State v. Wagner

¶1dissenting.

¶2The judgment in this case directs Oregon’s public officials to put to death a defendant who discharged his lawyers, insisted on pleading guilty to a capital offense, and failed to make a serious or plausible challenge to the propriety of his death sentence. The proceeding as a whole fell far short of the kind of capital trial anticipated when Oregon’s voters were asked to reinstate a death penalty in this state. It also fell short of standards set by the United States Supreme Court. There is serious doubt that the 1984 death penalty measure, which exacerbated the flaws in its already questionable Texas model, can meet federal standards.

¶3Under the Supreme Court’s standards, the sentencing authority, either the judge or a jury, must be able to reject the death penalty even when its legal basis is proved, if the sentencer concludes that additional facts militate against a death sentence in the particular case. The 1984 measure allows neither the jury nor the judge that authority. Neither the judge nor the jury actually is asked to decide for or against the penalty, as the law is written. The jury only answers three specified questions of past or predicted facts. It cannot legally respond to mitigating considerations that do not relate to those three questions.

¶4Oregon and federal law both recognize that extraordinary procedural standards must be met if public officials are to take a person’s life, even a murderer’s. Oregon’s complex definition of aggravated murder and the issues involved in the 1984 death penalty scheme make it impossible to meet these standards unless a skilled advocate tests the prosecution’s case, even when the accused makes his own defense. The standards certainly were not met here.

¶5I believe this dissent demonstrates the reasons why this death sentence should not stand. The case should be remanded for a proper trial, unless the state, through its prosecutor, chooses to accede to the Public Defender’s proposal to impose a sentence of life imprisonment with a minimum of 30 years before defendant may be considered for parole. ORS 163.105(1).

¶6I. ACCURACY STANDARDS IN CAPITAL CASES

¶7The death penalty measure that was put on the ballot *189by initiative and enacted in 1984 may well be impossible to square with requirements under the federal Eighth and Fourteenth Amendments repeatedly stated by the United States Supreme Court. The reasons for this conclusion are spelled out in Part V of this opinion. In the present case, however, there are compelling independent reasons of Oregon law why the proceeding as a whole fell short of those required for a valid death sentence, though a maximum sentence short of death might be affirmed. Because the procedures and indeed the present death penalty scheme are unprecedented in Oregon, it is necessary to state those reasons in detail.

¶8First, American law has long recognized the difference between punishment by death and all other punishments and given it important procedural consequences. The fact that defendants “stood in deadly peril of their lives” is what more than a half-century ago made an “effective” appointment of counsel a matter of federal due process in Powell v. Alabama, 287 US 45, 71, 53 S Ct 55, 77 L Ed 158 (1932), and compare Betts v. Brady, 316 US 455, 464, 62 S Ct 1252, 86 L Ed 1595 (1942). Justice Harlan wrote that capital cases “stand on quite a different footing than other offenses. … I do not concede that whatever process is ‘due’ an offender faced with a fine or a prison sentence necessarily satisfies the requirements of the Constitution in a capital case,” the distinction “being literally that between life and death.” Reid v. Covert, 354 US 1, 77, 77 S Ct 1222, 1 L Ed 2d 1148 (1957) (Harlan, J., concurring). The passage most often quoted in the Supreme Court’s recent death penalty cases is from Woodson v. North Carolina, 428 US 280, 305, 96 S Ct 2978, 49 L Ed 944 (1976):

“[T]he penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.”

¶9See also Eddings v. Oklahoma, 455 US 104, 117, 102 S Ct 869, 71 L Ed 2d 1 (1982) (O’Connor, J., concurring).

¶10Oregon law also has long imposed stricter safeguards on potential capital cases than on other criminal proceedings. *190In the state’s early years, the death penalty here as elsewhere was imposed much like other punishments, regardless whether defendant was represented by counsel or offered any defense. See, e.g., State v. Rathie, 101 Or 339, 199 P 169 (1921), Ex parte Harrell, 57 Or 95, 110 P 493 (1910). Even then, this court recognized that scrupulous adherence to “the rules and methods which the law has itself provided” was required “especially in capital cases.” State v. Olds, 19 Or 397, 427, 24 P 394, 401 (1890). Later constitutional amendments introduced important differences. Article I, section 11, was amended in 1932 to permit defendants to waive trial by jury and be tried by the judge alone, but capital cases were expressly excluded. A further amendment in 1934 relaxed the existing requirement of a unanimous verdict in criminal cases and authorized ten jurors to render a verdict of guilty or not guilty, but the amendment again excluded verdicts of guilty of first degree murder, which continued to require a unanimous jury verdict.

¶11A final, important difference arises from the adoption of the present death penalty law itself. That is the difference in this court’s scope of review of death penalty cases. It, too, finds support in constitutional decisions of the United States Supreme Court.

¶12This court’s duty in a death penalty case is to subject the judgment of conviction and sentence of death to “automatic and direct review.” ORS 163.150(l)(f). The death penalty law was not enacted by the Legislative Assembly. It was adopted upon popular initiative, over the deep opposition of a significant minority of Oregon’s voters. The assurance that death sentences would receive “automatic” review by the state’s highest court was part of the proponents’ promise to the voters, to those who decided to vote for the measure as well as those who opposed it. November 1984 Voters’ Pamphlet at 33.

¶13This assurance makes a crucial change from the court’s responsibility in an ordinary criminal appeal. The court does not meet its responsibility whenever it satisfies itself that it disposes of whatever arguments a defendant presents, as the majority proceeds in this case. The court’s responsibility is not merely to the defendant; it is to the law that limits the unique penalty of death.

¶14The point of “automatic” Supreme Court review is *191not to save a defendant the trouble of filing an appeal and, if necessary, a petition for review. The point is not to give a defendant the opportunity to save his life, if he has the desire and the help of competent counsel to do so. An ordinary appeal does that much. Nor is it to prevent a defendant’s state-assisted “suicide.” The point of assuring that this court must automatically review every death sentence case is to make certain that the death penalty is imposed and executed only by the criteria and within the bounds set by the law itself and by the Oregon and United States Constitutions. The Supreme Court of Pennsylvania relied on that state’s similar provision for “automatic review” to invalidate a death sentence even when a defendant expressly refused to challenge it, holding that the “overwhelming public interest” in insuring that capital punishment comports with constitutional requirements and the “irrevocable finality” of the death sentence made review of its validity “imperative.” Commonwealth v. McKenna, 476 Pa 428, 440-41, 383 A2d 174, 181 (1978).

¶15Automatic review under the death penalty measure therefore is not primarily an act of concern for a defendant who may merit little concern and demand none at all. The defendant is not allowed to waive review. It is not sympathy with a killer that explains the vigils outside prisons when the state schedules the execution of one of its people. Because the court’s duty is to assure that the state puts no one to death unless the sentence qualifies under all criteria of the law, the court needs a record on which the relevant issues can be determined and, to the extent that they depend on facts, have been properly determined in the circuit court. This cannot be done if a defendant, by refusing counsel or reducing them to the role of “advisers” and pleading guilty, eliminates potential legal and factual issues from proper determination by the court or jury. These issues are important to others than the defendant.

¶16Together, the unique nature of the death penalty, the requirements embodied in the jury trial provisions of Article I, section 11, and the purposes of “automatic and direct review” bar execution of the death sentence in this case.

¶17II. COMPLEXITY OF CAPITAL MURDER ISSUES

¶18To see how a proceeding like that in the present case can frustrate the certainty required for a death sentence, one *192must begin with a careful examination of the death penalty-law.

¶19ORS 163.150 itself does not define aggravated murder, the crime for which the death penalty is authorized. It prescribes additional procedures and criteria for imposing the death penalty. But ORS 163.150 presupposes that the defendant has committed aggravated murder before the court proceeds to the sentencing proceeding. That supposition will often depend on debatable issues, as the following examples show. They are included here, not because they arise in this case, but because they illustrate why no unrepresented defendant can simply by pleading guilty to aggravated murder provide the predicate for a death sentence with the requisite degree of certainty.

¶20Aggravated murder is defined in ORS 163.095 as follows:

“As used in ORS 163.105 and this section, ‘aggravated murder’ means murder as defined in ORS 163.115 which is committed under, or accompanied by, any of the following circumstances:

“(l)(a) The defendant committed the murder pursuant to an agreement that the defendant receive money or other thing of value for committing the murder.

“(b) The defendant solicited another to commit the murder and paid or agreed to pay the person money or other thing of value for committing the murder.

“(c) The defendant committed murder after having been convicted previously in any jurisdiction of any homicide, the elements of which constitute the crime of murder as defined in ORS 163.115 or manslaughter in the first degree as defined in ORS 163.118.

‘ ‘ (d) There was more than one murder victim in the same criminal episode as defined in ORS 131.505.

“(e) The homicide occurred in the course of or as a result of intentional maiming or torture of the victim.

“(2) (a) The victim was one of the following and the murder was related to the performance of the victim’s official duties in the justice system:

“(A) A police officer as defined in ORS 181.610(6);

“(B) A correctional, parole or probation officer or other *193person charged with the duty of custody, control or supervision of convicted persons;

“(C) A member of the Oregon State Police;

“(D) A judicial officer as defined in ORS 1.210;

“(E) A juror or witness in a criminal proceeding;

“(F) An employe or officer of a court of justice; or

“(G) A member of the State Board of Parole.

“(b) The defendant was confined in a state, county or municipal penal or correctional facility or was otherwise in custody when the murder occurred.

“(c) The defendant committed murder by means of an explosive as defined in ORS 164.055(2)(a).

“(d) Notwithstanding ORS 163.115(l)(b), the defendant personally and intentionally committed the homicide under the circumstances set forth in 163.115(1)(b).

“(e) The murder was committed in an effort to conceal the commission of a crime, or to conceal the identity of the perpetrator of a crime.

“(f) The murder was committed after the defendant had escaped from a state, county or municipal penal or correctional facility and before the defendant had been returned to the custody of the facility.”

¶21Whether a murder is an “aggravated” murder under this statute turns on questions of law as well as on facts, questions that demand professional knowledge of law and professional responsibility for making a proper record.

¶22What, for instance, will qualify as a “thing of value” for purposes of ORS 163.095(1)(a) and (b)? Cf. State v. Whitley, 295 Or 455, 459, 666 P2d 1340 (1983) (property must be a “thing of value” for burning it to be arson).

¶23Under subsection (l)(c), how closely must the elements of homicide in another jurisdiction, perhaps in another language, correspond to the elements of murder or manslaughter in Oregon?

¶24What is “torture” within the meaning of subsection (1) (e)? If a defendant had pleaded guilty under this subsection without counsel to raise that question, before this court circumscribed “torture” in State v. Cornell/Pinnell, 304 Or 27, 32, 741 P2d 501 (1987), there would be no assurance that the *194defendant facing a death sentence actually had committed aggravated murder.

¶25What kind of persons qualify under ORS 163.095(2)(a)(B) as being “charged with the duty of custody, control or supervision of convicted persons”? What does the subsection mean by a murder “related to” the victim’s official duties? In paragraph (E), how far does a “juror or witness in a criminal proceeding” include potential jurors and witnesses in anticipated future proceedings, and must this status be known to the murderer? See State v. Maney, 297 Or 620, 626, 688 P2d 63 (1984). In paragraph (F), does an “officer” of a court of justice who is not an “employe” include, for instance, a prosecutor or other member of the bar? Cf. ORS 9.010(1) (any state bar member is an “officer of the court”).

¶26Does “otherwise confined in custody” in subsection (2)(b) mean for purposes of aggravated murder and a potential death sentence what it means for warning a person before police questioning, or is it any clearer? Cf. State v. Milligan, 304 Or 659, 748 P2d 130 (1988) (compelled blood samples taken without formal “arrest”); State v. Okeke, 304 Or 367, 745 P2d 418 (1987) (excluding evidence seized from person in involuntary confinement at detoxification center); State v. Magee, 304 Or 261, 744 P2d 250 (1987) (person held for questioning in police station). Does “the perpetrator of a crime” in subsection (2)(e) include every person potentially punishable for the crime or only the person who committed the decisive act? Cf. ORS 161.150 to 161.175 (“Parties to crime”).

¶27Some of these questions are difficult, others are easier, and some may never arise in an actual prosecution for aggravated murder. There is no need to answer them in the abstract here. What questions like these show is that neither a circuit court nor this court can assure that a death sentence is not applied beyond its authorized reach when a defendant pleads guilty and does not raise or let counsel raise the legal issues. In the present case, defendant was allowed to pursue a course that prevented the lawyers who were appointed to “advise” him from making an effective challenge to the state’s proof of aggravated murder. Without a guilty plea, it is not at all certain whether a jury would have been convinced beyond a reasonable doubt that defendant was motivated to kill his lover because he resented her willingness to testify to his *195assaulting her child (which is the basis of this aggravated murder charge) rather than out of jealousy or some other psychic drive. He similarly prevented an effective challenge to the death sentence in the sentencing phase, to which I shall return.

¶28III. CAPITAL CASES UNDER OREGON’S ARTICLE I, SECTION 11

¶29A guilty plea also can leave doubts under the aggravated murder law unresolved when the prosecution excludes the death penalty, but that is not unusual; pleas of guilty to felonies carrying prison sentences often do not accurately match the exact statutory crimes that the defendant in fact has committed. See Rise v. Board of Parole, 304 Or 385, 396, 745 P2d 1210 (1987) (Linde, J., concurring). This tolerance for inaccuracy need not exclude murders defined as “aggravated” in ORS 163.095 as long as the death penalty is not an issue. The unique and irreversible nature of that penalty makes error on the side of death intolerable in capital cases.

¶30The heightened demand for certainty is reflected in at least two provisions. As already stated, the death penalty law demands of courts the assurance that this state’s officials not put anyone to death in the name of the people of Oregon beyond the criteria set by the law and by constitutional bounds. Also, Article I, section 11, of the Oregon Constitution makes distinctions between “capital cases” and other criminal prosecutions that clearly seek a higher threshold of certainty before a sentence of death may be imposed and executed, certainty sufficient when tested to convince a jury unanimously beyond a reasonable doubt.

¶31Article I, section 11, provides:

“In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury in the county in which the offense shall have been committed; to be heard by himself and counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor; provided, however, that any accused person, in other than capital cases, and with the consent of the trial judge, may elect to waive trial by jury and consent to be tried by the judge of the court alone, such election to be in *196writing; provided, however, that in the circuit court ten members of the jury may render a verdict of guilty or not guilty, save and except a verdict of guilty of first degree murder, which shall be found only by a unanimous verdict, and not otherwise; ….”

¶32The majority dismisses the exclusion of “capital cases” by explaining that the 1932 amendment was designed to allow criminal trials before a court without a jury, which the section previously prevented, and that defendants long had been allowed to plead guilty to capital crimes as to any other crimes. That is a historically correct statement, but it misses the point.

¶33The question is not why the 1932 amendment allowed defendants to waive a jury and be tried by the judge alone, with the judge’s consent. The question is why the amendment for the first time created a distinction and did not allow defendants to do so in “capital cases.” The reason could not be to relieve judges of a difficult burden, because the amendment required the judge’s consent in any case. Rather, the exclusion of “capital cases” points to another concern, to the same concern that explains the exclusion of “first degree murder” when the section was again amended in 1934 to allow convictions by less than unanimous jury verdicts. That concern, of course, is to assure the highest degree of certainty by a unanimous jury that every element of a capital crime has been proved beyond a reasonable doubt before a court may order a defendant to be put to death.

¶34The heightened demand for certainty reflected in the amended Article I, section 11, is frustrated if a defendant can foreclose jury scrutiny of each element of a capital crime simply by pleading guilty. It is no answer that a defendant is free to waive a procedure that is provided for his protection, for the 1932 amendment does not permit the defendant in a capital case to waive a jury and be tried by the court alone. To repeat, more than the defendant’s self-interest is at stake.

¶35A number of those states that have the death penalty at all do not allow defendants at will to plead guilty and be sentenced to death. The majority opinion reviews cases cited by the Public Defender and painstakingly distinguishes the laws in those states from Oregon’s laws. Those cases and laws indeed differ, but that does not deny their significance for the *197issue before us. It was expressed by the Supreme Court of North Carolina as a matter of judicial policy before a statute reversed it:

“The idea that a person should be allowed to decree his own death has been unacceptable, not only to the judiciary, but to the citizens at large. This State has inflicted the supreme penalty only when a jury of twelve has been convinced beyond a reasonable doubt of the guilt of the accused after a trial conducted with all the safeguards appropriate to such a proceeding.”

¶36State v. Watkins, 283 NC 17, 30, 194 SE2d 800, 809-10, cert den 414 US 1000 (1973). The same policy is necessarily implied in Article I, section 11. Whatever may have been the early practice, after the 1932 amendment there is no acceptable explanation for an interpretation that would let a defendant circumvent the section’s requirement of a unanimous verdict in a capital case by pleading guilty yet not by choosing a trial by the court without a jury. The sensible interpretation is that a defendant cannot circumvent that requirement at all.

¶37IV. ANALYSIS AND RECORD LACKING IN SENTENCING PROCEEDING

¶38The certainty required for a valid death sentence was similarly frustrated by the manner in which defendant was permitted to conduct the sentencing phase of his case.

¶39Like the aggravated murder law, the death sentence statute, ORS 163.150, bristles with difficulties. Some are pure questions of law; others require an adequate factual record. They obviously were beyond the competence of this or any unrepresented defendant.

¶40The statute provides that a defendant is to be sentenced to death if the jury affirmatively decides three issues:

“(A) Whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that death of the deceased or another would result;

“(B) Whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. In determining this issue, the court shall instruct the jury to consider any mitigating circumstances offered in evidence, including, but not limited to, *198the defendant’s age, the extent and severity of the defendant’s prior criminal conduct and the extent of the mental and emotional pressure under which the defendant was acting at the time the offense was committed; and

“(C) If raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.”

¶41ORS 163.150(l)(b)(A)-(C). The issues are to be decided on evidence taken at trial and in the sentencing proceeding. ORS 163.150(l)(a).

¶42The second of these issues poses the greatest problems of law and of fact. The text of paragraph (B) demands careful scrutiny.

¶43The first sentence calls for the jury to decide “[wjhether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” The majority construes “probability” to mean “more likely than not,” as did the trial court. It leaves the meaning of the conditional “would” rather than the future “will” unexplained. “Would” if what? But harder problems remain unresolved.

¶44What are “criminal acts of violence”? Are they limited to bodily violence directed against a person or persons? The court could so limit the statute, but the words do not, and the limitation is not self-evident. Are arson and bombing of buildings acts of violence? Does a person with a propensity to get at his victims by killing or torturing their pets or other animals commit criminal acts of violence?1

¶45The statutory test is further qualified. The first sentence of the subsection, quoted again for emphasis, poses the issue “[w]hether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. ” What do the emphasized words qualify? What must constitute a continuing threat to society, the nature of the anticipated criminal acts of violence, or the degree of their probability?

¶46Moreover, the words make a distinction between *199probable criminal acts of violence that constitute a threat to society and others that do not. The distinction must have meaning; we are not free to treat it as surplusage.

“In the construction of a statute, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars such construction is, if possible, to be adopted as will give effect to all.”

¶47ORS 174.010. See also Portland Adventist Medical Center v. Sheffield, 303 Or 197, 200, 735 P2d 371 (1987). A defendant may not be sentenced to death rather than to prison whenever he or she is likely to engage in future criminal violence against someone or something, but only if this probability (or the violence, whichever the clause means) threatens society. Because the statute precludes treating every probable assault as a threat to society, does it exclude defendants whose violent propensities are narrowly focused on one or a few individuals? The world contains persons who do not willingly assault any human being but war against institutions with dynamite and sabotage, and others who lead highly respectable public lives and privately assault only their wives or their children. Which are and which are not a “continuing threat to society”? And do those words exclude probable violence limited to fellow prisoners, who have been “removed from society” for its protection? The answer can be crucial in assessing the danger “to society” posed by a defendant who is going to prison for a very long time.

¶48Once again, the present point is not that all these questions eventually need answers. The present point, rather, is that these crucial issues demand analysis and an evidentiary record, both of which are obviously beyond the capacity of an unrepresented defendant. They certainly were neither analyzed nor pursued in the record that led to this defendant’s death sentence.

¶49V. NONCOMPLIANCE WITH FEDERAL CONSTITUTIONAL STANDARDS

¶50As if these problems with ORS 163.150(l)(b)(B) were not bad enough, worse follows. After assigning to the jury the task to determine the “probability that the defendant would *200commit criminal acts of violence that would constitute a continuing threat to society,” ORS 163.150(1) (b)(B) continues:

“… In determining this issue, the court shall instruct the jury to consider any mitigating circumstances offered in evidence, including, but not limited to, the defendant’s age, the extent and severity of the defendant’s prior criminal conduct and the extent of the mental and emotional pressure under which the defendant was acting at the time the offense was committed;”

¶51This sentence adds a new and crucial set of issues that no unrepresented defendant can be expected to recognize, let alone deal with. Certainly this defendant could not and did not deal with them. As a consequence, an indispensable element played no role in sentencing defendant to death.

¶52To see the crucial nature of the “mitigation” issues of law and fact, one must review their source.

¶53ORS 163.150 (l)(b)(B) plainly (for once) says that the jury shall be instructed to consider the defendant’s age, prior criminal conduct, mental or emotional pressure at the time of the crime, and other “mitigating circumstances offered in evidence” in determining the probability that the defendant “would commit criminal acts of violence that would constitute a continuing threat to society.” Not in determining whether he or she should be put to death, or any other issue. The jury is to consider “mitigating” facts only in estimating the defendant’s propensity to further dangerous criminal violence.

¶54The source of the Oregon statute’s sentence on mitigating circumstances is found in a decision of the Texas Court of Criminal Appeals in Jurek v. State, 522 SW 2d 934 (1975). That decision sustained a Texas death penalty law which called for the jury to decide the same three issues copied in ORS 163.150(1) (b) without the sentence about mitigating circumstances, and which later was sustained against federal constitutional attack in Jurek v. Texas, 428 US 262, 96 S Ct 2950, 49 L Ed 2d 929 (1976). Although the Texas law did not refer to mitigating circumstances, the Texas court stated that “in determining the likelihood that the defendant would be a continuing threat to society,” the jury could consider a defendant’s past criminal record, his age, and whether he was acting under another’s duress or domination or under extreme mental or emotional pressure. 522 SW 2d at 939-40. When Jurek reached the United States Supreme Court, the lead opinion *201quoted this passage from the Texas court’s opinion to show that Texas let the jury consider mitigating evidence, as required by other Supreme Court decisions, in answering the second statutory question. Jurek v. Texas, supra, 428 US at 272-73.

¶55The pitfalls in the Jurek version of the Texas law soon became obvious. Professor Charles Black noted them in a devastating critique of Jurek. Black, Due Process for Death: Jurek v. Texas and Companion Cases, 26 Cath U L Rev 1 (1976) . Professor George Dix published two critical analyses of Texas cases tried under that law. Dix, Administration of the Texas Death Penalty Statutes: Constitutional Infirmities Related to the Prediction of Dangerousness, 55 Tex L Rev 1343 (1977) ; Dix, Constitutional Validity of the Texas Capital Murder Scheme: A Continuing Question, 43 Tex B J 627 (1980). See also Gillers, Deciding Who Dies, 129 U Pa L Rev 1 (1980) at 37-38 n 166. The fallacy of tying “mitigating circumstances” to a question about defendant’s probable future violence that the jury must answer “yes” or “no” was not academic logic-chopping; it was demonstrated in practice, and it was no secret.

¶56Nevertheless, the sponsors of Oregon death penalty law, despite a previous failure with importing the Texas statute into Oregon, see State v. Quinn, 290 Or 383, 623 P2d 630 (1981) , again copied the Texas law and added the mitigating factors of the Texas court’s Jurek opinion to the probability - of-continuing-criminal-violence issue defined in ORS 163.150(l)(b)(B), presumably on the theory that this would establish its validity under the United States Constitution. There is no doubt under the Oregon statute that mitigating evidence is expressly tied to the jury’s assignment to predict the continuing threat of a defendant’s criminal violence. The jury was so instructed in this case.2

¶57*202The lead opinion in Jurek v. Texas, however, was signed by only three justices. Its brief treatment of the role of “mitigating circumstances” was superseded by later Supreme Court decisions. In striking down an Ohio death penalty law in 1978, Chief Justice Burger wrote:

“… [A] statute that prevents the sentencer in all capital cases from giving independent mitigating weight to aspects of the defendant’s character and record and to circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty. When the choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments.”

¶58Lockett v. Ohio, 438 US 586, 605, 98 S Ct 2954, 57 L Ed 2d 973 (1978). Even though Ohio had “liberally construed” what evidence was admissible on the issue of mitigation, its statute limited a sentencing court to relating the evidence to three statutory mitigating issues in deciding whether a defendant would live or die. The Chief Justice wrote:

“The limited range of mitigating circumstances which may be considered by the sentencer under the Ohio statute is incompatible with the Eighth and Fourteenth Amendments. To meet constitutional requirements, a death penalty statute must not preclude consideration of relevant mitigating factors.”

¶59Id. at 608. In his review of capital sentencing laws after Lockett, Professor Stephen Gillers concluded that the Lockettrule invalidated the Texas sentencing model and any other scheme that “channels” the sentencing body’s use of mitigating evidence toward answering prescribed factual questions. Gillers, supra, 129 U Pa L Rev at 31-37. That, of course, is exactly whatORS 163.150(1)(b)(B) does.

¶60In 1982, the Court adopted the “rule in Lockett” as the basis for invalidating an Oklahoma death sentence because the trial court and the appellate court had construed Oklahoma law as excluding consideration of the defendant’s “turbulent family history,” “beatings by a harsh father,” and “severe emotional disturbance” connected with having “been raised in a neglectful, sometimes even violent, family background.” Eddings v. Oklahoma, 455 US 104, 113-16, 102 S Ct 869, 71 L Ed 2d 1 (1982). The Court did not volunteer exactly what facts must be regarded as “mitigating” and what they *203must mitigate, questions that obviously are crucial to the conduct of a death penalty proceeding. But Eddingsleft no doubt that mitigating circumstances could not be confined to disproving some factual element of a defendant’s past or future conduct, as ORS 163.150(l)(b)(B) does. And the kind of facts wrongly excluded from consideration in Eddingsare just as likely to have made a defendant predictably more likely to engage in future violent acts.

¶61The significance of Eddingsfor the Texas law was apparent. One Texas scholar wrote: “The Eddingsdecision raises serious questions about the constitutionality of the Texas capital sentencing procedure.” Benson, Texas Capital Sentencing Procedure After Eddings: Some Questions Regarding Constitutional Validity, 23 South Tex L J 315 (1982). Although in Lockettthe plurality opinion had distinguished the Texas law as three justices in Jurek had understood it from the defects of the Ohio law, “the rule promulgated in Lockett, as interpreted and applied in Eddings, may signal the end of the Texas scheme.” Id. at 323 (footnote omitted). Professor Benson concluded: “In light of Lockettand Eddingsit appears that the present Texas statutory scheme for sentencing in capital cases is constitutionally inadequate under the Eighth and Fourteenth Amendments.” Id. at 331 (footnotes omitted).

¶62Later Supreme Court decisions have repeated the importance of untrammelled consideration of mitigating factors. In Skipper u. South Carolina, 476 US 1, 4, 106 S Ct 1669, 1670-71, 90 L Ed 2d 1, 6 (1986) the Court wrote:

“There is no disputing that this Court’s decision in Eddingsrequires that in capital cases ‘ “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.” ’ Eddings, supra, at 110, 71 L Ed 2d 1, 102 S Ct 869 (quoting Lockett, supra, at 604, 57 L Ed 2d 973, 98 S Ct 2954, 9 Ohio Ops 3d 26 (plurality opinion of Burger, C. J.)) (emphasis in original). Equally clear is the corollary rule that the sentencer may not refuse to consider or be precluded from considering ‘any relevant mitigating evidence.’ 455 US, at 114, 71 L Ed 2d 1, 102 S Ct 869. These rules are now well established, and the State does not question them.”

¶63*204In 1987, the Court unanimously reversed a death sentence when the state court had excluded mitigating factors that were not made relevant by Florida law:

“We think it could not be clearer that the advisory jury was instructed not to consider, and the sentencing judge refused to consider, evidence of nonstatutory mitigating circumstances, and that the proceedings therefore did not comport with the requirements of Skipper v. South Carolina, 476 US 1, 90 L Ed 2d 1, 106 S Ct 1669 (1986), Eddings v. Oklahoma, 455 US 104, 71 L Ed 2d 1, 102 S Ct 869 (1982), and Lockett v. Ohio, 438 US 586, 57 L Ed 2d 973, 98 S Ct 2954, 9 Ohio Ops 3d 26 (1978) (plurality opinion).”

¶64Hitchcock v. Dugger, 481 US 393, 107 S Ct 1821, 1824, 95 L Ed 2d 347, 353 (1987). Later in 1987, the Court again followed these cases to reverse a Nevada death sentence, because the statute allowed no consideration of possible mitigation in sentencing a life-term prison inmate for murder. Again the Court wrote:

“Although a sentencing authority may decide that a sanction less than death is not appropriate in a particular case, the fundamental respect for humanity underlying the Eighth Amendment requires that the defendant be able to present any relevant mitigating evidence that could justify a lesser sentence.”

¶65Sumner v. Shuman, 483 US_, 107 S Ct 2716, 2727, 97 L Ed 2d 56, 71 (1987). And the Court quoted Hitchcock v. Dugger to show the decisive point that the sentencer must not merely admit evidence but consider “nonstatutory mitigating circumstances.” Id.at_, 107 S Ct at 2722, 97 L Ed 2d at 66. Though these cases involved the laws of different states and distinguishable facts, they leave no doubt of the Court’s insistence on broad consideration of individualized mitigating factors.

¶66Lockett, Eddings, and their sequels cast serious doubt on the Texas practice, but their significance for ORS 163.150(1) (b) (B) is still more obvious. In Texas “mitigating circumstances” are not part of the statute but were judicially attached (however illogically) to the jury’s assignment of estimating defendant’s future criminal violence. Texas courts might try to undo this connection in an effort to satisfy the misconception of the lead opinion in Jurek v. Texas, although Professors Dix and Benson each concluded that in fact the *205Texas courts have not done so. It is difficult if not impossible to insert the broad consideration of “mitigating aspects of the defendant’s character” and other mitigating circumstances as demanded by “the rule in Lockett” even into the Texas statute. But in Oregon, the sponsors of ORS 163.150(1) (b) foreclosed any such judicial manipulation by expressly tying “mitigating circumstances” to the second issue that the jury is told to answer “yes” or “no,” the specific issue of danger to society from a defendant’s probable criminal acts of violence. While agreeing with most of Justice Gillette’s dissent, 305 Or at 219,1 see no room in the statute for a court to instruct the jury to answer different or additional questions. The statute designedly denies both the jury and the court any responsibility for actually choosing the death sentence once the three statutory questions are answered. If “mitigating circumstances” in a defendant’s background, such as those in Eddings, relate to something other than the prediction of future violence, the statute makes a death sentence mandatory.

¶67The state’s brief distinguishes the particulars of the Ohio statute in Lockett, but of course that does not relate to the Supreme Court’s subsequent affirmation and reaffirmation of “the rule in Lockett” as a general rule requiring consideration of mitigating aspects in every case. The Department of Justice ultimately does not defend the validity of ORS 163.150(1) (b) as the sponsors wrote it. Its brief only says that this court should find a way to “construe” the measure to pass constitutional muster. It offers no suggestions how that should be done, whether by inventing additional issues to be put to the jury different from those specified in the statute, or by what other means. This is not a matter of interpreting the meaning of existing words. It would require radical surgery, “to insert what has been omitted, and to omit what has been inserted,” contrary to ORS 174.010. And it would not allow affirmance of the death sentence in this case, in which the trial court quite rightly instructed the jury to consider any mitigating circumstances only in deciding the second statutory question. See note 2, supra.

¶68The majority believes that it can save the statute by construing it to provide for the introduction and jury consideration of what the majority calls “mitigating” evidence on *206the first and third questions as well as the second. The majority opinion sometimes speaks of admitting such evidence and sometimes of telling the jury to consider it, but the terminology is not the important point. Of course defense evidence bearing on all three statutory questions must be admitted, and of course defense counsel and the court will remind jurors to consider it (though again, the procedure in this case failed to assure that either would occur). ORS 163.150(1)(a) expressly requires that much.

¶69That, however, is not what the Supreme Court’s phrase “mitigating circumstances” means. If “mitigating circumstances” only meant evidence detracting from one of the three statutory criteria, the requirements would be identical if the Supreme Court had never written a word about the death penalty. Rather, the Supreme Court refers to “mitigating circumstances” as any circumstances in the individual defendant’s case that might legitimately move the sentencing judge or jury to conclude that the defendant should not be put to death despite meeting the other qualifications for a death sentence. The judge or jury must be free to consider whether circumstances other than those relevant to the statutory tests in some degree diminish a defendant’s culpability, see, e.g., Tison v. Arizona, 481 US_, 107 S Ct 1676, 95 L Ed 2d 127 (1987),3 or whether even a highly culpable defendant’s past background and individual characteristics should count against society’s taking his life, as in Eddings v. Oklahoma, supra.

¶70To all quotations from the Supreme Court’s opinions on the mitigation issue, the majority answers only that the Court has not overruled Jurek v. Texas, supra,that the Court *207in fact continued to refer to Jurek as recently as this winter in Lowenfield v. Phelps,_US_108 S Ct 546, 98 L Ed 2d 568 (1988). Undeniably the Supreme Court sometimes sounds like a band marching to the beat of more than one drummer; but when this court looks only for citations of Jurek, it is asking the wrong questions, as Justice Gillette’s dissenting opinion shows. The passage from Lowenfieldemphasized by the majority, for instance, cited Jurek primarily on the question whether a Louisiana death penalty statute adequately narrowed the class of persons eligible for the death penalty by specifying aggravating circumstances, only mentioning in a purely descriptive sentence what the Jurek plurality had “concluded” about the discretion allowed under the Texas practice. Id. at_, 108 S Ct at 554-55. That was not the issue before the Court. The Court has seen the problem of “guided discretion” as one of allocating responsibility to decide between life and death both to legislators and to sentencers. The Louisiana statute in Lowenfieldwas reviewed to see whether it left the jury too much at large to impose the death penalty, not whether it left discretion not to impose it.

¶71It is idle to insist that Jurek must be overruled before Oregon’s statute can be found to fall short of the Supreme Court’s standards. The Court has no occasion to “overrule” Jurek until another Texas case appears in a posture unsuitable for a denial of certiorari. The Court’s opinions over the years since Jurek have arrived at a rule that the legislature must substantially narrow the class of cases eligible for the death sentence to the worst crimes, and that in this remaining class the sentencing judge or jury also must retain some final degree of discretion, not confined to statutory findings of fact, whether actually to exact that penalty from the individual defendant under the circumstances of the individual case. The measure presented to the voters and adopted in 1984 did not and does not meet this second test.

¶72It might well be a service to invalidate this statute now. That would give the state an appeal to the Supreme Court or let the sponsors of another death penalty measure start over. This case does not unavoidably require that. In any event, given the well-nigh insuperable problems with ORS 163.150(1)(b) here reviewed, patently this unrepresented defendant could not and did not present the analysis and *208evidence needed for the required certainty that a death sentence may validly be imposed and carried out.

¶73VI. PARTICIPATION BY APPOINTED COUNSEL

¶74The requisite presentation of the analysis and evidence needed for a valid death sentence is not barred by a defendant’s rejection of representation by appointed counsel. A defendant cannot be excluded from his own defense. Article I, section 11, of the Oregon Constitution guarantees that “the accused shall have the right … to be heard by himself and counsel ….” The United States Supreme Court has held that the Sixth Amendment recognizes an accused’s right to defend himself that the states must respect. Faretta v. California, 422 US 806, 95 S Ct 2525, 45 L Ed 2d 562 (1975). This right of the accused, however, does not prevent the state from taking steps to assure that its laws are correctly applied. Specifically in capital cases, the accused’s right to defend himself does not displace a state’s determination to impose and carry out a death sentence only if its legal and factual bases have been tested and established beyond a reasonable doubt. That determination and the accused’s procedural rights can and must be accommodated.

¶75Judicial opinions have divided on the issue of how this should be done. Farettaitself was not a capital case. It was a prosecution for theft, and the Supreme Court, by a 5-4 majority, held that the California Court of Appeal erred in denying defendant’s request to proceed pro se. Moreover, the Farettacourt noted that “a State may—even over objection by the accused—appoint a ‘standby counsel’ to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of the defendant’s self-representation is necessary.” Id.at 835 n 46. Subsequently, the Supreme Court affirmed a defendant’s conviction for robbery and life imprisonment as a recidivist over his objection that “standby counsel” appointed for him had interfered in his conduct of his own defense. McKaskle v. Wiggins, 465 US 168, 104 S Ct 944, 79 L Ed 2d 122 (1984). Justice O’Connor’s majority opinion held that Farettadid not bar unsolicited participation by “standby counsel,” but “standby counsel” may not interfere over defendant’s objection with defendant’s own defense, create confusion by “multiple voices ‘for the defense,’ ” id. at 177, or “destroy the jury’s perception that the defendant is representing himself.” Id. at *209178. In proceedings outside a jury’s presence, a trial court “must be considered capable of differentiating the claims presented by a pro se defendant from those presented by standby counsel,” id. at 179, and the court may call on “standby counsel” even over objection to guide a defendant through courtroom procedures also in a jury trial. Id. at 184. Justices White, Brennan and Marshall dissented on grounds that the Court’s test allowed Wiggins’s “standby counsel” too much interference in his defense.

¶76As already noted, these were not capital cases. They did not involve any right to bar or restrict participation of court-appointed counsel in a capital sentencing proceeding, particularly when the correctness of legal and factual bases of a death sentence must be able to withstand “automatic” appellate review. In such a case, a recent New Jersey decision reversed a trial court ruling that allowed a defendant to instruct counsel not to present evidence in mitigation of his crime and of the death penalty. Because without such a presentation the jury could not discharge its statutory duty, nor could the New Jersey Supreme Court exercise its mandatory review, the appellate court ordered the trial court to let counsel present mitigating evidence. State v. Hightower, 214 NJ Super 43, 518 A2d 482 (1986). See also People v. Chadd, 28 Cal 3d 739, 621 P2d 837, 170 Cal Rptr 798, cert den 452 US 931 (1981) (sustaining statute denying guilty plea without counsel’s consent); Massie v. Sumner, 624 F2d 72 (9th Cir 1980), cert den 449 US 1103 (1981) (sustaining automatic statutory appeal against defendant’s objections).

¶77The same principle applies here. It would be absurd to hold that a state denies a defendant “life, liberty, or property, without due process of law” under the Fourteenth Amendment whenever the state insists on assuring itself that it takes his life (or his liberty or property, for that matter) only in strict compliance with law.4 If there is any tension between *210that insistence and a defendant’s right to present his own defense, the tension lies in the possibility of confusing a jury by divergent voices “for the defense,” McKaskle v. Wiggins, supra.It lies partly in the concept of “standby counsel,” which is why the present opinion keeps that phrase in quotation marks. For “standby counsel” ordinarily means counsel who have been appointed to offer legal advice to a defendant who rejects legal representation and chooses to conduct his own defense. It ordinarily implies “standby counsel for the defendant. ” That was the intended role of counsel in this case. If a defendant then rejects the advice and insists on silencing counsel, the conflict of roles discussed in McKaskle v. Wiggins is hard to resolve.

¶78In such a situation, in a capital case that must withstand the test of automatic review, a court can and should instruct appointed counsel to present the legal arguments, make the motions and objections, and call and examine the witnesses necessary to make the required record, and it should clearly inform the jury that counsel is acting independently of the defendant and is not permitted to prevent the accused from presenting his own defense, even when counsel thinks the attempt misguided or not responsive to the requirements of the law. Of course, since the state already is represented by the prosecutor, the task of appointed counsel in this public capacity would be to assure effective adversary procedure to test the prosecutor’s case against both legal and factual requirements. Such a procedure could have gone far toward avoiding many of the flagrant flaws in this death sentence proceeding.

¶79Competent counsel, for instance, might at least have tried to determine what kind of “criminal acts of violence that would constitute a continuing threat to society” are within or outside the scope of ORS 163.150(1)(b)(B), and just how the “mitigating factors” required under the Supreme Court’s *211Eddingsand Lockettdecisions relate to the questions submitted to the jury under ORS 163.150(l)(b). They might have called, examined, and cross-examined expert witnesses on the second statutory question, a question that the majority opinion holds is open to proof in each individual case. They certainly would have challenged the prosecutor’s wholly improper and prejudicial peroration, in his closing speech to the jury, in which he called upon the jury to “determine whose life is more valuable; Jeri Koenig’s and the rest of us, those of us in society whatever that society may be, or this Defendant’s.”

¶80The three issues defined in the death penalty law emphatically do not include whether the victim’s life is more valuable than the defendant’s. The death penalty law would not permit the jury to engage in such a comparative valuing of lives if a highly respected and “valuable” member of society were to murder a penniless criminal, an addicted burglar or a blackmailing prostitute. It equally does not permit it in the more common situation presented in this case. To quote Chief Justice Thayer’s criticism in State v. Olds of the district attorney’s “conscience of the community” speech against that defendant:

“That he is a gambler and a worthless member of community, may be true; but he is on trial for his life, is within the pale of the law, and the courts can do no less than to require that the law be administered in his case as in all others—in accordance with its letter and spirit.”

¶8119 Or at 440, 24 P at 406.5 Today’s majority opinion agrees, *212305 Or at 180 n 25, but does nothing about it. The prosecutor’s argument is another error apparent on the face of the present record that the trial court might have found ways to correct if there had been someone other than this self-important but incapable, unrepresented defendant to bring it to the court’s attention.

¶82VII. SELECTIVE SUSPENSION OF CONSTITUTIONAL STANDARDS

¶83From the beginning of statehood in 1859, two principles of humane penal laws have been enshrined in Oregon’s constitution, presumably to place them beyond the reach of legislators and transitory majorities. One principle, guaranteed in Article I, section 15, is that “[l]aws for the punishment of crime shall be founded on the principles of reformation, and not of vindictive justice.” The other, in Article I, section 16, provides that “[c]ruel and unusual punishments shall not be inflicted, but all penalties shall be proportioned to the offense.” In 1984, Ballot Measure 6 enacted Article I, section 40, of the Oregon Constitution, which provides that the penalty for aggravated murder, as defined by law, shall be death “[notwithstanding sections 15 and 16 of this Article.”

¶84If section 40 is valid, its effect is to create two opposing principles of punishment in Oregon’s criminal law. The principle of punishment for practically all crimes must be “reformation,” not “vindictive justice.” Vindictiveness *213—revenge, hatred, revulsion—may not motivate the punishment for rape, for arson, for robbery, for the most brutal cruelty to women or children. Vindictiveness may not motivate the punishment for killing another person, not even for most murders. But when a murder fits one of the complex definitions of aggravated murder, described in part II of this opinion, the civilizing restraints of sections 15 and 16 are excluded. After 130 years, emotions of vindictiveness and revenge now are declared to be a respectable basis for public administration of Oregon law in some cases but not in others. So are cruel and unusual punishments, but for the safety net provided by the federal Eighth and Fourteenth Amendments. Vindictive and cruel, unusual, or disproportionate punishments are forbidden (absent other aggravating circumstances) when a woman murders her husband or her child, her father or her mother, but such penalties are allowed when she murders both, or when the victim is one of a list of officials, or if the defendant was in custody at the time. The state now may exact cruel or disproportionate vengeance when the victim is any judge or court employee, or an officer of the police and corrections system or a fellow inmate, but not if the defendant instead kills an officer’s wife or child, a legislator, an agency official, or a prison employee not charged with the supervision or control of inmates. See ORS 163.095, supra.

¶85The majority says that this radical difference in the Constitution’s penal principles created by the partial suspension of Article I, sections 15 and 16, needs only to be “rational” in order to satisfy the Fourteenth Amendment’s mandate of equal protection of the laws, because the majority does not perceive a “fundamental” interest at stake in the difference, though a defendant’s life or death may depend on it. Because, in my opinion, other reasons invalidate the death sentence in the case before us, I do not pursue the equal protection issue at length; but the majority’s treatment of the Supreme Court’s equal protection jurisprudence is quite inadequate. The majority would have us believe that the Supreme Court would treat a distinction between some offenders that may be subjected to vindictive, cruel, unusual or disproportionate punishments and the majority of offenders who may not be so punished as it would treat a distinction between plastic and paper milk containers. See Minnesota u. Clover Leaf Creamery Co., 449 US 456, 101 S Ct 715, 66 L Ed 2d 659 (1981).

¶86*214To use a seemingly farfetched example, a state might make sterilization an available punishment for aggressive robbers and not for cautious nonaggressive burglars, or for burglars of residences and not for robbers of banks, and defend each scheme on some “rational” hypothesis that either group poses a greater threat of forced pregnancy to women than the other. Yet this example resembles the statute struck down in Skinner v. Oklahoma, 316 US 535, 62 S Ct 1110, 86 L Ed 1655 (1942), which found a denial of equal protection in a law that provided for the sterilization of persons repeatedly convicted of most felonies involving moral turpitude, such as larceny, but excluded others, such as embezzlement. Skinnerappears in the majority’s opinion only in a footnote to an unrelated citation. The majority is satisfied not to look far either for support or for refutation of the equal protection claim.

¶87Beyond the challenge to the distinctions made by Oregon’s scheme on its face, other issues can be expected to arise whether the scheme is applied equally, or “upon the same terms,” Oregon Constitution, Article I, section 20.6See State v. Freeland, 295 Or 367, 667 P2d 509 (1983) (discretionary decisions in criminal prosecutions must apply defensible criteria) . Issues of equal treatment of similar offenders, of course, are hard to brief persuasively in the first death penalty case under the 1984 law. By the time unequal selection of capital cases can be demonstrated, it presumably will be too late for this and several other defendants, whose lives will have been taken in the course of the current experiment with the death penalty.7 Other issues also remain unexamined.8

¶88*215VIII. CONCLUSION

¶89To summarize:

¶901. The Supreme Court has said that a death penalty may not be mandatory but must allow the sentencing authority to consider mitigating circumstances. But the 1984 death penalty measure allows neither the jury nor the judge to decide against a death sentence even when there are mitigating facts that would incline them to do so.

¶91This is because neither the jury nor the judge actually decides for or against a death sentence as such. If the jury *216conscientiously decides specified facts—decides that the defendant acted deliberately and unreasonably in response to any provocation, and that he presents a danger of future crimes of violence—then the statute makes the death penalty mandatory. The jury, of course, must consider any relevant evidence offered by the defendant to negate one or more of these facts, but that is not “mitigation.” Even if the trial court admits evidence that a defendant’s acceptance of killing was formed in combat as a soldier or while growing up in the violent streets of public housing projects, that he was brutalized by mistreatment as a child, or in a “reformatory,” or as a prisoner of war, the statute does not let a conscientious jury decide that the defendant does not deserve to die.

¶92If the Supreme Court’s opinions mean what they say about leaving room for individualized judgment of mitigating circumstances after the other elements qualifying a case for a potential death sentence are found to exist, as reviewed in Justice Gillette’s dissent, then the 1984 measure does not meet federal standards. This court does not have the final word on that federal question. But when the court finds itself as much in doubt as it does in this case, surely we should risk erring on the side of life rather than of death and leave it to the state to appeal to the Supreme Court if it so chooses.

¶932. The 1984 measure on its face also may violate the Fourteenth Amendment in its selective suspension of the guarantees of the Oregon Constitution against vindictive, cruel, unusual, or disproportionate punishments. In effect, the measure asserts that Oregon wants to maintain for most classes of crimes the humane penal philosophy that has been part of its constitution since 1859 but with respect to other offenders wants to give rein to motives of vindictiveness even to the point where punishment is cruel, unusual, or disproportionate. Harsh as this sounds, legally that is what the measure means.

¶943. I phrase these federal constitutional points with the conditional words “if’ and “may” because this court would not have to decide them now, although the majority’s action puts such a decision squarely up to the United States Supreme Court. Important issues of Oregon law should not be overlooked in the debate over the federal “mitigation” issue. *217This particular death sentence should be set aside in any event.

¶95The procedure by which this case was tried in the circuit court and which the majority now finds acceptable and adequate for review in this court, doubtless was conscientious on the part of the circuit judge and lawyers assigned to advise the defendant. Nevertheless, the procedure was inadequate and a bad precedent for future capital cases.

¶96The death penalty statute imposes on this court the duty to subject each conviction involving a death sentence to “automatic and direct review.” This means review of each element needed for a death sentence, even if it does not require the court to decide anew facts found at trial upon adequate evidence. This court will face many such cases each year, if juries are bound to impose death sentences without mitigation whenever unprovoked deliberateness and dangerous propensities are shown, as the majority thinks is constitutionally permissible.

¶97Review of even one death sentence case is a heavy burden; review of many will be unbearable unless the cases are tried with as much professional skill and care as the legal system can muster. The backlog of appeals in states where the death penalty has existed longer can approach levels where conscientious supreme court judges have little time for the many other important issues demanding their attention. The pressure will mount to deal with death sentence review as with ordinary appeals, to examine a death sentence case only for trial court “error” properly objected to, preserved and raised on appeal, and to dismiss more errors as “harmless,” as already shown by the majority’s treatment of the trial court’s failure to correct the prosecutor’s final jury argument in this case. See supra, 305 Or at 211. This does not provide the degree of certainty that a death sentence was properly imposed that the provision for Supreme Court review is supposed to assure.

¶98The demand for certainty has other roots than sympathy for a convicted murderer, as sometimes seems to be thought. The higher statutory and constitutional standards for capital cases also reflect the fact that executions at the hand of a state’s public officials implicate the state’s citizens in an act that many find morally repugnant. It therefore is not *218a defendant’s privilege to volunteer for conviction of a capital offense and to prevent an adequate test of the prosecution’s case for the death sentence, as defendant did in this case. Article I, section 11, of the Oregon Constitution may not prevent a confession to the facts in open court, but I would hold that it prevents a guilty plea when the prosecution seeks the death penalty, as explained in Part III of this opinion. A defendant’s right to present his own defense does not deny the state the means to assure that the prosecution’s case is tested in a professionally qualified adversary manner. That did not occur here.

¶994. Other issues remain on which federal caselaw will offer little help. Oregon’s Constitution requires that the law be administered “on equal terms” in similar cases. This will be a difficult test for Oregon’s legal system, given the unpredictable incidence among the counties of the extraordinary costs of a full death penalty trial and the pressures on prosecutors and public defense counsel to negotiate pleas.9 Thorough and meticulous recording and comparison of potential as well as actual capital prosecutions cases will be needed to determine whether the constitutional standard is met. This lies beyond the capacity of the state’s public defense lawyers. In fact, the state Public Defender already has asked to withdraw as counsel in death penalty cases pending in this court because of inadequate resources to prepare and brief these intensive and extensive proceedings on top of the already vast volume of criminal appeals. Perhaps the price of the death penalty to taxpayers is not widely understood, but high price will not allow unequal administration.

¶100The death penalty is not just another criminal penalty, as both the opinions of the United States Supreme Court and our own Constitution make clear, and standards adequate for the trial and review of ordinary penalties are not adequate for the death penalty. The exacting standards demanded before the state may take a person’s life are hard to maintain and may give way under the pressure of even modest *219numbers of cases. Perhaps those who adopted Oregon’s death penalty measure expected its application to be a rare event. But it is reported that nationally about 2000 persons are awaiting execution, including scores in many states comparable to Oregon, and there is no reason to expect this state’s share to be less than proportionate.10 At bottom, the question is whether society can keep reassuring itself that it means to use the death penalty only rarely, in exceptional cases and safeguarded by extraordinarily thorough procedures, at a time when the criminal behavior that qualifies as capital offenses tragically has become too common to be called exceptional.

¶101Because in addition to the doubtful validity of the 1984 death penalty measure itself, the procedure that led to the present sentence of death, and therefore the record and procedure on review, fell short of the standards that this state has set for capital cases, I dissent from the affirmance of this death sentence.