# State v. Ramseur

> Supreme Court of New Jersey · March 5, 1987 · 106 N.J. 123

URL: https://www.frixlaw.com/law-library/cases/9646896

## Case

- **Full name:** State of New Jersey, Plaintiff-Respondent, v. Thomas C. Ramseur, Defendant-Appellant
- **Court:** Supreme Court of New Jersey
- **Decided:** March 5, 1987
- **Citations:** 106 N.J. 123; 524 A.2d 188; 1987 N.J. LEXIS 293
- **Precedential status:** Published
- **Opinion:** Dissent by Handler
- **Judges:** Wilentz, O'Hern, Handler
- **Cited by:** 508 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9646896

## How later opinions describe it (automated extraction)

- holding that "cruel" conduct may give rise to an aggravating factor in a manslaughter 2 "The nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner[.]" N.J.S.A. 2…
- finding improper a summation that "[t]he laws are made for our protection and in this case, ladies and gentlemen; we must realize that it is our responsibility to protect everybody here who has no interest in this case and to protect everybody out there in the culture of Essex…
- stating that *485 passage of death penalty statute “cannot be dispositive” in assessing constitutionality of death penalty because “[s]uch an interpretation would render the constitutional ban on cruel and unusual punishments a mere tautology, eliminating its function as a lim…
- explaining that our discovery rules are so broad “out of a fundamental sense of fairness— that this is not a game that is being played but is truly a quest for justice — and because we believe that a criminal trial ‘although inevitably an adversarial proceeding, is above all e…
- explaining that our discovery rules are so broad "out of a fundamental sense of fairness — that this is not a game that is being played but is truly a quest for justice — and because we believe that a criminal trial `although inevitably an adversarial proceeding, is above all …

## Opinion text

HANDLER, J.,
dissenting.
In this case, and in the companion case of State v. Biegenwald, 106 N.J. 13 (1987), decided today, we are called upon to consider the constitutionality of the death penalty at a crucial moment in the history of our Constitution. The cases arise against a backdrop of renewed awareness of and heightened sensitivity to the integrity of our State Constitution. This deeper insight into the reach of the State Constitution is considered by many to be the most significant development in contemporary constitutional law. See, e.g., Pollock, “State Constitutions As Separate Sources of Fundamental Rights,” 35 Rutgers L.Rev. 707, 722 (1983). The constitutional questions presented by the capital murder-death penalty statute have been acknowledged to be as significant as they are complex. See Special Project: “The Constitutionality of the Death Penalty in New Jersey,” 15 Rutgers L.J. 261 (1984). Further, we consider the role of the State Constitution in these singularly important cases against a strong tide of federal retrenchment from well-established protections of individual rights. These cases, therefore, present both a constitutional challenge and an opportunity.
The Court’s response is disappointing. By yoking the State Constitution to the federal Constitution at this time and in these cases, this Court limits regrettably the scope of individual constitutional protections; further, it arrests the progress we have made in expounding our Constitution. The harm done by failing to give full effect to our State Constitution transcends, *344 therefore, that which flows from cases only incorrectly decided. With its decision today, the Court fails to meet the challenge to vindicate individual rights, and squanders the opportunity to deepen our understanding of the Constitution.
The Court upholds the constitutionality of the capital murder-death penalty statute, L. 1982, c. Ill; N.J.S.A. 2C:ll-3. It concludes that the legislative scheme satisfies both federal and State constitutional standards, including those implicating the respective constitutional doctrines prohibiting cruel and unusual punishments and mandating due process. The Court also concludes that the actual prosecution and conviction of the defendant for capital murder under this statute were, with one exception relating to an aspect of the jury charge on sentencing, free of reversible error. The Court determines, among many other matters, that the selection and qualification of both the grand and petit juries did not violate the constitutional protection assuring a criminal defendant a fair and impartial jury, and, further, that there was no constitutional infirmity in the statutory scheme by which a defendant’s guilt is determined by a death-qualified jury. The Court, in addition, discounts a number of other claimed trial-level errors, regarding the use and effect of a prior non vult plea to murder, prosecutorial misconduct relating to critical defense testimony and an aspect of the court’s charge on sentencing.
The Court reverses, however, the imposition of the death sentence. It finds irremediable prejudicial error in the trial court’s instructions that had the effect of coercing the jury into reaching a unanimous verdict resulting in the death penalty.
I find myself in disagreement with many of the Court’s determinations. I choose, however, to deal only with those matters I deem most serious and important. The most significant area of disagreement relates to the constitutionality of the capital murder-death penalty statute. I find it essential therefore to explain the role of the State Constitution in a case such *345 as this and to examine the principles that should govern our understanding and application of the State Constitution.
On the merits of the constitutional issues, I direct attention first to whether the statute’s capital punishment scheme violates the state constitutional provisions relating to cruel and unusual punishment and due process as enhanced by the New Jersey doctrine of fundamental fairness. I then deal with those issues arising out of defendant’s trial and sentencing whose resolution in this case warrant additional grounds for reversal. Certain of these issues relate to the composition, selection and qualification of the grand and petit juries, and the use of a death-qualified jury to determine criminal guilt. Other issues concern the relevance and effect of defendant’s prior non vult plea to murder and the impact of prosecutorial misconduct upon defendant’s murder conviction and death sentence and the effect of certain improper prosecutorial comments combined with certain aspects of the trial court’s sentencing charge to the jury. 1
Finally, I consider the issue of whether the trial court impermissibly coerced the jury to reach a decision mandating the death penalty and whether, as the Court determines, the death sentence must be reversed on this ground. I then address the proper grounds for vacation of the death sentence.
I.
It is well-understood that this State has the “sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the federal Constitution.” Prune- *346 yard Shopping Center v. Robins, 447 U.S. 74, 81 , 100 S.Ct. 2035, 2040 , 64 L.Ed.2d 741, 752 (1980). Appreciation of their own sovereignity, and of the institutional constraints that the Supreme Court faces, impels states to consult their own constitutions as distinctive and independent sources of fundamental rights. See Pollock, supra, 35 Rutgers L.Rev. at 714—15; Williams, “In the Supreme Court’s Shadow: Legitimacy of State Regulation of Supreme Court Reasoning and Result,” 35 S.C.L.Rev. 353, 389-404 (1984); Sager, “State Courts and the Strategic Space Between Norms and Rules of Constitutional Law,” 63 Texas L.Rev. 959 (1985). 2 This Court has not hesitated to find for its citizens greater protections than are afforded under the federal Constitution. See, e.g., State v. Novembrino, 105 N.J. 95 (1987); State v. Gilmore, 103 N.J. 508 (1986); State v. Hunt, 91 N.J. 338 (1982); Right to Choose v. Byrne, 91 N.J. 287 (1982); State v. Alston, 88 N.J. 211 (1981); State v. Schmid, 84 N.J. 535 (1980), appeal dismissed sub nom. Princeton Univ. v. Schmid, 455 U.S. 100 , 102 S.Ct. 867 , 70 L.Ed.2d 855 (1982); State v. Bellucci, 81 N.J. 531 (1980).
This imperative of constitutional interpretation is especially important in areas particularly suited to state action. As the majority acknowledges, ante at 167-168, capital punishment is such an area of special state concern. With respect to capital punishment, “it is elementary that States are free to provide *347 greater protections ... than the federal Constitution requires.” California v. Ramos, 463 U.S. 992, 1013-14 , 103 S.Ct. 3446, 3459-60 , 77 L.Ed.2d 1171, 1188-89 (1983). 3
The majority, however, persuaded particularly by the reasoning in Gregg v. Georgia, 428 U.S. 153 , 96 S.Ct. 2909 , 49 L.Ed.2d 859 (1976), ante at 183-184, only half-heartedly consults our State Constitution and declines to require greater protections in this State than are afforded under federal death-penalty jurisprudence. Because I believe that the federal decisional law has lost coherence and pursues fundamentally contradictory—perhaps unattainable—goals, I have no confidence in federal precedent as a guide in interpreting our Constitution. I am unpersuaded that Gregg and its progeny afford adequate assurance that the death penalty will not be “wantonly and freakishly imposed.” Furman v. Georgia, 408 U.S. 238, 310 , 92 S.Ct. 2726, 2762 , 33 L.Ed.2d 346, 390 (1972) (Stewart, J., concurring). This substantial risk—approaching certainty—of arbitrary application is inconsistent both with the premises of Furman and Gregg and with this Court’s state constitutional jurisprudence, and violates the principle of fundamental fairness underlying due process.
The challenge of state constitutional jurisprudence, as Justice Pollock has written, “is to develop ... a jurisprudence that will make more predictable the- recourse to and the results of state constitutional law analysis.” Pollock, supra, 35 Rutgers L.Rev. at 708. This Court has adopted structured analyses in which recourse is had first to the federal Constitution to assess the *348 minimal protections implicated. As Justice Garibaldi has observed, “We refer to federal constitutional law only as establishing the floor of minimum constitutional protection.” State v. Gilmore, supra, 103 N.J. at 524 . If the individual is unprotected or inadequately protected under the federal Constitution, the Court engages in a systematic inquiry into whether the State Constitution affords greater protection. In accordance with this general approach, I shall look first to federal precedent to assess the scope of the protection it affords, and then to independent state sources to determine whether State constitutional principles comport with the federal precedent or require different, enhanced protections.
A.
Contemporary federal death penalty jurisprudence embraces conflicting goals that were anticipated in McGautha v. California, 402 U.S. 183, 207-08 , 91 S.Ct. 1454, 1467 , 28 L.Ed.2d 711, 726-27 (1971). Rejecting an argument that standardless discretion in capital sentencing violated due process, the Court asserted that “[any] attempt to catalog the appropriate factors [to guide discretion] ... could inhibit rather than expand the scope of consideration____ The infinite variety of cases ... would make general standards either meaningless ‘boiler plate’ or a statement of the obvious that no jury would need.” The Court characterized as “beyond present human ability” the tasks of identifying a priori “those characteristics of criminal homicides and their perpetrators which call for the death penalty” and reducing those characteristics to understandable and uniformly applicable language. Id. at 204 , 91 S.Ct. at 1465 , 28 L.Ed.2d at 724 . Any attempt to guide sentencing discretion, according to the McGautha Court, would prove at best ineffectual in guiding discretion, and inevitably arbitrary in distinguishing death-eligible offenses.
One year later, however, in Furman v. Georgia, supra, 408 U.S. 238 , 92 S.Ct. 2726 , 33 L.Ed.2d 246 , standardless sentenc *349 ing discretion was held to violate the eighth amendment’s proscription of cruel and unusual punishments (as extended to the states through the due process clause of the fourteenth amendment). It is impossible to distill a single rationale from the nine separate opinions issued in Furman. Writing for a plurality four years later in Gregg v. Georgia, supra, 428 U.S. 153 , 96 S.Ct. 2909 , 49 L.Ed.2d 859 , however, Justice Stewart identified the abiding thrust of Furman: “While Furman did not hold that the infliction of the death penalty per se violates the ... ban on cruel and unusual punishments, it did recognize that the penalty of death is different in kind from any other punishment____ Because of the uniqueness of the death penalty, Furman held that it could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner.” Id. at 188, 96 S.Ct. at 2932 , 49 L.Ed.2d at 883 . Thus, Furman is significant for merging eighth amendment analysis with the fundamental principle of fairness underlying due process; because the penalty is severe beyond rectification, its infliction under procedures risking arbitrary application cannot be countenanced.
Following Furman’s invalidation of all existing death penalty statutes, thirty-five states passed new death penalty statutes that purported to guide sentencing discretion. These statutes fell into two categories: those that guided discretion by effectively eliminating it, mandating the death penalty in certain cases; and those that guided discretion by attempting, the misgivings of McGautha notwithstanding, to enumerate for the sentencer deliberative factors in aggravation and/or mitigation of the offense. In 1976, in the complex of cases led by Gregg v. Georgia, supra, 428 U.S. 153 , 96 S.Ct. 2909 , 49 L.Ed.2d 859 , the Court established the conceptual framework of contemporary federal death penalty jurisprudence by invalidating statutes in North Carolina and Louisiana that mandated the imposition of a death sentence in specified cases, while upholding the constitutionality of statutes in Georgia, Florida, and Texas that enumerated deliberative factors to guide sentencing discretion. *350 See 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); Gregg v. Georgia, supra, 428 U.S. 153 , 96 S.Ct. 2909 , 49 L.Ed.2d 859 ; cf. Roberts v. Louisiana, 428 U.S. 325 , 96 S.Ct. 3001 , 49 L.Ed.2d 974 (1976); Woodson v. North Carolina, 428 U.S. 280 , 96 S.Ct. 2978 , 49 L.Ed.2d 944 (1976) (rejecting mandatory death sentences as unconstitutional). In doing so, the Court seemingly fused the elements of cruel and unusual punishment analysis with due process principles:
[W]e believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment ... requires consideration of the character and record of the individual offender and the circumstances of the offense as a constitutionally indispensable part of the process of inflicting the penalty of death. [Woodson v. North Carolina, supra, 428 U.S. at 304, 96 S.Ct. at 2991 , 49 L.Ed.2d at 961 (plurality opinion) (emphasis added).]
Mandatory death sentences assure uniform application but are nonetheless unconstitutional, the Court held, because they deprive defendants of a “particularized consideration” of individual character and circumstances that might mitigate the offense. Statutes like Georgia’s, by contrast, which enumerate circumstances of aggravation but allow for consideration of individualized mitigating circumstances, were held to strike the proper balance, assuring consistent application by guiding sentencing discretion, while allowing for consideration of individualized mitigating circumstances. The Court thus set the parameters of contemporary death penalty constitutionality under the federal Constitution: the death sentences resulting from application of the statute must be at once uniform and individualized.
In concluding that both mandatory and arbitrary death sentences are unconstitutional, however, the Court was driven to uphold the very schemes for guided discretion it had disparaged as either ineffective or beyond human capacity in McGautha . The unguided discretion struck down in Furman offered no assurance that capital defendants would be treated uniformly according to their crimes, while the mandatory sentencing invalidated in Roberts and Woodson offered no assurance that they would be treated individually according to their characters. *351 When life is at issue, the Court held, either extreme is unacceptable. The requirements of consistency and individualization identified by the Court, as reflected in contemporary schemes for guided discretion, are thus an acknowledgement of the heightened protections due a defendant when the penalty he or she faces is irreversibly severe. See Gardner v. Florida, 430 U.S. 349 , 97 S.Ct. 1197 , 51 L.Ed.2d 393, 405-06 (1977) (White, J., concurring) (eighth amendment analysis implicates the Due Process clause “as the vehicle by which the strictures of the Eighth Amendment are triggered”).
Schemes for guided discretion, considered in the abstract, escape the mandatory and arbitrary extremes. I submit, however, that these extremes are avoided at a cost of doctrinal tension that has rendered unworkable the schemes embodying them. 4 Ultimately, such schemes are ineffectual in guiding sentencing discretion precisely because the unique severity of the penalty to be inflicted so escalates the contrary burdens of uniformity and individualization as to render them extraordinarily difficult, if not impossible, to reconcile. The progeny of Gregg reflects this current failure, if not ultimate futility. This experience argues strongly that the federal precedent not be used for guidance and that we look to our own constitutional resources. Because the majority ignores the lessons of this experience and insists that federal precedent be used to define our own Constitution, a more searching analysis and expose of the federal law is called for.
B.
Despite great diversity in the specific issues it has addressed, and in the reasoning with which those issues have been addressed, the federal case law since Gregg is unified by the *352 attempt of the Supreme Court to manage the contrary imperatives of uniformity and individualization, to check, in other words, the tendency of individualized sentencing to be arbitrary while preventing uniform sentencing from becoming Procrustean. See generally Special Project, supra, 15 Rutgers L.J. at 281-303 (describing developments in case law). In Lockett v. Ohio, 438 U.S. 586 , 98 S.Ct. 2954 , 57 L.Ed.2d 973 (1978), a plurality of the Court emphasized the requirement of individualized sentencing deliberations in reversing a death sentence imposed under a statute that limited, in the interest of uniformity, the number of mitigating circumstances a sentencer could consider. Chief Justice Burger, writing for the plurality, was
satisfied that [the] qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed. The mandatory death penalty statute in Woodson was held invalid because it permitted no consideration of “relevant facts of the character and record of the individual offender or the circumstances of the particular offense.” ... We ... conclude that the Eighth and Fourteenth Amendments require that the sentencer ... not be precluded from considering as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. [Id. at 604, 98 S.Ct. at 2964 , 57 L.Ed.2d at 989-90 (emphasis supplied) (citation deleted).]
Justice Rehnquist dissented, accusing the Court of having gone, in its death penalty rationales, “from pillar to post,” id. at 629 , 98 S.Ct. at 2973 , 57 L.Ed.2d at 1005 (Rehnquist, J. dissenting), and arguing that if defendants, in the interest of individualized sentencing, are “permitted to offer as evidence in the sentencing hearing any fact, however bizarre ... the new constitutional doctrine will not eliminate arbitrariness or freakishness ... but will codify and institutionalize it____ [I]t will not guide sentencing discretion but will totally unleash it.” Id. at 631 , 98 S.Ct. at 2974 , 57 L.Ed.2d at 1006 (Rehnquist, J. dissenting). 5
*353 This exaltation of individualized sentencing over uniformity continued in Eddings v. Oklahoma, 455 U.S. 104 , 102 S.Ct. 869 , 71 L.Ed.2d 1 (1982), in which the Court held that “|j]ust as the State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence.” Id. at 113-14 , 102 S.Ct. at 876, 71 L.Ed.2d at 10-11 (emphasis supplied).
The Court’s emphasis on individualized sentencing has not been limited to the context of mitigating factors. In Enmund v. Florida, 458 U.S. 782 , 102 S.Ct. 3368 , 73 L.Ed.2d 1140 (1982), the Court overturned a death sentence imposed on a person who aided and abetted a homicide but did not kill or attempt to kill and who lacked the intent to kill. Justice White explained:
The question before us is not the disproportionality of death as a penalty for murder, but rather the validity of capital punishment for Enmund’s own conduct. The focus must be on his culpability, not on that of those who committed the robbery and shot the victims, for we insist on “individualized consideration as a constitutional requirement in imposing the death sentence”____ [Id. at 798, 102 S.Ct. at 3377, 73 L.Ed.2d at 1152 (citation omitted).] 6
Given the Court’s expansion of the requirement of individualization, and given the tendency of individualized sentencing toward arbitrariness, it is legitimate to question whether the Court has been able to vindicate the polar imperative of uniformity. In Gregg v. Georgia, supra, 428 U.S. 153 , 96 S.Ct. 2909 , 49 L.Ed. 2d 859 , the Court relied primarily upon two *354 aspects of the Georgia statute as guarantors of uniformity in capital sentencing: the requirements that the jury “find a statutory aggravating circumstance before recommending a sentence of death,” id. at 197, 96 S.Ct. at 2936, 49 L.Ed.2d at 888, 7 and that “the Supreme Court of Georgia compareQ each death sentence with the sentences imposed on similarly situated defendants to ensure that the sentence of death in a particular case is not disproportionate.” Id. at 198, 96 S.Ct. at 2937, 49 L.Ed. 2d at 888.
As with mitigating factors, the Court’s treatment of aggravating factors has emphasized individualized treatment of cases over uniform application of laws. In Gregg itself, the Court rejected facial challenges to several of Georgia’s statutory aggravating factors. Petitioner argued that statutory provisions specifying as aggravating such factors as the “vileness” or “depravity” of the murder, the petitioner’s “substantial history of serious assaultive criminal convictions,” or the “great risk of death to more than one person” created by the petitioner were either “so broad that capital punishment could be imposed in any murder case” or “vague and therefore susceptible of widely differing interpretation, thus creating a substantial risk that the death penalty will be arbitrarily inflicted____” Id. at 201-02 , 96 S.Ct. at 2938, 49 L.Ed.2d at 890-91. The Court acknowledged the possible force of these arguments, but relied on the Georgia Supreme Court to narrow the application of *355 these factors. Id. at 202, 96 S.Ct. at 2938, 49 L.Ed.2d at 890-91.
That the Georgia Court was failing to narrow the “vileness” factor became evident in Godfrey v. Georgia, 446 U.S. 420 , 100 S.Ct. 1759 , 64 L.Ed.2d 398 (1980), where the Court reversed a death sentence imposed after the trial court instructed the jury by merely reading the “vileness” language. Adverting to the statutory language—“outrageously or wantonly vile, horrible and inhuman”—the Court stated: “There is nothing in these few words, standing alone, that implies any inherent restraint on the arbitrary and capricious infliction of the death sentence.” Id. at 428 , 100 S.Ct. at 1764, 64 L.Ed.2d at 406. The Court stopped short, however, of invalidating the aggravating factor in the interest of uniformity, relying on the Georgia Court’s narrowing construction in other cases (see detailed discussion of these developments, infra at 394-398). Justice Marshall concurred in the result, but challenged the Court’s reliance on the Georgia Supreme Court to narrow the construction, arguing that the “Georgia court has made no substantial effort to limit the scope of [the “vileness”] factor, but has instead defined the provision so broadly that practically every murder can fit within its reach.” Id. at 441, 100 S.Ct. at 1771, 64 L.Ed.2d at 414 (Marshall, J., concurring), citing Dix, “Appellate Review of the Decision to Impose Death,” 68 Geo.L.J. 97, 110-123 (1979). 8
If Godfrey did in fact re-emphasize channeling discretion in the interest of consistent sentencing, three 1983 decisions re *356 treated from that goal, to the extent that they did not abandon it entirely. In Zant v. Stephens, 462 U.S. 862 , 103 S.Ct. 2733 , 77 L.Ed. 2d 235 (1983), the issue was whether the invalidity of one of the aggravating factors considered by a jury in imposing a death sentence required that sentence to be vacated. The Supreme Court affirmed the Georgia Supreme Court’s determination that the sentence was valid despite the invalidity of the underlying aggravating circumstance. In doing so, it accepted the Georgia Court’s characterization of its sentencing system as one in which statutory guidance of discretion ends once a single aggravating factor is found. See id. at 871-73 , 103 S.Ct. 2733 , 77 L.Ed.2d at 246-47. The unbridled discretion exercised by the jury at the “selection stage”—i.e., once it has found a single aggravating factor—was held to be legitimate, because “[w]hat is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime____ The Georgia scheme provides for categorized narrowing at the definition stage, and for individualized determination and appellate review at the selection stage.” Id. at 879, 103 S.Ct. at 2743, 77 L.Ed.2d at 251 (emphasis added). Because there is no weighing process, discretion is unguided once a valid aggravating circumstance is found; because there were two other valid aggravating circumstances found, the invalid circumstance was held not to have infected the death sentence.
Thus, death penalty jurisprudence was brought full-circle. The Court again sacrificed the uniformity that might be gained by requiring that discretion be guided throughout sentencing in the interest of “an individualized determination”; the discretion it allowed at the sentencing stage was, moreover, like the discretion condemned in Furman, unguided. The latent instability of a system requiring individualized sentencing deci *357 sions—its tendency toward arbitrary, unguided discretion—had become patent. 9
The holding in Zant was, if anything, expanded in Barclay v. Florida, 463 U.S. 939 , 103 S.Ct. 3418 , 77 L.Ed.2d 1134 (1983), in which the Court upheld the validity of a death sentence despite the sentencer’s consideration of (1) a nonstatutory and admittedly improper aggravating factor (the defendant’s prior criminal record), and (2) the racial hatred motivating the murder as a reason for imposing the death penalty. Justice Rehnquist, writing for the plurality, held that the judge’s reliance on his personal views as to racial hatred was not a nonstatutory aggravating circumstance, but instead “not an inappropriate way of weighing the ‘especially heinous, atrocious, or cruel’ statutory aggravating circumstance____” To the argument that allowing such reliance upon the sentencer’s experience was tantamount to allowing arbitrary discretion, the Court responded: “Any sentencing decision calls for the exercise of judgment____ We have never suggested that the ... Constitution requires that the sentencing process should be transformed into a rigid and mechanical parsing of statutory aggravating factors. But to attempt to separate the sentencer’s decision from his experiences would inevitably do precisely that.” Id. at 950 , 103 S.Ct. at 3425, 77 L.Ed. at 1144. Because the sentencer had found no mitigating circumstances to counterbalance the valid aggravating factors, the Court determined that the sentencer’s finding of an invalid aggravating circumstance could not have affected the weighing process and was thus harmless error: “There is no reason why the Florida Supreme Court cannot examine the balance struck by the trial judge and decide that the elimination of improperly considered aggravating circumstances could not possibly affect the balance____ ‘What is *358 important ... is an individualized determination____’ ” Id. at 958, 103 S.Ct. at 3429, 77 L.Ed.2d at 1149 (citation omitted).
Once again, therefore, the imperative of an individualized determination prevailed over the imperative of uniformity. Justice Stevens and Powell concurred in the judgment, but wrote separately because
[t]he Court has never thought it sufficient in a capital case merely to ask whether the state court has been “so unprincipled or arbitrary as to somehow violate the United States Constitution.” ... Nor does a majority of the Court today adopt that standard. A constant theme of our cases ... has been emphasis on procedural protections that are intended to ensure that the death penalty will be imposed in a consistent, rational manner. [Id. at 960, 103 S.Ct. at 3430, 77 L.Ed.2d at 1150 (emphasis added) (Stevens, J. concurring).]
For the first time, therefore, there was a recognition of some spill-over effect attributable to the exaggeration of “individualized” sentencing, an intimation that the Court’s elevation of “individualized” sentencing determinations over uniform sentencing determinations was eroding the heightened standard of review in capital cases. In retrospect this is not surprising, for as the amount of discretion afforded the sentencer increases, the degree of scrutiny to which that discretion is subject necessarily decreases, if only because the decision-making process becomes opaque. Once discretion is in some degree unfettered, the question is no longer whether the decision to impose death is unprincipled or arbitrary but, as the plurality phrased it, whether it is “so unprincipled or arbitrary as to somehow violate the United States Constitution.” Id. at 947, 103 S.Ct. at 3423, 77 L.Ed.2d at 1142.
The erosion of the requirement of consistency in Zant and Barclay continued in California v. Ramos, supra, 463 U.S. 992 , 103 S.Ct. 3446 , 77 L.Ed.2d 1171 , where the Court upheld a death sentence in the deliberation of which the jury was instructed to consider the possibilities that the defendant’s sentence, if less than death, might be commuted or that the defendant might be released on parole. To the argument that such an instruction introduces into death-penalty deliberations *359 an element of arbitrariness wholly unrelated to individualization because irrelevant to a defendant’s character or the circumstances of the crime, the Court responded, relying on Zant :
Once the jury finds that the defendant falls within the legislatively defined category of persons eligible for the death penalty ... the jury is then free to consider a myriad of factors to determine whether death is the appropriate punishment. In this sense, the jury’s choice between life and death must be individualized. “But the Constitution does not require the jury to ignore other possible ... factors in the process of selecting ... those defendants who will actually be sentenced to death.” [Id. at 1008, 103 S.Ct. at 3457, 77 L.Ed.2d at 1185 (emphasis added, citation omitted).]
The sentencer, then, is not limited to the circumstances either in aggravation or in mitigation of the specific offense and the individual defendant, but is “free to consider a myriad of factors,” among them the likelihood of the defendant’s eventual release or sentence reduction.
With Zant, Barclay, and Ramos , the imperative of “individualized sentencing” identified in Furman and Gregg was substantially advanced, but only by substantially eroding the polar imperative of consistency. Indeed, the very notion of “individualized” sentencing, which in the original Gregg-Woodson cases had referred to the character and circumstances of the individual defendant, was transmuted in Zant, Barclay, and Ramos to refer to the amount of discretion afforded the individual sentencer; thus, the Ramos Court, following Zant and Barclay , found that once the jury has found one aggravating circumstance, it “then is free to consider a myriad of factors____ In this sense, the jury’s choice ... must be individualized.” California v. Ramos, supra, 463 U.S. at 1008, 103 S.Ct. at 3457 , 77 L.Ed.2d at 1185 , citing Zant v. Stephens, supra, 462 U.S. at 878 , 103 S.Ct. at 2743 , 77 L.Ed.2d at 251 . The justification for this—presumably that the individual defendant can never have truly “individualized” sentencing unless the sentencer, at the selection stage, has unguided discretion—is equally a justification for the unguided discretion condemned in Furman, and *360 signals the collapse of any balance between individuality and uniformity. 10
Aside from the aggravating factors that were to limit the grounds for imposing sentence, and thus to guide discretion, the other principal guarantor of uniformity identified by the Court in Gregg was the requirement of a state review generally, and proportionality review specifically; indeed, both Zant and Barclay relied on the requirement of proportionality review to ensure uniformity in Georgia and Florida, respectively, in light of the unguided discretion at the “selection” stage of sentencing approved by the Court. Zant v. Stephens, supra, 462 U.S. at 875 , 103 S.Ct. at 2741 , 77 L.Ed.2d at 248 ; Barclay v. Florida, supra, 463 U.S. at 953-54, 103 S.Ct. at 3426-27 , 77 L.Ed.2d at 1146 (quoting Proffitt v. Florida, supra, 428 U.S. at 248-51, 96 S.Ct. at 2964-66 , 49 L.Ed.2d at 920-22 ). In Pulley v. Harris, 465 U.S. 37 , 104 S.Ct. at 871, 79 L.Ed.2d 29 (1984), however, the Court declined to require comparative proportionality review, acknowledging that “[a]ny capital sentencing scheme may occasionally produce aberrational outcomes” (i.e., execute undeserving defendants) but holding that California’s statute, requiring a jury finding of “special circumstances” beyond a reasonable doubt, and providing for sentence review by the trial judge and the State Supreme Court, “cannot be successfully challenged under Furman and our subsequent cases.” Id. at 53 , 104 S.Ct. at 880 , 79 L.Ed.2d at 42 . Justice *361 Brennan, in dissent, argued that the Court had betrayed the fundamental premise of Furman:
Although we may tolerate ... irrationality in other sentencing contexts, the premise of Furman was that such arbitrary and capricious decisionmaking is simply invalid when applied to "a matter [as] grave as the determination of whether a human life should be taken or spared.” ... As executions occur with more frequency, therefore, the time is fast approaching for the Court to reexamine the death penalty, not simply to ensure the existence of adequate procedural protections, but... to reevaluate the imposition of the death penalty for the irrationality prohibited by our decision in Furman. [Id. at 64, 104 S.Ct. at 886 , 79 L.Ed.2d at 49 (Brennan, J. dissenting) (citation omitted).]
The Court’s decisions in Zant, Barclay, and Ramos to insulate a significant degree of discretion from appellate review, and its decision in Pulley not to require state courts to compare each death sentence to other homicide cases to ensure uniformity, are all the more significant in light of its approval of foreshortened appellate procedures in Barefoot v. Estelle, 463 U.S. 880 , 103 S.Ct 3383 , 77 L.Ed.2d 1090 (1983). In Barefoot , the Court sustained a death sentence despite the fact that the two psychiatrists who were called at the penalty phase to testify that the defendant would constitute a “continuing threat” to society had never examined the defendant. The merits of petitioner’s challenge in Barefoot were lost, however, in the argument over the propriety of the expedited procedures and standard of review used by the Fifth Circuit in rejecting the challenge. 11 The plurality acknowledged that “it is not *362 clear whether the Fifth Circuit’s recent practice of requiring a showing of some prospect of success on the merits before issuing a stay of execution” is valid. “Approving the execution of a defendant before his appeal is decided on the merits would clearly be improper____” Id. at 889 , 103 S.Ct. at 2749, 77 L.Ed. 2d at 1102 (citations omitted). The Court held, however, that the Court of Appeals had addressed the question of probability of success on the merits and the merits themselves simultaneously. The Court then addressed the broader question of appellate review of habeas corpus petitions, approving the development of expedited procedures in capital cases. It acknowledged that “an increasing number of death-sentenced petitioners are entering the appellate stages” “but [held that] the severity of the penalty does not in itself suffice to warrant the automatic issuing of a certificate [of probable cause].” It further concluded that the appellate court could “expedite” the review of death sentence cases so that their determination “is not delayed by the weight of other business.” Id. at 892-95, 103 S.Ct. at 2750-52, 77 L.Ed.2d at 1103-06. The Court thus completely inverted the principle that the unique severity of death as a punishment required that it be treated differently from other punishments. Justice Marshall, in dissent, was mystified:
[U]ntil today it had never been suggested, so far as I know, that fewer safeguards are required where life is at stake than where only liberty or property is at stake. This Court has always insisted that the need for procedural safeguards is particularly great where life is at stake____ By suggesting that special summary procedures might be adopted solely for capital cases, the majority turns this established approach on its head. [Id. at 913-14, 103 S.Ct. at 2761-62, 77 L.Ed.2d at 1117-18 (Marshall, J., dissenting) (citations omitted).]
The plurality’s holding thus allowed an admittedly nonfrivolous appeal “to be singled out for summary treatment solely because the State has announced its intention to execute the appellant before the ordinary appellate procedure has run its course.” Id. at 913, 103 S.Ct. at 2761, 77 L.Ed.2d at 1117 (Marshall, J., dissenting) (emphasis omitted).
*363 Barefoot was decided the same day as Barclay and Ramos , which followed Zant in insulating much of the sentencer’s discretion from appellate review. These cases were followed within a year by the decision not to require comparative proportionality review in Pulley v. Harris. Taken together, the cases signal the Court’s “willingness to tolerate a significant degree of incoherence in capital sentencing procedures,” and thus its abandonment of the imperatives identified in Gregg . “The Supreme Court—1982 Term,” 97 Harv.L.Rev. 72, 118-27 (1984). There is, in other words, a causal connection between the decisions approving unguided discretion at the sentencing stage and the decisions truncating appellate review. To the extent that discretion is unguided, it is more likely to be arbitrary, and hence less likely to pass muster under an appellate review designed—because capital punishment is different in kind from all other forms of punishment—to ensure uniformity. To allow extra-statutory sentencing deliberations, as the Supreme Court has done, is to sanction arbitrary sentencing, and to make anything but perfunctory appellate review of sentencing impossible. The only way, therefore, to expand the scope of allowable discretion while maintaining a functional capital punishment system is to circumscribe the substance and procedure of appellate review. See id. at 127; Special Project, “Capital Punishment in 1984: Abandoning the Pursuit of Fairness and Consistency,” 69 Cornell L.Rev. 1129, 1214-16 (1984).
The cases from Zant through Barefoot to Pulley , then, have in fact if not in doctrine vanquished the requirement of consistency that lies at the core of Furman and Gregg , and thus mark a departure from the principle underlying those cases that death sentences require heightened procedural scrutiny because death is different in kind from any other form of punishment. This retreat unifies the cases decided since Barefoot . In Strickland v. Washington, 466 U.S. 668, 687 , 104 S.Ct. 2052, 2061 , 80 L.Ed.2d 674, 693 (1984), the Court held that “[f]or purposes of describing counsel’s duties ... Florida’s capital sentencing proceeding need not be distinguished from an ordi *364 nary trial.” Justice Marshall dissented on the grounds that the Court
has repeatedly acknowledged that the Constitution requires stricter adherence to procedural safeguards in a capital case than in other cases____ In my view, a person on death row, whose counsel’s performance fell below constitutionally acceptable levels, should not be compelled to demonstrate a ‘reasonable probability’ that he would have been given a life sentence if his lawyer had been competent ... [Id. at 716-17,104 S.Ct. at 2079-80, 80 L.Ed.2d at 712 (Marshall, J., dissenting).]
See id. at 702-06 , 104 S.Ct. at 2072-74, 80 L.Ed.2d at 702-06 (Brennan, J., concurring in the general principles but dissenting in their application in a capital sentencing context) (“the standards announced today can and should be applied with concern for the special considerations that must attend review of ... a capital sentencing proceeding” because “counsel’s general duty to investigate ... takes on supreme importance ... in the context of developing mitigating evidence to present to [a judge or jury considering the sentence of death]”); 12 see also Lockhart v. McCree, — U.S.-, 106 S.Ct. 1758 , 90 L.Ed.2d 137 (1986) (upholding use of death-qualified juries during guilt-phase); Poland v. Arizona, — U.S.-, 106 S.Ct. 1749 , 90 L.Ed.2d 123 (1986) (holding that resentencing hearing in capital case is not barred by Double Jeopardy when appeals court rejects sole aggravating factor found by sentencer; failure of sentencer to find other alleged aggravating factors is not an “acquittal” of these factors for Double Jeopardy purposes); id. at -, 106 S.Ct. at 1758, 90 L.Ed.2d at 136 (Marshall, J., dissenting) (“In no other circumstance would the Double Jeopardy Clause countenance the offer of a second chance to the State and the trial judge to find a better theory upon which to base a conviction”); Smith v. Murray, — U.S.-, 106 S.Ct. 2661 , 91 L.Ed.2d 434 (1986) (holding that petitioner had forfeited his right to object to psychiatric testimony by failing to raise the claim on initial appeal); Cabana v. Bullock, 474 U.S. 376 , *365 106 S.Ct 689 , 88 L.Ed.2d 704 (1986) (holding that the finding of intent to murder required under Enmund does not have to be made by the trial fact-finder, but can be made by federal appellate court after reviewing trial and appellate proceeding); id. at-, 106 S.Ct. at 705, 88 L.Ed.2d at 727 (Blackmun, J., dissenting) (“The Court’s conclusion that we should allow the State to adopt capital punishment schemes that depend on appellate factfinding because ‘it is by no means apparent that appellate factfinding will always be inadequate’ ... turns on its head the heightened concern with reliability ...” required in capital punishment cases); Heath v. Alabama, 474 U.S. 82 , 106 S.Ct. 433 , 88 L.Ed.2d 387 (1985) (holding that Double Jeopardy Clause does not prohibit imposition of death sentence in Alabama, despite life sentence in Georgia in murder-trial arising from same homicide); id. at-, 106 S.Ct. at 444, 88 L.Ed.2d at 402-04 (Marshall, J., dissenting) (“the Court errs in refusing to consider the fundamental unfairness of the process by which petitioner stands condemned to die____”).
No clearer signal of the Supreme Court’s abandonment of the concern for heightened procedural safeguards in capital cases can be found than Darden v. Wainwright, — U.S.-, 106 S.Ct. 2464 , 91 L.Ed.2d 144 (1986). In Darden , the trial court allowed a closing argument in which the prosecutor referred to the defendant as “an animal” and implied that a death sentence would be the only assurance against a future similar act. Applying conventional standards, the Supreme Court held that this allowance was harmless error. What Justice Blackmun wrote in dissent could have been written as easily in response to any of the above-cited post-Barefoot cases:
Although the Constitution guarantees a criminal defendant only “a fair trial [and] not a perfect one” ... this Court has stressed repeatedly in the decade since Gregg ... that the Eighth Amendment requires a heightened degree of reliability in any case where a State seeks to take the defendant’s life. Today’s opinion, however, reveals a court willing to tolerate not only imperfection but a level of fairness and reliability so low it should make conscientious prosecutors cringe. [Id. at -, 106 S.Ct. at 2476, 91 L.Ed.2d at 162 (Blackmun, J., dissenting) (footnote omitted) (citations omitted).]
*366 Far from heightening the procedural integrity required because of the nature of the punishment, the Supreme Court in recent cases has, if anything, begun to lower appellate standards to make the punishment possible.
The cases from Zant to Barefoot thus set the trend in federal death penalty jurisprudence that continues to this day: “Despite the confusing plethora of concurrences and dissents in the death penalty cases ... the Court may indeed be setting a course: away from such cases.” Paul Reidinger, “A Court Divided,” ABA Journal, January 1, 1987, at 46, 50. Significantly, the breakdown of the system in Zant-Barefoot occurred just as the system was beginning to yield “results”: roughly ninety percent of the executions since the first post-Furman execution in 1977 have occurred since the decisions in Barefoot, Barclay, and Ramos. See Note, supra, 95 Yale L.J. at 352. 13
*367 The fundamental incoherence of federal death-penalty doctrine has never been more evident than in the Supreme Court’s most recent disposition of the issue, California v. Brown, — U.S.-, 107 S.Ct. 837 , 93 L.Ed.2d 934 (1987). Four Justices agreed that California’s instruction prohibiting jurors from being swayed by “mere sympathy” was constitutional because by limiting “the jury’s consideration to matters introduced in evidence before it, it fosters the Eighth Amendment’s ‘need for reliability ...’” in sentencing and “ensures the availability of meaningful appellate review____” Id. at-, 107 S.Ct. at 840 , 93 L.Ed. 2d at 940 . Four other Justices, however, agreed that “[i]n forbidding the sentencer to take sympathy into account, this language on its face precludes precisely the response that a defendant’s evidence of character and background is designed to elicit, thus effectively negating the intended effect of the Court’s requirement that all mitigating evidence be considered.” Id. at -, 107 S.Ct. at 843 , 93 L.Ed.2d at 944 (Brennan, J., dissenting). The deciding vote was cast by Justice O’Connor, who concurred in the result only because, in her opinion, “the individualized assessment ... is a moral inquiry into the culpability of the defendant, and not an emotional response to the mitigating evidence____” Id. at-, 107 S.Ct. at 841 , 93 L.Ed. 2d at 942 . Thus, the plurality result, emphasizing uniformity, was belied by the majority rationale, reempha *368 sizing individualized sentencing. 14 States with guided-discretion death-penalty statutes will be hard-pressed, to say the least, to identify and apply “the rule of California v. Brown.” As this exposition has demonstrated, moreover, Brown is not aberrational in this sense, but symptomatic. To paraphrase Chief Justice Rehnquist, the case law since Gregg has not eliminated arbitrariness or freakishness but has codified and institutionalized it; it has not guided sentencing discretion but has confused it. Lockett v. Ohio, supra, 438 U.S. at 631 , 98 S.Ct. at 2974 , 57 L.Ed.2d at 1006 (Rehnquist, J., dissenting).
This, then, is the federal capital punishment system in which this Court acquiesces. The Supreme Court, unable to harness the contending forces of individualization and consistency, has allowed death penalty prosecutions to run out of control. It has sanctioned arbitrary sentencing, and sacrificed the principle underlying Furman and Gregg that death is different in kind from other forms of punishment and thus demands heightened procedural safeguards in sentencing. Instead of balancing individualization and consistency, it has permitted these indispensable principles to cancel out one another. The reasons for this failure are self-evident: “It is naive to mandate individualized sentencing intending it to yield uniform results. The stronger the commitment to either standard—individuality or uniformity—the more difficult the other is to attain.” Special Project, supra, 15 Rutgers L.J. at 300-03. Thus, when the Court has exalted individualization, it has crippled uniformity; when it has tried to rescue uniformity, it has become incoherent. The result is “legal doctrine-making in a state of nervous breakdown,” “almost a bare aesthetic exhortation that the state *369 just do something—anything—to give the death penalty a legal appearance.” Weisberg, “Regulating Death,” 1983 Sup.Ct. Rev. 305, 306. This experience at the federal level is disheartening. The federal precedent sets a poor example of constitutional jurisprudence and should not be considered as an interpretative model in giving meaning to our own Constitution or followed to set the outer limits of individual protection in this State.
C.
The lessons of this ongoing federal odyssey compel us to search our own Constitution for the protections that must be applied in determining the validity of our capital murder-death penalty laws. That search must be thorough, conscientious and principled. We have in a variety of contexts emphasized those considerations that are germane to an understanding of our State Constitution. State v. Williams, 93 N.J. 39, 57-59 (1983); State v. Hunt, supra, 91 N.J. at 358-72 (Handler, J., concurring). Among these are the constitutional text and structure, constitutional history, pre-existing state law, state traditions, particular state governmental concerns, strong public policy, and cognizable public attitudes. Id.; see Linde, “E. Pluribus— Constitutional Theory and State Courts” in Developments in State Constitutional Law, 283-91 (deriving from P. Bobbitt, Constitutional Fate (1982), comparable factors to be considered: textual, historical, and structural factors to help define the range of possible meanings; doctrinal, prudential, and ethical factors to help define the desirable interpretation). Decisions based on “[t]he explication of standards such as these demonstrate that the discovery of unique individual rights in a state constitution does not spring from pure intuition but, rather, from a process that is reasonable and reasoned.” Hunt, supra, 91 N.J. at 367 (Handler, J., concurring).
In the context of this case, the language and structure of the New Jersey Constitution, considered in light of the legal history
*370 of capital punishment in this state, this Court’s strong tradition of affording heightened protections to its citizens when important interests are at stake, and the special concern and interest of the State and its citizens in the administration of criminal justice, which are intensely concentrated in government-sanctioned capital punishment, create individual rights of exceptional strength. This informed understanding of the State Constitution reveals clearly that these individual rights and their corollary protections exceed those afforded under the federal Constitution. Our Constitution, so interpreted as a matter of both organic right and fundamental fairness, serves at a minimum to affirm the principles originally voiced in Furman and Gregg . Where a life is at stake, the procedures used to take that life must maximize both consistency and individual consideration in sentencing, and thus minimize arbitrariness and irrationality.
The Constitution itself is the first point of reference. The basic constitutional framework within which the validity of the capital murder-death penalty statute must be measured is the set of individual rights and corollary protections that are guaranteed by paragraphs 1, 5, and 12 of Article I of the New Jersey Constitution. Article I provides:
All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness. [N.J. Const, of 1947 art. I, para. 1]
No person shall be denied the enjoyment of any civil or military right, nor be discriminated against in the exercise of any civil or military right, nor be segregated in the militia or in the public schools, because of religious principles, race, color, ancestry or national origin. [Id., para. 5]
Excessive bail shall not be required, excessive fines shall not be imposed, and cruel and unusual punishment shall not be inflicted. [Id., para. 12]
Both the language and structure of these provisions affirm that the life of the individual—including a quality of life embodied in liberty, safety, security and happiness—is accorded the highest value and greatest protection possible under the State Constitution. Government cannot take life, or detract from the essence of life, or restrict the rights that are supportive of life, *371 based on arbitrary and unreasoned actions or invidious factors; even when sanctions must be imposed, the State may not impose any punishments that are cruel and unusual. It follows logically from these provisions and their obvious purport that when life itself is at stake government must be its most scrupulous to avoid any wrongful harm.
The history of New Jersey’s experience in the application of the capital punishment reveals an evolving understanding of this meaning of our Constitution. This history discloses continuing changes in the perceptions of the scope and depth of the constitutional principles that prize individual life. The law has evolved historically in the direction of heightened protections for the individual, reflecting, perhaps tacitly, the need for the law and government to minimize the risk of injustice. This evolving societal awareness of the existence and evil of arbitrariness has in part paralleled increases in our knowledge of social and individual behavior. Over the generations, our understanding of social and individual injustice has become more acute. With greater insights into the existence and reality of such injustice, protections to eliminate undue risks of arbitrariness have also been heightened. This history of capital punishment in our State is most dramatically illustrated by the decreasing use of the capital murder sanction.
The change from lesser to greater protections is evidenced in several areas. Perhaps the most significant changes have been in the law itself. Between 1709 and 1877, the death penalty was apparently mandatory for all first degree murders. Defendants who pleaded guilty were subject to a degree of guilt hearing to determine if the murder was one of first degree. See N.J. Revision 1709-1877, Crimes, § 68, p. 239. Significantly, the death penalty statute enforced between 1906 and 1971 allowed very few murderers to face capital trials; the statute itself narrowly defined a class of capital murderers, see N.J. S.A. 2A:113-2. As pointed out in State v. Genz, 57 N.J.L. 459 (Sup.Ct.1895), however, from the earliest time, courts abhorred entering a death judgment on a defendant’s admission, and *372 generally advised prisoners to retract the guilty plea and plead to the indictment to force the State to prove, to the jury’s satisfaction, all elements of the crime charged. Id. at 462-63 . Prompted by Hallinger v. Davis, 146 U.S. 314 , 13 S.Ct. 105 , 36 L.Ed. 986 (1892), in which a death sentence based on a guilty plea was upheld, the Legislature ended the practice. See Trenton Daily State Gazette, Feb. 14, 1893, at 5, cited in State v. Forcella, 52 N.J. 263, 277 (1968). The Legislature amended the statute in 1893 by abolishing the plea of guilty, thus eliminating “a ready and facile road to the gallows,” State v. Genz, supra, 57 N.J.L. at 462 , and authorizing a plea of non vult. If the non vult plea was accepted, the court was required to sentence the defendant to the same term of imprisonment as imposed upon a conviction of murder in the second degree. See Forcella, supra, 52 N.J. at 277 . The Forcella Court noted that the non vult plea was intended to benefit murder defendants by permitting the court to bar the death penalty where the facts so warranted.
The Legislature in 1916 again added protections against the imposition of capital punishment. L. 1916, c. 270. That amendment modified the penalty for first degree murder to “death unless the jury at the time of rendering the verdict shall recommend imprisonment at hard labor for life.” L. 1916, c. 170, p. 576. Another amendment increased the authorized maximum sentence on a non vult plea to life imprisonment. L. 1917, c. 238. While this amendment increased the maximum term, its purpose again was to improve the position of homicide defendants by encouraging courts to accept non vult pleas in circumstances in which a maximum term of years did not seem enough but the death penalty was too much. See Forcella, supra, 52 N.J. at 278 . 15 Finally, in In re Waiver of the Death *373 Penalty, 45 N.J. 501 (1965), this Court determined that a prosecutor has discretion to waive the death penalty in any case. “The result is that as to every murder indictment some official agency considers the fitness of the death penalty, the judge doing so on a plea of non vult, and either the prosecutor with the court’s approval or the trial judge doing so when the defendant stands trial.” Forcella, supra, 52 N.J. at 278-79 .
These legal developments were reflected in empirical results. The combination of the 1893, 1916 and 1917 amendments had a major impact on New Jersey capital defendants. After 1916, life-term prison sentences were meted out for murder with greater frequency than death sentences would have been. Between 1916 and 1955, 497 persons were given life sentences for murder; 157 persons (or 3.8 per year) were sentenced to death. Between 1907 and 1916, however, 62 persons were sentenced to death while only 3 were given life sentences for murder. See Bedau, “Death Sentences in New Jersey, 1907-1960,” 19 Rutgers L. Rev. 1 , 30-31 (1961). Moreover, while New Jersey executed 160 defendants between 1907 (when accurate records began to be kept) and 1972—when the death penalty was declared unconstitutional—the figures declined toward the end of that period (approximately 127 executed between 1907 and 1940; 36 executed between 1941 and 1960; 3 between 1961 and 1963; none after). See New Jersey State Prison, Historical Data on Death House (Trenton, 1970). Clemency also played a role in the low number of eventual executions in New Jersey. Between 1916 and 1960, two persons’ death sentences were commuted for every eleven persons executed. Before juries were given discretion to return a sentence of life imprisonment upon a conviction of first degree murder, two commutations occurred for every seven executions. See Bedau, supra, 19 Rutgers L. Rev. at 32.
*374 In other respects the legal system moved to ameliorate the arbitrariness in the administration of capital punishment. Greater procedural protections were provided through the availability of appellate review.
Under the 1948 Constitution, all appeals in capital causes are to be heard by the Supreme Court, and a writ of error with accompanying stay of execution is to issue automatically upon application____ New Jersey has moved from the position that appeal in capital cases is contingent on the pleasure of the court having authority to hear such appeals to the position that appeal is contingent only on the initiative of the defendant____ [Id. at 35-36.]
It was recognized that judicial review must be more scrupulous in capital cases than in others. State v. Mount, 30 N.J. 195 (1959).
The low number of criminals actually executed indicates, and is a consequence of, the strong procedural protections this State increasingly granted those facing the death penalty. Throughout that period the State developed a shared experience that, after prosecutors and juries and judges exercised their discretion, relatively few persons were sentenced to die. It is fair to conclude, in retrospect, that the history of our experience with capital punishment is the history of an evolving moral sense that the ultimate penalty should be inflicted in only the most egregious cases, under only the most rigorous procedural safeguards. Cf. Trop v. Dulles, 356 U.S. 86, 101 , 78 S.Ct. 590, 598 , 2 L.Ed.2d 630, 642 (1958) (the phrase “cruel and unusual punishment” “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society”).
Our history thus not only confirms that society places extraordinary value on individual life, but also teaches us society’s moral judgment that the death penalty should not be applied unless it is right to do so, unless, in other words, substantive and procedural protections have been maximized so that the risk of arbitrariness is reduced and the possibility of the ultimate injustice is eliminated.
The import of the constitutional language and structure and the history of our experience with capital punishment must be *375 appreciated in the broader context of New Jersey’s strong tradition of interpreting and applying its state Constitution to afford heightened protections for the individual, again reflecting our profound commitment to the worth of the individual.
We have in important cases willingly resorted to our State Constitution as an independent source of individual rights. We have not hesitated to recognize and vindicate individual rights under the State Constitution where our own constitutional history, legal traditions, strong public policy and special state concerns warrant such action. [State v. Williams, supra, 93 N.J. at 52 (1983) (citations omitted).]
See, e.g., State v. Novembrino, supra, 105 N.J. 95 ; State v. Gilmore, supra, 103 N.J. 508 ; State v. Hunt, supra, 91 N.J. 338 ; Right to Choose v. Byrne, supra, 91 N.J. 287 ; State v. Alston, supra, 88 N.J. 211 ; State v. Schmid, supra, 84 N.J. 535 ; State v. Johnson, 68 N.J. 349 (1975); Burlington Cty. NAACP v. Mt. Laurel, 67 N.J. 151 , cert, denied, 423 U.S. 808 , 96 S.Ct. 18 , 46 L.Ed.2& 28 (1975); Cameron v. International Alliance Of Theatrical Stage Employees, Local 384, 118 N.J.Eq. 11 (E. & A.1935). We have, in particular, endorsed an expansive reading of Article I, paragraph 1 of our Constitution, noting that “[t]he State Bill of Rights, which includes that provision, has been described as expressing ‘the ... ideals of the present day in a broader way than ever before in American constitutional history.’ ” Right to Choose, supra, 91 N.J. at 303 (citation omitted).
Our decisions demonstrate that the State Constitution independently provides important guarantees of civil liberties in New Jersey. As recognized by Justice Pollock in Right to Choose, supra, 91 N.J. at 303, this Court “remain[s] obligated ... to evaluate [all statutes] in light of the Constitution of New Jersey.” We carry out this task without granting any presumption that the Supreme Court’s interpretation of the federal Constitution will determine the extent of state constitutional *376 rights. See Hunt, supra, 91 N.J. at 355 (Pashman, J., concurring); id. at 367 n. 3 (Handler, J., concurring). 16
A consistent theme of our cases in the criminal law context has been this Court’s unwillingness to follow the Supreme Court where its retrenchment of fundamental rights tolerates a significantly higher degree of arbitrary state action than would our own protections of these rights. Thus, in State v. Novembrino, supra, 105 N.J. at 850 , Justice Stein, writing for the Court, understood that our State Constitution does not recognize the good-faith exception to the exclusionary rule, because the exception represents a Supreme Court retrenchment that failed to fully protect the underlying individual right to be free from unreasonable searches. The Court in an opinion written by Justice Garibaldi, Matter of Guarino, 104 N.J. 218 (1986), refused to follow the Supreme Court’s reformulation of the fifth amendment privilege because it failed to fully protect the underlying individual privacy interests embodied in this State’s common-law privilege. Justice Clifford, writing for the Court in State v. Alston, supra, 88 N.J. at 226 , explained the Court’s refusal to follow federal precedent in a search and seizure context: “Because we find that these recent decisions of the Supreme Court provide persons with inadequate protection against unreasonable searches and seizures, we respectfully part company with the Supreme Court’s view of standing and construe Article I, paragraph 7 of our State Constitution to afford greater protection.”
This Court has consistently seen the necessity for expanded protection when individual liberties are most vulnerable. We *377 have not hesitated to provide such protection when the Supreme Court, abandoning such protections, has opted to take a less protective route.
Protection of individuals involved in a criminal trial has also been enhanced by our recognition of the principle of fundamental fairness, a doctrine under New Jersey law that serves to protect citizens generally against unjust and arbitrary governmental action, and specifically against governmental procedures that tend to operate arbitrarily. The doctrine of fundamental fairness serves, depending on the context, as an augmentation of existing constitutional protections or as an independent source of protection against state action. As we explained in State v. Abbati, 99 N.J. 418 (1985):
Fundamental fairness can be viewed as an integral part of the right to due process— It may also be considered a penumbral right reasonably extrapolated from other specific constitutional guarantees____ Regardless of its source, fundamental fairness is a settled repository of rights of the accused. [Id. at 429-30 (citations omitted).]
In this State, fundamental fairness is implicated at all stages of the administration of justice. In State v. Kunz, 55 N.J. 128 (1969), we held that a defendant had a right to disclosure of presentence reports and a right to be heard regarding any adverse matters within those reports. Our holding was
taken [not] as a matter of constitutional compulsion for the Supreme Court holdings to date do not dictate it and we are not now prepared to find that it is of constitutional dimension under our State Constitution. It is being taken as a matter of rudimentary fairness____ [Id. at 144 (citations omitted).]
In Rodriguez v. Rosenblatt, 58 N.J. 281, 294 (1971), we observed that although there is no inflexible constitutional requirement that counsel be assigned without cost to indigents charged in the municipal courts with disorderly persons or other petty offenses, nonetheless “considerations of fairness dictate” that counsel be provided where necessary “to protect unrepresented indigent defendants against injustices which may result from their inability to cope fairly with municipal court charges against them.”
*378 Considerations of fundamental fairness are particularly heightened where the potential harm to the individual from arbitrary state action is greatest. Thus, in State v. Tropea, 78 N.J. 309 (1978), we held that a defendant could not be retried on a charge for which the defendant had been convicted, where the conviction had been reversed by the Appellate Division. We disallowed a retrial, because “constitutional compulsion aside, it is plain to us that considerations of fundamental fairness militate against any retrial in this case.”
In State v. Gaffey, 92 N.J. 374 (1983), we said:
In fitting circumstances, [an incompetent whose indictment has been dismissed without prejudice] would doubtless, as a matter of elemental fairness and due process, be protected from any attempt to renew the prosecution against him, notwithstanding an earlier dismissal of the indictment without prejudice.
[Constitutional considerations relating to speedy trial, due process and fundamental fairness will serve, when appropriate, to bar such future prosecutions [of those recently recovered from mental illness], even though not time-barred. [Id. at 388, 389.]
Fundamental fairness thus enhances or extends the scope of other constitutional protections. In State v. Gregory, 66 N.J. 510 (1975), we referred to the concept of fundamental fairness in requiring compulsory joinder of known offenses based on the same conduct or arising from the same criminal episode. We recognized that this protection went beyond the level of protection required by the constitutional guarantee against double jeopardy. The protection, instead, was intended “to satisfy the considerations of fairness and reasonable expectations.” Id. at 521 ; see also State v. Calvacca, 199 N.J.Super. 434, 440 (App. Div.1985) (custodial sentence was “infringement of defendant’s right to fundamental fairness in sentencing, a doctrine related to but somewhat broader in its application than the constitutional safeguard against double jeopardy”); State v. Godfrey, 139 N.J.Super. 135, 138 (App.Div.), cert. denied, 73 N.J. 40 (1976) (second prosecution of a defendant was barred, the court noting *379 that “the motion to dismiss should have been granted whether it be on grounds of double jeopardy or fundamental fairness”).
Fundamental fairness constitutes an imperative that government minimize arbitrariness in its dealing with individual citizens. The imperative can be expressed in substantive as well as procedural laws. In State v. Talbot, 71 N.J. 160 (1976), we authorized an objective standard for an entrapment defense as a barrier against arbitrary police action. The holding was based on the constraints fundamental fairness places on state action.
This ruling is bottomed on the principle of fundamental fairness____ [T]he methods employed by the State must measure up to commonly accepted standards of decency of conduct to which government must adhere. [Id. at 168.]
This Court has explained how “[i]t is universally recognized that, as an aspect of the courts’ duty to ensure fundamental fairness, they will root out arbitrary government action.” State v. Leonardos, 73 N.J. 360 , 377 n. 7 (1977); accord State v. Dalglish, 86 N.J. 503, 513 (1981). At its heart, this injunction to avoid arbitrariness recognizes an equation between individual rights and government action. Mathews v. Eldridge, 424 U.S. 319, 335 , 96 S.Ct. 893, 903 , 47 L.Ed.2d 18, 33 (1976); Matter of Polk, 90 N.J. 550, 562 (1982). As with due process, the two must balance: the greater and more important the individual interest, the greater and more sedulous must be the vigilance of the law in preventing the arbitrary invasion of that interest. Where the individual right at stake is the right to life, therefore, the safeguards of that right must be maximal, for “[t]he penalty of death is qualitatively different from a sentence of imprisonment, however long.” Woodson v. North Carolina, supra, 428 U.S. at 304, 96 S.Ct. at 2989 , 49 L.Ed.2d at 961 . This Court’s continued reaffirmation of the principle of fundamental fairness in the ordinary criminal context, moreover, stands in sharp contrast to the Supreme Court’s retreat from the proposition that the death penalty requires heightened procedural safeguards.
*380 In sum, an independent and separate analysis of our State Constitution demonstrates that individual life is accorded the greatest importance and vested with the highest value. This is fairly discerned from the grand and sweeping provisions of Article I, paragraphs 1, 5, and 12. A full examination of the Constitution also reveals that correlative governmental duties are expressly interposed to protect individual life, such as the prohibition against cruel and unusual punishment and invidious discrimination. The exaltation under the State Constitution of individual life, as well as liberty, safety, security and happiness, accounts in considerable measure for the development of both independent State constitutional interpretation and the ancillary doctrine of fundamental fairness. This has come to mean that government must accord those protections that are necessary and effective to vindicate and assure the individual interest at stake. It means, in the context of a capital murder-death penalty statute—given the unique importance of individual life and finality of death—that the maximum substantive and procedural protections possible must be used, protections that can realistically minimize the risk of arbitrary enforcement.
In assessing the constitutionality of New Jersey’s capital punishment statute, we “can hardly ignore the ebb and flow” of the federal case law. State v. Novembrino, supra, 105 N.J. at 857 . Further, though mindful of the undeniable popular support for capital punishment, at least in some forum, as reflected in opinion polls and in the passage of this statute, we cannot be swayed by it. As Justice Stein states in Novembrino , “[o]ur concern ... is with the Constitution and with the basic and fundamental guarantees that that document was intended to afford to all our citizens, particularly in times of public ferment---- In our tripartite system of separate governmental powers, the primary responsibility for [their] preservation is that of the judiciary.” Id. at 857.
New Jersey, I believe, can benefit from the hard lessons of the federal experiment with guided discretion in capital cases. The record of that experiment makes “it quite possible that the *381 damage to the constitutional guarantee [in this case, of due process and against cruel and unusual punishment] may reach such a level as to cause the Court to reconsider its experiment” with guided discretion. Id. at 857. We need not abide such a result, for our state constitutional jurisprudence furnishes persuasive reasons not to follow federal precedent in this State. This is particularly so when “recent decisions of the Supreme Court provide persons with inadequate protection ...,” State v. Alston, supra, 88 N.J. at 224-26 ; State v. Novembrino, supra, 105 N.J. 95 ; Matter of Guarino, supra, 104 N.J. 42 , and when federal decisional law is perceived to be unsettled or unclear, State v. Gilmore, supra, 103 N.J. 508 ; State v. Williams, supra, 93 N.J. 39 ; State v. Schmid, supra, 84 N.J. 535 . Here, the federal case law is unsettled, to say the least, for the standards adopted by the Court are radically indeterminate. The combination—unsettled case law and a trend toward retrenchment—counsels against following the federal precedent.
This Court’s continued reaffirmation of the principle of fundamental fairness in the ordinary criminal context, moreover, stands in sharp contrast to the United States Supreme Court’s retreat from the proposition that the death penalty requires heightened procedural safeguards. Justice Marshall highlighted the difference between the policies underlying recent federal decisions and the independent attitude of this State in his dissent in Heath v. Alabama, supra, 474 U.S. 82 , 106 S.Ct. 433 , 88 L.Ed.2d 387 : “[T]he Court errs in refusing to consider the fundamental unfairness of the process by which petitioner stands condemned to die____ Whether viewed as a violation of the Double Jeopardy Clause or simply as an affront to the due process guarantee of fundamental fairness, Alabama’s prosecution of petitioner cannot survive constitutional scrutiny.” Id. at -, 106 S.Ct. at 445, 88 L.Ed.2d at 402-04 (Marshall, J., dissenting). The federal cases, in short are irreconcilable with the principles we have established to inform capital punishment jurisprudence. By treating capital cases like any others they fail to make the bedrock distinction upon which the entire *382 edifice of capital punishment rests. The majority’s acknowledgement of the infirmities of the federal precedent, moreover, and its assurance that it is “not obliged to follow the reasoning of all these [post-Gregg ] United States Supreme Court decisions in interpreting our own state constitutional protections,” ante at 190, have a rather hollow ring in light of its uncritical application in this case and in State v. Biegenwald of such post- Gregg cases as Pulley v. Harris, ante at 324-330, Lockhart v. McCree, ante at 248-261, California v. Brown, ante at 297, and Poland v. Arizona, see State v. Biegenwald, supra, 106 N.J. at 52 .
We imperil more than lives, therefore, by following federal death-penalty precedent. To the extent that the majority’s decision today is inconsistent with the approach of our prior state constitutional cases, we jeopardize our efforts to develop a principled recourse to the State Constitution. To the extent that the progeny of Gregg is contrary to the spirit of fundamental fairness underlying our State Constitution, we risk the integrity of our constitutional protections.
II.
There should be consensus on the point that the Supreme Court is willing to tolerate in federal death-penalty jurisprudence an unacceptable level of arbitrariness. The question becomes whether death sentences issued under the New Jersey statute, N.J.S.A. 2C:ll-3, are likely to be any less arbitrary. This question is fairly raised by defendant’s challenge to the major aspects of the statute. He contends that the entire statutory scheme fails to provide a meaningful and effective basis for distinguishing those cases in which the death penalty is an appropriate penalty from those in which it is not, that it creates an intolerable risk that death will be inflicted in an arbitrary and capricious manner. Three major reasons are advanced to show that the statute fails to satisfy these constitutional standards: the death penalty is per se invalid; the capital *383 murder-death penalty statute is overly broad and inclusive; and the statute is too vague and imprecise. The Court rejects these contentions.
The majority contends {ante at 190) that I have made, in effect, a per se argument against all death penalty statutes by acknowledging the validity of the principles underlying death penalty jurisprudence while documenting the inability of courts to honor them. A per se invalidation of the death penalty is not, however, an ineluctable logical consequence of this argument; all that follows of necessity is that the protections afforded by federal death penalty jurisprudence in the name of these principles have been minimal, and that a New Jersey death penalty statute must provide, as a matter of independent state constitutional law, significantly greater protection than the minimum countenanced under federal precedent. I do note, however, my apprehension that time will settle the question. All of us will, I am certain, endure the frustrating and frenetic attempts to enforce capital punishment in a fair and sensible way that now plague our sister states. That experience will, I fear, yield grim confirmation of the fact that capital punishment in a civilized constitutional society is virtually impossible to administer in a principled manner. The per se invalidity of official capital punishment, in other words, may well be self-revealing. I therefore choose to concentrate on the statute itself. 17
In assessing the constitutionality of our capital murder-death penalty statute under the standards relating to cruel and unusual punishment and due process of law, the major questions concern whether the law suffers from overbreadth and vague *384 ness. These concerns bring us to examine (1) whether the law proceeds upon a definition of murder that itself is too broad and inclusive; (2) whether the aggravating factors enumerated in the statute to narrow this broad definition are themselves so vague as to be either meaningless or all-inclusive; and (3) whether the asserted deficiencies in terms of overbreadth and vagueness are exacerbated by (a) the fact that the jury determinations of death-eligibility and death-selection are made simultaneously, and (b) the failure in the statute to provide adequate standards in terms of who may be exposed initially to a capital-murder prosecution, i.e., prosecutorial discretion, and who may ultimately have been unjustly subjected to the death penalty, i.e., proportionality review.
A.
The primary argument advanced by defendant is that our death penalty statute is violative of the cruel and unusual punishment prohibition, as well as due process standards, because the statute has failed both to sufficiently narrow the scope of the statute and to clearly define the crimes for which death can be a punishment.
There are two fundamental aspects to any death-penalty proceeding: a determination of death eligibility, in which the death-eligible class is first defined and then narrowed; and death selection, in which those in the death-eligible class whose crimes warrant the infliction of society’s harshest sanction are selected for death. There is confusion, however, as to where one begins and the other ends. Thus, the majority rejects defendant’s position that the aggravating factors “fail to define a narrow class of persons eligible for death,” concluding instead that “aggravating factors ... are considered only after the death eligibility determination has been made.” Ante at 188 n. 20.
Much, if not all, of the confusion is traceable to the United States Supreme Court’s discussion of sentencing procedures in *385 Gregg v. Georgia, supra, 428 U.S. 153 , 96 S.Ct. 2909 , 49 L.Ed. 2d 859 , and Zant v. Stephens, supra, 462 U.S. 862 , 103 S.Ct. 2733 , 77 L.Ed. 2d 235 . 18 The Court noted, in Gregg , that “[i]n the wake of Furman, Georgia amended its ... statute, but chose not to narrow the scope of its murder provisions____ Georgia did act, however, to narrow the class of murders subject to capital punishment by specifying ... aggravating circumstances____” Id. at 197-98 , 96 S.Ct. at 2936, 49 L.Ed. 2d at 887-88. The emphasis in Gregg was on the role of the aggravating factors in guiding sentencing discretion; Zant made it clear, however, that the guiding of discretion during the sentencing proceeding did not extend to the sentencing decision. As we have seen, supra at 356, the Court in Zant upheld a death sentence based in part on consideration of an unconstitutional aggravating circumstance, but was forced in doing so to depart from the principles of Gregg by sanctioning unbridled juror discretion at the selection stage, the sentencing decision itself. The Court’s holding was based in part on its acceptance of the Georgia Supreme Court’s rather abstract depiction of Georgia’s capital sentencing structure as a pyramid:
The first plane of division above the base separates from all homicide cases those which fall into the category of murder. This plane is established by the legislature in statutes defining terms such as murder [and manslaughter]____
The second plane separates from all murder cases those in which the penalty of death is a possible punishment. This plane is established by statutory definitions of aggravating circumstances.
********
*386 The third plane separates, from all cases in which a penalty of death may be imposed, those cases in which it shall be imposed. There is an absolute discretion in the factfinder to place any given case below the plane and not impose death____ [Zant, supra, 462 U.S. at 871 , 103 S.Ct. at 2739 , 77 L.Ed. 2d at 246 .]
Thus, under the Court’s analysis “death-eligibility” is an equivocal term; while all statutory murders are “death-eligible,” in the sense that conviction of murder exposes the defendant to the penalty proceeding, it is equally arguable that a defendant is not truly “death-eligible” until the jury has found one aggravating factor, for only then has the jury separated “from all murder cases those in which the penalty of death is a possible punishment.” Id. As the Court noted, “statutory aggravating circumstances play a constitutionally necessary function at the stage of legislative definition; they circumscribe the class of persons eligible for the death penalty.” Id. at 878 , 103 S.Ct. at 2743, 77 L.Ed. 2d at 250-51. It is equally reasonable, in other words, to argue based on Zant that death-eligibility is defined by the aggravating factors, as to insist, as the majority does, that death-eligibility is defined before the aggravating factors are considered.
New Jersey’s statute differs from the Georgia scheme described in Zant , however, in a decisive respect. Unlike Georgia, where statutory aggravating circumstances serve the sole function of narrowing “the class of persons eligible” for the penalty, and thus play no part in guiding the jury’s death-selection discretion, in New Jersey aggravating circumstances guide the jury’s death-selection discretion. That this distinction makes a difference can be seen in Zant itself, where the Court noted and distinguished cases in which consideration of improper aggravating factors required vacation of the sentence; the dispositive difference, the Court noted, was that those cases involved a statutory weighing process that would be corrupted by consideration of an invalid aggravating factor. Id. at 873 n. 12, 103 S.Ct. at 2741 n. 12, 77 L.Ed. 2d at 247 n. 12.
It is appropriate, therefore, to consider, independently of Zant , whether under New Jersey’s statute the aggravating *387 factors properly play a role in defining the class of death-eligible murderers. There are two possibilities: (1) that they do not, in which case the class of death-eligible murderers is defined by N.J.S.A. 2C:ll-3(a)(l) and (2), the statutory definition of murder; or (2) that the aggravating factors do define death-eligibility, in which case they serve both to narrow the class of death-eligible murderers and to guide the jury’s discretion in the weighing process. In my opinion, either interpretation is constitutionally defective, the first because of the overbreadth of the statutory definition of murder, the second because of the inherent prejudice, from the defendant’s point of view, of defining the offense as the sentence is imposed, and because of the inherent overbreadth and vagueness of the aggravating factors, most notably c(4)(c).
1.
We turn first then to the definitional provisions of the State capital murder-death penalty statute, NJ.S.A. 2C:ll-3(c). This permits the infliction of the death penalty on anyone who commits a homicide by purposely or knowingly causing death or serious bodily injury if one of the statutory aggravating circumstances is found to exist and to outweigh any mitigating factors. In effect, the statute encompasses all murders, namely, all purposeful killings, all knowing killings, and all killings that result from a purposeful or knowing infliction of serious bodily harm. N.J.S.A. 2C:ll-3(a).
The extraordinary breadth of the current class of murders initially eligible for the death penalty can be illustrated by a comparison to the class that was historically eligible for capital punishment throughout this century under our former death penalty statutes. 19 The former murder statute prescribed the *388 death penalty option only for first degree murder. This was defined to include “Murder which is perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, or which is committed in perpetrating or attempting to perpetrate certain felonies.” See L. 1965, c. 212, § 1; R.S. 2:138-2; L. 1917, c. 238, § 1, p. 801 (1924 Supp. § 52-107); L. 1898, c. 235, § 107, p. 824 (C.S. p. 1780, § 107). This definition of first degree murder remained substantially unchanged (there were minor amendments) after 1898.
Under the former statute, with the exception of murders accomplished by poison or lying in wait, murders during the course of certain named felonies and the murder of a law enforcement officer, the State was required to prove three mental operations before a first-degree murder conviction could stand: premeditation, deliberation, and willful execution of the plan. See State v. Anderson, 35 N.J. 472, 496-97 (1961). All other murder was presumptively second degree murder—a non-capital offense—regardless of the circumstances of the murder. The element of deliberation was the crucial difference between first degree (capital) and second degree (non-capital) murder. Deliberation, followed by the homicide, is what was considered so outrageous about first degree murder, justifying societal punishment and retribution in the form of the death penalty. The current mens rea requirement of “purposely” committing the murder, N.J.S.A. 2C:2-2(b)(l), closely corresponds to the former requirement of premeditation, i.e., intent to kill. The new statute, however, contains no requirement of deliberation.
The current statute also includes, as capital murder, death that results solely from the intentional infliction of serious bodily harm. It was clear under the former law that the intent only to do serious bodily harm was insufficient for a first *389 degree murder conviction. See, e.g., State v. Thomas, 76 N.J. 344 (1978); State v. Madden, 61 N.J. 377 (1972); State v. Anderson, supra, 35 N.J. at 497 ; State v. Wynn, 21 N.J. 264 (1956).
The inclusion of these murders and of “knowing” murders—a rough equivalent to the former second degree murder—expands the class of murderers who may be death-eligible as compared to the former statute. The majority acknowledges this, but insists that “[t]he comparison ... is irrelevant” because there is no requirement that the class at the guilt phase “be smaller than the class ultimately subject to the death penalty under a state’s prior statute.” Ante at 187. The majority further finds “no authority” imposing a “ ‘duty to limit’ the number of individuals who are eligible for the death penalty.” Id. Presumably, however, the limitation of the class of those eligible for the death penalty, a duty the majority does acknowledge, will result in a reduction in numbers, unless the class itself is meaninglessly large. I submit that the class here is so broad that the only meaningful definition of the class of death-eligible murderers can occur during the penalty phase. This state’s homicide provision, standing alone, subjects to a possible death sentence defendants who under the prior statute would not even have been given a life sentence. Indeed, under our prior statute even most first degree murder defendants were not subjected to a death sentence, but could exercise a non vult plea; given a choice between excising the non vult plea provision and invalidating the death penalty statute, moreover, the Court in State v. Funicello, 60 N.J. 60 (1972), invalidated the statute, bridling at “the grisly [alternative] proposition that every defendant must risk death____” Id. at 82 (Weintraub, C.J., concurring); cf. id. at 100 (Francis, J., dissenting) (“The result of excision of the non vult provision is to require every first degree murder defendant to be put to trial before a jury, which will be called upon to decide guilt and death or life imprisonment. I agree this is a harsh result, but it follows inevitably from the United States Supreme Court *390 fiat____”). Of course, under federal precedent there is no bar to determining death-eligibility during the penalty phase. It is clear, however, that to subject such a broad, nearly all-inclusive, class of defendants to a possible death sentence is to usurp the historical policy of this State, and of this Court, that capital punishment is an extreme sanction to be imposed in only the most egregious cases. 20 To the extent that the class is broadened, therefore, the comparison with the prior statute is entirely relevant, for any death sentences imposed upon defendants who would not have been death-eligible under this state’s long-standing definition of first degree murder are, if nothing else, comparatively disproportionate. The likelihood, moreover, that juries will arrive at consistent results, given the variety of states-of-mind and circumstances contemplated by such a sweeping statutory definition of capital murder, is remote to say the least, as is the likelihood that this Court will be able to conduct a meaningful comparative appellate review.
New Jersey’s statute can be “saved,” in short, only if the aggravating factors applied in the penalty phase circumscribe substantially the class of death-eligible murderers. This Court’s historical unwillingness to subject large numbers of first degree murder defendants under the old statute to a possible death sentence counsels in favor of requiring a narrower definition of death-eligible offenses at the guilt phase, and against the sweeping death-eligibility provisions of N.J.S.A. 2C:ll-3(a)(l) and (2).
2.
If the broad definition of murder, standing alone, fails to distinguish adequately the capital offenses, it is arguable that *391 the aggravating factors cure any overbreadth by narrowing the class of death-eligible offenses. This argument depends on two assumptions: (1) that no prejudice results from the fact that, unlike the Georgia scheme, aggravating factors in New Jersey serve both to narrow the class and to guide the jury in the discrete function of death selection; and most important (2) that the aggravating factors themselves are sufficiently clear and narrowly drawn to actually narrow the class. I reject both assumptions.
Our statute, as noted, provides a global definition of death-eligible murders. The overbreadth of this definition is “saved,” as in Georgia’s scheme, by interposing “aggravating factors” that must be found by the jury to determine which murderers qualify for capital punishment. In Zant , the Supreme Court approved this limited definitional use of aggravating factors, ruling that “in Georgia, the finding of an aggravating circumstance does not play any role in guiding the sentencing body in the exercise of its discretion, apart from its function of narrowing the class of persons ... eligible for the death penalty.” 462 U.S. at 871 , 103 S.Ct. at 2739, 77 L.Ed.2d at 247. This structure differs dramatically, however, from the New Jersey statute, in which the finding of an aggravating factor does play a critical “role in guiding the sentencing body in the exercise of its discretion” by virtue of its function in the weighing process, in addition to “its function of narrowing the class of persons ... eligible for the death penalty.” I have serious reservations as to whether the use of aggravating factors in a single proceeding both to define the murder as a capital offense and to determine the imposition of the death sentence is a fair way to administer the ultimate sanction of death.
This is not to deny that the weighing of aggravating and mitigating circumstances “provides the additional restraint on jury discretion that the petitioner in Zant argued was constitutionally necessary.” Ante at 196. The constitutional infirmity is not in a weighing process. Rather, it inheres in the fact that weighing does double duty. It is used in the factfinding *392 necessary to determine whether a murder is capital in the same proceeding and deliberation that determines whether the murderer should be executed. Any distinction between finding an aggravating circumstance and weighing it when the tasks are performed in the same proceeding is at best, in my view, academic; the potential for jury misguidance and arbitrariness is simply too great. 21
Other states, recognizing the absolute requirement that death penalty statutes be applied restrictively and clearly, have addressed this structural problem by defining with some particularity at the outset the specific kinds of murder considered “capital murder.” See Cal. Penal Code § 190.2 (Supp.1986). Under these schemes, once a defendant is found guilty of capital murder according to pre-established criteria, the jury’s discretion is then further guided by additional objective standards in sentencing defendants thus convicted of “capital murder”; see Ala. Code § 13A-5-40 to 52 (Supp.1984); Ariz.Rev. StaLAnn. § 13-703, 13-1105 (1978 & Supp.1984); Ill.Rev.Stat ch. 38, § 9-1 (Supp.1984); La.Rev.Stat.Ann. § 14:30, La.Code Crim.Proc., arts. 905 to 905.9 (1984); Miss. Code Ann. § 97-3-19 (2), 97-3-21 (Supp.1984); N.H. Rev.Stat.Ann. § 630:1, 630:5 (Supp.1984); Texas Penal Code Ann. § 19.03, Texas Stat.Ann. C.C.P. art. 37.071 (1981 & Supp.1984); Utah Code Ann. § 76-3-207 ,76-5-202 (1978 & Supp.1984). In other words, death-qualifi *393 cation and death-selection are discrete, successive determinations, each to be made by the jury under appropriate standards.
Even though this Court decides that N.J.S.A. 2C:ll-3 does rationally narrow the class of persons eligible for the death penalty under federal precedent, the uniqueness of our statute makes it appropriate as a matter of State constitutional doctrine to interpret Article I, paragraphs 1 and 12 to require a more reliable method of defining the class of murders subject to the death penalty. As noted, the jury’s consideration of aggravating factors serves both to specify which defendants are in the class and, in the same process, to decide their punishment. The aggravating factors act as specifications of the class; they form, in effect, elements of the offense defendants must have committed to come within the class. See ante at 201 n. 27 (“It is clear to us . . . that functionally, the aggravating factors in the Act are indistinguishable ... from the elements of a crime”) (citing Arnold v. State, 236 Ga. 534 , 224 S.E.2d 386 (1976)); State v. Silhan, 302 N.C. 223, 269 , 275 S.E.2d 450, 482 (1981). However, from the defendant’s perspective, the sentence is imposed as and whén the offense is defined. If the aggravating factors themselves are overbroad or capable of varying interpretation, therefore, the New Jersey process would not only fail to guide jury discretion in choosing the ultimate penalty once the jury has found the defendant to be within the death-eligible class, but it would fail to adequately narrow and define the class itself. The majority concedes, for instance, that “[i]t is true that any aggravating factor may alone lead to death, and that one aggravating factor—that the murder was committed in conjunction with a robbery, rape, burglary, arson, or kidnapping ...—includes a very substantial portion of all murders.” Ante at 188-189. Thus, the over-breadth of the statutory definition of murder is carried through to the aggravating factors, which—however unambiguous in guiding death-selection discretion—necessarily fail to narrow a class they almost completely absorb. See discussion of factor c(4)(c), infra at 200-209. The State Constitution should *394 therefore be interpreted to require much greater narrowing of the death-eligible class before sentencing as a hedge against arbitrariness and to achieve greater reliability in sentence results.
3.
The intended definitional and discretion-guiding function of the aggravating factors is undermined by the vagueness of the principal factor implicated in this case, c(4)(c). Aggravating factor e(4)(e) permits a jury to consider whether “[t]he murder was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim.” N.J.S.A. 2C:ll-3c(4)(c). In Gregg v. Georgia, supra, 428 U.S. at 201, 96 S.Ct. at 2938 , 49 L.Ed.2d at 890 , the Supreme Court acknowledged that “it is, of course, arguable that any murder involves depravity of mind or an aggravated battery,” but insisted that “there is no reason to assume that the Supreme Court of Georgia will adopt such an open-ended construction____” The majority today similarly acknowledges that “[t]he provision is troublesome because of its obvious vagueness. Merely quoting it is the best proof of that fact.” Ante at 198. The majority admits, moreover, that the results of attempts in other states to limit the application of their versions of factor c(4)(c) “often provide examples better not followed.” Ante at 205.
The majority persists, nonetheless, in attempting a limiting construction of the factor, reading out of the statutory language both the “outrageously and wantonly vile, horrible or inhuman” phraseology and the legislature’s recent amendment that would include “aggravated assault” as an aggravating factor. Sufficient clarity and narrowing can be achieved, the majority believes, by focusing on the defendant’s state of mind; the standard that results encompasses (1) murders “in which the defendant intended to cause extreme physical or mental suffering” prior to death, but only where the victim actually felt pain or suffered, as well as (2) murders manifesting deprav *395 ity of mind, where, in other words, “the murder was not the product of greed, envy, revenge, or another of those emotions ordinarily associated with murder and served no purpose for the defendant beyond his pleasure of killing____” Ante at 207-209.
The majority’s construction appears, at first blush, both novel and narrow. I submit, however, that when seen in the context of the efforts of other states to limit the application of the factor, the majority’s effort is just one more attempt to salvage an incurably vague standard by rewriting it.
There can be no better illustration of the incurable vagueness of factor c(4)(c) than the attempts of other jurisdictions to limit its application. These attempts have been characterized by an initial assurance that the factor will be narrowed, a convincing-sounding statement of the narrowed standard, and a gradual temporizing expansion of the standard until it becomes unrecognizable. See Richard A. Rosen, “The ‘Especially Heinous’ Aggravating Circumstance in Capital Cases—The Standardless Standard,” 64 N.C.L.Rev. 941 (1986). Indeed, every state whose construction of the “vileness” factor has paralleled the majority’s in not limiting application of the factor to “serious physical abuse” before death has “proven ... unable to provide any other identifiable, consistent, and meaningful limitations on the especially heinous circumstance.” Id. at 968. What has emerged “is a pattern of ad hoc, standardless, and after-the-fact decision making—a pattern of judicial legislation.” Id.
Thus, Georgia, in Harris v. State, 237 Ga. 718 , 230 S.E.2d 1 (1976) , cert. denied, 431 U.S. 933 , 97 S.Ct. 2642 , 53 L.Ed.2d 251 (1977) , stated that it approved death penalties founded on this aggravating circumstance only when those cases are “at the core and not the periphery____” Id. at 733, 230 S.E.2d at 11 . Yet as Justice Marshall, concurring, noted four years later in Godfrey, Georgia had either abandoned that intention or “its understanding of the ‘core’ had become remarkably inclusive.” *396 Godfrey v. Georgia, supra, 446 U.S. at 436 , 100 S.Ct. at 1768 , 64 L.Ed.2d at 411 (Marshall, J., concurring).
As the Supreme Court noted in Godfrey, by 1977 the Georgia Supreme Court had reached three separate conclusions respecting the (b)(7) aggravating factor as evidenced by the opinions in Harris v. State, supra, 237 Ga. 718 , 230 S.E.2d 1 and Blake v. State, 239 Ga. 292 , 236 S.E.2d 637 , cert. denied, 434 U.S. 960 , 98 S.Ct. 492 , 54 L.Ed.2d 320 (1977). The Godfrey Court noted them approvingly:
The first was that the evidence that the offense was “outrageously or wantonly vile, horrible or inhuman” had to demonstrate "torture, depravity of mind, or an aggravated battery to the victim.” The second was that the phrase, “depravity of mind,” comprehended only the kind of mental state that led the murderer to torture or to commit an aggravated battery before killing his victim. The third, derived from Blake alone, was that the word, “torture,” must be construed in pari materia with “aggravated battery” so as to require evidence of serious physical abuse of the victim before death. [ 446 U.S. at 431 , 100 S.Ct. at 1766, 64 L.Ed.2d at 408 (footnotes omitted).]
Of course, the first conclusion of the Georgia courts—that torture, depravity of mind or aggravated battery demonstrates an outrageously or wantonly vile murder—is not a construction of the statutory language; it is the statutory language. See Ga.Code Ann. § 17-10-30(b)(7). The second and third constructions, however, taken alone, would have excluded Harris itself, since no physical abuse before death occurred in Harris.
In the wake of Godfrey, the Georgia court redefined the scope of this factor. In Hance v. State, 245 Ga. 856 , 268 S.E. 2d 339 , cert. denied, 449 U.S. 1067 , 101 S.Ct. 796 , 66 L.Ed.2d 611 (1980), the court rejected a contention that the factor had become a “catch-all” through varied applications. The court reestablished and refined the criteria required to uphold this factor in a capital case.
This statutory aggravating circumstance consists of two major components, the second of which has three sub-parts, as follows: (I) The offense of murder was outrageously or wantonly vile, horrible or inhuman (II) in that it involved (A) aggravated battery to the victim, (B) torture to the victim, or (C) depravity of mind of the defendant. In determining “[wjhether * * * the evidence supports the jury’s or judge’s findings of [this] statutory aggravating circumstance * * *. (Code Ann. § 27-2537(c)(2)), the evidence must be sufficient to *397 satisfy the first major component of the statutory aggravating circumstance and at least one sub-part of the second component, as herein-after set forth. [Id. at 861, 268 S.E.id at 345 (citation omitted).]
Both before Godfrey and after Hance , the Georgia Supreme Court has found torture supported whenever the victim anticipated the prospect of death. See Rivers v. State, 250 Ga. 303 , 298 S.E.2d 1 (1982); Harris v. State, supra, 237 Ga. 718 , 230 S.E.2d 1 (victim anticipated death). Thus, Georgia has strayed quite far from the conclusion approved in Godfrey that torture and aggravated battery should be construed in pari materia to require evidence of serious physical abuse before death.
The Georgia court has also strayed from its original conclusion that “depravity of mind” comprehended only that mental state that led the murderer to torture or batter his victim before death. That conclusion suggests that depravity could not exist independently of torture or battery. If it was ever seriously applied, that interpretation has been completely eroded. The Georgia court has found that physical harm to the victim after death will support a finding of depravity of mind. See Fair v. State, 245 Ga. 868 , 268 S.E. 2d 316 , cert. denied, 449 U.S. 986 , 101 S.Ct. 407 , 66 L.Ed.2d 250 (1980) (defendant who mutilates or seriously disfigures the victim’s body after death may be found to have a depraved mind). Moreover, in interpreting “depravity of mind,” the Georgia court has found that age and physical characteristics of the victim may be considered, see Thomas v. State, 247 Ga. 233 , 275 S.E.2d 318 (1980), cert. denied, 452 U.S. 973 , 101 S.Ct. 3127 , 69 L.Ed.2d 984 (1981), as well as the intent to inflict psychological distress on a witness. Strickland v. State, 247 Ga. 219 , 275 S.E.2d 29 , cert. denied, 454 U.S. 882 , 102 S.Ct. 365 , 70 L.Ed.2d 192 (1981). The Georgia Supreme Court has on occasion, moreover, simply recited the facts of cases in which no torture or battery occurred and concluded that these facts evidenced a depraved mind. See Godfrey, supra, 446 U.S. at 436 , 100 S.Ct. at 1768 , 64 L.Ed.2d at 411 (Marshall, J., concurring). This is especially true of instantaneous gunshot murders, which the Georgia *398 court labels “execution-style” by way of reaching its depravity conclusion. See, e.g., Solomon v. State, 247 Ga. 27 , 277 S.E.2d 1 (1980), cert. denied, 451 U.S. 1011 , 101 S.Ct. 2348 , 68 L.Ed.2d 863 (1981) (execution-style murder of unarmed robbery victim); Ruffin v. State, 243 Ga. 95 , 252 S.E.2d 472 (1979), cert. denied 444 U.S. 995 , 100 S.Ct. 530 , 62 L.Ed.2d 425 (1979) (shotgun murder of child showed depravity); Banks v. State, 237 Ga. 325 , 227 S.E.2d 380 (1976), cert. denied, 430 U.S. 975 , 97 S.Ct. 1667 , 52 L.Ed.2d 370 (1977) (defendant’s shooting of two non-offending defenseless persons execution-style was depraved). In still other cases, the Georgia Supreme Court has simply noted, in conclusory fashion, that “the evidence supported the jury’s finding under § (b)(7).” Godfrey v. Georgia, supra, 446 U.S. at 440 n. 12, 100 S.Ct. at 1771 n. 12, 64 L.Ed.2d at 414 n. 12 (Marshall, J., concurring) (citing cases).
The application of similar versions of the “heinous” aggravating factor in other states has also been contradictory. Florida’s application of “especially heinous, atrocious or cruel” has been especially erratic. Since that court infused a “conscienceless or pitiless” limitation, evidenced by “torture,” into the meaning of this aggravating factor in State v. Dixon, 283 So. 2d 1, 9 (Fla.1973), cert. denied, 416 U.S. 943 , 94 S.Ct. 1950 , 40 L.Ed.2d 295 (1974), applications of the factor appear to have strayed from any definite “core.” Compare Mason v. State, 438 So.2d 374, 379 (Fla.1983), cert. denied, 465 U.S. 1071 , 104 S.Ct. 1330 , 79 L.Ed.2d 751 (1984) (heinousness supported by victim’s painful death by stabbing; “[she] lingered, unable to breathe and aware of what was happening to her”) with Teffeteller v. State, 439 So.2d 840, 846 (Fla.1983) (“[t]he fact that the victim lived for a couple of hours in undoubted pain and knew that he was facing imminent death ... does not set this senseless murder apart ...”), cert. denied, 465 U.S. 1074 , 104 S.Ct. 1430 , 79 L.Ed. 2d 754 (1984). While the court in some cases has adhered to the torture requirement set forth in Dixon, see, e.g., Pope v. State, 441 So.2d 1073, 1078 (Fla.1983) (at least three gunshot wounds and bludgeoning prior to causing death by drowning); Wilson *399 v. State, 436 So.2d 908, 912 (Fla.1983) (beating with hammer prior to killing by shotgun); Bottoson v. State, 443 So.2d 962, 966 (Fla.), cert. denied, 469 U.S. 873 , 105 S.Ct 223 , 83 L.Ed.2d 153 (1984) (abduction, stabbing fourteen times, and run over with a car), the court has allowed factors distinct from this “torture” focus to enter into the analysis of whether a particular murder is heinous. See, e.g., Breedlove v. State, 413 So.2d 1, 9 (Fla.), cert. denied, 459 U.LS. 882, 103 S.Ct 184 , 74 L.Ed.2d 149 (1982) (while pain suffered from a single stab wound alone might not make this murder heinous, atrocious, and cruel, the attack occurred while the victim lay asleep on his bed).
In Magill v. State, 428 So.2d 649 (Fla.), cert. denied, 464 U.S. 865 , 104 S.Ct. 198 , 78 L.Ed.2d 173 (1983), the Florida Supreme Court rejected a claim that the factor had become unconstitutionally vague because of the wide swings in meaning varied applications had created. The court’s justification is classic temporizing:
[t]here can be no mechanical, litmus test established for determining whether this or any aggravating factor is applicable. Instead, the facts must be considered in light of prior cases addressing the issue and must be compared and contrasted therewith and weighed in light thereof. [Id. 428 So. 2d at 651 .]
The ad hoc experience of the Georgia and Florida courts has been replicated in the other states employing aggravating factors akin to c(4)(c). Thus, Arizona, which, like the majority, takes the view that depravity refers to the defendant’s state of mind, has upheld death sentences based on the factor “[w]he-never anything about a murder has proved offensive to the court.” Rosen, supra, 64 N.C.L.Rev. at 980-81. See, e.g., State v. Ceja, 126 Ariz. 35 , 612 P.2d 491 (1980) (death after multiple shot wounds was not “cruel” because no pain was suffered, but was definitely depraved because multiple shots evidenced a “ ‘shockingly evil’ state of mind ‘marked by debasement’ ”). See generally Rosen, supra, 64 N.C.L.Rev. at 972-28 (surveying inability of state Supreme Courts of Florida, North Carolina, Nebraska, Alabama, Arizona, Georgia, Mississippi, Missouri, Oklahoma, and Virginia to limit the application of *400 their narrowing constructions when the constructions were, like the majority’s, not limited to physical abuse before death). This most comprehensive state-by-state analysis of the case law concludes:
The legislature must provide a standard of sufficient definiteness to limit the discretion of juries and courts. Experience shows that the terms “heinous, atrocious or cruel,” “depravity of mind,” and “outrageously vile, wanton or inhuman” cannot perform this function. These terms, largely because they are so subjective and emotion laden, cannot, under the eighth amendment, limit the class of those eligible for the death penalty or provide a meaningful basis to distinguish the few who are to die from the many who are to live. They cannot, as required by the fourteenth amendment, adequately define and limit the elements that the prosecution must prove____ They cannot, as required by both the eighth and fourteenth amendment, sufficiently channel the sentencer’s discretion to eliminate, or at least to minimize, the possibility of arbitrariness, capriciousness, and discrimination. [Id. at 990.]
I am persuaded by this decisional experience from other states that aggravating factor c(4)(c) is intractably vague. It cannot be sensibly clarified so as to overcome the intolerable risk that it will be vague in virtually all contexts and hence produce results unacceptably arbitrary and capricious. That this inherent vagueness infects the majority’s attempt to limit the factor is best seen by exposing its construction to a real-world test. In State v. Newlon, 627 S.W. 2d 606 (Mo.) (en banc), cert. denied, 459 U.S. 884 , 103 S.Ct. 185 , 74 L.Ed.2d 149 (1982), the Missouri court construed a version of c(4)(c) identical to New Jersey’s in the following factual context: defendant entered a store and asked the clerk for cigarettes; when the clerk turned around the defendant shot him twice in the back with a shotgun; there was no conclusive evidence of suffering or of awareness of the gun. The Missouri court rejected the argument that the jury’s depravity finding was unconstitutional under Godfrey; depravity, it held, had meaning independent of torture or aggravated battery. The murder was depraved, the court held, because the defendant had killed the victim without warning or provocation; the killing, as the court put it, was “senseless.” Id. at 622. Similarly, under the majority’s analysis a killing without warning or provocation, a “senseless” killing, satisfies the depravity standard. The manipulability of *401 this standard becomes clear, however, when the facts are varied. Suppose the murderer had threatened the victim, and the victim had threatened him in turn. In this event, the murder might no longer be “depraved,” because it was committed not out of enjoyment but out of concern for personal safety; regardless of whether it was “depraved,” however, the fact that a warning was issued brings the crime within the ambit of intentional infliction of psychological pain (awareness of impending death), thus still potentially satisfying the factor. Of course, the murder might still, at the court’s discretion, be considered depraved, if the defendant had no “standard motive” for plotting the killing in the first instance. The point, however, is that motives are both innumerable and, ultimately, inscrutable; this is evidenced by the majority’s own open-ended catalog of standard motives for murder (“greed, envy, revenge, or another of those emotions ordinarily associated with murder____” ante at 211). Indeed, to the extent that a given defendant is likely to fit within the majority’s definition of depravity, i.e., his motives are inexplicable in ordinary terms, he is also likely to verge on insanity. It is troubling that our society, which seeks to safeguard its citizens against arbitrary treatment by the state, responds to its most disturbed citizens by executing the depraved while acquitting the insane.
Nor are the objective factors unequivocal. In Newlon , the court “held that the jury’s finding was supported by the evidence that defendant shot twice: if the victim still was alive after the first shot, the defendant must have suffered; if the victim died after the first shot, the second shot showed a purpose to mutilate the corpse.” Rosen, supra, 64 N. C.L.Rev. at 985; Newlon, supra, 627 S.W. 2d at 622 . The majority’s standard is no less malleable; in cases where there are multiple wounds, the jury can find either suffering or, if pain cannot be proved, mutilation. The majority’s attempt to limit the application, in other words, by excluding murders where pain was intended but not felt is ineffectual; even where the absence of pain is provable, the defendant’s intent to inflict pain in addition *402 to death makes the presence of mutilation (and thus depravity) likely. Ante at 209, n. 35.
The majority’s insistence, finally, that “[t]he definition of this kind of murder is not vague,” ante at 210, highlights once more the structural infirmities of the Act. It may be legitimate for society to be concerned, in capital murder, with “the complete absence—from society’s point of view, of any of the recognizable motivations or emotions that ordinarily explain murder”; I believe, however, that this concern should be registered—from the defendant’s point of view—earlier than when the sentence is imposed.
Aggravating circumstances are used in determining who among the class of all murderers is death-eligible. In this sense, these factors define the elements of capital murder. See discussion, supra, at 391-392. The factfinding necessary to determine if the murder is capital murder occurs in the sentencing rather than the guilt phase; moreover, the identical factfinding is necessary to determine if the murder is to be punishable by death. Thus, in the same process that the jury considers aggravating factors to determine if the murder is capital murder, it also must use the aggravating factors to determine if the sentence is death. In our statute, because the definition of capital murder is all-encompassing, and it is “narrowed” by resort to aggravating factors, the vagueness of c(4)(c) infects the very definition of the crime. Cf. State v. Payton, supra, 361 So.2d 866 (“vileness” aggravating factor sufficient for sentencing purposes but not as an element of an offense). In my opinion this is an impermissible way to narrow the class of death-eligible murders. I believe that a statute that in effect permits a jury to determine that any murder can be eligible for the death penalty without a prior, distinct and discrete determination that the murder is suitable for consideration as a death-penalty murder is intolerably arbitrary.
The reasoning of the California Supreme Court in People v. Superior Court of Santa Clara Cty., 31 Cal.3d 797 , 183 *403 Cal.Rptr. 800 , 647 P.2d 76 (1982) is persuasive on this point. In Santa Clara, the Court invalidated California’s equivalent of factor c(4)(c). The court noted that terms such as depravity “address the emotions and subjective, idiosyncratic values. While they stimulate ... repugnance, they have no directive content.” Id. 183 Cal.Rptr. at 802 , 647 P.2d at 78 . Such terms fail, the court concluded, to meet “the standards of precision and certainty required of statutes which render persons eligible for punishment, either as elements of a charged crime or as a charged special circumstance.” Id. The conclusion that the aggravating factor was invalid took on added significance, moreover, because of the structure of the California statute:
We must reject the People’s argument that when the jury is determining the truth of the charged special circumstance, it is exercising a sentencing function and that, therefore, the requirements of due process for narrowness and clarity are lessened. Proceedings do not move into the penalty, or sentencing, phase until after a defendant is convicted of first degree murder and the special circumstance is found to be true____ The fact ... to be found in regard to the special circumstance is no less crucial to the potential for deprivation of liberty ... then are the elements of the underlying crime____ [/<£]
Although the structure of the New Jersey statute differs, as a matter of its basic definition of murde

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9646896. Public record. Not legal advice.