State v. Wakefield

Justice LONG,

dissenting.

For proportionality review purposes, Brian Wakefield’s cohort is made up of a motley crew of life-sentenced multiple murderers, who laid in wait for their victims and bludgeoned, shot, stabbed, and scissored to death men, women, and children of all ages. Wakefield’s crimes, execrable as they were, were in fact not “worse” than those of his comparators and the personal stories of those in his group were not “better” than his. Yet alone among his cohort, Wakefield awaits lethal injection while every other defendant will live out his days in prison. Advancing inconsequential and unprecedented distinctions, or no distinctions at all, the majority declares Wakefield’s sentence of death to be proportional. Such a result cannot be countenanced in a system of laws.

I.

Because we believe that “death is different,” Gregg v. Georgia, 428 U.S. 153, 188 , 96 S.Ct. 2909, 2932 , 49 L.Ed.2d 859, 883 (1976), we have developed a proportionality review methodology that provides a “more expansive source of protections against the arbitrary and nonindividualized imposition of the death penalty” than does the United States Constitution. State v. Ramseur, 106 N.J. 123, 190 , 524 A.2d 188 (1987).

*554 Proportionality review is unique in that it is not a “just deserts” analysis of one defendant’s deathworthiness. Indeed, we presume that “the death sentence is not disproportionate to the crime in the traditional sense.” Pulley v. Harris, 465 U.S. 37, 43 , 104 S.Ct 871, 876 , 79 L.Ed.2d 29, 36 (1984). We “inquire instead whether the penalty is nonetheless unacceptable in a particular case because disproportionate to the punishment imposed on others convicted of the same crime.” Ramseur, supra, 106 N.J. at 326 , 524 A.2d 188 (quoting Pulley, supra, 465 U.S. at 43 , 104 S.Ct. at 876 , 79 L.Ed.2d at 36 ). The role of proportionality review “is to place the sentence imposed for one terrible murder on a continuum of sentences imposed for other terrible murders to ensure that the defendant “has not been ‘singled out unfairly for capital punishment.’ ” ” State v. Timmendequas, 168 N.J. 20, 76 , 773 A.2d 18 (2001) (Long, J., dissenting) (citations omitted).

Proportionality review is not a numbers game. Rather, it is the difficult substantive measurement of one defendant’s character and crime against those of similarly-situated defendants. Indeed, even if every defendant in a cohort has been spared, a death sentence will not be disproportionate if the details of the subject defendant’s crime or of his character warrant different treatment than the life-sentenced group. The polestar in each case is whether a defendant’s culpability is greater than that of similarly-situated, life-sentenced defendants and whether “it equals or exceeds that of other death-sentenced defendants.” State v. Loftin, 157 N.J. 253, 335 , 724 A.2d 129 (1999) (Loftin II) (quoting State v. DiFrisco, 142 N.J. 148, 184 , 662 A.2d 442 (1995) (DiFrisco III), cert. denied, 516 U.S. 1129 , 116 S.Ct. 949 , 133 L.Ed.2d 873 (1996)).

Because of the complexities of human nature and the enormously different details of individual crimes, the task of proportionality review is a difficult and, sometimes, macabre one. However, as Justice Brennan noted in Pulley ,

although clearly no panacea, such review often serves to identify the most extreme examples of disproportionality among similarly situated defendants. At least to *555 this extent, this form of appellate review serves to eliminate some of the irrationality that currently surrounds imposition of a death sentence.

[Supra, 465 U.S. at 71 , 104 S.Ct. at 890 , 79 L.Ed.2d at 53 (Brennan, J., dissenting).]

II.

Many of the deficiencies in our proportionality review scheme have been detailed previously. See In re Proportionality Review Project, 161 N.J. 71, 99-106 , 735 A.2d 528 (1999) (Proportionality Review I) (Handler, J., concurring in part and dissenting in part) (criticizing Court’s standard for assessing disproportionality); Di-Frisco III, supra, 142 N.J. at 224-31 , 662 A.2d 442 (Handler, J., dissenting) (criticizing principle of unique assignment); State v. Martini, 139 N.J. 3, 90-91 , 651 A.2d 949 (1994) (Martini II) (Handler, J., dissenting) (discussing lack of statistical standard to measure disproportionality under frequency review); State v. Marshall, 130 N.J. 109, 249-50, 263-65 , 613 A.2d 1059 (1992) (Marshall II) (Handler, J., dissenting) (criticizing coding of reversed death sentences as death sentences; inconsistency and inherent subjectivity of proportionality tests; inclusion of the defendant’s own case in frequency analysis; and abandonment of generally-imposed standard for proportionality), cert. denied, 507 U.S. 929 , 113 S.Ct. 1306 , 122 L.Ed.2d 694 (1993).

Indeed,

the permeable boundaries of the process; its flaecidity; the constant change in standards from case to case; the utterly subjective way in which even legitimate standards are applied; and the consistent practice of the Court to focus only on the aggravating aspects of the case under review while underscoring the mitigating factors of the comparison cases allows the Court to conclude that virtually any death sentence is proportional.

[ Timmendequas, supra, 168 N.J. at 78 , 773 A.2d 18 (Long, J., dissenting).]

This case is emblematic of those problems.

III.

Frequency Analysis

In frequency analysis, a statistical modality, we attempt to determine the relative proportionality of a death sentence by *556 comparing it numerically with the universe of cases to which it is factually similar. State v. Morton, 165 N.J. 235, 245 , 757 A.2d 184 (2000) (Morton II), cert. denied., 532 U.S. 931 , 121 S.Ct. 1380 , 149 L.Ed.2d 306 (2001). Here, Wakefield has been assigned to the E-1 cell, which consists of eases that involve multiple homicide victims killed during the commission of an additional felony. In rejecting Wakefield’s frequency-based claim of disproportionality, the majority points out that in the E-l aggravated multiple victim category, without Wakefield, 1 5/28, or 18%, of the defendants were sentenced to death. Ante at 503, 921 A.2d at 1022. According to the majority, that augers poorly for Wakefield because it reflects a societal consensus that death is appropriate for E-l offenders. Ante at 504-505, 921 A.2d at 1023.

Nothing could be further from the truth. The actual percentage is zero. Indeed, all five death sentences that constitute the numerator in the majority’s fraction were reversed because of errors that rendered the trials in which they were imposed unfair. The four defendants comprising the five death sentences (Bobby Lee Brown (TI, V2), Walter Johnson (TI, V2), Anthony McDougald (TI, VI), (TI, V2), and Thomas Koskovich (Tl)) have since been resentenced to life. To suggest that death sentences that were imposed in wrongful proceedings should somehow count against Wakefield in a societal consensus analysis is chilling. “The unfathomable irony of the Court’s holding today is that although the Court found the reversed verdicts too untrustworthy for use in sentencing the individual defendants subject to them, it now finds them sufficiently trustworthy for use in sentencing other defendants who were not subject to them.” Marshall II, supra, 130 N.J. at 254 , 613 A.2d 1059 (Handler, J., dissenting).

*557 In short, a real calculation of death sentencing frequency demonstrates no societal consensus that death is an appropriate penalty for defendants in the E-l category. On that backdrop, precedent-seeking review is of particular importance.

[T]he higher the frequency of life sentences in the pool of similar cases, the more searching will be the inquiry to test whether comparison with the life-sentenced cases (or more culpable death-sentenced eases) suggests that [a defendant’s death] sentence was disproportionate in the sense of his having been singled out unfairly for capital punishment.

[ Id. at 159, 613 A.2d 1059 .]

IV.

PrecedenP-Seeking Review

A. Moral Blameworthiness

This ease is a textbook example of the Court changing its standards on a case-by-ease basis in order to achieve a foreordained outcome. For example, although Wakefield admitted to planning the robbery of the Hazards, no evidence was presented to prove that the murder itself was premeditated. In State v. Papasavvas, where the defendant broke into a home in order to steal possessions therein and eventually murdered the owner, we noted that “the murder was not premeditated, at least not in advance of [defendant’s] entry into the [victims’] home.” 170 N.J. 462, 481-82 , 790 A.2d 798 (2002). Based at least in part on that factor, we found “Papasawas’s moral blameworthiness to be moderate,” and determined that his death sentence was disproportionate. Id. at 482, 495 , 790 A.2d 798 . Similar consideration was not given to Wakefield.

Further, the majority does not find Wakefield’s age (twenty-three at the time the crime was committed) to reduce his blameworthiness. Ante at 513, 921 A.2d at 1028. Yet, in assessing Papasavvas, who was also twenty-three years old when he committed murder, we assigned “some mitigating weight to his age.” Papasavvas, supra, 170 N.J. at 482 , 790 A.2d 798 .

*558 The other side of that coin is that in upholding death sentences on proportionality review, we have found defendants more death-worthy than those in their cohort, in part because those in the comparison group were only twenty-two or twenty-three years old when they committed murder. See, e.g., State v. Harvey 159 N.J. 277, 298 , 731 A.2d 1121 (1999) (Harvey III) (“Age was a mitigating factor for Dollard, Wolfe and Hart who were all twenty-two years or younger when they committed the murders for which they were charged.”), cert. denied., 528 U.S. 1085 , 120 S.Ct. 811 , 145 L.Ed.2d 683 (2000); State v. Harris, 165 N.J. 303, 341 , 757 A.2d 221 (2000) (Harris II) (“Unlike Harris, Marrero was relatively young when he committed murder, twenty-three years old.”), cert. denied., 532 U.S. 1057 , 121 S.Ct. 2204 , 149 L.Ed.2d 1034 (2001); Loftin II, supra, 157 N.J. at 341 , 724 A.2d 129 (“Feaster ... was only twenty-two-years old at the time of his offense”). Yet, Wakefield’s age plays little part in the majority’s evaluation.

Further, although Wakefield has an extensive prior record, it is significant that he has never been convicted of a crime of violence. That is yet another characteristic that he shares with Papasawas, whose death sentence we overturned on proportionality review. Papasavvas, supra, 170 N.J. at 495 , 790 A.2d 798 . As we said in Papasavvas , “[h]is criminal history increases his culpability. However, that is offset by the absence of violent offenses prior to this offense.” Id. at 483 , 790 A.2d 798 . If we found Papasawas’s culpability diminished based on his lack of premeditation, his age, and his non-violent prior record, it is inconsistent that we not do the same when evaluating Wakefield’s character.

The majority opinion is also paradigmatic of the Court’s consistent practice of focusing our attention on a single feature of the ease under review without recognizing its ubiquity. For example, Wakefield’s motive to escape detection and the fact that he “likely could have completed the robbery without committing the murder” are declared by the majority “to substantially exacerbate his moral blameworthiness.” Ante at 509, 921 A.2d at 1025. Those *559 factors, however, are nearly universally present in the comparison cases and yet are never considered in assessing the culpability of those defendants. Moreover, to the extent that a consideration is universal, it cannot be used to differentiate the culpability of one defendant from others.

Likewise, the majority concludes that the vulnerability of the Hazards adds to Wakefield’s moral blameworthiness. Ante at 511-12, 921 A.2d at 1027. Again, vulnerable victims are a hallmark of the cases in Wakefield’s cell. Ronald Mazique killed a six year old; Felix Diaz an eight year old; Peter Regan two adolescents. Brown, Masini, and Crumpton killed very elderly people, some older than the Hazards, one stroke-ridden. Thus vulnerability, as a universal characteristic, cannot be used to ratchet up Wakefield’s culpability but not that of the others.

For the same reason, the majority’s inclusion of the notion of family victimization in this analysis, ante at 512-13, 921 A.2d at 1027-28, is analytically unsound,

not because it is not terribly real, but because it is universal and thus cannot serve as a basis to distinguish between defendants. Morton II, supra, 165 N.J. at 293 [ 757 A.2d 184 ] (Long, J., dissenting) (criticizing Court’s application of the “non-decedent victim factor” to “every case in which the victim was a ‘unique person’ with a ‘web of familial relations’ — in other words, to every single murder case”) (citation omitted).

[ Timmendequas, supra, 168 N.J. at 83 , 773 A.2d 18 (Long, J., dissenting).]

B. Victimization

I agree that the victimization in this ease was high and that the Hazards suffered intense physical and mental pain. Where I part from the majority is in its concomitant suggestion that Wakefield’s victimization of the Hazards exceeded that of the other criminal comparators. See ante at 515-16, 921 A.2d at 1029. The horrific details of the comparison crimes, laid bare in Part V., infra, plainly underscore the wrongness of that conclusion. In the E-l category, all victims suffered unimaginable deaths including beatings, stabbings, burnings, shootings, and bludgeonings. Victims had their skulls fractured, their dentures split, or their throats slit. *560 Some were murdered while attempting to crawl away. One iived on in a chronic vegetative state long after the assault. Several victims were older than the Hazards. Several were children, one as young as six. Some defendants actually laid in wait to murder their victims. One victim was stroke-impaired. Several defendants performed sexual acts on their victims post-mortem. Some defendants killed three or four victims. In the face of those facts, there is no rational basis from which to conclude that Wakefield’s victimization of the Hazards exceeded that of his compatriots in crime. That is very important because the majority bases most of its justifications regarding Wakefield’s sentence on that flawed sentiment. E.g., ante, at 524, 531-32, 921 A.2d at 1034, 1038-39.

C. Character

In terms of Wakefield’s character, I find extraordinary the majority’s conclusion that, although there was “evidence that Wakefield suffered from emotional disease or defect” and a troubled upbringing, (conditions we have always recognized as mitigating, e.g., Marshall II, supra, 130 N.J. at 155 , 613 A.2d 1059 ; Papasavvas, supra, 170 N.J. at 482 , 790 A.2d 798 ), it “was contested by the State, thereby reducing its impact on defendant’s blameworthiness.” Ante at 512, 921 A.2d at 1027. This is the first time that mere State opposition is viewed as somehow affecting the quality of a mitigator.

Further, with respect to cooperation with the authorities, the majority recognizes defendant’s statements to the police, his request that his mother cooperate, and his unconditional plea to all the crimes for which he stood charged. Ante at 518, 921 A.2d at 1030-31. That kind of cooperation has always been considered important mitigation in proportionality review cases. See, e.g., Papasavvas, supra, 170 N.J. at 491 , 790 A.2d 798 (distinguishing Papasavvas from life-sentenced defendant based on latter’s confession to “everything except stealing the homeowner’s jewelry”); Harris II, supra, 165 N.J. at 339, 757 A.2d 221 (noting life-sentenced defendant’s willingness to plead guilty as mitigating *561 factor); State v. Cooper, 159 N.J. 55, 104 , 731 A.2d 1000 (1999) (Cooper II) (distinguishing Cooper’s death sentence from similarly-situated, life-sentenced defendant who, while initially denying involvement in murder, ultimately confessed), cert. denied., 528 U.S. 1084 , 120 S.Ct. 809 , 145 L.Ed.2d 681 (2000); State v. Chew 159 N.J. 183, 217 , 731 A.2d 1070 (1999)(C%ew II) (crediting another defendant with cooperation with authorities because, while sporadic, he confessed to killing the victim and implicated principal in murder-for-hire scheme), cert. denied, 528 U.S. 1052 , 120 S.Ct. 593 , 145 L.Ed.2d 493 (1999); DiFrisco III, supra, 142 N.J. at 207-08 , 662 A.2d 442 (distinguishing defendant from similarly-situated, life-sentenced defendant who offered unconditional confession and voluntarily turned State’s evidence). Yet, Wakefield receives no benefit because the majority concludes his cooperation was “designed to better his own plight, and not out of any sense of correctness.” Ante at 518, 921 A.2d at 1031. Other than adopting the State’s view, the majority’s wholly subjective conclusion has no basis whatsoever. Moreover, even if it were true, we do not dice a defendant’s cooperation so finely in assessing its bearing on culpability.

Again, with its failure to adhere to standards by which we have lived in prior cases, the majority effectively cuts the heart out of our proportionality review process.

V.

Comparison Cases 2

Because all E-l offenders ultimately received life sentences, in order for the Court to uphold Wakefield’s death sentence it must *562 conclude that Wakefield is worse than, not merely as culpable as, his cohorts. Who are those comparison defendants that the majority concludes deserve to live while Wakefield awaits death?

Felix Díaz and a co-defendant broke into Diaz’s ex-lover’s house, awakening a male family member. They beat him and an eight year-old niece. Then they cut the man’s throat and bludgeoned the eight year old to death before setting their bodies on fire. Diaz and his co-defendant then laid in wait for several hours for the ex-lover, rigging a light switch “so that the [victim] would be in a specific position for the murder.” Hon. David S. Baime, Report of the Special Master on Proportionality Review: State v. Brian Wakefield B-12 (Oct. 21, 2004) [hereinafter Wakefield Re port]. When the victim, a sixty-three year-old man, arrived home, Diaz shot him repeatedly and set his body on fire. A pet dog was also killed. Diaz’s culpability is actually greater than Wakefield’s. The majority recognizes the similarity between Diaz and Wakefield, and acknowledges the sentences are “disparate.” Ante at 526, 921 A.2d at 1035.

Frank Masini murdered four people, including an elderly couple for whom he had worked as a handyman. He repeatedly stabbed the couple in the neck with a letter opener. When found, both were covered in blood, and the woman’s girdle and underpants had been cut off. The victims had a number of defensive wounds on their hands. While investigating those murders, the police discovered similarities with the earlier murders of two elderly women (one Masini’s eighty-five year-old aunt), each of whom had been stabbed repeatedly and found partially nude. Masini’s culpability, as a middle-aged man with no psychological, alcohol, or drug abuse problems, who killed four people, is plainly greater than Wakefield’s. Grudgingly, the majority characterizes them as equal. Ante at 528, 921 A.2d at 1036.

Walter Johnson, a twenty-four year old with a record of burglaries, shot a man and bludgeoned the man’s wife to death with a poker as she attempted to escape after the gun misfired. The majority recognizes that Johnson’s character, degree of blamewor *563 thiness, and the victimization were “similar” to Wakefield’s. Ante at 527, 921 A.2d at 1036.

Roy Watson, a forty-four year-old man with a long criminal history, beat an elderly couple to death, drinking scotch while watching them die and later stealing their belongings. His life sentence is recognized by the majority as “disparate.” Ante at 532, 921 A.2d at 1039. However, his drug addiction is declared as a mitigating factor, whereas Wakefield’s neurological impairment is not. See ante at 532-33, 921 A.2d at 1039. The majority also apparently does not consider the post-murder scotch drinking conduct as evidence of a lack of remorse although it concludes otherwise with respect to Wakefield’s consumption of fast food after the commission of his crime. See ante at 532-33, 921 A.2d at 1039.

Ronald Mazique killed a woman and her six year-old grandson by striking them over thirty times each with a hammer, and then attempted to blow up their apartment by turning on the gas. Although recognizing his case as “quite similar” to Wakefield’s, the majority simply distinguishes them on the ground of Mazique’s “traumatic upbringing,” while discounting the jury’s findings of emotional and physical neglect and domestic violence by Wake-field’s family. Ante at 529, 921 A.2d at 1037.

Peter Regan, a twenty-eight year old with a history of robbery and assault, was burglarizing his girlfriend’s house when a fifteen year old entered the residence. He picked up an aluminum baseball bat and hit her in the head. When she started screaming and tried to get up from the floor, he continued to hit her in the head until she died. When his girlfriend’s twelve year-old daughter entered the home, Regan killed her by hitting her six times in the head with the aluminum bat. He then removed the victims’ clothing from the waist down to make it look as if a rape had occurred. How the majority can conclude that the victimization in this case is less than Wakefield’s is unfathomable. Ante at 531-32, 921 A.2d at 1038.

*564 Anthony McDougald was twenty-seven years old when he enlisted the help of a thirteen year-old girl, with whom he was romantically involved, in murdering the parents of another thirteen year-old girl, with whom he had had a sexual relationship. McDougald first slit the father’s throat and stabbed him in the chest multiple times. When the victim began crawling away, McDougald hit him on the head with a bat, crushing his left ear and fracturing his skull on both sides. The Medical Examiner estimated that the father continued to survive for approximately ten to fifteen minutes. McDougald then entered the bedroom and hit the mother on the head with a cinder block and the bat before cutting her throat. He also pulled down her underpants and inserted the bat three inches into her vagina. McDougald came from a deprived, abusive background and was involved with drugs when he committed murder. Nevertheless, the sheer brutality of his crime, along with the fact that he persuaded a thirteen year-old girl to be his accomplice, renders him more culpable than Wakefield. Yet, despite its assessment that McDougald’s crimes were “horrifying,” the majority concludes, without discussing Wakefield’s own mitigators, that because McDougald had two mitigators that Wake-field did not (extreme mental disturbance and intoxication), Wake-field’s death sentence is not disproportionate. Ante at 530, 921 A.2d at 1038.

Louis Crumpton’s case, especially, suggests the disproportionality of Wakefield’s sentence, because of the similarity of the facts. Crumpton, like Wakefield, brutally killed two elderly people in the course of a burglary. In Crumpton’s case, one of his victims, an eighty-six year-old woman, was discovered with severe trauma to her head and face, blackened eyes, and dentures split in two. The other victim, an eighty-one year-old woman was found sitting upright against a couch, covered in blood and with severe trauma to her face. She did not die immediately but lived in a vegetative state for several months. Crumpton, a thirty-six year-old man, had perpetrated numerous burglaries in the area. The majority justifies Wakefield’s death sentence on the ground that he entered the Hazard’s home knowing it was occupied. Ante at 525, 921 *565 A.2d at 1034. How could that be the difference between life and death given the extraordinary violence of Crumpton’s crimes against elderly victims and the absence of standard psychological mitigators in his case?

Bobby Brown, a twenty-three year old, killed his paramour’s eighty-two year-old, stroke-impaired aunt and sixty-four year-old uncle. The uncle was stabbed ten times with scissors and was “hard to kill” according to Brown. Baime, supra, Wakefield Report, at B-6. The aunt was shot. Brown had no psychiatric history or drug influence. The majority recognizes Wakefield’s mitigation as greater than Brown’s but justifies Wakefield’s death sentence based solely on “increased victimization.” Ante at 524, 921 A.2d at 1034.

The details of those comparison cases underscore that there is no real distinction between Wakefield and the others that justifies his death over their lives.

VI.

Perhaps recognizing that the subjective distinctions in its comparisons do not justify a lethal injection for Wakefield and a life sentence for everyone else, the majority adopts a new scheme of comparisons,

by engaging in a more detailed comparison between defendant and the remaining nine murderers within his El statistical cohort. As points of comparison, we distinguish between defendant and Crumpton, Johnson, Masini and Began because their life sentences were the result of negotiated plea agreements, whereas defendant chose instead to place his fate in the hands of a jury. We also differentiate between defendant and Díaz, Mazique, McDougald and Watson because the juries in each of those latter eases either found that the aggravating factors did not outweigh the mitigating factors or they deadlocked on the issue, automatically resulting in the imposition of a life sentence. Thus, of the Category El group, only Brown remains as a meaningful point of comparison.

[Ante at 533-34, 921 A.2d at 1039-40.]

The problems with that approach are legion. First, we have never made the distinctions in death penalty eases that the majority here adopts. For example, it distinguishes Crumpton, Johnson, Masini, and Regan from Wakefield, on the basis of the former having been *566 subject to plea agreements. Ante at 533-34, 921 A.2d at 1039-40. Defendant thus stands as the only individual in the history of this Court’s proportionality review to be deprived of the benefit of comparison to defendants who have pled guilty, thereby avoiding capital prosecution. 3 As prior cases make clear, the Court has never before used a plea bargain, in itself, as a distinguishing characteristic among death-eligible cases.

The majority’s error in distinguishing eases where a jury “either found that the aggravating factors did not outweigh the mitigating factors or they deadlocked on that issue,” is even graver. Ante at 534, 921 A.2d at 1040. A jury verdict that the aggravating factors do not outweigh the mitigating factors is a unanimous determination that the defendant is not deathworthy under N.J.S.A. 2C:11-3c(3)(b). Further, where a jury is deadlocked on the ultimate balance of the aggravating and mitigating factors, this Court has, without fail, treated such cases as life sentences for the purposes of proportionality review comparisons. 4

*567 In treating a plea, a verdict, and a jury’s inability to decide whether a defendant is deathworthy as characteristics distinguishing between eases, the Court essentially creates distinctions where there should be none. Ante at 533-34, 921 A.2d at 1039-40. Those invalid distinctions reduce the universe of cases to a point where proportionality review is no longer meaningful. To be sure, the majority is free to jettison our scheme or to retool it for future cases. What it is not free to do is to rely on distinctions that confound our prior jurisprudence to justify Wakefield’s death. Wakefield is no better or worse than the members of his band. Yet, he alone awaits death and they have been spared. That outcome cannot stand.

VII.

One final note. The death penalty was declared constitutional over twenty years ago in Ramseur, supra, 106 N.J. at 154 , 524 A.2d 188 , and we have continued perfunctorily to give that declaration lip service. See, e.g., State v. Josephs, 174 N.J. 44, 138-40 , 803 A.2d 1074 (2002). Nevertheless, it is time to revisit the issue because Ramseur, supra, relied on “evolving standards of decency” to uphold that ultimate sanction. 106 N.J. at 171 , 524 A.2d 188 (quoting Trop v. Dulles, 356 U.S. 86, 101 , 78 S.Ct. 590, 598 , 2 L.Ed.2d 630, 642 (1958)). If those standards applied then — they apply now. I have previously detailed some changes that have taken place since Ramseur was decided.

Indeed, ... a recent survey by the highly respected Eagleton Center for Public Interest Polling, a project of the Institute of Politics of Eutgers University, provides compelling evidence that community consensus against the death penalty is continuing to evolve. Eagleton Institute of Politics, New Jerseyans’ Opinions on a Death Penalty Moratorium (May 2002) [hereinafter Eagleton Survey].

The study, based on interviews conducted with 803 New Jersey residents in May 2002, evinces a significant decrease in support for the death penalty. It shows that *568 60 percent of New Jersey residents support the death penalty as punishment for murder. Id. at 1. Sixty-three percent supported it when the issue was studied in 1999. Id. at 2. When we last considered the constitutionality of the death penalty, the then most recent surveys, conducted in 1977 and 1981 by the Eagleton Poll, showed public support for this State’s death penally at 72 percent.

When presented with the alternative of life in prison without parole, the public’s support for the death penalty dropped to 36 percent, down from 44 percent in 1999. Eagleton Survey at 3. Moreover, as in prior years, New Jersey residents are less likely than other Americans to prefer the death penalty over life in prison without parole. Ibid. In addition, 66 percent of New Jersey residents — including 60 percent of those who favor the death penalty overall — favor a temporary halt to executions while a study is conducted to ascertain whether the death penalty is being administered accurately, fairly, and economically. Id. at 4.

The majority’s reliance on our legislature’s inaction regarding the death penalty as “the best and most reliable indicator” of contemporary values is mysterious in light of its citation to the recent United States Supreme Court decision in Atkins v. Virginia, 536 U.S. 304 , 122 S.Ct. 2242 , 153 L.Ed.2d 335 (2002), which held, among other things, that a national consensus has developed in the last thirteen years against the execution of mentally retarded persons. Despite that national consensus, our capital legislation still authorizes the execution of the mentally retarded, indicating that, at least as far as the United States Supreme Court is concerned, our legislature is out of synchronicity with “evolving standards of decency.” Id. at 311 , 122 S.Ct. at 2247 , 153 L.Ed.2d at 344 .

[Josephs, supra, 174 N.J. at 162-64 , 803 A.2d 1074 (Long, J., concurring in part and dissenting in part) (citations omitted).]

The majority’s citation to the New Jersey Death Penalty Study Commission Report that reinforces my view of the changing moral climate, renders more curious its adamant refusal even to consider the issue. Ante at 498, 921 A.2d at 1018. I remain, as I was in Josephs :

[M]ystified by the Court’s resistance to revisiting a fifteen [now twenty] year-old opinion that, by its very terms, was rooted in conclusions about the public’s appetite for the death penalty that appear to have changed. The suggestion that the Court’s past perfunctory rejection of equally perfunctory challenges to Ramseur over the years gives currency to that opinion is neither jurisprudentially sustainable nor an appropriate response to a case involving the ultimate sanction of death.

[Id. at 164-65, 524 A.2d 188 (Long, J., concurring in part and dissenting in part).]

For those reasons, as well as the reasons expressed by Justice Wallace in his dissenting opinion on the merits, I dissent.

Obviously, a defendant cannot be included in the salient factors statistics against which his sentence is to be compared. Otherwise his sentence would "confirm its own propriety." Morton II, supra, 165 N.J. at 289, 757 A.2d 184 (Long, J., dissenting) (quoting Marshall II, supra, 130 N.J. at 263 , 613 A.2d 1059 (Handler, J., dissenting)).

I accept the majority’s determination to engage in comparisons of the cases agreed upon by the parties. Ante at 521-23, 921 A.2d at 1032-33. Those include: Bobby Lee Brown (TI, VI), Bobby Lee Brown (TI, V2), Bobby Lee Brown (T2, VI, V2), Louis Crumpton, Felix Diaz, Walter Johnson (TI, VI), Walter Johnson (TI, V2), Walter Johnson (T2, V2), Frank Masini (M2), Ronald Mazique, Anthony McDougald (TI, VI), Anthony McDougald (TI, V2), Anthony McDougald (T2, VI), Peter Regan, and Roy Watson.

See Papasavvas, supra, 170 N.J. at 496-510 , 790 A.2d 798 (comparing the defendant's sentence to life-sentences of defendants who pled guilty); Timmendequas, supra, 168 N.J. at 57-68 , 773 A.2d 18 (same); State v. Feaster, 165 N.J. 388, 433-41 , 757 A.2d 266 (2000) (Feaster II) (same), cert. denied, 532 U.S. 932 , 121 S.Ct. 1380 , 149 L.Ed.2d 306 (2001); Harris II, supra, 165 N.J. at 331-33, 757 A.2d 221 (same); Morton II, supra, 165 N.J. at 270-87, 757 A.2d 184 (same); Harvey III, supra, 159 N.J. at 320-43, 731 A.2d 1121 (same); Chew II, supra, 159 N.J. at 226-49, 731 A.2d 1070 (same); Cooper II, supra, 159 N.J. at 97-107, 731 A.2d 1000 (same); Loftin II, supra, 157 N.J. at 348-71 , 724 A.2d 129 (same); DiFrisco III, supra, 142 N.J. at 187-203 , 662 A.2d 442 (same); Martini II, supra, 139 N.J. at 54-74 , 651 A.2d 949 (same); State v. Bey, 137 N.J. 334, 369-82 , 645 A.2d 685 (1994) (Bey IV) (same), cert. denied, 513 U.S. 1164 , 115 S.Ct. 1131 , 130 L.Ed.2d 1093 (1995); Marshall II, supra, 130 N.J. at 175-88 , 613 A.2d 1059 (same).

See Papasavvas, supra, 170 N.J. at 496-510 , 790 A.2d 798 (comparing the defendant's sentence with life-sentences of defendants whose juries were non-unanimous); Timmendequas, supra, 168 N.J. at 57-68 , 773 A.2d 18 (same); Feaster II, supra, 165 N.J. at 420-33, 757 A.2d 266 (same); Harris II, supra, 165 N.J. at 334-41, 757 A.2d 221 (same); Morton II, supra, 165 N.J. at 270-87, 757 A.2d 184 (same); Chew II, supra, 159 N.J. at 226-49, 731 A.2d 1070 (same); Cooper II, supra, 159 N.J. at 116-32, 731 A.2d 1000 (same); Loftin II, supra, 157 *567 N.J. at 348-71 , 724 A.2d 129 (same); DiFrisco III, supra, 142 N.J. at 187-203 , 662 A.2d 442 (same); Martini II, supra, 139 N.J. at 54 — 74, 651 A.2d 949 (same); Bey IV, supra, 137 N.J. at 369-82 , 645 A.2d 685 (same); Marshall II, supra, 130 N.J. at 175-88 , 613 A.2d 1059 (same).