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State v. Loftin

February 01, 1999

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DONALD LOFTIN, DEFENDANT-APPELLANT.



SYLLABUS BY THE COURT

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

State of New Jersey v. Donald Loftin (A-86-96)

Argued March 18, 1997 -

Decided February 1, 1999

PORITZ, C.J., writing for a majority of the Court.

The Supreme Court previously affirmed Loftin's conviction and death sentence for the murder of Gary Marsh. In this appeal, the Court considers Loftin's request for proportionality review of his death sentence. This appeal also requires the Court to consider the constitutionality of an amendment to N.J.S.A. 2C:11-3e that limits proportionality review to those cases in which a jury has sentenced a defendant to death.

HELD: The Supreme Court will not apply the 1992 statutory amendment limiting proportionality review to cases in which the defendant has been sentenced to death until reviewing the findings and recommendations of a newly-appointed Special Master. Loftin has not met his burden of proving that his death sentence is disproportionate or that race has operated as an impermissible factor in the imposition of the death penalty.

1. Proportionality review is intended to ensure that the death penalty is being administered in a rational, non-arbitrary and evenhanded manner. It also provides a mechanism by which death sentences may be monitored to prevent impermissible discrimination in imposing the death penalty. In performing proportionality review, the Court conducts a frequency analysis using statistical methods, and a precedent-seeking review consisting of a traditional, case-by-case analysis. These methods compare the case to others that have been found to have either similar fact patterns or similar levels of culpability, and are used to determine whether the sentence imposed on the defendant is disproportionate to the sentences imposed in those other cases. From the beginning, there has been extensive critical commentary on the frequency analysis methodologies accepted by the Court. The Court has chosen in each case to discuss the results of the frequency analysis tests despite their acknowledged deficiencies, as an adjunct to its precedent-seeking review. (pp. 5-22)

2. The Court has held that under the proportionality review provision prior to the 1992 amendment, the appropriate universe of cases included not only all cases in which the death penalty had been sought, but also death eligible homicides where the prosecutor elected not to seek the death penalty. The Court has deemed the 1992 amendment limiting the universe to death-sentenced cases to be inapplicable to appeals that were pending as of the effective date of the amendment. Loftin was convicted in July 1994, after the amendment's effective date. (pp. 23-25)

3. At issue in this case is the process by which the Court fulfills its substantive constitutional responsibility to review matters on appeal and, specifically, to review capital causes. Appellate review is an exclusive function of the judiciary secured against legislative interference. However, the Court will uphold a legislative enactment absent constitutional repugnance. Experience teaches that proportionality review methodologies are not without substantial shortcomings and, accordingly, warrant careful reconsideration. There are several areas of concern that require reconsideration, including the size of the universe of comparison cases. Because these issues cannot be resolved on the record before the Court, a Special Master is appointed to conduct additional fact-finding and make recommendations to the Court. On receipt of the report, the Court will be in a position to determine whether the statutory limitation on the proportionality review universe prevents meaningful appellate review. Until then the Court will continue to use the full universe of death-eligible cases. (pp. 25-37)

4. The Court's use of all death-eligible homicides in the universe of cases enables it to consider possible discrimination in the prosecutors' charging decisions as well as in the juries' sentencing decisions. Yet, the reliability of the data still concerns the Court. A prosecutor must decide what to do based on a complex of factors -- the decision does not necessarily reflect a determination of deathworthiness. There are also practical difficulties attendant to data collection and analysis of non-capital cases, involving subjective determinations by AOC staff. Where a defendant pled guilty, these determinations must be made without the benefit of a trial. The relatively small size of the proportionality review database suggests that the cumulative effect of individual case errors could undermine the reliability of the statistical models. For this reason, there should be additional fact-finding concerning the proper scope of the proportionality review universe by the Special Master. (pp. 38-44)

5. The Court has acknowledged that frequency analysis has so far fallen short of its potential. Much of the difficulty has arisen because of the small size of the pool of cases for comparison purposes, and the database is not growing at the rate that had been expected. The Special Master is directed to consider particular problems with the statistical methods used, with a view toward making frequency analysis more useful for the Court. However, the numerical-preponderance-of-aggravating-and-mitigating-factors test, which compares a case to other cases having the same number of aggravating and mitigating factors, has not contributed to the Court's proportionality review and is abandoned by the Court. (pp. 44-52)

6. The Court's concerns with respect to precedent-seeking review also arise from questions about the reliability of the data. Precedent-seeking relies on the same case-classification scheme employed in the salient-factors test, which is part of the frequency analysis. The Special Master will consider whether some reduction in the number of case classifications is possible without compromising the principle that only similar cases are to be compared. (pp. 52-54)

7. The Court has rejected prior claims of racial disparities in sentencing that were based on the statistical models, given the insufficient number of cases in the statistical database. There has been an increase in the number of death-sentenced and death-eligible cases since the last appeal, DiFrisco III. Because of the larger database, the AOC used logistic regression procedures in its analyses, and informed the Court that there was a possible race effect in jury decision making. Loftin cites to these analyses in support of his claim of racial disparity, while the State vigorously disputes the accuracy and reliability of the models. The Court appointed a Special Master to make findings and recommendations relating to Loftin's race as a possible factor in his death penalty. In sum, the Special Master concluded that the Court is no closer than it was in the past to statistical evidence of race effect. The Court's statistical methods were developed for conducting individual proportionality review, not for the purpose of assessing systemic discrimination. In addition, the Special Master found that a race-blind survey of fifty experienced trial Judges who ranked penalty-trial defendants by culpability challenged the accuracy and reliability of the statistical models indicating a race effect. The newly-appointed Special Master is asked to develop statistical models for more reliable regression studies of race effect. The Master should also consider the appointment of a panel of Judges to perform independent verification of the culpability ratings derived from the statistical models. (pp. 55-84)

8. Proportionality review has been conducted as a separate proceeding following a defendant's unsuccessful direct appeal. This was intended to conserve resources, because such a review is not necessary if the direct appeal is successful. The Court recognizes, however, that this practice also draws out the process when a death sentence is affirmed. The Special Master is requested to develop a factual record and issue findings concerning the desirability of maintaining proportionality review as a separate proceeding or, alternately, conducting such review in connection with a defendant's direct appeal. (pp. 84-85)

9. Applying the frequency analysis to Loftin, the Court finds that he has not offered evidence that his sentence is disproportionate. (pp. 85-113)

10. Under the precedent-seeking review, which involves traditional, case-by-case review of similar death-eligible cases, the Court does not find that Loftin's death sentence should be reversed. (pp. 113-130)

Loftin's sentence of death is AFFIRMED.

JUSTICE HANDLER, Dissenting, is of the view that Loftin relentlessly documents a risk that the death penalty is imposed in a racially discriminatory manner, rendering the administration of capital punishment in New Jersey unconstitutional. He also opposes the application of proportionality review to Loftin's case in light of the Court's acknowledgment of flaws in the current methodology and the need for revisions. Finally, he finds the 1992 statutory amendment limiting the universe of cases to those in which a death sentence was imposed facially unconstitutional.

JUSTICES POLLOCK, O'HERN, GARIBALDI, STEIN, and COLEMAN join in CHIEF JUSTICE PORITZ's opinion. JUSTICE HANDLER has filed a separate Dissenting opinion.

The opinion of the court was delivered by: Poritz, C.j.

Argued March 18, 1997

On Proportionality Review of a Death Sentence imposed in the Superior Court, Law Division, Mercer County.

TABLE OF CONTENTS

I. The Origin and History of Proportionality Review . . . . . 5

A. From Furman to Pulley . . . . . . . . . . . . . . . . 5

B. Proportionality Review in Other States. . . . . . . . 7

C. Proportionality Review in New Jersey. . . . . . . . . 17

II. The Constitutionality of N.J.S.A. 2C:11-3e as Amended. . . 23

A. Pending Appeals . . . . . . . . . . . . . . . . . . . 23

B. The Supreme Court's Appellate Review Function . . . . 25

C. Application of Proportionality Review . . . . . . . . 35

1. The Scope of the Statistical Universe of Comparison Cases. . . . . . . . . . . . . . . 38

2. Individual Proportionality Review. . . . . . . . 44

a. Frequency Analysis. . . . . . . . . . . . . 44

i. Salient-Factors Test . . . . . . . . . 46

ii. Numerical-Preponderance-of-Aggravating-and-Mitigating-Factors Test . . . . . . . . . . . . . 49

iii. Index-of-Outcomes Test . . . . . . . . 51

b. Precedent-Seeking Review. . . . . . . . . . 52

3. Systemic Proportionality Review and Possible Racial Disparity in the Imposition of the Death Penalty. . . . . . . . . . . . . . . . . . 55

a. Race as a Predictor of Outcome . . . . . . . 58

b. Review of the Statistical Models . . . . . . 62

4. Proportionality Review and Its Status as a Separate Proceeding in Death Penalty Appeals . . 84

III. Application of the Methods of Individual Proportionality Review to Loftin . . . . . . . . . . . . . . . . . . . . . 85

A. Facts . . . . . . . . . . . . . . . . . . . . . . . . 86

B. Focus of Review . . . . . . . . . . . . . . . . . . . 92

1. The Universe of Cases. . . . . . . . . . . . . . 95

2. Method of Classifying Cases . . . . . . . . . . 95

C. Comparison of Cases . . . . . . . . . . . . . . . . . 97

1. Comparison Group . . . . . . . . . . . . . . . . 98

2. Frequency Analysis . . . . . . . . . . . . . . .101

a. Salient-Factors Test. . . . . . . . . . . .102

b. Index-of-Outcomes Test. . . . . . . . . . .105

c. Frequency-Analysis Conclusion. . . . . . . 112

3. Precedent-Seeking Review. . . . . . . . . . . . 113

a. Assessment of Defendant's Culpability. . . 114

i. Moral Blameworthiness . . . . . . . . 115

ii. Degree of Victimization . . . . . . . 117

iii. Character of Defendant. . . . . . . . 118

b. Comparison of Defendant's Case to the B Cases. . . . . . . . . . . . . . . . . . 119

D. Other Arguments. . . . . . . . . . . . . . . . . . . 129

IV. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . 129

Appendix A. . . . . . . . . . . . . . . . . . . . . . . . 1-a

Appendix B. . . . . . . . . . . . . . . . . . . . . . . . 1-a

Appendix C. . . . . . . . . . . . . . . . . . . . . . . . 1-a

Comparison Case Summaries. . . . . . . . . 1-a

I. Prior Murderers with Two Additional Aggravating Factors or Particular Violence/Terror: B(1) . . . . . . . . 1-a

A) George Booker (1 and 2). . . . . 1-a

B) John Fauntenberry. . . . . . . . 3-a

C) Richard Feaster (2). . . . . . . 5-a

D) James Koedatich (1A) . . . . . . 8-a

E) James Koedatich (1B) . . . . . . 9-a

II. Prior Murderers with One Additional Aggravating Factor or Particular Violence/Terror: B(2) . . . . . . . .10-a

A) Marko Bey (2B) . . . . . . . . .10-a

B) Richard Biegenwald (1A). . . . .13-a

C) Richard Biegenwald (1B). . . . .15-a

D) Richard Biegenwald (1C). . . . .15-a

E) Bryan Coyle (1A) . . . . . . . .15-a

F) Bryan Coyle (1B) . . . . . . . .17-a

G) Samuel Erazo (1A). . . . . . . .17-a

H) Samuel Erazo (1B). . . . . . . .19-a

I) William Godette . . . . . . . .20-a

J) Frank Pennington . . . . . . . .22-a

K) Frank Pennington (1B). . . . . .24-a

L) Braynard Purnell (1A). . . . . .24-a

M) Braynard Purnell (1B). . . . . .26-a

N) Thomas Ramseur. . . . . . . . . 26-a

O) Carlos Vasquez. . . . . . . . . .28-a

III. Prior Murderers with No Other Aggravating Circumstances or Particular Violence/Terror: B(3) . . .29-a

A) Richard Biegenwald (2). . . . . .29-a

B) Jihad Muhammed. . . . . . . . . .31-a

C) Alberto Nieves. . . . . . . . . .32-a

D) Thomas Williams . . . . . . . . .34-a

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

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

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

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

We are cognizant of the Legislature's clearly expressed intent to limit the boundaries of proportionality review and would not lightly reject its views. Our consideration of those boundaries must, however, await the findings and recommendations of the Special Master. Until we have had the benefit of his report, due pursuant to our Order on May 14, 1999, we will continue, with one exception described below, see infra at ___ (slip op. at 49-51), to carry out proportionality review as before. Based on our proportionality review herein, we hold that defendant has not shown his death sentence to be disproportionate to the penalty imposed in similar cases.

I.

The Origin and History of Proportionality Review

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

A. From Furman to Pulley

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

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

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

States seeking to enact constitutional death penalty statutes followed the statute upheld in Gregg like a recipe, careful to include provisions for appellate proportionality review. See infra at ___ (slip op. at 8-9). Six years later, however, in Pulley v. Harris, 465 U.S. 37, 104 S. Ct. 871, 79 L. Ed. 2d 29 (1984), the United States Supreme Court held that proportionality review was not "indispensable" to a constitutionally acceptable capital punishment statute. Id. at 45, 104 S. Ct. at 876, 79 L. Ed. 2d at 37.

B. Proportionality Review in Other States

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

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

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

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

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

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

The experience of other states is instructive, if only because it demonstrates the diverse responses to questions about the conduct of proportionality review. For example, the propriety of courts utilizing quantitative methods has been vigorously debated. Compare Washington v. Pirtle, 904 P.2d 245, 277 (Wash. 1995) (noting that quantitative approach -- comparing number of aggravating circumstances, victims and prior convictions in similar cases -- "can point to areas of concern" and help court "to be as objective as possible"), cert. denied, 518 U.S. 1026, 116 S. Ct. 2568, 135 L. Ed. 2d 1084 (1996), and Governor's Memorandum of Approval of 1995 N.Y. Laws, c. 1, reprinted in N.Y. Correct L. § 650 (approving consideration of statistical evidence in conducting proportionality review to determine whether race is "having a significant impact upon the imposition of the death penalty"), with Connecticut v. Webb, 680 A.2d 147, 209 (Conn. 1996) (rejecting New Jersey Supreme Court's statistical methods as unworkable attempt to "quantify the unquantifiable"), *fn1 and Bland, supra, 958 S.W.2d at 665 (criticizing New Jersey Supreme Court's use of statistics as departure from jurisprudence of "individualized consideration"). Despite the concerns expressed by some courts about these methods, several states remain committed to a form of quantitative proportionality review to detect possible racial bias. See N.Y. Crim. Proc. Law § 470.30 (requiring proportionality review if request based on race of defendant or victim); Connecticut v. Cobb, 663 A.2d 948, 961-62 (Conn. 1995) (recognizing statutory basis for statistical claim of racial disparity in imposition of death penalty); *fn2 Washington v. Gerry, 888 P.2d 1105, 1154 (Wash.) (utilizing proportionality review to examine patterns in death sentencing based on race), cert. denied, 516 U.S. 843, 116 S. Ct. 131, 133 L. Ed. 2d 79 (1995). Yet, statistical claims of racial bias in the administration of the death penalty present legal and methodological issues of exceptional complexity. We keep in mind the dialogue engendered by these difficult questions when considering how we might answer them ourselves.

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

C. Proportionality Review in New Jersey

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

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

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

"Proportionality review has a function entirely unique among the review proceedings in a capital proceeding. Proportionality review, in the context of a capital sentencing scheme, is not appellate review to ensure that the aggravating factors outweigh beyond a reasonable doubt all the mitigating factors, L. 1985, c. 178, or to determine if the death sentence is disproportionate to the crime in violation of the ban against cruel and unusual punishment. That death is not disproportionate in the sense of being a cruel and unusual punishment is presumed by the nature of the review. Pulley, supra, 465 U.S. at 43, 104 S. Ct. at 875, 79 L. Ed. 2d at 36. Rather, the purpose of review here is "of a different sort. . . . It purports to inquire instead whether the penalty is nonetheless unacceptable in a particular case because disproportionate to the punishment imposed on others convicted of the same crime." [Id. at 326 (quoting Pulley, supra, 465 U.S. at 43, 104 S. Ct. at 875, 79 L. Ed. 2d at 36).]

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

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

Marshall II describes in detail the creation of a database and the sorting processes we have used as a basis for comparison of similar cases. Id. at 141-45. We have substantially relied on the Final Report of our first Special Master, David C. Baldus, Death Penalty Proportionality Review Project, Final Report to the New Jersey Supreme Court (Sept. 24, 1991) (Final Report). As outlined in Marshall II, supra, 130 N.J. at 152-59, and followed in our subsequent proportionality review cases, we conduct a frequency analysis using statistical methods and a precedent-seeking review consisting of case-by-case analyses of comparative culpability. State v. Bey, 137 N.J. 334, 350 (1994) (Bey IV), cert. denied, 513 U.S. 1164, 115 S. Ct. 1131, 130 L. Ed. 2d 1093 (1995); State v. Martini, 139 N.J. 3, 28 (1994) (Martini II), cert. denied, 516 U.S. 875, 116 S. Ct. 203, 133 L. Ed. 2d 137 (1995); State v. DiFrisco, 142 N.J. 148, 165-66 (1995) (DiFrisco III), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). These methods compare the case at bar to other cases that have been found to have either similar fact patterns or similar levels of culpability and are used to determine whether the sentence imposed on the defendant in the case at bar is disproportionate to the sentences imposed in those similar cases. More specifically, frequency analysis is a statistical approach that determines in three ways which cases have similar levels of culpability: (1) the salient-factors test; (2) the numerical-preponderance-of-aggravating-and-mitigating-factors test; and (3) the index-of-outcomes test. Bey IV, supra, 137 N.J. at 350-51. The salient-factors test "defines 'similar cases in terms of factual comparability,'" while the numerical-preponderance-of-aggravating-and-mitigating-factors test compares the raw number of those factors in each case. Marshall II, supra, 130 N.J. at 146-47 (citations omitted). The index-of-outcomes test is a regression analysis that determines the culpability levels of defendants "'as measured by the presence or absence in the cases of [statutory and non-statutory aggravating and mitigating] factors that appear to influence prosecutorial and jury decision-making.'" Id. at 147-48 (citation omitted). Precedent-seeking review, on the other hand, compares all relevant statutory and non-statutory aggravating and mitigating factors present in factually similar cases in order to determine defendant's criminal culpability, or relative degree of deathworthiness. See DiFrisco III, supra, 142 N.J. at 184-85.

From the beginning, there has been extensive critical commentary by the Public Defender and Attorney General, along with alternative suggested approaches, on the frequency analysis methodologies accepted by the Court. We have considered that commentary and have chosen in each case to discuss the results of our frequency tests despite their acknowledged deficiencies, with the caveat that ultimately our judgments about the proportionality of death sentences are unquantifiable. Frequency review has always functioned as an adjunct to the detailed comparison of like cases that we undertake in precedent-seeking review and that, as Judges, we are by training and experience best equipped to do. *fn3

II.

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

A. Pending Appeals

In Marshall II, we determined that N.J.S.A. 2C:11-3e, as amended, would not apply to defendant's case because his appeal was pending at the time the amendment took effect on May 12, 1992. 130 N.J. at 119. Under the pre-1992 proportionality review provision of N.J.S.A. 2C:11-3e, we held that the appropriate "universe" from which to choose similar cases included not only all cases in which the death penalty had been imposed, or had been sought, but also "clearly death eligible homicides in which the prosecutor elected not to seek the death penalty." Id. at 137. We chose the larger universe in order to consider the possibility that a jury had imposed a disproportionate sentence, id. at 133-34, or that a prosecutor had misused his or her discretion, id. at 134, and, in order to prevent "'any impermissible discrimination in imposing the death penalty,'" id. at 135 (quoting Ramseur, supra, 106 N.J. at 327). In the three cases following Marshall II, we continued to make use of a universe of death-eligible homicides. DiFrisco III, supra, 142 N.J. at 162-63; Martini II, supra, 139 N.J. at 23; Bey IV, supra, 137 N.J. at 343-44. In each of these cases, the 1992 statutory amendment limiting our review to death-sentenced cases was inapplicable because the appeals in these cases were pending as of the effective date of the amendment. DiFrisco III, supra, 142 N.J. at 163; *fn4 Martini II, supra, 139 N.J. at 23; Bey IV, supra, 137 N.J. at 343-44. In this case, defendant was not convicted until July 8, 1994, more than two years after the effective date of the 1992 statutory amendment. *fn5 For that reason, we now consider whether we must conform our proportionality review methodology to the 1992 amendment thereby limiting proportionality review "to a comparison of similar cases in which a sentence of death has been imposed." N.J.S.A. 2C:11-3e.

B. The Supreme Court's Appellate Review Function

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

The source of the Supreme Court's appellate review authority can be found in Article VI, Section 2, Paragraph 2 of the 1947 Constitution:

"The Supreme Court shall exercise appellate jurisdiction in the last resort in all causes provided in this Constitution." As defined by Article VI, Section 5, Paragraph 1, the Court hears appeals:

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

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

(c) In capital causes;

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

(e) In such causes as may be provided by law." [Ibid.]

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

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

"That organic document purposefully modernized and greatly strengthened our judicial system. In the process it vested this Court with wide judicial power, perhaps more sweeping than that granted to any other court of last resort, and all to the end that it would be in a fair position to ensure that Justice is truly and equally done." [Id. at 500.] See also Hager v. Weber, 7 N.J. 201, 205 (1951) (holding appellate review by Supreme Court "is a remedial procedure secured against legislative interference" by various provisions of State Constitution).

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

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

It was Hamilton who quoted Montesquieu: "There is no liberty if the powers of judging be not separate from the legislative and executive powers." "The complete independence of the courts of Justice is peculiarly essential in a limited constitution," Hamilton added. [Id. at 428-29.]

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

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

"There was some difference of opinion as to whether the jurisdiction of [the Supreme C]court should be selective and limited to important cases, including constitutional questions and capital offenses, or whether it should take appeals comprehensively, as does the present Court of Errors and Appeals. . . . By making the new Supreme Court's appellate jurisdiction selective, that court is assured of an adequate opportunity to hear, consider and decide every case which comes before it." [Id. at 1183-84.]

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

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

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

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

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

It is in this context that we must grapple with a statute in which a coequal branch of government has set limits on our review. *fn6 See N.J.S.A. 2C:11-3e. By its terms, the State Constitution prohibits any one branch of government from exercising powers assigned to a coordinate branch. N.J. Const. art. III, ¶ 1. Nonetheless, we have long recognized that "[t]he compartmentalization of governmental powers . . . has never been watertight," In re Salaries for Probation Officers of Bergen County, 58 N.J. 422, 425 (1971); accord Communication Workers of America v. Florio, 130 N.J. 439, 449 (1992), and have applied a flexible approach to the separation of powers issues that have been brought to the Court, Knight v. Margate, 86 N.J. 374, 389 (1981).

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

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

C. Application of Proportionality Review

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

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

Our reconsideration extends to four discrete areas of concern: the size of the universe of comparison cases; particular issues in respect of individual proportionality review; questions relating to the statistical models used in both individual and systemic proportionality review; and the status of proportionality review as a separate proceeding in death penalty appeals. *fn7 Because these issues, with one exception, cannot be resolved on the record before us, we are appointing a Special Master to conduct additional fact-finding and make recommendations to the Court. On our receipt of his report, we will be in a position to determine whether the statutory limitation on the proportionality review universe prevents meaningful appellate review. Until that time, we will continue to use the full universe of death-eligible cases as described below. Today we decide, based on our experience and on the record before us, that the numerical-preponderance-of-aggravating-and-mitigating-factors test should be abandoned.

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

1. The Scope of the Statistical Universe of Comparison Cases

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

"On the assumption that 100 robbery-felony-murder cases are prosecuted as capital crimes, all defendants are convicted and one defendant is sentenced to death, a comparison of the death-sentenced defendant's punishment with a punishment imposed only on other death-sentenced defendants would exclude from the proportionality-review process the ninety-nine robbery-felony-murder defendants that juries did not sentence to death. Indisputably, the determination whether that single death sentence is disproportionate can be made only by comparing it with the life sentences imposed on the ninety-nine defendants convicted of the same crime." [Id. at 133-34.]

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

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

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

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

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

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

Even if we were fully convinced that a universe of death-eligible cases was otherwise warranted, our understanding of the practical difficulties attendant to data collection and analysis of non-capital cases requires further review of this issue. Data collection and analysis, which is performed by staff of the AOC, entail difficult and highly subjective determinations of whether a prosecutor could have proven a case and whether a case is death-eligible. In a case that went to trial but was not capitally prosecuted, the AOC staff must make an assessment of aggravating and mitigating factors based on a review of the trial record. In a non-capital homicide, the sentencing of a defendant to a term of imprisonment is guided by statutory aggravating and mitigating factors. N.J.S.A. 2C:44-1. Those factors, however, are different from the aggravating and mitigating factors to be applied by a penalty-phase jury in determining whether to return a verdict of death or life imprisonment. See N.J.S.A. 2C:11-3c(4), c(5). Thus, with respect to a homicide case that was not capitally prosecuted, the AOC must make its own assessment of the applicable capital statutory aggravating and mitigating factors. In a case in which the defendant pled guilty, the AOC must make a determination of deathworthiness without the benefit of a trial and based on a record of the offense, the offender, and the surrounding circumstances that may not be complete. We understand that the initial determination, both for non-capital trials and for pleas, is communicated to the parties and that they may object based on information available from their files. After the AOC conducts a meeting with the parties to address their objections, a final coding decision is made. Yet, it is not clear that this process can effectively deal with the potential for errors or omissions in particular case summaries. In turn, the relatively small size of the proportionality review database suggests that the cumulative effect of individual case errors could undermine the reliability of the results produced by the statistical models. We note, however, that the impact of such errors on the precedent-seeking review process, which uses the AOC case summaries, may not be substantial.

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

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

2. Individual Proportionality Review

a. Frequency Analysis

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

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

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

i. Salient-Factors Test

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

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

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

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

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

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

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

"This test is more problematic than either the salient-factors or the index-of-outcomes analyses. Abstractly, we sense that a quantitative rather than a qualitative analysis will be rather unproductive. No matter how many aggravating factors and how few mitigating factors are presented, the jury's decision is intensely qualitative. . . . We have repeatedly emphasized that juries are to make a qualitative, and not a quantitative, analysis of aggravating and mitigating factors." [130 N.J. at 171.]

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

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

iii.Index-of-Outcomes Test

In the index-of-outcomes test, the Court "compare[s] the blameworthiness of different defendants by statistically-relevant measures of culpability." Martini II, supra, 139 N.J. at 42. The test uses multiple-regression analyses *fn8 employing formulas containing as many as thirty-two factors or variables. By this method, cases are ranked "according to overall defendant culpability, as measured by the presence or absence . . . of factors that appear to influence prosecutorial and jury decision-making." Final Report, supra, at 93. Yet, as early as Marshall II, and most recently in DiFrisco III, the Court has recognized that "the small sample size of cases with similar levels of blameworthiness and the great ranges in the confidence intervals" prevent us from relying on the results. 142 N.J. at 182. *fn9 In essence, although we have assigned a predicted probability of receiving a death sentence to each of the defendants before us, we have been unable to rely on that prediction because of the instability of the multiple-regression models. Most important, for reasons we have discussed, supra at ___ (slip op. at 45-46), we are uncertain whether we will soon reach a sample size capable of supporting reliable results in these models.

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

b. Precedent-Seeking Review

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

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

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

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

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

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

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

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

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

"Without a sufficient number of similar cases, we cannot hold that race impermissibly influences the imposition of the death penalty. As vexing as waiting for more data may be, we have no alternative but to wait." [Id. at 394.]

For similar reasons, we rejected claims of racial disparity in the two proportionality review cases following Bey IV. See Martini II, supra, 130 N.J. at 80; DiFrisco III, supra, 142 N.J. at 210.

a. Race as a Predictor of Outcome

In this case, the number of death-sentenced cases in the database has risen to forty-seven, Loftin Report, tbl.1, an increase of almost twenty-five percent over the number of cases in the Court's previous proportionality review decision in DiFrisco III, supra, 142 N.J. at 163; see also DiFrisco Report, tbl.1. Similarly, there are now 369 death-eligible cases, Loftin Report, tbl.1, an increase of nearly twenty percent over DiFrisco III, supra, 142 N.J. at 163; see also DiFrisco Report, tbl.1. Because of the larger database, the AOC used logistic regression procedures to model defendant's racial disparity claim instead of the less reliable discriminate regression procedures used in all prior proportionality review cases. Discriminate analysis assumes that the independent variables used in the model are of the "interval" variety, i.e., the variables represent factors that are capable of appearing across a broad scale. Memorandum from David Weisburd, AOC statistical consultant, to John P. McCarthy, Jr., Assistant Director, AOC 1 (Dec. 16, 1995) (reprinted in Loftin Report, technical app. 9). Examples of interval variables include age and income. Ibid. Many of the variables considered in the AOC models, however, are of the "nominal" variety, i.e., the variables stand for simple "yes/no" choices. Ibid. For example, all of the statutory aggravating and mitigating factors are of the nominal variety, i.e., they are either present (yes), or not present (no). Ibid. In contrast to discriminate analysis, logistic analysis "allows a mix of variables with different levels of measurement." *fn10

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

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

Variable Schedule Coefficient Observed* Significance

whitvic blackd 2 2 1.3555 1.4522 .0412 .0171

whitvic blackd 5 5 .5157 2.3796 .5535 .0066

whitvic blackd 8 8 1.0699 .9520 .0240 .0418

*Odds that chance alone would account for the result. [Id. at 16, 18, 20.]

These outcomes show statistical significance in five of the six categories, i.e., five categories have a p-value or p-level of .05 or less. *fn11 On this basis, the AOC informed us that the outcomes "suggest[] a possible 'race effect' in capital jury decision making." See Memorandum from John P. McCarthy, Jr., Assistant Director, AOC, to Stephen W. Townsend, Clerk of the Supreme Court 1 (Nov. 25, 1996) (McCarthy Memorandum) (reprinted in Loftin Report).

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

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

b. Review of the Statistical Models

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

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

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

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

(4). . . undertake or cause to be undertaken a precedent-seeking review of those cases within the mid-range of culpability. . . ." [Id. at 3-4.]

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

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

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

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

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

Moreover, in his earlier report, the Special Master had pointed to certain raw data as independent sources indicating some evidence of racial bias. In particular, he had noted the disparity in death-sentencing rates between black-defendant-white-victim cases and nonblack-defendant-nonwhite-victim cases. Special Master Report, supra, at 10, 43. He had acknowledged the difficulties in drawing Conclusions from a small number of transracial cases, *fn12 but nevertheless believed the disparity in the transracial data supported his observation that "'so much of [the data] tends in the same direction.'" Id. at 43. In his Supplemental Report, however, Judge Cohen found inconsistencies in coding transracial cases, i.e., black defendants included black hispanics, and nonblack defendants included Asians and "others"; whereas white victims "excluded all hispanics, Asians, and others" who were instead included in the nonwhite-victim category. Supplemental Report, supra, at 10. When the coding was revised to realign the racial categories there were substantial shifts in the number of cases in various of the realigned categories. See Appendix A. As Judge Cohen pointed out, "sorting choices affect outcomes, sometimes a lot and sometimes a little, and the outcomes cannot be evaluated without keeping in mind the underlying choices that produced them." Letter from Richard S. Cohen to the Supreme Court 2 (Feb. 7, 1997). The "ambivalence of the coding decisions" was another reason the Special Master rejected his earlier Conclusion that apparent trends in the data suggest racial bias. Supplemental Report, supra, at 10.

Our Dissenting colleague makes much of the Special Master's initial concern about the tendency of the data to show discrimination, post at ___ (slip op. at 15, 59), and downplays the modifications in the Supplemental Report. In our view, the Supplemental Report highlights the dangers inherent in the improper use of statistics. When separate analyses operate on the same data, it is not surprising that the results trend in the same direction. It is also not surprising that the results do not provide "mutually supportive[] evidence of race effect." Supplemental Report, supra, at 10.

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

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

Considering the cumulative effect of these frequencies, the Special Master found that 13.79 percent (28/203 cases) of death-eligible black defendants were sentenced to death and 13.84 percent (22/159 cases) of the nonblack defendants were sentenced to death. Id. at 8-9. Although he observed that the cumulative data are "race-neutral," id. at 9, contrary to the Dissent's claim, the Special Master did not imply "that capital-murder prosecution is 'race neutral.'" Post at ___ (slip op. at 16). Rather, Judge Cohen specifically stated:

"The limited scope and significance of these findings should be made clear. They do not rule out race bias as a factor upstream in the process of investigation, arrest and indictment in homicide cases, and they do not deal at all with the fairness or accuracy of the guilt-determining process. Also, they say nothing about the significance (if any) or the causes of an overage of capital prosecutions against nonblacks or an overage of death sentences against blacks. All they say is that nonblacks were 30% brought to penalty trial more frequently than blacks, and black penalty trial defendants received death sentences 27% more often than nonblack defendants." [Special Master Report, supra, at 9 (footnote omitted).]

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

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

The Dissent criticizes the Special Master's analogy, stating that he "fail[ed] to account for culpability, the factor that should dictate a jury's decision to sentence someone to death." See post at ___ (slip op. at 20). Again, the Dissent misreads Judge Cohen's point: the Special Master understood the importance of the culpability rankings but found them to be unsound. The data simply does not "reveal tangible and frightening disparities. . . . adversely affect[ing] black defendants, killers of white victims, and black defendants who kill white victims." Id. at ___ (slip op. at 22). The Dissent's rhetoric notwithstanding, the data cannot now inform us whether there is or there is not discrimination at any level in the death penalty system.

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

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

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

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

"the survey Judges did not know defendants' race; the juries did. . . . [T]he Judges' race-blind ratings turned out to be race-neutral in culpability levels. They did not rate nonblack defendants . . . more deathworthy than black defendants." [Id. at 24-25.]

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

The Dissent believes that the Special Master's decision to average the results of the Judges' culpability survey "may not reveal the true level of disparity in culpability between the races." See post at ___ (slip op. at 34). By way of example, the Dissent points out that averaging might be misleading because a large number of nonblack defendants could be at the extreme levels of culpability and the black defendants could be evenly divided among the five culpability levels. Id. at ___ (slip op. at 34-35 n.13) (assuming that there are nine nonblacks with culpability levels of 1, 1, 1, 3, 3, 3, 5, 5, and 5, and nine blacks all with culpability levels of 3). The fear is that the "true level of disparity" is hidden by averaging.

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

"There is always a risk in averaging judgments that an idiosyncratic response or two will distort the results. If there were a large number of responses, so that an ample number remained after discarding outliers, that course of action might make sense. In our survey, however, we ordinarily had five Judges rating each case, and we felt it unwise to discard any outlier, and leave only three or four. In addition, it appeared to us that the incidence of very disparate responses was low, and therefore outliers were not a significant problem. Furthermore, there is no reason to believe that outliers leaned more in one direction than the other, and therefore no indication that the course we took had any effect on the accuracy of the results." [Supplemental Report, supra, at 8 (emphasis added).]

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

There are, however, more fundamental problems with the statistical models. The methods we use were developed by Professor David Baldus for use by this Court in conducting individual proportionality reviews, not for the purpose of assessing systemic discrimination. See Marshall II, supra, 130 N.J. at 152-55, 172-74. Special Master Cohen considered whether the models are capable of providing information about racial disparity in death sentencing and found that "the methodology reveals serious flaws when diverted to the task of providing reliable evidence relating to the race question." Special Master Report, supra, at 42. In the view of the Special Master and Dr. Tukey, a statistical model designed to test racial bias should employ between five and ten parameters or variables, whereas the AOC models employ as many as thirty-two. *fn13 Id. at 27-28. A statistical model with a relatively small number of well-crafted parameters is known as a parsimonious model. Id. at 28; Tukey Report, supra, at 5-7.

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

Equally important, the Tukey models were not the result of independent research, but were based on the Baldus-methodology culpability ratings and operated on the same small body of data. They were done in an attempt to "alleviate some of the pathology that infected the models the AOC employed," Supplemental Report, supra, at 14, and not as the most effective means of studying possible racial bias. In this context, the Dissent's suggestion that Model 3 is the "most methodologically sound" of the Tukey models, post at ___ (slip op. at 26), has little meaning. Given the limited usefulness of the Tukey models generally, and the mixed results from the third model specifically, the Dissent's reliance on Model 3 is misplaced.

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

Like the Tukey models, however, Dr. Allison's models are "infected" by the suspect culpability ratings and the small size of the database. See supra at __ (slip op. at 76-77). Moreover, Dr. Allison apparently relied on transracial data in which the black-nonblack coding of defendants differed from the white-nonwhite coding of victims. Supplemental Report, supra, at 13-14. As discussed earlier, supra at ___ (slip op. at 66), Judge Cohen found that after the data were recoded, there were dramatic changes in the number of cases in certain categories, Supplemental Report, supra at 13, indicating that the effect of coding decisions on the statistical results can be substantial. Even setting aside the coding and database problems, the models represent but preliminary efforts to develop adequate parsimonious models. Indeed, both the Allison and the Tukey versions have not been subject to the type of study and analysis that would permit the Court to make an informed decision about their usefulness.

Finally, we disagree with our Dissenting colleague's suggestion that, despite the statistical models' "imperfections," the Court "should not hesitate" to find evidence of a race effect. Post at __ (slip op. at 44). The Dissent relies on our toxic-tort cases for the proposition that strict scientific standards may be relaxed where "'the scientific method fails . . . to address or accommodate the needs and goals' to be achieved by a judicial determination." Id. at __ (slip op. at 43) (quoting Rubanick v. Witco Chemical Corp., 125 N.J. 421, 436-37 (1991)). In Rubanick v. Witco Chemical Corp., we held that "a scientific theory of causation that has not yet reached general acceptance may be found to be sufficiently reliable if it is based on a sound, adequately-founded scientific methodology involving data and information of the type reasonably relied on by experts in the scientific field." Rubanick, supra, 125 N.J. at 449; see also Landrigan v. Celotex, 127 N.J. 404, 414 (1992) (stating that "the key to admission of the opinion is the validity of the expert's reasoning and methodology"). The difficulty with the Dissent's argument, however, is that here the statistical models we use for proportionality review do not even meet the more lenient standard accepted by the Court in toxic-tort cases.

Our Dissenting colleague further suggests that the risk of discrimination is sufficient to invalidate our capital punishment system. See post at ___ (slip op. at 25) (declaring that the Court cannot "continue to ignore the risk that racial discrimination is infecting the State's imposition of the death penalty"). He eloquently details this country's terrible history of slavery and continuing racial discrimination, id. at ___ (slip op. at 50-58), and finds that the "legacy of racism confirm[s] the statistical evidence that racial discrimination influences the imposition of capital punishment," id. at ___ (slip op. at 51) (citing McCleskey, supra, 481 U.S. at 328-30, 107 S. Ct. at 1786-87, 95 L. Ed. 2d at 302 (Brennan, J., Dissenting)). But "[t]he question 'is at what point that risk [of discrimination] becomes constitutionally unacceptable.'" McCleskey, supra, 481 U.S. at 308-09, 107 S. Ct. at 1776, 95 L. Ed. 2d at 289 (quoting Turner v. Murray, 476 U.S. 28, 36 n.8, 106 S. Ct. 1683, 1688 n.8, 90 L. Ed. 2d 27 (1986)). Past discrimination cannot validate flawed statistical data and prove present discrimination in the administration of the death penalty.

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

We make one other point in response to the Dissent's claim that we have "turned the convenient measure of 'statistical significance' into a talismanic rule." Post at ___ (slip op. at 46). We agree that "[t]here is nothing magic about . . . .05" as a measure of statistical significance. Id. at __ (slip op. at 47) (quoting Joseph Sanders, From Science to Evidence: The Testimony on Causation in the Benediction Cases, 46 Stan. L. Rev. 1, 15 (1993)). This standard is generally used by scientists "[b]ecause [they] want to be satisfied that they are not claiming false positives-causal relationships that do not exist. . . ." Sanders, supra, 46 Stan. L. Rev. at 15. We, also, expect the link between racial bias and the death penalty to be clearly established before we find that our system of capital punishment is so seriously flawed as to require intervention by this Court. We do not seek "punctilious and pristine statistical analyses," post at ___ (slip op. at 41), but, rather, a sound methodology that is capable of producing reliable results.

This Court is committed to a course of review that is capable of discerning possible racial discrimination in our capital sentencing system. Judge Cohen recommended that we continue our efforts to "develop and adopt more parsimonious models for more reliable regression studies of the race effect." Special Master Report, supra, at 45. We adopt his recommendation and will ask the Special Master to undertake that effort. *fn14 In addition, the survey of Judges conducted by Judge Cohen provides encouraging but provisional evidence of nondiscrimination. At the least, the survey suggests that the culpability ratings derived from the statistical models should be subject to a form of independent verification. See id. at 25, 45. For this reason, Judge Cohen recommended that we appoint a panel of Judges to perform periodic assessments of penalty-trial outcomes and thereby "provide another source of useful culpability ratings to guide not only tests for race effect but also [individual] proportionality review generally." Id. at 45. This recommendation should be considered by the Special Master along with the composition and mandate of an independent judicial panel if appropriate.

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

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

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

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

III.

Application of the Methods of Individual Proportionality Review to Loftin

We have decided that, until our review of the Special Master's findings and recommendations is complete, we will not apply the 1992 statutory amendment limiting proportionality review to similar cases in which the defendant has been sentenced to death, but rather will continue to compare all death-eligible homicides with the case before us. See supra at ___ (slip op. at 37). In addition, while we await the Special Master's recommendations vis-a-vis proportionality review generally, we will continue to analyze defendants' cases according to the methodologies and ...


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