersey Capital Punishment Act, L. 1982, c . 111 (codified at N.J.S.A. 2C:11-3), like the Georgia statute, called for a determination by this Court on "[e]very judgment of conviction which results in a sentence of death.... whether the sentence is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant," N.J.S.A. 2C:11-3e. Later, the Senate Judiciary Committee explained that, at the time the Act was passed by the State Legislature, "it was thought that the United States Supreme Court would not uphold a capital punishment law that did not contain such a `proportionality review'" provision. Senate Judiciary Committee, Statement to Senate Bill No. 950 ( L. 1985, c. 178).

As enacted in 1982, the Capital Punishment Act required proportionality review, but did not describe the manner in which it was to be conducted or limit the "universe" of similar cases to be used for comparison purposes. In response to Pulley , however, the New Jersey Legislature amended N.J.S.A. 2C:11-3e to abolish mandatory proportionality review and to require instead that defendants request such review by this Court. L. 1985, c. 178. Then, in 1992, the proportionality review provision of N.J.S.A. 2C:11-3e was amended yet again to define the universe of "similar" cases to be compared to defendant's case as those "in which a sentence of death has been imposed." L. 1992, c. 5. This amendment became effective on May 12, 1992, L. 1992, c. 5, and will, if ultimately determined to be valid, limit the scope of proportionality review undertaken by this Court since Marshall II.

In Ramseur , we explained that the development of "a procedure of review ... [would] be an evolving process," requiring the advice of "criminal justice experts ... [and] experts from disciplines outside the law." 106 N.J. at 328 , 524 A. 2d 188 . Our view of the fundamental purpose of proportionality review would guide this process:

Proportionality review has a function entirely unique among the review proceedings *140 in a capital proceeding. Proportionality review, in the context of a capital sentencing scheme, is not appellate review to ensure that the aggravating factors outweigh beyond a reasonable doubt all the mitigating factors, L. 1985, c. 178, or to determine if the death sentence is disproportionate to the crime in violation of the ban against cruel and unusual punishment. That death is not disproportionate in the sense of being a cruel and unusual punishment is presumed by the nature of the review. Pulley v. Harris, 465 U.S. at 43 , 104 S.Ct. at 875 , 79 L.Ed. 2d at 36 . Rather, the purpose of review here is "of a different sort.... It purports to inquire instead whether the penalty is nonetheless unacceptable in a particular case because disproportionate to the punishment imposed on others convicted of the same crime."

[ Id. at 326, 524 A. 2d 188 (quoting Pulley, supra, 465 U.S. at 43 , 104 S.Ct. at 875 , 79 L.Ed. 2d at 36 ).]

Therefore, when we conduct a proportionality review, we ask whether the "punishment fits the criminal," Marshall II, supra, 130 N.J. at 129 , 613 A. 2d 1059 , so as "to ensure that the death penalty is being administered in a rational, non-arbitrary, and evenhanded manner, fairly and with reasonable consistency," id. at 131, 613 A. 2d 1059 .

Ramseur also explained that proportionality review provides a mechanism by which death sentences may be monitored, "to prevent any impermissible discrimination in imposing the death penalty." 106 N.J. at 327 , 524 A. 2d 188 . In Marshall II , we spoke of the "unique" commitment of the people of New Jersey "to the elimination of racial discrimination." 130 N.J. at 207 , 613 A. 2d 1059 . Today, as then, we believe that "[t]o countenance racial discrimination in capital sentencing would mock that tradition and our own constitutional guarantee of equal protection of the laws under New Jersey Constitution Article I, paragraph 1." Ibid. Comparison of like cases presents an opportunity for the Court to monitor whether impermissible factors are present in the capital sentencing system.

Marshall II describes in detail the creation of a database and the sorting processes we have used as a basis for comparison of similar cases. Id. at 141-45 , 613 A. 2d 1059 . We have substantially relied on the Final Report of our first Special Master, David C. Baldus, Death Penalty Proportionality Review Project, Final Report to the New Jersey Supreme Court (Sept. 24, 1991) ( Final Report ). As outlined in Marshall II, supra, 130 N.J. at 152-59 , 613 A. 2d 1059 , and followed in our subsequent proportionality review cases, we conduct a frequency analysis using statistical methods and a precedent-seeking review consisting of case-by-case analyses of comparative culpability. State v. Bey, 137 N.J. 334, 350 , 645 A. 2d 685 (1994) ( Bey IV ), cert. denied, 513 U.S. 1164 , 115 S.Ct. 1131 , 130 L.Ed. 2d 1093 (1995); State v. Martini, 139 N.J. 3, 28 , 651 A. 2d 949 (1994) ( Martini II ), cert. denied, 516 U.S. 875 , 116 S.Ct. 203 , 133 L.Ed. 2d 137 (1995); State v. DiFrisco, 142 N.J. 148, 165-66 , 662 A. 2d 442 (1995) ( DiFrisco III ), cert. denied, 516 U.S. 1129 , 116 S.Ct. 949 , 133 L.Ed. 2d 873 (1996). These methods compare the case at bar to other cases that have been found to have either similar fact patterns or similar levels of culpability and are used to determine whether the sentence imposed on the defendant in the case at bar is disproportionate to the sentences imposed in those similar cases.

More specifically, frequency analysis is a statistical approach that determines in three ways which cases have similar levels of culpability: (1) the salient-factors test; (2) the numerical-preponderance-of-aggravating-and-mitigating-factors test; and (3) the index-of-outcomes test. Bey IV, supra, 137 N.J. at 350-51 , 645 A. 2d 685 . The salient-factors test "defines `similar cases in terms of factual comparability,'" while the numerical-preponderance-of-aggravating-and-mitigating-factors test compares the raw number of those factors in each case. Marshall II, supra, 130 N.J. at 146-47 , 613 A. 2d 1059 (citations omitted). The index-of-outcomes test is a regression analysis that determines the culpability levels of defendants "`as measured by the presence or absence in the cases of [statutory and non-statutory aggravating and mitigating] factors that appear to influence prosecutorial and jury decisionmaking.'" *141 Id. at 147-48, 613 A. 2d 1059 (citation omitted). Precedent-seeking review, on the other hand, compares all relevant statutory and nonstatutory aggravating and mitigating factors present in factually similar cases in order to determine defendant's criminal culpability, or relative degree of deathworthiness. See DiFrisco III, supra, 142 N.J. at 184-85 , 662 A. 2d 442 .

From the beginning, there has been extensive critical commentary by the Public Defender and Attorney General, along with alternative suggested approaches, on the frequency analysis methodologies accepted by the Court. We have considered that commentary and have chosen in each case to discuss the results of our frequency tests despite their acknowledged deficiencies, with the caveat that ultimately our judgments about the proportionality of death sentences are unquantifiable. Frequency review has always functioned as an adjunct to the detailed comparison of like cases that we undertake in precedent-seeking review and that, as judges, we are by training and experience best equipped to do. [3]

II

The Constitutionality of N.J.S.A. 2C:11-3e As Amended

A. Pending Appeals

In Marshall II , we determined that N.J.S.A. 2C:11-3e, as amended, would not apply to defendant's case because his appeal was pending at the time the amendment took effect on May 12, 1992. 130 N.J. at 119 , 613 A. 2d 1059 . Under the pre-1992 proportionality review provision of N.J.S.A. 2C:11-3e, we held that the appropriate "universe" from which to choose similar cases included not only all cases in which the death penalty had been imposed, or had been sought, but also "clearly death eligible homicides in which the prosecutor elected not to seek the death penalty." Id. at 137 , 613 A. 2d 1059 . We chose the larger universe in order to consider the possibility that a jury had imposed a disproportionate sentence, id. at 133-34 , 613 A. 2d 1059 , or that a prosecutor had misused his or her discretion, id. at 134 , 613 A. 2d 1059 , and, in order to prevent "`any impermissible discrimination in imposing the death penalty,'" id. at 135 , 613 A. 2d 1059 (quoting Ramseur, supra, 106 N.J. at 327 , 524 A. 2d 188 ).

In the three cases following Marshall II , we continued to make use of a universe of death-eligible homicides. DiFrisco III, supra, 142 N.J. at 162-63 , 662 A. 2d 442 ; Martini II, supra, 139 N.J. at 23 , 651 A. 2d 949 ; Bey IV, supra, 137 N.J. at 343-44 , 645 A. 2d 685 . In each of these cases, the 1992 statutory amendment limiting our review to death-sentenced cases was inapplicable because the appeals in these cases were pending as of the effective date of the amendment. DiFrisco III, supra, 142 N.J. at 163 , 662 A. 2d 442 ; [4] Martini II, supra, 139 N.J. at 23 , 651 A. 2d 949 ; Bey IV, supra, 137 N.J. at 343-44 , 645 A. 2d 685 . In this case, defendant was not convicted until July 8, 1994, more than two years after the effective date of the 1992 statutory amendment. [5] For that reason, we *142 now consider whether we must conform our proportionality review methodology to the 1992 amendment thereby limiting proportionality review "to a comparison of similar cases in which a sentence of death has been imposed." N.J.S.A. 2C:11-3e.

B. The Supreme Court's Appellate Review Function

Comparing a death-sentenced defendant's case to other similar cases enables us to consider whether the death penalty has been imposed arbitrarily on the defendant. Moreover, proportionality review may be the only mechanism that permits system-wide evaluation of both prosecutorial and jury decision making so as to determine whether there has been racial or other impermissible discrimination. These considerations weigh heavily when a life is at stake. It is a mark of our humanity that, no matter how heinous the crime, we focus, finally, on individual defendants, their acts and their lives. We seek to administer the most extreme penalty in a fair and consistent manner by comparing the defendant to others who have committed like crimes, thereby to decide whether there is a societal consensus that the defendant before us should be put to death. In our constitutional system, this Court is entrusted with that ultimate decision.

The source of the Supreme Court's appellate review authority can be found in Article VI, Section 2, Paragraph 2 of the 1947 Constitution: "The Supreme Court shall exercise appellate jurisdiction in the last resort in all causes provided in this Constitution." As defined by Article VI, Section 5, Paragraph 1, the Court hears appeals:

(a) In causes determined by the appellate division of the Superior Court involving a question arising under the Constitution of the United States or this State;

(b) In causes where there is a dissent in the Appellate Division of the Superior Court;

(c) In capital causes;

(d) On certification by the Supreme Court to the Superior Court and, where provided by rules of the Supreme Court, to the inferior courts; and

(e) In such causes as may be provided by law.

[ Ibid. ]

We derive from this grant of power, in both its discretionary and mandatory forms, our core function as this State's highest Court— the power of appellate review.

In State v. Laws, 51 N.J. 494 , 242 A. 2d 333 (1968), Justice Jacobs described "the scope of this Court's reviewing authority" under the 1947 Constitution:

That organic document purposefully modernized and greatly strengthened our judicial system. In the process it vested this Court with wide judicial power, perhaps more sweeping than that granted to any other court of last resort, and all to the end that it would be in a fair position to ensure that justice is truly and equally done.

[ Id. at 500 , 242 A. 2d 333 .]

See also Hager v. Weber, 7 N.J. 201, 205 , 81 A. 2d 155 (1951) (holding appellate review by Supreme Court "is a remedial procedure secured against legislative interference" by various provisions of State Constitution).

Justice Jacobs's understanding of this Court's broad appellate power echoes Governor Driscoll's speech to the Committee on the Judiciary at the 1947 Constitutional Convention. Governor Driscoll had a vision of an integrated court system administered through a centralized authority and capable of "achieving the degree of uniformity [in dispensing justice] that is so highly desirable in a republic." Alfred E. Driscoll, Address to Committee on the Judiciary, in 4 State of New Jersey Constitutional Convention of 1947 427, 435 (Sidney Goldmann & Herman Crystal eds., 1951) ( Driscoll Address ). He told the Committee on the Judiciary:

It is, as you know, the courts that have traditionally been the guardians of our constitutions, to whom the meanest *143 citizen may appeal for protection against a wayward executive or a capricious legislature. Without independent courts, the whole republican system must surely fail. Our primary, our basic purpose in the drafting of a new Constitution is to secure beyond any question a strong, competent, easily functioning, but always independent, judiciary, and, therefore, in a position to curb any tendency on the part of the other two branches of government to exceed their constitutional authority.

It was Hamilton who quoted Montesquieu: "There is no liberty if the powers of judging be not separate from the legislative and executive powers." "The complete independence of the courts of justice is peculiarly essential in a limited constitution," Hamilton added.

[ Id. at 428-29.]

Governor Driscoll's call did not go unheeded. Students of New Jersey constitutional history, and particularly of the Judicial Article, often point to the extraordinary accomplishments of the 1947 Constitution in recasting an antiquated collection of multiple overlapping courts into a modern efficient judiciary. Leon S. Milmed, Introduction to the New Jersey Constitution of 1947 1, 12 (1954). The Report of the Committee on the Judiciary, submitted to the Convention on July 24, 1947, recommended simplifying and streamlining the court system, including centralizing administrative responsibility, merging the Courts of Law and Equity, and reducing the multiple functions of appellate court judges as well as multiple appeals at the intermediate appellate court level. See Committee on the Judiciary, Report and Proposal (Aug. 26, 1947), in 2 State of New Jersey Constitutional Convention of 1947, supra, 1180, 1182-83 ( Committee Report ). Although the thrust of the Committee's recommendations was administrative in nature, we must not forget that the purpose was to create an efficient vehicle in which judges could carry out their most basic function— deciding cases—and in which all New Jersey citizens would, in Governor Driscoll's words, be "equal[] before the law." Driscoll Address, supra, at 434.

Broad powers were granted to the Supreme Court at the same time that the Court's as-of-right jurisdiction was limited. Committee Report, supra, at 1184. The Committee explained its decision:

There was some difference of opinion as to whether the jurisdiction of [the Supreme C]ourt should be selective and limited to important cases, including constitutional questions and capital offenses, or whether it should take appeals comprehensively, as does the present Court of Errors and Appeals.... By making the new Supreme Court's appellate jurisdiction selective, that court is assured of an adequate opportunity to hear, consider and decide every case which comes before it.

[ Id. at 1183-84.]

The framers of the 1947 Constitution clearly intended that the Supreme Court carry out its appellate review function by undertaking a thorough and comprehensive consideration of each case. To this end, the Court was also empowered to "exercise such original jurisdiction as may be necessary to the complete determination of any cause on review." N.J. Const. art. VI, § 5, ¶ 3. "This grant of original jurisdiction ... [permits the Court to] review ... matters of fact as well as of law, in accordance with the historic function of an `appeal.'" Hager, supra, 7 N.J. at 211 , 81 A. 2d 155 . How such comprehensive power was to be effectuated by the Court was left to the Court. At issue in this case is the process by which the Court fulfills its substantive constitutional responsibility to review matters on appeal and, specifically, to review capital causes.

In State v. Laws , we held that our authority to undertake appellate review necessarily encompasses the exercise of discretion in modifying a death sentence to a life sentence "whenever the interests of justice so require." 51 N.J. at 509-10 , 242 A. 2d 333 . The constitutional dimension of this exercise of discretion is underscored by our exclusive appellate jurisdiction over capital causes. N.J. Const. art. VI, § 5, ¶ 1(c); see Joseph H. Rodriguez et al., Proportionality Review in New Jersey: An Indispensable Safeguard in the Capital Sentencing Process, 15 Rutgers L.J. 399 , 422 (1984) (observing that framers *144 of 1947 Constitution intended to vest Supreme Court with "the power to review fully all aspects of capital cases"). We cannot properly exercise this discretion unless we have the means to ensure that the death penalty is being administered in an evenhanded and nondiscriminatory manner. Proportionality review is one way to achieve those objectives.

The Florida Supreme Court has held that its authority to conduct proportionality review rests on several provisions of its state constitution, including the court's "mandatory, exclusive jurisdiction ... over death appeals." Tillman v. Florida, 591 So. 2d 167, 169 (Fla.1991) (citing Fla. Const. art.I, § 9). The court observed:

The obvious purpose of this special grant of jurisdiction is to ensure the uniformity of death-penalty law by preventing the disagreement over controlling points of law that may arise when the district courts of appeal are the only appellate courts with mandatory appellate jurisdiction. Thus, proportionality review is a unique and highly serious function of this Court, the purpose of which is to foster uniformity in death-penalty law.

[ Ibid. (citation omitted).]

Our own jurisprudence reflects a continuing concern with proportionality and fairness in both noncapital and capital cases. See State v. Roth, 95 N.J. 334, 342 , 471 A. 2d 370 (1984) (noting that "`the defendant's right to appeal from his [noncapital] sentence as manifestly excessive has become firmly established in our State'") (citation omitted); State v. Bess, 53 N.J. 10, 18 , 247 A. 2d 669 (1968) (holding that appellate court has "the power to revise a prison sentence where it is manifestly excessive, even though within statutory limits"); Laws, supra, 51 N.J. at 509-10 , 242 A. 2d 333 (asserting appellate power to modify death sentence to life sentence "whenever the interests of justice so require"). In Ramseur , we recognized that the interests of justice are heightened when a life is at stake. 106 N.J. at 326 , 524 A. 2d 188 . The scope and conduct of proportionality review are therefore questions that require our most careful determination.

It is in this context that we must grapple with a statute in which a coequal branch of government has set limits on our review. [6] See N.J.S.A. 2C:11-3e. By its terms, the State Constitution prohibits any one branch of government from exercising powers assigned to a coordinate branch. N.J. Const. art. III, ¶ 1. Nonetheless, we have long recognized that "[t]he compartmentalization of governmental powers ... has never been watertight," In re Salaries for Probation Officers of Bergen County, 58 N.J. 422, 425 , 278 A. 2d 417 (1971); accord Communications Workers of America v. Florio, 130 N.J. 439, 449 , 617 A. 2d 223 (1992), and have applied a flexible approach to the separation of powers issues that have been brought to the Court, Knight v. Margate, 86 N.J. 374, 389 , 431 A. 2d 833 (1981).

More than forty-eight years ago, we held that appellate review is an unqualified and exclusive function of the judiciary "secured against legislative interference," Hager, *145 supra, 7 N.J. at 205 , 81 A. 2d 155 , and we continue to adhere to that bedrock principle today. That appellate review is an exclusive power of the judiciary does not foreclose our "cooperative accommodation" of the views of the Legislature. Marie L. Garibaldi, The New Jersey Experience: Accommodating the Separation Between the Legislature and the Judiciary, 23 Seton Hall L.Rev. 3, 5 (1992). Where "legislative arrangements ... have not in any way interfered with this Court's constitutional obligation," we have accepted such arrangements in the interests "of comity and respect for other branches of government." Passaic County Probation Officers' Assoc. v. County of Passaic, 73 N.J. 247, 255 , 374 A. 2d 449 (1977). Our constitutional obligation has rarely dictated "a result different from that ordained by the Legislature." CWA Local 1044 v. Chief Justice, 118 N.J. 495, 501 , 572 A. 2d 613 (1990).

When a legislative enactment impedes our ability to fulfill that obligation, however, we have "examine[d] the terms of the legislative enactment, its importance, the extent of its interference with sound judicial administration, and the significance of the issue to the judiciary, ultimately striking a balance between the interests served by comity and those served by the administration of justice." Ibid.; see also Garibaldi, supra, 23 Seton Hall L.Rev. at 9 ("The constitutional validity of a coordinate branch's action turns on the legitimacy of the action's underlying purpose and the nature and extent of its encroachment on judicial prerogatives and interests."). In conducting this evaluation, we remain mindful of our obligation to uphold a legislative enactment absent constitutional repugnance. See Smith v. Penta, 81 N.J. 65, 74-75 , 405 A. 2d 350 (1979).

C. Application of Proportionality Review

To determine the validity of the Legislature's limitation on the proportionality review universe to death-sentenced defendants, we must examine whether the limitation prevents meaningful appellate review. Ramseur, supra, 106 N.J. at 186 n. 18, 524 A. 2d 188 (observing state death penalty statute's provision for appellate review recognizes Court's constitutional obligation to ensure "meaningful" review). The appropriate size of the universe is, however, but one of many questions that have been raised about the conduct of proportionality review and cannot be considered apart from those other questions. At the start, we characterized our effort to define the scope and conduct of proportionality review as an "evolving process." Id. at 328, 524 A. 2d 188 . We observed that proportionality issues are "difficult and sensitive ... and hence review, reflection, and modification of the analysis... may be required as more information is gathered." Ibid.

In the past six years, we have gained considerable experience in applying the methodologies developed by Professor Baldus and generally adopted by the Court in Marshall II, supra, 130 N.J. at 131-66, 613 A. 2d 1059 . See DiFrisco III, supra, 142 N.J. 148 , 662 A. 2d 442 ; Martini II, supra, 139 N.J. 3 , 651 A. 2d 949 ; Bey IV, supra, 137 N.J. 334 , 645 A. 2d 685 ; Marshall II, supra, 130 N.J. 109 , 613 A. 2d 1059 . Our experience teaches us that the proportionality review methodologies we use are not without substantial shortcomings and, accordingly, warrant careful reconsideration. Our goal is to retain those elements of the present system that provide useful information, to refine and improve that which we retain, if appropriate, and to reject methods that have proved unhelpful. We seek a practical approach that ensures every defendant before us a rigorous and complete review of his or her sentence of death.

Our reconsideration extends to four discrete areas of concern: the size of the universe of comparison cases; particular issues in respect of individual proportionality review; questions relating to the statistical models used in both individual and systemic proportionality review; and the status of proportionality review as a separate proceeding in death penalty appeals. [7] Because these *146 issues, with one exception, cannot be resolved on the record before us, we are appointing a Special Master to conduct additional fact-finding and make recommendations to the Court. On our receipt of his report, we will be in a position to determine whether the statutory limitation on the proportionality review universe prevents meaningful appellate review. Until that time, we will continue to use the full universe of death-eligible cases as described below. Today we decide, based on our experience and on the record before us, that the numerical-preponderance-of-aggravating-and-mitigating-factors test should be abandoned.

We turn now to a discussion of each area of concern.

1. The Scope of the Statistical Universe of Comparison Cases

We have observed that "[t]he first step in any proportionality undertaking is to establish the `universe' of cases that the Court will consider." Marshall II, supra, 130 N.J. at 131, 613 A. 2d 1059 . In Marshall II , we examined three possible statistical universes from which to draw comparison cases: a universe consisting of only those cases in which a death sentence was imposed, a universe consisting of all penalty-trial cases, and a universe consisting of all penalty-trial cases plus clearly death-eligible homicides in which the prosecutor elected not to seek the death penalty. Id. at 131-37 , 613 A. 2d 1059 . After careful evaluation, we selected the third option as best serving the "purposes to be achieved by proportionality review." Id. at 137 , 613 A. 2d 1059 . We rejected a universe consisting of only death-sentenced cases as "inadequate," id. at 133 , 613 A. 2d 1059 , and offered in support of our determination this simple example:

On the assumption that 100 robbery-felony-murder cases are prosecuted as capital crimes, all defendants are convicted and one defendant is sentenced to death, a comparison of the death-sentenced defendant's punishment with a punishment imposed only on other death-sentenced defendants would exclude from the proportionality-review process the ninety-nine robbery-felony-murder defendants that juries did not sentence to death. Indisputably, the determination whether that single death sentence is disproportionate can be made only by comparing it with the life sentences imposed on the ninety-nine defendants convicted of the same crime.

[ Id. at 133-34 , 613 A. 2d 1059 .]

We concluded that it was "self-evident that the universe for proportionality review must, at a minimum, include all penalty-trial cases." Id. at 134 , 613 A. 2d 1059 .

We next considered whether the statistical universe also should encompass death-eligible homicides not prosecuted as capital crimes. Recognizing that disproportionality could originate in decisions made by prosecutors as well as decisions made by juries, we determined that our mandate to prevent arbitrariness in death sentencing should extend to review of prosecutorial decisions whether to seek the death penalty. Id. at 134-35 , 613 A. 2d 1059 . We returned to our prior example of 100 robbery-felony-murder defendants, only one of whom was sentenced to death:

Were we to assume that the remaining ninety-nine defendants were prosecuted and convicted of non-capital murder because of prosecutorial decisions not to seek the death penalty, the disproportionality of the single defendant's death sentence would arise not because of a disproportionate jury determination but because the prosecutorial decision to seek the death penalty was unique. That type of disproportionate death sentence could not be identified by a proportionality-review process that was limited to capital cases tried to a penalty phase; it could be identified, however, by a universe that included clearly death-eligible homicides that were not prosecuted as capital cases.

[ Ibid. ] *147 We further noted that prosecutorial decisions not to seek the death penalty were often influenced by prosecutors' predictions of whether a jury would impose the death penalty after a penalty trial. In this sense, the prosecutorial decision may be understood as a calculation of "deathworthiness," and this calculation, the Court concluded, should be considered in determining whether a particular death sentence was disproportionate. Id. at 135 , 613 A. 2d 1059 .

In concluding that the proper scope of the statistical universe encompasses all death-eligible homicides, the Court in Marshall II observed that proportionality review is premised not only on the prevention of arbitrariness, but also on the prevention of impermissible discrimination in the administration of the death penalty. Ibid. (citing Ramseur, supra, 106 N.J. at 327 , 524 A. 2d 188 ). This purpose would be best served by including within the statistical universe those death-eligible homicides that did not advance to penalty trial. Id. at 136 , 613 A. 2d 1059 . As in individual proportionality review, the larger universe would enable the Court to consider possible discrimination in prosecutors' charging decisions as well as in juries' sentencing decisions.

Our reasons for choosing the larger universe remain valid today. Yet, the reliability of the data underlying a prosecutor's decision to seek or not to seek the death penalty continues to concern the Court. In each case, a prosecutor must decide what to do based on a complex of factors including, among other things, the strength of the State's case, the availability and credibility of witnesses, and the resources of the prosecutor's office. Id. at 225 , 613 A. 2d 1059 (Garibaldi, J., concurring in part and dissenting in part) (citing State v. Koedatich, 112 N.J. 225, 256 , 548 A. 2d 939 (1988)). Such a decision does not necessarily reflect a determination of deathworthiness. As a result, we are uncertain whether under our current approach the addition of death-eligible but noncapitally prosecuted homicides to the statistical universe of comparable cases is helpful to the proportionality review process. As a matter of general principle, the broadest possible statistical database should provide the most useful information; we are concerned when the additional quantum of data may be unreliable.

Even if we were fully convinced that a universe of death-eligible cases was otherwise warranted, our understanding of the practical difficulties attendant to data collection and analysis of noncapital cases requires further review of this issue. Data collection and analysis, which is performed by staff of the AOC, entail difficult and highly subjective determinations of whether a prosecutor could have proven a case and whether a case is death-eligible. In a case that went to trial but was not capitally prosecuted, the AOC staff must make an assessment of aggravating and mitigating factors based on a review of the trial record. In a noncapital homicide, the sentencing of a defendant to a term of imprisonment is guided by statutory aggravating and mitigating factors. N.J.S.A. 2C:44-1. Those factors, however, are different from the aggravating and mitigating factors to be applied by a penalty-phase jury in determining whether to return a verdict of death or life imprisonment. See N.J.S.A. 2C:11-3c(4), c(5). Thus, with respect to a homicide case that was not capitally prosecuted, the AOC must make its own assessment of the applicable capital statutory aggravating and mitigating factors.

In a case in which the defendant pled guilty, the AOC must make a determination of deathworthiness without the benefit of a trial and based on a record of the offense, the offender, and the surrounding circumstances that may not be complete. We understand that the initial determination, both for noncapital trials and for pleas, is communicated to the parties and that they may object based on information available from their files. After the AOC conducts a meeting with the parties to address their objections, a final coding decision is made. Yet, it is not clear that this process can effectively deal with the potential for errors or omissions in particular case summaries. In turn, the relatively small size of the proportionality review database suggests that the cumulative effect of individual case errors could undermine the reliability of the results produced by the statistical models. We note, however, that the impact of such errors on the precedent-seeking *148 review process, which uses the AOC case summaries, may not be substantial.

For these reasons, on remand to the Special Master, there should be additional fact-finding concerning the proper scope of the proportionality review universe. The Special Master should make an independent evaluation of the deathworthiness of a sample of cases previously classified by the AOC as either death-eligible or death-ineligible. The "provability" of the selected cases and the presence or absence of aggravating and mitigating factors should be considered, and the results compared to the data-coding decisions made by the AOC. If there is a variance between the survey results and the AOC data-coding decisions, possible causes of the variance should be identified along with recommendations for improved data-coding procedures. Perhaps, a questionnaire, such as that used in the State of Delaware, could be filled out by the judge in each case and used to improve both the data-collection and the data-coding process. Alternatively, if the Special Master determines that the intrinsic difficulties and ambiguities of data-coding death-eligible cases cannot be overcome, he should consider the impact of anticipated coding errors on the AOC models.

We are not aware of particular difficulties associated with the cases that proceed to capital prosecution but reserve decision on the composition of the proportionality review universe generally until we receive the Special Master's report.

2. Individual Proportionality Review

a. Frequency Analysis

Although we have recognized the analytic potential of frequency analysis, we have also acknowledged, in each of our cases, that frequency analysis has so far fallen short of this potential. See DiFrisco III, supra, 142 N.J. at 171 , 662 A. 2d 442 ; Martini II, supra, 139 N.J. at 28-29 , 651 A. 2d 949 ; Bey IV, supra, 137 N.J. at 350-51 , 645 A. 2d 685 ; Marshall II, supra, 130 N.J. at 173-74, 613 A. 2d 1059 . Much of the difficulty has arisen because of the small size of the pool of cases used for comparison purposes. See Martini II, supra, 139 N.J. at 28-29 , 651 A. 2d 949 . Because frequency analysis is statistically based, and because conclusions drawn from small sample sizes are inherently unreliable, we have not had confidence in the results produced by the models. See DiFrisco III, supra, 142 N.J. at 171 , 662 A. 2d 442 ; Martini II, supra, 139 N.J. at 28-29 , 651 A. 2d 949 ; Bey IV, supra, 137 N.J. at 350-51 , 645 A. 2d 685 ; Marshall II, supra, 130 N.J. at 173-74, 613 A. 2d 1059 . Still, we remained convinced that as the size of the pool of comparison cases increased over time, we would reach a level of statistical reliability that would enable us to place greater weight on the models. See Bey IV, supra, 137 N.J. at 350 , 645 A. 2d 685 .

Our review of the records maintained by the AOC discloses that the number of penalty trials and the number of death sentences imposed by penalty-phase juries have remained small. Chew/Cooper/Harvey Report, tbl.2. In each year since 1995, fewer than ten penalty trials have been conducted and fewer than five death sentences have been handed down. Ibid. In contrast, the number of penalty trials conducted and death sentences imposed in the late 1980s was considerably higher. For example, in 1987 alone twenty-one penalty trials were held and nine death sentences were handed down. Ibid. We recite these numbers not to draw conclusions about the decisions made by prosecutors and juries in respect of the death penalty, but rather to point out that key components of our statistical database are not growing at the rate that earlier had been expected. Review and reflection suggest that a level of statistical reliability may not be attained in the near future. It may be possible to determine, based on projections about the size of the database over time, how long it will actually take before frequency review results can be useful to the Court. We expect the Special Master to make findings on this issue.

We turn now to a discussion of the problems specific to the individual frequency analysis tests.

i. Salient-Factors Test

The salient-factors test employs thirteen major comparison groups or categories of cases ranked generally in descending order *149 of blameworthiness and derived from the statutory aggravating factors. Final Report, supra, at 81-82. Each of these thirteen major categories contains two to seven subcategories based on additional statutory and nonstatutory aggravating factors. A defendant is assigned to only one of the thirteen categories and, then, to only one subcategory. DiFrisco III, supra, 142 N.J. at 166-67 , 662 A. 2d 442 . Most important here, the model contains a total of forty-seven groups or categories of cases. Final Report, supra, at 83-84, tbl.7.

Although we regard the salient-factors test as the "most persuasive" of our frequency tests, DiFrisco III, supra, 142 N.J. at 173 , 662 A. 2d 442 ; Martini II, supra, 139 N.J. at 33 , 651 A. 2d 949 ; Bey IV, supra, 137 N.J. at 353 , 645 A. 2d 685 ; Marshall II, supra, 130 N.J. at 168, 613 A. 2d 1059 , we have said repeatedly that the small size of the comparison groups "preclude[s] us from investing great weight in ... [the] results." DiFrisco III, supra, 142 N.J. at 174 , 662 A. 2d 442 ; see also Martini II, supra, 139 N.J. at 37-38 , 651 A. 2d 949 . These small samples are, in part, a consequence of the relatively small universe of comparison cases, but also stem from the decision made by Special Master Baldus and adopted by this Court to establish a large number of comparison groups. Marshall II, supra, 130 N.J. at 146, 613 A. 2d 1059 (citing Final Report, supra, at 80). In designing the salient-factors test, Professor Baldus sought to achieve "factual comparability" of similar cases by narrowly and precisely delineating the salient-factors classifications, Final Report, supra, at 80, with the result that there are forty-seven separate categories in this test.

As a matter of general principle, we continue to accept the rationale of Professor Baldus that the salient-factors test should be "sensitiv[e] to [the] nuances of the cases which appear to be statistically and practically important." Id. at 83. Our experience in conducting the test since Marshall II indicates, however, that a narrow and precise delineation of case classifications may not be optimal when the comparison group of cases produced by the classification scheme is insufficient to support reliable results. See DiFrisco III, supra, 142 N.J. at 174 , 662 A. 2d 442 ; Martini II, supra, 139 N.J. at 37-38 , 651 A. 2d 949 . It may well be that realigned compact groupings would prove more useful to the Court. We note, by way of illustration, that the Tennessee Supreme Court employs seventeen separate factors in identifying and analyzing comparable cases and that the Washington Supreme Court employs only four. See Bland, supra, 958 S.W. 2d at 667 ; Brown, supra, 940 P. 2d at 562 .

Special Master Baldus anticipated that the salient-factors test would "evolve in light of experience." Final Report, supra, at 80. We agree, and conclude that experience requires us to reexamine the test's present case classification scheme, and to ask the Special Master to consider in particular whether some reduction in the number of case classifications is possible without compromising the overarching principle that only similar cases be compared. The Special Master should also examine alternate case sorting approaches which account for mitigating factors in order to provide a more complete picture for comparison purposes.

ii. Numerical-Preponderance-of-Aggravating-and-Mitigating-Factors Test

In the numerical-preponderance test, a defendant's case is compared to other cases having the same number of aggravating and mitigating factors. When adopted, the test was believed to "shed[ ] important light on how, over the long run, juries are likely to sentence defendants with any given number of aggravating and mitigating circumstances." Id. at 89. The test was nonetheless recognized to have inherent limitations in "that it assumes an equal weight for all aggravating and mitigating circumstances." Id. at 92.

In Marshall II , the Court expressed its reservations about the quantitative nature of the test:

This test is more problematic than either the salient-factors or the index-of-outcomes analyses. Abstractly, we sense that a quantitative rather than a qualitative analysis will be rather unproductive. No matter *150 how many aggravating factors and how few mitigating factors are presented, the jury's decision is intensely qualitative.... We have repeatedly emphasized that juries are to make a qualitative, and not a quantitative, analysis of aggravating and mitigating factors.

[130 N.J. at 171, 613 A. 2d 1059 .]

Later proportionality review opinions have echoed these concerns. See DiFrisco III, supra, 142 N.J. at 175 , 662 A. 2d 442 ("[T]his test, too, is fraught with uncertainty.... [I]t assumes that juries weigh each of the aggravating and mitigating factors equally, an assumption that fails to account for the qualitative nature of jury deliberations.") (citations omitted); Martini II, supra, 139 N.J. at 38 , 651 A. 2d 949 (acknowledging same concern). Nevertheless, we adopted and have continued to apply the numerical-preponderance test because of its potential to provide larger sample sizes, and possibly more reliable results, particularly in comparison to the salient-factors test. DiFrisco III, supra, 142 N.J. at 175 , 662 A. 2d 442 . In fact, the results of the numerical-preponderance test have been consistently discounted, not only because the test fails "to account for the qualitative character of jury deliberations," Martini II, supra, 139 N.J. at 38 , 651 A. 2d 949 , but also due to persistently small sample sizes, see, e.g., DiFrisco III, supra, 142 N.J. at 178 , 662 A. 2d 442 .

In our experience the numerical-preponderance test has not contributed to the Court's proportionality reviews and, in light of its inherent flaws, cannot be expected to do so in the future. We have determined, therefore, that this test should be abandoned.

iii. Index-of-Outcomes Test

In the index-of-outcomes test, the Court "compare[s] the blameworthiness of different defendants by statistically-relevant measures of culpability." Martini II, supra, 139 N.J. at 42 , 651 A. 2d 949 . The test uses multiple-regression analyses [8] employing formulas containing as many as thirty-two factors or variables. By this method, cases are ranked "according to overall defendant culpability, as measured by the presence or absence ... of factors that appear to influence prosecutorial and jury decision-making." Final Report, supra, at 93. Yet, as early as Marshall II , and most recently in DiFrisco III , the Court has recognized that "the small sample size of cases with similar levels of blameworthiness and the great ranges in the confidence intervals" prevent us from relying on the results. 142 N.J. at 182 , 662 A. 2d 442 . [9] In essence, although we have assigned a predicted probability of receiving a death sentence to each of the defendants before us, we have been unable to rely on that prediction because of the instability of the multiple-regression models. Most important, for reasons we have discussed, supra at 291-292, 724 A. 2d at 148-149 , we are uncertain whether we will soon reach a sample size capable of supporting reliable results in these models.

We will ask the Special Master to undertake a review of both the strengths and the weaknesses of this test and to make recommendations whether the models can be modified and improved, or whether the index-of-outcomes test should also be eliminated.

b. Precedent-Seeking Review

Precedent-seeking review requires us to engage in a traditional case-by-case analysis of similar death-eligible cases. Martini II, supra, 139 N.J. at 46 , 651 A. 2d 949 . We have consistently placed our reliance on this form of review because of the analytic difficulties we have encountered in applying frequency analysis. See DiFrisco III, supra, 142 N.J. at 171 , 662 A. 2d 442 ; Martini II, supra, 139 N.J. at 28-29 , 651 A. 2d 949 ; Bey *151 IV, supra, 137 N.J. at 350 , 645 A. 2d 685 ; Marshall II, supra, 130 N.J. at 173-74, 613 A. 2d 1059 . Yet, our concerns with respect to precedent-seeking review overlap with our concerns about the underlying reliability of the data.

We have observed that data collection in cases that were not capitally prosecuted entails difficult and highly subjective determinations of whether a prosecutor could have proven the case and whether the case is death-eligible. Ibid. Because precedent-seeking review requires that we do a careful analysis of the facts developed by the AOC, and because the pool of cases that were not capitally prosecuted constitutes over fifty-percent of the total universe of cases, the reliability and sufficiency of this data is especially critical to the precedent-seeking inquiry.

Moreover, precedent-seeking review is directly affected by the case-classification scheme employed in the salient-factors test because that test and precedent-seeking review rely on the same initial classifications. See Bey IV, supra, 137 N.J. at 366 , 645 A. 2d 685 . We have determined that an independent assessment is warranted on the question whether some reduction in the number of case classifications, presently forty-seven in number, is possible without compromising the principle that only similar cases be compared. As we have pointed out, the Tennessee Supreme Court does a precedent-seeking review based on seventeen separate groups of comparable cases. See Bland, supra, 958 S.W. 2d at 667 . Its approach may serve as an example for the Special Master in his review.

We are aware that a reduction in case classifications will result in more cases in each group. Larger groups present practical difficulties if we continue our present practice of giving separate consideration to each case in the classification to which the defendant's case has been assigned. Even if we retain our present classification scheme, we would be unable to describe and review each comparable case because of the slow but continuing growth in the number of cases. Therefore, as part of our reconsideration of precedent-seeking review, we will ask the Special Master to examine appropriate methods by which to select a representative number of cases within the group of similar cases for consideration and comparison to the defendant's case.

Precedent-seeking review has been and continues to be our most effective means of reviewing the proportionality of a defendant's sentence of death. For this reason, the database and case groups should be constructed with great care. We will rely on this form of review even as we anticipate recommendations for improvements from the Special Master.

3. Systemic Proportionality Review and Possible Racial Disparity in the Imposition of the Death Penalty

In Marshall II , we said that one purpose of proportionality review is "the prevention of `any impermissible discrimination in imposing the death penalty.'" 130 N.J. at 135, 613 A. 2d 1059 (quoting Ramseur, supra, 106 N.J. at 327 , 524 A. 2d 188 ). We rejected the view of the United States Supreme Court that "`[a]pparent disparities in sentencing are an inevitable part of our criminal justice system,'" id. at 207 , 613 A. 2d 1059 (quoting McCleskey v. Kemp, 481 U.S. 279, 312 , 107 S.Ct. 1756, 1778 , 95 L.Ed. 2d 262, 291 (1987)), and turned for guidance to the history and traditions of our state to "provide a basis for the independent application of [our] constitution," State v. Hunt, 91 N.J. 338, 366 , 450 A. 2d 952 (1982) (Handler, J., concurring). We found in our past, reflected in New Jersey's statutory and decisional law, the commitment of this state's citizens "to the elimination of racial discrimination" in all of its invidious forms. Marshall II, supra, 130 N.J. at 207, 613 A. 2d 1059 . To accept racial disparity in capital sentencing would be to abandon that commitment and "our own constitutional guarantee of equal protection of the laws under New Jersey Constitution Article I, paragraph 1." Ibid. We cannot follow such a course. "[W]ere we to believe that the race of the victim and race of the defendant played a significant part in capital-sentencing decisions in New Jersey, we would seek corrective measures, and if that failed we would not, consistent with our State's policy, tolerate discrimination that threatened *152 the foundation of our system of law." Id. at 209, 613 A. 2d 1059 .

Robert Marshall was the first defendant to present a statistically based claim purporting to show systemic racial disparity in capital sentencing. Id. at 210 , 613 A. 2d 1059 . His claim was based on an apparent disparity in the rate at which black and nonblack defendants were sentenced to death at the middle range of culpability. Id. at 210-11 , 613 A. 2d 1059 . We were, however, unable to draw any conclusions from the data because there "`were too few penalty-trial death-verdict cases involving black and non-black defendants with comparable levels of culpability to support any finding at all.'" Id. at 213 , 613 A. 2d 1059 (quoting David C. Baldus, Special Master, State v. Robert Marshall: Death Penalty Proportionality Review Project, A Report to the New Jersey Supreme Court 103 (Sept. 24, 1991) ( Marshall Report )). We also considered statistical data showing an apparent disparity in the rate at which prosecutors seek the death penalty in black-victim cases as distinct from white-victim cases. Id. at 211 , 613 A. 2d 1059 . Here too, we were unable to rely on the data, noting that the Special Master characterized the statistical results as "`strictly preliminary.'" Ibid. (quoting Marshall Report, supra, at 101). We concluded that "evidence of constitutionally-significant race-based disparities in sentencing" had not been found. Id. at 210, 613 A. 2d 1059 .

In Bey IV , the defendant presented new statistical data purporting to show evidence of racial disparity in the imposition of the death penalty. 137 N.J. at 392 , 645 A. 2d 685 . As in Marshall II , we rejected Bey's claim because the statistical database did not contain "a sufficient number of cases to determine whether a significant statistical disparity exists between death-sentenc[ed] black and non-black defendants." Id. at 393, 645 A. 2d 685 . We observed:

Without a sufficient number of similar cases, we cannot hold that race impermissibly influences the imposition of the death penalty. As vexing as waiting for more data may be, we have no alternative but to wait.

[ Id. at 394 , 645 A. 2d 685 .]

For similar reasons, we rejected claims of racial disparity in the two proportionality review cases following Bey IV. See Martini II, supra, 139 N.J. at 80 , 651 A. 2d 949 ; DiFrisco III, supra, 142 N.J. at 210 , 662 A. 2d 442 .

a. Race as a Predictor of Outcome

In this case, the number of death-sentenced cases in the database has risen to forty-seven, Loftin Report, tbl.1, an increase of almost twenty-five percent over the number of cases in the Court's previous proportionality review decision in DiFrisco III, supra, 142 N.J. at 163 , 662 A. 2d 442 ; see also DiFrisco Report, tbl.1. Similarly, there are now 369 death-eligible cases, Loftin Report, tbl.1, an increase of nearly twenty percent over DiFrisco III, supra, 142 N.J. at 163 , 662 A. 2d 442 ; see also DiFrisco Report, tbl.1. Because of the larger database, the AOC used logistic regression procedures to model defendant's racial disparity claim instead of the less reliable discriminate regression procedures used in all prior proportionality review cases. Discriminate analysis assumes that the independent variables used in the model are of the "interval" variety, i.e., the variables represent factors that are capable of appearing across a broad scale. Memorandum from David Weisburd, AOC statistical consultant, to John P. McCarthy, Jr., Assistant Director, AOC 1 (Dec. 16, 1995) ( reprinted in Loftin Report, technical app. 9). Examples of interval variables include age and income. Ibid. Many of the variables considered in the AOC models, however, are of the "nominal" variety, i.e., the variables stand for simple "yes/no" choices. Ibid. For example, all of the statutory aggravating and mitigating factors are of the nominal variety, i.e., they are either present (yes), or not present (no). Ibid. In contrast to discriminate analysis, logistic analysis "allows a mix of variables with different levels of measurement." [10]

*153 The AOC employs three different statistical models to measure the race effect in capital sentencing—Schedules 2, 5 and 8. See Loftin Report, technical app. 10, at 16, 20. In each of the models, white victims ("whitvic") and black defendants ("blackd") are included as suspect variables. Schedules 2 and 5 attempt to measure the race effect of decisions made by penalty-trial juries. Schedule 2 includes twenty statutory aggravating and mitigating factors in addition to the suspect race variables. Schedule 5 includes all of the variables in Schedule 2 and adds eight nonstatutory variables. Schedule 8 attempts to measure the race effect in all death-eligible cases, and contains variables identical to those found in Schedule 2.

The results of the AOC's logistic regression analyses are summarized as follows:

Observed *

Variable Schedule Coefficient Significance

whitvic 2 1.3555 .0412

blackd 2 1.4522 .0171

whitvic 5 .5157 .5535

blackd 5 2.3796 .0066

whitvic 8 1.0699 .0240

blackd 8 .9520 .0418

* Odds that chance alone would account for the result.

[ Id. at 16, 18, 20.]

These outcomes show statistical significance in five of the six categories, i.e., five categories have a p-value or p-level of .05 or less. [11] On this basis, the AOC informed us that the outcomes "suggest[ ] a possible `race effect' in capital jury decision making." See Memorandum from John P. McCarthy, Jr., Assistant Director, AOC, to Stephen W. Townsend, Clerk of the Supreme Court 1 (Nov. 25, 1996) ( McCarthy Memorandum ) ( reprinted in Loftin Report ).

According to defendant, Schedules 2 and 5 provide strong evidence that race is a predictor of the outcome of a penalty trial. With respect to Schedule 2, defendant points out that the variable "blackd" achieves a higher level of statistical significance than such statutory aggravating factors as murder of a law enforcement officer, N.J.S.A. 2C:11-3c(4)(h), contract principal, N.J.S.A. 2C:11-3c(4)(e) or felony murder, N.J.S.A. 2C:11-3c(4)(g). See Loftin Report, technical app. 10, at 16. Schedule 5 evidences a similar level of statistical significance for the variable "blackd" compared to other statutory aggravating factors. Id. at 18. As to Schedule 8, which encompasses all death-eligible cases, defendant notes that the "whitevic" variable achieves statistical significance, id. at 20, and suggests that this outcome shows the presence of a white victim has a pernicious effect on the capital prosecution and sentencing system as a whole.

The State vigorously disputes the accuracy and reliability of the statistical models. Relying on its own statistical expert, Dr. John E. Rolph, the State argues that the models contain numerous methodological flaws, including under-inclusion of variables relevant to jury decision making, an insufficient number of cases in the database, and the failure to account for the interaction effect that certain variables may have on one another. The State also questions the accuracy of the database and, in particular, certain data coding decisions made by the AOC. The claim is that errors in the coding of cases may infect the entire database, thereby rendering suspect any conclusions drawn from the models.

b. Review of the Statistical Models

The outcomes produced by the models, and the sharply contested interpretations concerning their significance, caused the Court to seek assistance in resolving the highly technical issues raised by the parties. On October 22, 1996, the Court appointed *154 retired Superior Court Judge Richard S. Cohen as Special Master, and directed that he "conduct a review, perform analyses, and make findings and recommendations relating to defendants' race as a possible factor in the decision of juries to impose the death penalty." State v. Loftin, No. A-86-96, slip op. at 3 (Oct. 22, 1996). The Court directed the Special Master to perform the following tasks:

(1) ... examine and issue findings on the reliability of the data obtained by the Administrative Office of the Courts as it relates to the issue of racial discrimination in the proportionality-review proceedings [in this case and in State v. Harris ] ...;

(2) ... independently assess and rank by culpability, sentence and race of defendant all penalty-phase cases in the Administrative Office of the Courts' proportionality review universe....;

(3) ... attempt independently to corroborate the appropriateness of the culpability rankings ...; and

(4) ... undertake or cause to be undertaken a precedent-seeking review of those cases within the mid-range of culpability....

[ Id. at 3-4.]

Dr. John Tukey, Professor Emeritus of Statistics at Princeton University, served as a technical consultant to the Special Master.

Because of the Court's calendar requirements, Judge Cohen was afforded only three months in which to perform his assigned tasks and file his report. Within this short period of time, he was able to define the universe of cases to be considered, analyze the raw numbers produced by the AOC, make findings concerning the reliability of the culpability rankings, and carry out an independent assessment of those rankings by conducting a survey in which fifty judges were asked to order groups of penalty-trial cases by culpability. The Special Master did not have sufficient time, however, to undertake a precedent-seeking review of those cases falling in the mid-range of culpability.

Judge Cohen presented his findings and recommendations in a report dated January 27, 1997. Richard S. Cohen, Report to the Supreme Court of New Jersey (Jan. 27, 1997) ( Special Master Report ). In his report, he concluded that "the statistical evidence does not prove the defendant's assertions of racial bias in penalty-trial verdicts, [and] neither does it prove that the system operates without bias." Id. at 44-45. The Special Master found some indications of bias that "seem to trend, to a degree not revealed by the statistical evidence, toward showing a race effect." Id. at 45. Nonetheless, in his view, "the Court is no closer than it was in the past to statistical evidence of race effect." Ibid.

The parties were afforded the opportunity to respond to the findings and recommendations of the Special Master. Following the submission of briefs and oral argument, the Court asked the Special Master and Dr. Tukey to address certain issues raised by the Public Defender and several questions discussed at oral argument. Accordingly, Judge Cohen and Dr. Tukey filed a supplemental report dated May 4, 1997. Richard S. Cohen & Dr. John W. Tukey, A Study of Statistical Evidence of Race Bias in Penalty Trials (May 4, 1997) ( Supplemental Report ).

The most significant aspect of the Supplemental Report is the modification of a principal conclusion set forth in the first report. On further consideration and in response to comments in Dr. Tukey's supplemental report, Judge Cohen rejects his earlier statement that "`it is troubling that so much of [the statistical evidence] tends in the same direction [toward a showing of racial bias].'" Id. at 10 (quoting Special Master Report, supra, at 43). The Special Master adopts the view of his consultant that the common leaning of the statistical evidence is of no significance when, as here, the separate analyses of the evidence are "`substantially overlapping' " and have much in common with one another. Ibid. (quoting Dr. John W. Tukey, Report to the Special Master 2 (Jan. 27, 1997) ( Tukey Report )).

Moreover, in his earlier report, the Special Master had pointed to certain raw data as independent sources indicating some evidence of racial bias. In particular, he had noted the disparity in death-sentencing rates between black-defendant-white-victim cases and nonblack-defendant-nonwhite-victim *155 cases. Special Master Report, supra, at 10, 43. He had acknowledged the difficulties in drawing conclusions from a small number of transracial cases, [12] but nevertheless believed the disparity in the transracial data supported his observation that "`so much of [the data] tends in the same direction.'" Id. at 43. In his Supplemental Report, however, Judge Cohen found inconsistencies in coding transracial cases, i.e., black defendants included black hispanics, and nonblack defendants included Asians and "others"; whereas white victims "excluded all hispanics, Asians, and others" who were instead included in the nonwhite-victim category. Supplemental Report, supra, at 10. When the coding was revised to realign the racial categories there were substantial shifts in the number of cases in various of the realigned categories. See Appendix A. As Judge Cohen pointed out, "sorting choices affect outcomes, sometimes a lot and sometimes a little, and the outcomes cannot be evaluated without keeping in mind the underlying choices that produced them." Letter from Richard S. Cohen to the Supreme Court 2 (Feb. 7, 1997). The "ambivalence of the coding decisions" was another reason the Special Master rejected his earlier conclusion that apparent trends in the data suggest racial bias. Supplemental Report, supra, at 10.

Our dissenting colleague makes much of the Special Master's initial concern about the tendency of the data to show discrimination, post at 381, 410, 724 A. 2d at 194, 209 , and downplays the modifications in the Supplemental Report. In our view, the Supplemental Report highlights the dangers inherent in the improper use of statistics. When separate analyses operate on the same data, it is not surprising that the results trend in the same direction. It is also not surprising that the results do not provide "mutually supportive[ ] evidence of race effect." Supplemental Report, supra, at 10.

Judge Cohen does not, however, retreat from his earlier position that further inquiry on the question of racial bias is warranted. In the concluding section of his first report, he recommended continued efforts to develop and adopt more reliable statistical models of the race effect in capital sentencing. Special Master Report, supra, at 45. He further suggested that the Court consider establishing a permanent group of experienced judges to conduct assessments of penalty trial outcomes. Ibid. His conclusions were based on three discrete modes of inquiry: an examination of raw data, interpretations of statistical models prepared by the AOC, and the results of the judges' survey on the comparative culpability of penalty-phase defendants.

We turn first to the raw data. Of the 362 death-eligible cases under study, fifty-six percent (203 cases) involved black defendants and forty-four percent (159 cases) involved nonblack defendants. Prosecutors capitally tried thirty-six percent (73/203 cases) of the black defendants and forty-seven percent (74/159 cases) of the nonblack defendants. Thus, nonblack defendants were capitally tried thirty percent more frequently than blacks. Juries imposed death sentences on thirty-eight percent (28/73 cases) of the black defendants who were capitally tried and thirty percent (22/74 cases) of the nonblack defendants who were capitally tried, with the result that juries imposed the death sentence on black defendants twenty-seven percent more frequently than on nonblack defendants.

Considering the cumulative effect of these frequencies, the Special Master found that 13.79 percent (28/203 cases) of death-eligible black defendants were sentenced to death and 13.84 percent (22/159 cases) of the nonblack defendants were sentenced to death. Id. at 8-9. Although he observed that the cumulative data are "race-neutral," id. at 9, contrary to the dissent's claim, the Special Master did not imply "that capital-murder prosecution is `race neutral.'" Post at 381, 724 A. 2d at 195 . Rather, Judge Cohen specifically stated:

The limited scope and significance of these findings should be made clear. They do not rule out race bias as a factor upstream *156 in the process of investigation, arrest and indictment in homicide cases, and they do not deal at all with the fairness or accuracy of the guilt-determining process. Also, they say nothing about the significance (if any) or the causes of an overage of capital prosecutions against nonblacks or an overage of death sentences against blacks. All they say is that nonblacks were 30% brought to penalty trial more frequently than blacks, and black penalty trial defendants received death sentences 27% more often than nonblack defendants.

[ Special Master Report, supra, at 9 (footnote omitted).]

In the end, the Special Master determined that none of these results could be considered statistically significant including, most importantly, the apparent racial disparity in penalty-phase verdicts. Id. at 44 (finding the penalty-trial results are "well within one standard error ... and so are not near statistical significance").

One final point in respect of the raw data deserves mention. To explain why the disparity between black defendants who were sentenced to death and nonblack defendants who were similarly sentenced is not statistically significant, the Special Master suggested an analogy to the random picking of balls out of a sack that contains an equal number of green and red balls. Id. at 14-15. He explained that even if there are 74 green balls and 74 red balls in the sack, a random picking of 50 balls will not necessarily produce 25 of each color. Id. at 14. The Special Master used this analogy to demonstrate that the disparity in the number of black defendants (28), as opposed to nonblack defendants (22), sentenced to death is not in and of itself statistically significant and "cannot be taken to prove a racial difference in results." Ibid.

The dissent criticizes the Special Master's analogy, stating that he "fail[ed] to account for culpability, the factor that should dictate a jury's decision to sentence someone to death." See post at 384, 724 A. 2d at 196 . Again, the dissent misreads Judge Cohen's point: the Special Master understood the importance of the culpability rankings but found them to be unsound. The data simply does not "reveal tangible and frightening disparities.... adversely affect[ing] black defendants, killers of white victims, and black defendants who kill white victims." Id. at 385, 724 A. 2d at 197 . The dissent's rhetoric notwithstanding, the data cannot now inform us whether there is or there is not discrimination at any level in the death penalty system.

The Special Master counsels against reliance on the culpability rankings produced by the statistical models for many reasons, including numerous ambiguities in coding the cases, Special Master Report, supra, at 30-42, the small size of the database, id. at 20, and the manifest unsuitability of the models as a means to test racial bias, id. at 25-30. Notably, the small size of the database means that small changes in data coding can produce anomalous results; for example, if one defendant shifts one culpability level up or down, the statistical outcome may change substantially. These concerns led the Special Master to conclude that the models are simply not "reliable bases for consequential decisions." Id. at 44.

More specifically, the Special Master pointed to one of the culpability rankings assigned to defendant as evidence of the unreliability of the statistical models. Supplemental Report, supra, at 5. Defendant, a prior murderer, falls into culpability level one, the lowest level of culpability, in one of the three logistic regression models. Loftin Report, tbl.22 (reporting culpability scores among penalty-trial cases applying statutory and nonstatutory factors). The Special Master observed that penalty juries have returned death verdicts against a majority of prior murderers in a relatively large number of cases. Supplemental Report, supra, at 5. Thus, in his view, the AOC methodology "underrate[s] an aggravating factor which sound intuition and courthouse experience rank high." Id. at 6. In so doing, the methodology "proceeds to give unwarranted support to the thesis that Loftin was condemned to death for his color." Ibid.

Because this Court's order to the Special Master "contemplated independent assessment of the culpability rankings and ratings of the penalty trial cases," Special Master *157 Report, supra, at 21, Judge Cohen asked experienced penalty-trial judges to participate in a culpability ranking survey that could then be compared to the AOC statistical results. In the survey, fifty judges were given short narrative statements describing each case in a group of penalty-phase cases and were told to rank the individual cases in order of deathworthiness. The statements "included no information from which the judges could ascertain the race of either the defendant or the victim, or the outcome of the penalty trial." Id. at 22. The judges were told to place each defendant into one of five culpability levels and to rank each case in order of deathworthiness, with one being the least deathworthy and five being the most deathworthy. Id. at 23.

The judges' culpability scores were averaged for each defendant and the results analyzed. The average rating of all penalty-trial defendants was 3.34, with 3.30 for black defendants and 3.38 for nonblack defendants. Ibid. The difference, 2.4 percent, was characterized by the Special Master as "insignificant." Ibid. The average culpability rating of defendants who received a death sentence was 3.72, with 3.68 for blacks and 3.77 for nonblacks. Ibid. The Special Master found this difference to be without meaning, id. at 23-24, and concluded that the judges "gave culpability ratings that were essentially colorblind." Id. at 23. Judge Cohen believed these results to be important because

the survey judges did not know defendants' race; the juries did.... [T]he judges' race-blind ratings turned out to be race-neutral in culpability levels. They did not rate nonblack defendants ... more deathworthy than black defendants.

[ Id. at 24-25.]

Judge Cohen concluded that the results of the judges' survey challenge the accuracy and reliability of the statistical models indicating a race effect. Id. at 25.

The dissent believes that the Special Master's decision to average the results of the judges' culpability survey "may not reveal the true level of disparity in culpability between the races." See post at 393, 724 A. 2d at 201 . By way of example, the dissent points out that averaging might be misleading because a large number of nonblack defendants could be at the extreme levels of culpability and the black defendants could be evenly divided among the five culpability levels. Id. at 393-394 n. 13, 724 A. 2d at 201 n. 13 (assuming that there are nine nonblacks with culpability levels of 1, 1, 1, 3, 3, 3, 5, 5, and 5, and nine blacks all with culpability levels of 3). The fear is that the "true level of disparity" is hidden by averaging.

In fact, the judges' culpability ratings essentially "produced a classic normal distribution" for both black and nonblack defendants. Special Master Report, supra, at 23; see also Appendix B. As the Special Master explained,

There is always a risk in averaging judgments that an idiosyncratic response or two will distort the results. If there were a large number of responses, so that an ample number remained after discarding outliers, that course of action might make sense. In our survey, however, we ordinarily had five judges rating each case, and we felt it unwise to discard any outlier, and leave only three or four. In addition, it appeared to us that the incidence of very disparate responses was low, and therefore outliers were not a significant problem. Furthermore, there is no reason to believe that outliers leaned more in one direction than the other, and therefore no indication that the course we took had any effect on the accuracy of the results.

[ Supplemental Report, supra, at 8 (emphasis added).]

We agree with the Special Master's conclusion "that the essentially race-blind results of the survey seriously undercut the notion that non-black penalty-trial defendants are noticeably more deathworthy than their black counterparts." Id. at 7. We observe that the different results produced by the AOC data and the judges' survey in respect of the relative culpability of nonblack defendants and black defendants may be explained by the small size of the database. It is possible that nonblack defendants are disproportionately represented in certain categories and that the small number of cases in each of these categories could distort the culpability *158 estimates, resulting in an exaggeration of the deathworthiness of nonblack defendants.

There are, however, more fundamental problems with the statistical models. The methods we use were developed by Professor David Baldus for use by this Court in conducting individual proportionality reviews, not for the purpose of assessing systemic discrimination. See Marshall II, supra, 130 N.J. at 152-55, 172-74, 613 A. 2d 1059 . Special Master Cohen considered whether the models are capable of providing information about racial disparity in death sentencing and found that "the methodology reveals serious flaws when diverted to the task of providing reliable evidence relating to the race question." Special Master Report, supra, at 42. In the view of the Special Master and Dr. Tukey, a statistical model designed to test racial bias should employ between five and ten parameters or variables, whereas the AOC models employ as many as thirty-two. [13] Id. at 27-28. A statistical model with a relatively small number of well-crafted parameters is known as a parsimonious model. Id. at 28; Tukey Report, supra, at 5-7.

Judge Cohen and Dr. Tukey further advise that a reasonably parsimonious model is necessary to achieve a minimal degree of statistical reliability when, as here, the size of the database is small and the purpose of the analysis is to "generalize" from the data "and make judgments about their significance." Supplemental Report, supra, at 2. Dr. Tukey, in an effort to illustrate the parsimony principle, created three variants of parsimonious models to look at possible race effects. He then employed two methods for assessing the standard of error for the black defendant variable: (1) SAS, the off-the-shelf program used by the AOC; and (2) an alternative, known as the "jackknife technique." Tukey Report, supra, at 9. Although Model 3 showed a statistically significant race effect when the SAS program was used, the results of the jackknife did not achieve statistical significance. Id. at 10. The dissent relies heavily on the SAS program results, again ignoring contrary outcomes, to conclude that there is racial bias against black defendants. The conflicting results derived from the same data set actually compel a conclusion that racial disparity has not been demonstrated.

Equally important, the Tukey models were not the result of independent research, but were based on the Baldus-methodology culpability ratings and operated on the same small body of data. They were done in an attempt to "alleviate some of the pathology that infected the models the AOC employed," Supplemental Report, supra, at 14, and not as the most effective means of studying possible racial bias. In this context, the dissent's suggestion that Model 3 is the "most methodologically sound" of the Tukey models, post at 388, 724 A. 2d at 198 , has little meaning. Given the limited usefulness of the Tukey models generally, and the mixed results from the third model specifically, the dissent's reliance on Model 3 is misplaced.

Many of the Special Master's findings are vigorously disputed by defendant. He asserts that the Special Master erred in discounting the reliability of the AOC culpability models and presents his own expert, Dr. Paul Allison, who states that the AOC "data compare favorably with some of the best research work in the social sciences and cannot be casually dismissed as `unreliable'." Memorandum from Dr. Paul Allison, defendant's statistical expert, to Mordecai Garelick and Claudia Van Wyck, defendant's counsel 1 (May 22, 1997) (on file with Court). Defendant also offers alternate statistical models prepared by Dr. Allison. In an attempt to refine Dr. Tukey's work, Dr. Allison added the white-victim variable to the three Tukey models. Two of the reconfigured models showed a statistically significant race effect.

Like the Tukey models, however, Dr. Allison's models are "infected" by the suspect culpability ratings and the small size of the database. See supra at 310-312, 724 A. 2d at *159 158. Moreover, Dr. Allison apparently relied on transracial data in which the black-nonblack coding of defendants differed from the white-nonwhite coding of victims. Supplemental Report, supra, at 13-14. As discussed earlier, supra at 305, 724 A. 2d at 155 , Judge Cohen found that after the data were recoded, there were dramatic changes in the number of cases in certain categories, Supplemental Report, supra at 13, indicating that the effect of coding decisions on the statistical results can be substantial. Even setting aside the coding and database problems, the models represent but preliminary efforts to develop adequate parsimonious models. Indeed, both the Allison and the Tukey versions have not been subject to the type of study and analysis that would permit the Court to make an informed decision about their usefulness.

Finally, we disagree with our dissenting colleague's suggestion that, despite the statistical models'"imperfections," the Court "should not hesitate" to find evidence of a race effect. Post at 400, 724 A. 2d at 204 . The dissent relies on our toxic-tort cases for the proposition that strict scientific standards may be relaxed where "`the scientific method fails ... to address or accommodate the needs and goals' to be achieved by a judicial determination." Id. at 400, 724 A. 2d at 204 (quoting Rubanick v. Witco Chemical Corp., 125 N.J. 421, 436-37 , 593 A. 2d 733 (1991)). In Rubanick v. Witco Chemical Corp ., we held that "a scientific theory of causation that has not yet reached general acceptance may be found to be sufficiently reliable if it is based on a sound, adequately-founded scientific methodology involving data and information of the type reasonably relied on by experts in the scientific field." Rubanick, supra, 125 N.J. at 449 , 593 A. 2d 733 ; see also Landrigan v. Celotex, 127 N.J. 404, 414 , 605 A. 2d 1079 (1992) (stating that "the key to admission of the opinion is the validity of the expert's reasoning and methodology"). The difficulty with the dissent's argument, however, is that here the statistical models we use for proportionality review do not even meet the more lenient standard accepted by the Court in toxic-tort cases.

Our dissenting colleague further suggests that the risk of discrimination is sufficient to invalidate our capital punishment system. See post at 387, 724 A. 2d at 198 (declaring that the Court cannot "continue to ignore the risk that racial discrimination is infecting the State's imposition of the death penalty"). He eloquently details this country's terrible history of slavery and continuing racial discrimination, id. at 404-410, 724 A. 2d at 206-209 , and finds that the "legacy of racism confirm[s] the statistical evidence that racial discrimination influences the imposition of capital punishment," id. at 405, 724 A. 2d at 207 (citing McCleskey, supra, 481 U.S. at 328-30 , 107 S.Ct. at 1786-87 , 95 L.Ed. 2d at 302 (Brennan, J., dissenting)). But "[t]he question `is at what point that risk [of discrimination] becomes constitutionally unacceptable.' " McCleskey, supra, 481 U.S. at 308-09 , 107 S.Ct. at 1776 , 95 L.Ed. 2d at 289 (quoting Turner v. Murray, 476 U.S. 28 , 36 n. 8, 106 S.Ct. 1683 , 1688 n. 8, 90 L.Ed. 2d 27 (1986)). Past discrimination cannot validate flawed statistical data and prove present discrimination in the administration of the death penalty.

Under our system of proportionality review, the burden rests with the defendant to establish disproportionality. Bey IV, supra, 137 N.J. at 343 , 645 A. 2d 685 . We conduct systemic proportionality review because of the risk of discrimination, but it is the defendant who must show that the risk is "constitutionally significant." McCleskey, supra, 481 U.S. at 313 , 107 S.Ct. at 1778 , 95 L.Ed. 2d at 292 . Judge Cohen stressed the inherent limitations of statistical analysis when applied to the task of recognizing racial bias in the administration of the death penalty. He said that statistical approaches such as the AOC models are "incapable of disproving race bias." Supplemental Report, supra, at 11 (emphasis added). At best, statistical approaches can furnish evidence that the administration of the death penalty is "inconsistent with raceblindness." Id. at 12. In Judge Cohen's view, a defendant seeking to invoke statistical analysis to show racial bias in the administration of the death penalty should be subject to "a burden of proof consistent with the nature of the evidence and conforming to the science he invokes." Ibid. *160 On the statistical evidence before him, Judge Cohen concluded that he did not find "relentless documentation or even a preponderance in the direction of the existence of any race bias." Ibid.; see Marshall II, supra, 130 N.J. at 213, 613 A. 2d 1059 (concluding that, where "`statistical evidence ... relentlessly documents the risk that [death] sentence was influenced by racial considerations,'" the sentence would be invalidated) (quoting McCleskey, supra, 481 U.S. at 328 , 107 S.Ct. at 1786 , 95 L.Ed. 2d at 301 , Brennan, J. dissenting). Our consideration of the record in this case convinces us that defendant has not "relentlessly document[ed] the risk" of racial disparity in the imposition of the death penalty.

We make one other point in response to the dissent's claim that we have "turned the convenient measure of `statistical significance' into a talismanic rule." Post at 401, 724 A. 2d at 205 . We agree that "[t]here is nothing magic about ....05" as a measure of statistical significance. Id. at 402, 724 A. 2d at 205 (quoting Joseph Sanders, From Science to Evidence: The Testimony on Causation in the Benediction Cases, 46 Stan. L.Rev. 1, 15 (1993)). This standard is generally used by scientists "[b]ecause [they] want to be satisfied that they are not claiming false positives-causal relationships that do not exist...." Sanders, supra, 46 Stan. L.Rev. at 15. We, also, expect the link between racial bias and the death penalty to be clearly established before we find that our system of capital punishment is so seriously flawed as to require intervention by this Court. We do not seek "punctilious and pristine statistical analyses," post at 398, 724 A. 2d at 203 , but, rather, a sound methodology that is capable of producing reliable results.

This Court is committed to a course of review that is capable of discerning possible racial discrimination in our capital sentencing system. Judge Cohen recommended that we continue our efforts to "develop and adopt more parsimonious models for more reliable regression studies of the race effect." Special Master Report, supra, at 45. We adopt his recommendation and will ask the Special Master to undertake that effort. [14] In addition, the survey of judges conducted by Judge Cohen provides encouraging but provisional evidence of nondiscrimination. At the least, the survey suggests that the culpability ratings derived from the statistical models should be subject to a form of independent verification. See id. at 25, 45. For this reason, Judge Cohen recommended that we appoint a panel of judges to perform periodic assessments of penalty-trial outcomes and thereby "provide another source of useful culpability ratings to guide not only tests for race effect but also [individual] proportionality review generally." Id. at 45. This recommendation should be considered by the Special Master along with the composition and mandate of an independent judicial panel if appropriate.

Our review of the record in this case convinces us that defendant has not demonstrated racial disparity in the imposition of the death penalty.

4. Proportionality Review and its Status as a Separate Proceeding in Death Penalty Appeals

Proportionality review has been conducted as a separate proceeding following a defendant's unsuccessful direct appeal. See DiFrisco III, 142 N.J. at 156 , 662 A. 2d 442 ; Martini II, 139 N.J. at 15 , 651 A. 2d 949 ; Bey IV, 137 N.J. at 339 , 645 A. 2d 685 ; Marshall II, 130 N.J. at 117, 613 A. 2d 1059 . The Court expected that a separate proceeding would conserve resources because a proportionality review would not occur if the defendant's direct appeal was successful. We recognize, however, that this practice also exacts a cost by drawing out the appeals process when a death sentence is affirmed.

The Court is sensitive to the need to achieve finality in the appeals process within a reasonable period of time consistent with a full and fair hearing of all of defendant's claims on appeal. We will ask the Special Master to develop a factual record and issue *161 findings concerning the desirability of maintaining proportionality review as a separate proceeding or, alternately, conducting proportionality review in connection with a capital defendant's direct appeal.

III

Application of the Methods of Individual Proportionality Review to Loftin

We have decided that, until our review of the Special Master's findings and recommendations is complete, we will not apply the 1992 statutory amendment limiting proportionality review to similar cases in which the defendant has been sentenced to death, but rather will continue to compare all death-eligible homicides with the case before us. See supra at 286, 724 A. 2d at 145 . In addition, while we await the Special Master's recommendations vis-a-vis proportionality review generally, we will continue to analyze defendants' cases according to the methodologies and procedures previously utilized, except that we will no longer conduct the numerical-preponderance test previously used as part of our frequency approach.

A. Facts

The facts of this case are set forth in detail in Loftin I, supra, 146 N.J. at 318-33 , 680 A. 2d 677 . We repeat here only those facts that are relevant to our proportionality review.

Sometime between 4:10 a.m. and 6:10 a.m. on the morning of May 5, 1992, Gary Marsh was shot in the head with a single bullet from a .380 caliber pistol during a robbery. He was working the night shift at a gas station in Lawrenceville, New Jersey. A co-worker who arrived at 6:10 a.m. found Marsh lying on the floor in the office of the station, unconscious and struggling for breath, with his head in a puddle of blood. The office keys were in the door, the cash drawer was found empty on the counter, and there was loose change on the floor. Approximately ninety dollars was missing, including one fifty-dollar bill. There were no signs of a struggle in the small, narrow office. Marsh never regained consciousness and died approximately nine-and-one-half hours after he was discovered. An autopsy revealed no defensive wounds that would have indicated Marsh struggled with his assailant.

Defendant, twenty-six-years old at the time, was arrested four days after the murder when he attempted to purchase a computer using a Sears credit card belonging to Marsh. At the time of his arrest, defendant possessed Marsh's identification, a Washington State gun permit, a receipt for the purchase of a .380 caliber pistol, and a fifty-dollar bill. The murder weapon was recovered from defendant's car, as was a plastic mask.

On July 8, 1994, defendant was found guilty of purposeful or knowing murder by his own conduct. The guilt phase jury found specifically "that defendant's intent was to kill [Marsh] ... as opposed to causing him serious bodily injury." Id. at 324, 680 A. 2d 677 . A separate penalty-phase jury heard much of the same evidence the State had presented during the guilt phase. In mitigation, defendant called, among others, Carmeta Albarus, an expert in compiling psychosocial histories, and Dr. Edward J. Dougherty, a defense psychologist.

Albarus, who had constructed defendant's social history through interviews and document review, described his life to the jury. She testified that defendant was one of seven children born to Fred and Ellen Loftin. Fred, though nurturing, was a poor provider and disappeared when defendant was five-years old leaving Ellen as the sole support for the family. Because she worked long hours, Ellen was rarely at home. In Albarus's view, Mrs. Loftin did not relate well to her children and had little ability to nurture them.

When only six-years old, defendant set his mattress on fire and burned the family home to the ground. After that, he and his family moved to a one-bedroom hotel room for an extended period. Although defendant struggled with drugs in his early teens, he later obtained his GED and "expended significant time and effort trying to help his siblings get on or stay on the right path." Id. at 329 , 680 A. 2d 677 .

*162 Defendant married when he was twenty-years old. Because his mother did not approve of his marriage, defendant abandoned his birth family in order to remain loyal to his wife. As a result, his mother did not attend the funeral of his stillborn son. In part because of his inability to provide for his new family, defendant's marriage was conflict-ridden. After searching for a job he could hold, defendant joined the Navy and attained some success. However, on the day he was due to sail, his wife attempted suicide and he was discharged to take care of her. Although he then attended and completed school to become an auto mechanic, he could only find work washing cars. Defendant subsequently went to community college but became depressed and frustrated because of his poor grades. His frustrations manifested themselves in his mental, and perhaps physical, abuse of his wife and children.

Dr. Dougherty testified that defendant suffered from a "borderline personality disorder." The doctor explained that a person is diagnosed with a borderline personality if he or she satisfies five or more of the nine criteria set forth in the DSM-IV manual for evaluating this disorder. According to Dr. Dougherty, defendant exhibited symptoms of six or seven of the nine criteria:

He demonstrated: (1) frantic efforts to avoid real or imagined abandonment ... [;] (2) a pattern of unstable and intense interpersonal relationships characterized by alternating between extremes of idealization and devaluation (overidealization of his wife and mother); (3) identity disturbance: markedly and persistently unstable self-image or sense of self; (6) affective instability due to a marked reactivity of mood... [;] (7) chronic feelings of emptiness ... [;] (8) inappropriate, intense anger or difficulty controlling anger ... [;] and (9) transient, stress-related paranoid ideation or severe dissociative symptoms.

[ Id. at 331 , 680 A. 2d 677 .]

In rebuttal, Dr. Charles Martinson, a psychiatric expert for the State, testified that defendant did not suffer from a borderline personality disorder at the time of the offense, but rather "exhibited narcissistic and antisocial personality traits." Id. at 332 , 680 A. 2d 677 . Dr. Martinson said that defendant "committed the murder for economic reasons," id. at 331 , 680 A. 2d 677 , and "that the only `remorse' defendant exhibited occurred when he learned that Marsh held two jobs." Id. at 332 , 680 A. 2d 677 . The defendant's substantial inability to feel remorse was further demonstrated in a sentence completion test administered by a defense psychiatrist when, after the words "`My greatest mistake was ...'[,] defendant wrote, `become incarcerated.' " Ibid. On December 6, 1994, the penalty-phase jury sentenced defendant to death. The jury determined the State had proven beyond a reasonable doubt three statutory aggravating factors: N.J.S.A. 2C:11-3c(4)(a) (prior murder); N.J.S.A. 2C:11-3c(4)(f) (escape detection); and N.J.S.A. 2C:11-3c(4)(g) (felony murder). The c(4)(f) aggravating factor was based on: the defendant's attempt to disguise his appearance by wearing a mask and fatigues; the distance defendant traveled from his Bristol, Pennsylvania home "passing hundreds of potential targets along the way, to a secluded station in Lawrenceville Township, New Jersey;" the fact that Marsh "might have been able to identify his assailant's voice, height, weight, and overall build" and could have "described the color, make, and model of defendant's car, not to mention its Pennsylvania license plates;" the lack of a "forced entry or of physical struggle inside or outside the office;" and the fact that "defendant did not have to kill Marsh to effectuate the robbery." Loftin I, supra, 146 N.J. at 376-78 , 680 A. 2d 677 . The c(4)(a) aggravating factor was based on defendant's March 28, 1992, knowing or purposeful murder of Sophia Fetter in which defendant was implicated after his arrest for the Marsh murder. He was convicted of the Fetter murder on September 22, 1993, and that conviction was affirmed on appeal. State v. Loftin, 287 N.J.Super. 76 , 670 A. 2d 557 (App.Div.), certif. denied, 144 N.J. 175 , 675 A. 2d 1123 (1996).

At least one juror found the existence of three statutory mitigating factors. One juror found the c(5)(a) mitigating factor (extreme mental or emotional disturbance); two jurors found the c(5)(c) mitigating factor (defendant's age); and several jurors found the *163 c(5)(h) mitigating factor (catch-all) for different reasons: defendant was traumatized by the loss of his father at an early age; he was traumatized by the fire he set; he was emotionally impoverished growing up; he was raised in poverty; he was deprived of a positive male role model during his youth; he was a considerate and loving son; he provided his siblings with a positive sense of direction; he had assumed the responsibility of being a family man before he was emotionally and financially prepared to do so; he was traumatized by the loss of his first son; he had served in the Navy, attended community college, and been a model prisoner; he led a crime-free existence for his first twenty-five years; he has the love and support of his family; he was under the influence of mental and emotional pressure at the time the crime was committed; and he had offered to plead guilty in exchange for a life sentence. No juror found that defendant had sincere and heartfelt remorse.

The jurors unanimously concluded that the three aggravating factors outweighed the mitigating factors and sentenced defendant to death. We affirmed defendant's conviction and death sentence and acknowledged his request for proportionality review. Loftin I, supra, 146 N.J. at 397-98 , 680 A. 2d 677 . Subsequently, the Clerk of the Court set a briefing schedule and directed the AOC to undertake its usual statistical study in connection with the proportionality of defendant's sentence. The AOC issued its Loftin Report on November 25, 1996.

B. Focus of Review

We conduct proportionality review to determine whether a particular defendant's death sentence is disproportionate when compared to other defendants "with similar characteristics ... [who have] committ[ed] factually similar offenses in the same jurisdiction." Bey IV, supra, 137 N.J. at 343 , 645 A. 2d 685 (internal quotation marks and citations omitted). Our review is offender-oriented. We "presume[ ] that the death penalty is proportional to the offense," and ask "`whether the punishment fits the criminal,'" DiFrisco III, supra, 142 N.J. at 161 , 662 A. 2d 442 (citing Marshall II, supra, 130 N.J. at 129, 613 A. 2d 1059 , additional citations omitted). "`[A] death sentence is comparatively excessive if other defendants with similar characteristics generally receive sentences other than death for committing factually similar offenses....'" Marshall II, supra, 130 N.J. at 153-54, 613 A. 2d 1059 (quoting Tichnell, supra, 468 A. 2d at 17 n. 18).

Our dissenting colleague turns this concept on its head when he asserts that "[t]he standard measuring disproportionality ... must require ... that, for defendants similarly situated, the death sentence be received in a defined preponderance of cases." Post at 425, 724 A. 2d at 217 . Because New Jersey jurors have been sparing in their imposition of the death sentence, it will never be the case that death would be "generally received" or "received in a defined preponderance of cases." Because juries impose death infrequently, we have recognized that "death need not be normal or general to be a licit sentence." Marshall II, supra, 130 N.J. at 153, 613 A. 2d 1059 . The dissent has missed the point. He would have us find that death is the normal sentence when that can never be so.

"Proportionality review seeks to determine only whether a particular death sentence is aberrational, not whether it compares perfectly with other sentences." Bey IV, supra, 137 N.J. at 352 , 645 A. 2d 685 (citation omitted). For this reason, statistical disparity is permissible, indeed expected. For this reason also, the Court has repeatedly declined to set a threshold at which the imposition of the death penalty becomes disproportionate. DiFrisco III, supra, 142 N.J. at 171-72 , 662 A. 2d 442 ; Martini II, supra, 139 N.J. at 30 , 651 A. 2d 949 ; Bey IV, supra, 137 N.J. at 351 , 645 A. 2d 685 . Yet, the dissent again urges a numerical standard for determining proportionality. Post at 418, 724 A. 2d at 214 ; see also DiFrisco III, supra, 142 N.J. at 233 , 662 A. 2d 442 (Handler, J., dissenting); Martini II, supra, 139 N.J. at 90-91 , 651 A. 2d 949 (Handler, J., dissenting); Bey IV, supra, 137 N.J. at 408 , 645 A. 2d 685 (Handler, J., dissenting). We continue to believe, however, that setting such a standard "would introduce unacceptable arbitrariness *164 into proportionality review." Martini II, supra, 139 N.J. at 20 , 651 A. 2d 949 ; see also Bey IV, supra, 137 N.J. at 351 , 645 A. 2d 685 (stating that "[a] general standard, although admittedly imprecise, is not necessarily arbitrary"). As we observed in Martini , an absolute numerical standard "suffers from an inherent failure to distinguish between defendants." Martini II, supra, 139 N.J. at 32 , 651 A. 2d 949 . Furthermore, application of a strictly quantitative approach may unduly "`limit the legitimate exercise of judicial discretion'" and "`inappropriately suggest that the complex judgments involved in proportionality determinations can be expressed with mathematical precision.'" Marshall II, supra, 130 N.J. at 153, 613 A. 2d 1059 (quoting Final Report, supra, at 42-43). We have never believed that statistics can replace the process of judging; we do believe that statistical results, properly used and understood, can alert us to the need for increased vigilance in our quest for impartial justice.

1. The Universe of Cases

The Loftin Report includes all death-eligible cases collected by the AOC from 1983 to September 1, 1996. Loftin Report, tbl.1 n. 1. There are 369 death-eligible cases, 154 of which went to penalty trial, producing a rate of forty-two percent. Id., tbl.3. Of the 154 penalty-trial cases, forty-seven, or thirty-one percent, resulted in a death sentence. Id., tbl.2. The overall death-sentencing rate is therefore thirteen percent (47/369). Id., tbl.1.

2. Method of Classifying Cases

After establishing the universe of cases, we next convert that universe into a database for comparison purposes. As in our previous proportionality cases, we use two approaches: an a priori approach and an empirical approach. See DiFrisco III, supra, 142 N.J. at 163-64 , 662 A. 2d 442 ; Martini II, supra, 139 N.J. at 24 , 651 A. 2d 949 ; Bey IV, supra, 137 N.J. at 345 , 645 A. 2d 685 ; Marshall II, supra, 130 N.J. at 141-43, 613 A. 2d 1059 . In the a priori method, we analyze cases based on those factors that experience has shown influenced whether a defendant was sentenced capitally. See DiFrisco III, supra, 142 N.J. at 164 , 662 A. 2d 442 ; Martini II, supra, 139 N.J. at 24 , 651 A. 2d 949 ; Bey IV, supra, 137 N.J. at 345 , 645 A. 2d 685 ; Marshall II, supra, 130 N.J. at 141-42, 613 A. 2d 1059 . In the empirical method, we review both defendants who were sentenced to death and those who were not to "identify those characteristics that determine the patterns of life sentencing versus death sentencing." DiFrisco III, supra, 142 N.J. at 164 , 662 A. 2d 442 ; see also Martini II, supra, 139 N.J. at 24 , 651 A. 2d 949 ; Bey IV, supra, 137 N.J. at 345 , 645 A. 2d 685 ; Marshall II, supra, 130 N.J. at 142-43, 613 A. 2d 1059 .

We decline once again to attempt to define in advance all characteristics of a murder case that would capture the critical facts of a particular defendant's case. DiFrisco III, supra, 142 N.J. at 164 , 662 A. 2d 442 . Such an exercise "would fail [both] to distinguish between individual defendants" and to recognize the uniqueness of every case. Martini II, supra, 139 N.J. at 24-25 , 651 A. 2d 949 . Also, as in previous cases, we include in the death-sentenced universe those cases where the defendant's death sentence was reversed on appeal and where the prosecutor chose not to proceed capitally on remand. DiFrisco III, supra, 142 N.J. at 164 , 662 A. 2d 442 ; Martini II, supra, 139 N.J. at 25-26 , 651 A. 2d 949 ; Bey IV, supra, 137 N.J. at 345-48 , 645 A. 2d 685 ; Marshall II, supra, 130 N.J. at 194 n. 10, 613 A. 2d 1059 . Although reversed for a variety of reasons, we have found that "the original penalty trials ... [still] reflect[ ] juror values of deathworthiness." Marshall II, supra, 130 N.J. at 194 n. 10, 613 A. 2d 1059 .

We continue to analyze the data in two sets, one including defendant and one excluding him. "[P]roportionality review is a search for community values, and the case under review is a partial reflection of ... those values." Martini II, supra, 139 N.J. at 27-28 , 651 A. 2d 949 . An analysis which utilizes both sets of data is therefore more complete but does not attempt to conceal its own limitations, i.e., "the bias produced by including defendant's case." Id. at 28, 651 A. 2d 949 .

C. Comparison of Cases

Once we establish the universe of cases on which we will rely and the criteria *165 for coding those cases, we "next group those cases according to their comparative levels of blameworthiness." Ibid. We measure blameworthiness according to statutory aggravating and mitigating factors as well as "nonstatutory factors based on `objectively-verified measures of blameworthiness.'" Bey IV, supra, 137 N.J. at 350 , 645 A. 2d 685 (quoting Marshall II, supra, 130 N.J. at 145, 613 A. 2d 1059 ). As explained earlier, we evaluate these factors using two approaches: frequency analysis and precedent-seeking review, placing our reliance on precedent-seeking review in deciding disproportionality.

1. Comparison Group

The AOC characterizes the various death-eligible cases on the basis of the aggravating factors present in those cases. The similar cases to be examined in proportionality review are then selected on the basis of the aggravating factors present in defendant's case. DiFrisco III, supra, 142 N.J. at 185 , 662 A. 2d 442 (citing Martini II, supra, 139 N.J. at 49 , 651 A. 2d 949 ). There are thirteen basic categories, [15] each of which contains two to seven subcategories.

Here, the penalty-phase jury found that the State had proven beyond a reasonable doubt three statutory aggravating factors: N.J.S.A. 2C:11-3c(4)(a) (prior murder); N.J.S.A. 2C:11-3c(4)(f) (escape detection); and N.J.S.A. 2C:11-3c(4)(g) (felony murder). The AOC therefore coded defendant's case as a B, or a murder by a defendant with a prior murder conviction. Further, the AOC placed Loftin's case in the B(1) subcategory [16] because, in addition to the prior murder conviction, the case presented two other aggravating circumstances. Loftin Report, tbl.7A.

Defendant argues that his case should be compared not only to all death-eligible B(1) cases, but also to all other death-eligible B cases and to all death-eligible A, multiple-murder, cases in which the defendant killed during the course of a robbery. Defendant asserts that certain A cases are similar to his case in that all A defendants also killed more than one person and some committed murders in the course of a robbery. The State argues that defendant's case should be compared only to other prior murder cases, as in the proportionality review in Bey IV, supra, 137 N.J. at 367 , 645 A. 2d 685 , another case involving a prior murderer.

Defendant's "essential attribute" is his prior murder conviction. Because of the "exceedingly small number of cases" in the B(1) subcategory, DiFrisco III, supra, 142 N.J. at 170 , 662 A. 2d 442 , we will compare defendant's case to all death-eligible cases in the B, or prior murder, category. We will not, however, compare defendant's case, as he has proposed, to certain category A cases—murders involving multiple victims where the *166 murders were committed in the course of a robbery. "We defer generally to the AOC's expertise, and particularly to its unique assignment of defendants to only one comparison category." Id. at 167, 662 A. 2d 442 . In this case, the AOC designated defendant's case a B, or prior murder, case; we see no compelling reason to disagree with this designation or to deviate from it by including in defendant's comparison group certain of the A, or multiple-murder, cases.

Loftin's comparison group thus consists of sixteen defendants: George Booker, John Fauntenberry, Richard Feaster, James Koedatich, Marko Bey, Richard Biegenwald, Bryan Coyle, Samuel Erazo, William Godette, Frank Pennington, Braynard Purnell, Thomas Ramseur, Carlos Vasquez, Jihad Muhammed, Alberto Nieves, and Thomas Williams. We glean the facts of these comparison cases from opinions previously published by this Court and from the AOC's Detailed Narrative Summaries.

2. Frequency Analysis

We have described frequency analysis earlier in this opinion. To summarize, this approach has heretofore consisted of three different statistical tests designed to gauge a defendant's relative criminal culpability: the salient-factors test, the numerical-preponderance-of-aggravating-and-mitigating-factors test, and the index-of-outcomes test. DiFrisco III, supra, 142 N.J. at 171 , 662 A. 2d 442 ; Martini II, supra, 139 N.J. at 29-30 , 651 A. 2d 949 ; Bey IV, supra, 137 N.J. at 350-51 , 645 A. 2d 685 ; Marshall II, supra, 130 N.J. at 154, 613 A. 2d 1059 . As discussed supra at 294-295, 724 A. 2d at 149-150 , based on our experience over the six-year period that we have conducted proportionality reviews, we have determined that the numerical-preponderance test does not assist our efforts and should be abandoned. We will confine frequency analysis in this case, and in cases to follow, to the salient-factors and index-of-outcomes tests.

a. Salient-Factors Test

In the salient-factors test, we consider the sentences imposed in factually-similar cases to measure the relative frequency of the imposition of the death sentence. "Its purpose is to help us determine whether the death sentence is imposed in a category of comparable cases often enough to create confidence in the existence of a societal consensus that death is the appropriate remedy." Martini II, supra, 139 N.J. at 33 , 651 A. 2d 949 . Cases are first categorized according to the presence of statutory aggravating factors and then placed into subcategories "according to circumstances that serve either to aggravate or to mitigate the blameworthiness of the defendants in those cases." Ibid. This test has been consistently viewed as the most persuasive of the frequency tests. DiFrisco III, supra, 142 N.J. at 173 , 662 A. 2d 442 ; Martini II, supra, 139 N.J. at 33 , 651 A. 2d 949 ; Bey IV, supra, 137 N.J. at 353 , 645 A. 2d 685 ; Marshall II, supra, 130 N.J. at 168, 613 A. 2d 1059 .

In this case, the most salient factor is that Loftin had been convicted of a prior murder. Loftin, supra, 287 N.J.Super. at 89 , 670 A. 2d 557 . Loftin is placed in category B for his prior murder, and in the B(1) subcategory because his case presents two additional aggravating factors. Of the seven death-eligible cases in the B(1) subcategory, five went to penalty trial and, of those penalty-trial cases, two resulted in death sentences, including defendant's case. Loftin Report, supra, tbl.7A. Thus, the death sentencing rate for all B(1) murderers is twenty-nine percent and, for those advancing to penalty trial, forty percent. Those figures are significantly higher than the overall death-sentencing rates of thirteen percent for all death-eligible cases and thirty-one percent for all penalty-phase cases. Id., tbls.1, 2. Moreover, B(1) murderers are much more likely to advance to the penalty phase than the general death-eligible murderer. Id., tbls.1, 2, 7. In tabular form, the figures are: *167 Death-Sentencing Rates for B(1)* Murderers and All Death-Eligible Murderers

Death-Sentencing Death-Sentencing Proportion of

Rate at Penalty Rate for All Death-Eligible Cases Advancing

Trial Cases to Penalty Trial

B-1 incl. D .40 (2/5) .29 (2/7) .71 (5/7)

B-1 excl. D .25 (1/4) .17 (1/6) .67 (4/6)

All Ds .31 (47/154) .13 (47/369) .42 (154/369)

All Ds but D .30 (46/153) .125 (46/368) .42 (153/368)

*B(1)—prior murder, two additional aggravating factors.

Removing defendant's case from the group lowers the rates somewhat, but still places him at 12.5% and 30% within the general overall range of thirteen percent for all death-eligible cases and thirty-one percent for all penalty-phase cases.

For the entire prior-murderer category, the figures are as follows:

Death-Sentencing Rates for All B Prior Murderers and All

Death-Eligible Murderers

Death-Sentencing Death-Sentencing Proportion of

Rate at Penalty Rate for All Death-Eligible Cases Advancing

Trial Cases to Penalty Trial

B incl. D .59 (10/17) .38 (10/26) .65 (17/26)

B excl. D .56 (9/16) .36 (9/25) .64 (16/25)

All Ds .31 (47/154) .13 (47/369) .42 (154/369)

All Ds but D .30 (46/153) .125 (46/368) .42 (153/368)

Of the twenty-six death-eligible cases in category B, seventeen, or sixty-five percent, went to penalty trial and, of those penalty-trial cases, ten resulted in death sentences. Id., tbl.7. The death-sentencing rate for all death-eligible prior murderers is thirty-eight percent, while the rate is fifty-nine percent for those advancing to penalty trial. Ibid. Once again, these figures are significantly higher than the rates for other types of murderers. Ibid.

In sum, application of the salient-factors test appears to suggest that prior murderers receive the death penalty more frequently than most defendants in the death-eligible and penalty-trial universes and that they are considered by community consensus to be highly blameworthy. In fact, prior murderers are sentenced to death at a higher rate than any other category of murderers. See ibid. While we are mindful that the small sample sizes prevent us from relying on the results of this test, Martini II, supra, 139 N.J. at 38 , 651 A. 2d 949 , they do support a finding of no disproportionality.

b. Index-of-Outcomes Test

As explained supra at 295, 724 A. 2d at 150 , in the index-of-outcomes test, "we compare cases that are factually dissimilar but that are nevertheless comparable from the perspective of the defendants' blameworthiness." Martini II, supra, 139 N.J. at 42 , 651 A. 2d 949 . More specifically, we seek to identify those factors, both statutory and nonstatutory, that inform jury and prosecutorial determinations of blameworthiness. The AOC calculates the weight of each factor by performing a multiple-regression analysis on the cases within the proportionality review universe. DiFrisco III, supra, 142 N.J. at 178 , 662 A. 2d 442 . This calculation permits us to "compare the blameworthiness of different defendants by the statistically-relevant measures of culpability found in the circumstances of their cases." Martini II, supra, 139 N.J. at 42 , 651 A. 2d 949 (citing Bey IV, supra, 137 N.J. at 362 , 645 A. 2d 685 ).

In the Loftin Report, the AOC has prepared tables listing death-sentencing rates that measure deathworthiness based on case characteristics deemed important by prosecutors and jurors. Loftin Report, technical app. 9, at 1. The tables sort the cases into *168 five levels of culpability which reflect predicted probabilities of the return of a death sentence, "cut[ting] the cases at each 20-percentage points of increasing probability of a death sentence." Id. at 5. "From those groups, we derive the actual probabilities of death sentencing for cases in the various levels of culpability." Martini II, supra, 139 N.J. at 43 , 651 A. 2d 949 .

The AOC once again urges us to exercise caution in relying on the results of its regression analyses because, given the small pool of cases and the large number of factors assessed, "the culpability estimate ... is often still too soft" to permit "substantive reliance." McCarthy Memorandum, supra, at 3-4. A significant difficulty is that the confidence intervals we have seen so far are extremely broad. When a quantity in a population is being estimated on the basis of a sample drawn from that population, the estimate is sometimes expressed in a range, called a confidence interval or probability range. Suppose for example that we wished to estimate the average height for the American adult male population on the basis of a random sample. Suppose that this results in a ninety-five percent confidence interval [range] of 69-75 inches. This means that we can be ninety-five percent certain that the true population average lies within that range. Conley & Peterson, supra, at 1223. In Loftin's case, "we are ninety-five percent certain that all defendants with characteristics similar to [Loftin] will have a predicted probability of receiving a death sentence" within the range. DiFrisco III, supra, 142 N.J. at 180 , 662 A. 2d 442 . The problem is that when a defendant's probability of receiving a death sentence ranges from zero to ninety-five percent, as does Loftin's predicted probability, we are ninety-five percent certain that he could have a zero percent, or a ninety-five percent, or an anywhere inbetween probability of being sentenced to death. Coincidentally, this is the widest possible range for a confidence interval. Such numbers have little usefulness. We treat the results accordingly. Id. at 179, 662 A. 2d 442 ; Martini II, supra, 139 N.J. at 43 , 651 A. 2d 949 .

The model results indicate that, considering both statutory and nonstatutory factors in penalty-trial cases, Loftin has a predicted probability of fourteen percent of receiving a death penalty, with a probability range that has a lower limit of zero and an upper limit of ninety-five percent. Defendant's case falls within culpability level one (0-Loftin Report, tbls.21, 22.

Using the same tables, a comparison between Loftin and our prior proportionality review defendants reveals that Loftin's rates are quite low, see Table, infra, at 113-14, but this alone does not compel a finding of disproportionality. As in all four of our prior cases, the expansive confidence interval in Loftin's case, from zero to ninety-five percent, tells us that we can vest Loftin's numbers with little significance. See DiFrisco III, supra, 142 N.J. at 180 , 662 A. 2d 442 ("[T]he smaller the confidence interval, the more reliable the predicted probability.").

Considering both statutory and nonstatutory factors in all death-eligible cases, the predicted probability of a death sentence in Loftin's case is thirty-eight percent, with a probability range that has a lower limit of nine percent and an upper limit of eighty-one percent. Defendant's predicted probability places him in culpability level two (20-Loftin Report, tbls.13, 14.

Once again, a comparison to prior proportionality review defendants is helpful. See Table, infra, at 113-14. While Loftin's rates are only slightly higher than Bey's and DiFrisco's, they are far higher than those of Martini and Marshall. Because the confidence intervals are still very large, we are also unable to rely on these figures; they do not, however, demonstrate disproportionality.

Restricting the analysis to statutory factors in penalty-trial cases, Loftin has a predicted probability of sixty-seven percent of receiving a death sentence, within a probability range extending from twenty-two to ninety-three percent. Defendant's case falls within culpability level four (60-Loftin Report, tbl.23, 24.

*169 Turning once more to our prior proportionality review defendants, see Table, infra, at 113-14, we see that Loftin's figures are slightly lower than Bey's and greater than those of DiFrisco, Martini and Marshall. This portion of the index-of-outcomes test also does not demonstrate disproportionality.

Considering statutory factors in all death-eligible cases, the predicted probability of a death sentence in Loftin's case is forty-seven percent, with a lower limit of fourteen percent and an upper limit of eighty-three percent. This places defendant in culpability level three, (40-Loftin Report, tbls.23, 25.

In this final group, see Table, infra, at 113-14, Loftin's figures exceed those generated for each of our prior proportionality review defendants and fail to demonstrate disproportionality.

Index-of-Outcomes Test Results

(data from Loftin Report , tbls. 13-14, 21-25)

Statutory & Nonstatutory Factors Statutory Factors Only

Penalty Trial Death-Eligible Penalty Trial Death-Eligible

Loftin

Predicted Probability .14 .38 .67 .47

of Death Sentence

Range (.00 to .95) (.09 to .81) (.22 to .93) (.14 to .82)

Culpability Level 1 2 4 3

Death-Sentencing .07 (5/14) .38 (14/37) .70 (14/20) .57 (8/14)

Rate

DiFrisco

Predicted Probability .64 .22 .46 .20

of Death Sentence

Range (.19 to .93) (.02 to .79) (.08 to .89) (.01 to .84)

Culpability Level 4 2 3 1

Death-Sentencing .53 (9/17) .38 (14/37) .64 (14/22) .05 (14/287)

Rate

Martini

Predicted Probability .80 .09 .26 .12

of Death Sentence

Range (.34 to .97) (.02 to .34) (.08 to .57) (.04 to .32)

Culpability Level 5 1 2 1

Death-Sentencing .81 (21/26) .05 (14/299) .24 (8/33) .05 (14/287)

Rate

Bey

Predicted Probability .59 .37 .71 .36

of Death Sentence

Range (.17 to .91) (.11 to .74) (.37 to .91) (.15 to .65)

Culpability Level 3 2 4 2

*170

Death-Sentencing .54 (7/13) .38 (14/37) .70 (14/20) .26 (13/50)

Rate

Marshall

Predicted Probability .65 .17 .56 .31

of Death Sentence

Range (.16 to .95) (.01 to .89) (.11 to .93) (.04 to .84)

Culpability Level 4 1 3 2

Death-Sentencing .53 (9/17) .05 (14/299) .64 (14/22) .26 (13/50)

Rate

The index-of-outcomes results in defendant's case are not consistently higher or lower than results generated for prior cases and "do not indicate disproportionality or any aberration" in Loftin's death sentence. Martini II, supra, 139 N.J. at 45 , 651 A. 2d 949 . As we observed in our review of the first table in this test and thereafter, however, "the small sample size of cases with similar levels of blameworthiness and the great ranges in the confidence intervals," DiFrisco III, supra, 142 N.J. at 182 , 662 A. 2d 442 , substantially limits the usefulness of those results. That the dissent finds a comparison of the defendant with prior proportionality review defendants unjustified does not surprise us. [17] Post at 423, 724 A. 2d at 216 .

As before, we must continue to rely on precedent-seeking review. DiFrisco III, supra, 142 N.J. at 183 , 662 A. 2d 442 .

c. Frequency Analysis Conclusion

Compared to other penalty-trial cases, Loftin's case shows a death sentencing rate of forty percent under the salient-factors test and, under the index-of-outcomes test, predicted probabilities of receiving a death sentence of sixty-seven percent considering only statutory factors and fourteen percent considering statutory and nonstatutory factors. Loftin Report, tbls.7A, 22, 24. In comparison to all death-eligible cases, Loftin's salient-factors rate is twenty-nine percent, and his index-of-outcomes probabilities are forty-seven percent considering only statutory factors and thirty-eight percent considering both statutory and nonstatutory factors. Id., tbls.7A, 14, 25. On balance, we find that defendant has not offered, through frequency analysis, evidence of disproportionality and "we do not find that for cases such as his a sentence other than death is generally imposed." Martini II, supra, 139 N.J. at 46 , 651 A. 2d 949 .

3. Precedent-Seeking Review

The precedent-seeking approach, also referred to as comparative-culpability review, is the second component of proportionality review. DiFrisco III, supra, 142 N.J. at 183 , 662 A. 2d 442 ; Martini II, supra, 139 N.J. at 46 , 651 A. 2d 949 . "Here we engage in traditional case-by-case review in which we compare similar death-eligible cases, considering the cases individually." *171 DiFrisco III, supra, 142 N.J. at 183 , 662 A. 2d 442 . In specific, "we examine defendant's criminal culpability to determine whether it exceeds that of similar life-sentenced defendants and whether it equals or exceeds that of other death-sentenced defendants." Id. at 184 , 662 A. 2d 442 . Our primary concern is whether "defendant's culpability justifies the capital sentence" or whether it "requires a reduction of sentence to a life term." Martini II, supra, 139 N.J. at 47 , 651 A. 2d 949 . Although identical sentences are not required even in like cases, the defendant must not have been "singled out unfairly for capital punishment." Ibid. (citing Marshall II, supra, 130 N.J. at 159, 181, 613 A. 2d 1059 ).

a. Assessment of Defendant's Culpability

The first step in comparing defendant's case to the similar cases is an evaluation of defendant's own culpability. This assessment requires us to examine three elements: (1) defendant's moral blameworthiness; (2) the degree of victimization; and (3) defendant's character. See DiFrisco III, supra, 142 N.J. at 203 , 662 A. 2d 442 ; Martini II, supra, 139 N.J. at 74-75 , 651 A. 2d 949 ; Bey IV, supra, 137 N.J. at 366 , 645 A. 2d 685 . In determining defendant's culpability, we consider objective criteria derived from both statutory and nonstatutory aggravating and mitigating factors. Marshall II, supra , 130 N.J. at 159, 613 A. 2d 1059 . These criteria are "rooted in traditional sentencing guidelines, were clearly presented to the sentencing jury, and are likely to influence a jury's sentencing decision," Bey IV, supra, 137 N.J. at 368 , 645 A. 2d 685 . Also, when considering the catch-all mitigating factor, we recognize that defendant's jury may have rejected a specific mitigating factor, but nevertheless been influenced by the evidence presented in support of that mitigating factor. DiFrisco III, supra, 142 N.J. at 185 , 662 A. 2d 442 ; Bey IV, supra, 137 N.J. at 368 , 645 A. 2d 685 .

i. Moral Blameworthiness

To determine defendant's moral blameworthiness, we examine such characteristics as motive, premeditation, justification or excuse, evidence of mental defect or disturbance, knowledge of helplessness of the victim, defendant's age or maturity level, and defendant's involvement in planning the murder. Marshall II, supra, 130 N.J. at 155, 613 A. 2d 1059 . Defendant's motive for his murder of Gary Marsh is clear: to steal money from the gas station and, as the jury found, to escape detection and punishment for his crime. Whether the murder of Gary Marsh was premeditated for any length of time is less clear. Although the Public Defender admits that the robbery was carefully planned and premeditated, the fact that a face mask was found in defendant's car and that defendant drove many miles from home to commit the crime may suggest that he originally intended to disguise his identity and thus escape detection in that way. There is no evidence of any justification or excuse for defendant's crime, nor is there any evidence of provocation on the part of the victim. As we noted in Loftin I , "defendant presented no evidence of a struggle or an accidental discharge .... [or] that Marsh might have done something to provoke defendant." 146 N.J. at 353 , 680 A. 2d 677 .

Evidence was presented by the defense psychologist that defendant had a "borderline personality disorder," and one juror found that the c(5)(a) mitigating factor (extreme mental or emotional disturbance) was present. In addition, three jurors found the catch-all mitigating circumstance that defendant was under the influence of mental and emotional pressure at the time the crime was committed. However, the State's expert concluded that defendant exhibited narcissistic and antisocial personality traits and not a borderline personality disorder.

Defendant was clearly aware of the helplessness of the victim. Defendant was armed, there was no indication Gary Marsh had any weapon, and they were in an isolated area very late at night. However, because defendant did not know Marsh, and there were no other persons present during the murder, defendant cannot be presumed to have specific knowledge of the effects of the murder on any nondecedent victims. But see State v. Muhammad, 145 N.J. 23, 46 , 678 A. 2d 164 (1996) ("While a defendant might be *172 unaware of the specific characteristics of his victim or of the particular survivors that the victim will leave behind, it is completely foreseeable that the killing will eliminate a unique person and destroy a web of familial relationships."). Although defendant was only twenty-six at the time of the murder, and two jurors found that his age should be considered a mitigating factor, the State correctly points out that defendant lived as an adult with adult responsibilities, i.e., he was married with two children, owned a home, and had served in the United States Navy. Finally, it is clear that defendant was alone in planning the murder and that, whether or not the murder itself was premeditated, the underlying felony, the robbery, was meticulously planned ahead of time.

ii. Degree of Victimization

The characteristics to be examined in determining the degree of victimization include the violence and brutality of the murder and the injury to nondecedent victims. Marshall II, supra, 130 N.J. at 155, 613 A. 2d 1059 . In comparison to other murder cases we have examined, this was not a particularly violent or brutal killing. Aside from the gunshot wound that killed him, there is no evidence of any other type of assault on Marsh by defendant. Indeed, as we noted in Loftin I , the killing was performed almost "execution-style," 146 N.J. at 387 , 680 A. 2d 677 , in that Marsh was shot in the head "at close range," id. at 353 , 680 A. 2d 677 . Marsh was, however, undoubtedly terrorized by defendant and in fear for his life from the time he was confronted by defendant until the time he was shot.

iii. Character of Defendant

Finally, in determining the character of defendant we examine defendant's prior record, whether defendant has committed other unrelated acts of violence, whether defendant cooperated with authorities, defendant's remorse, and his capacity for rehabilitation. Although, as three jurors found, defendant led a crime-free existence for the first twenty-five years of his life, defendant had committed a prior murder only five weeks before the murder of Gary Marsh. Thus, the jury unanimously found that the c(4)(a) prior murder aggravating factor was present. As we have noted, "a two-time murderer is among the most blameworthy of defendants." Bey IV, supra, 137 N.J. at 367 , 645 A. 2d 685 .

In addition, the jury heard evidence that defendant had struck his wife and their young children. There is no evidence that defendant cooperated in any way with authorities, although the defense psychologist testified that defendant has the capacity for rehabilitation within a prison setting. Finally, although defendant expressed remorse for his crime when he spoke with the defense and the state psychologists, and when he addressed the jury during his allocution, he also wrote that his "mistake" was being incarcerated, not that he had killed two human beings. The jury unanimously rejected the catch-all mitigating circumstance that defendant "has sincere and heartfelt remorse."

b. Comparison of Defendant's Case to the B Cases [18]

Whether defendant's sentence is disproportionate in comparison with the culpability levels of the comparison group must be determined by comparing the facts of those cases to the facts of defendant's case. As discussed above, supra at 324, 724 A. 2d at 164 , in conducting this comparison, "we identify in the comparison group all relevant aggravating and mitigating factors, both statutory and non-statutory, that are `rooted in traditional sentencing guidelines,'" DiFrisco III, supra, 142 N.J. at 184-85 , 662 A. 2d 442 . In comparing defendant's case to the other category B cases, we find that defendant's culpability level is high, and that his death sentence is not disproportionate. Defendant contends that his "case is more like the life-sentenced cases than the death-sentenced cases." We disagree.

We compare first the B(1) prior murderers. Each of the four cases in this category has the c(4)(a) (prior murder) aggravating factor, plus two or more additional aggravating factors. And, like Loftin, these four prior murderers have as an additional aggravating *173 factor the c(4)(g) (felony murder) factor. Additionally, Booker, Fauntenberry and Koedatich have the c(4)(f) (escape detection) aggravating factor. In this respect, at least, Loftin shares with these B(1) defendants a similar level of culpability. Yet, of the four defendants in the B(1) comparison group, only Koedatich received a death sentence for his crime, a sentence which was later reduced to life on retrial of the penalty phase. This apparent disparity compels us to take a closer look at the factors which set defendant apart from these B(1) defendants.

The greatest distinguishing factor between Loftin and the B(1) defendants is that, with the exception of Fauntenberry, each B(1) defendant presented uncontroverted evidence that he suffered from some mental disease or defect. Bookers's psychiatrist testified that Booker had an I.Q. of 80 and suspected brain damage, and that he was experiencing a drug-and alcohol-enhanced psychotic episode at the time he committed his murder. Feaster had encephalopathy, an injury to the left frontal lobe region making him more violence-prone. Koedatich suffered untreated personality disorders as a child as well as untreated suicidal and homicidal tendencies as a teenager, and was diagnosed in prison as a sociopathic personality. In defendant's case, however, the State disputed defense evidence that Loftin suffered from a borderline personality disorder and introduced evidence that Loftin had a narcissistic or antisocial personality that did not impair his ability to act purposefully. Therefore, even though one juror found the c(5)(a) mitigating factor to exist in Loftin's case, uncontroverted evidence that other B(1) defendants suffered from a mental disease or defect "could explain why their juries did not deem them to be deathworthy." Bey IV, supra, 137 N.J. at 38

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