specially concurring.
Although I concur with the opinion in this case, I feel compelled to comment on part II of the court’s opinion.
Article I, section 11, of the Oregon Constitution, provides:
"In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury * *
This constitutional right exists for the protection of every person in Oregon, and no statute which limits the right to a jury trial is enforceable. The right of jury trial as to every element of a criminal prosecution is an important right — in some persons’ lives, it is their most important right.
Oregon’s death penalty statutes are very similar to the death penalty statutes of Texas (which were upheld in Jurek v. Texas, 428 US 262, 96 S Ct 2950, 49 L Ed 2d 929 (1976)), and the drafters of our death penalty statutes probably drafted the initiative with the Texas law in mind. However, the Texas law differs from the Oregon death penalty law in one very substantial particular: In Texas, after the jury finds the defendant guilty of capital murder, the trial court must conduct a separate sentencing proceeding before the same jury that tried the issue of guilt. Dining the separate sentencing proceeding, the jury is required to answer two questions: (1) Whether the evidence established beyond a reasonable doubt that the murder of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result, and (2) whether the evidence established beyond a reasonable doubt that there was a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.1 These questions are virtually identical to those set forth in ORS *423163.116(2)(a) and (b). However, under the initiative enacted by the people of Oregon in 1978, these two questions are answered by the judge, not the jury.
The opinion herein states (at 405):
"We have upheld other enhanced penalty statutes even though they required additional post-trial findings by the court as a basis for a greater sentence. In particular, we have upheld the former Habitual Criminal Act and sexually dangerous offender statutes over challenges that the procedures violated the right to trial by jury of the facts upon which enhanced punishment was to be based. The difference between those statutes and ORS 163.116(2)(b), however, is found in the simple principle that the facts which constitute the crime are for the jury and those which characterize the defendant are for the sentencing court.”2
I was troubled, however, by the fact that the highest courts of at least five states, Nebraska, Arizona, Florida, Alabama and Ohio, and possibly the Supreme Court of the United States as well, have rejected assertions that the imposition of the death penalty by the judge, in the bifurcated post-verdict hearing, violates the defendant’s right to a jury trial. After studying the decisions from those jurisdictions, I conclude that they were all decided on a basis other than the limited issue upon which the court’s opinion in this case rests. In each of the five jurisdictions mentioned above, the jury, in their verdict, had found deliberateness or premeditation as part of their verdict, and the post-verdict hearing conducted by the court did not involve that element of the crime.
The Nebraska court, in State v. Simants, 197 Neb 549, 250 NW2d 881 (1977), cert den, 434 US 878, reh den, 434 US 961 (1978), held that it was constitutionally permissible for the judge to impose the death penalty following a jury verdict of guilty. But the jury was required to first find that the defendant killed another person "purposely and with deliberate and premeditated malice.” Section 28-303, *424R. R. S. (1943). Under the Nebraska law, the court then weighed eight possible aggravating circumstances and seven possible mitigating circumstances before imposition of the penalty of death.3 Regarding the claim that this procedure violated state and federal jury trial constitutional protections, the court held:
"Before we consider the procedures further, we turn to defendant’s contention that the lack of jury involvement in *425the sentencing procedure is contrary to the due process clause of the Fourteenth Amendment to the United States Constitution as well as Article I, section 3, of the Bill of Rights, of the Constitution of the State of Nebraska. The United States Supreme Court, in Proffitt v. Florida, 428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed.2d 913 (1976), has held that jury sentencing in a capital case is not constitutionally required. In that case the Court stated in upholding the Florida procedure: The basic difference between the Florida system and the Georgia system is that in Florida the sentence is determined by the trial judge rather than by the jury. This (the United States Supreme) Court has pointed out that jury sentencing in a capital case can perform an important societal function, Witherspoon v. Illinois, 391 U. S. 510, 519 n. 15, 88 S. Ct. 1770, 1775, 20 L. Ed.2d 776, but it has never suggested that jury sentencing is constitutionally required. And it would appear that judicial sentencing should lead, if anything, to even greater consistency in the imposition at the trial court level of capital punishment, since a trial judge is more experienced in sentencing than a jury, and therefore is better able to impose sentences similar to those imposed in analogous cases.’
"Inferentially, Nebraska has met this contention in the application of its habitual criminal law. We have repeatedly sustained the constitutionality of that law. In Nebraska the increased punishment for a subsequent felony is a court determination and not one for a jury. See State v. Losieau, 184 Neb. 178, 166 N. W.2d 406 (1969).
"As we understand the federal and the state constitutional provisions, they do not require or even suggest that jury sentencing is constitutionally required. Whatever the relative merits of sentencing by a judge or jury may be, we need not consider them. Our concern is the constitutionality of the Nebraska system, under the federal and state Constitutions. The relative merits of the one or the other is for legislative and not judicial determination. We find the sentencing procedure provided by the Nebraska statute does not violate either the Nebraska or the federal Constitution.” 250 NW2d at 887-888.
The Ohio Supreme Court, in State v. Weind, 50 Ohio St 2d 224, 364 NE2d 224 (1977), vacated 438 US 911, 98 S Ct 3137, 57 L Ed 2d 1156 (1978), reached the same *426conclusion.4 In Ohio, however, the indictment must list the aggravating circumstances and the jury verdict must "separately state whether the accused is found guilty * * * of each specification * * *.”5 If the accused is found guilty of one or more of the specifications, then and then only can the judge impose a sentence of death. Ohio Rev Code Anno 2929.03. Moreover, the indictment charged the defendant with "purposely and with prior calculation and design” causing the death of another. In Ohio, the jury was first required to make the findings which the defendant in the case at bar claims should have been made by the jury instead of the court.
In State v. Watson, 120 Ariz 441, 586 P2d 1253 (1978) cert den 440 US 924 (1979); Jacobs v. State, 361 So 2d 640 (Ala 1978); and Proffitt v. State, 315 So 2d 461 (Fla 1975) aff’d in Proffitt v. Florida, 428 US 242, 96 S Ct 2960, 49 L Ed 2d 913 (1976), reh den 429 US 875 (1976), the courts also rejected the defendant’s claim that his constitutional right to trial by jury had been violated. In all of these cases, however, the jury had already found, by their verdict, that the homicide had been deliberate or premeditated.6
*428I am convinced that the ORS 163.116 element of deliberateness is one of "the facts which constitute the crime,” and therefore the defendant is entitled to a jury. But while it is easy to state "the simple principle,” I fear that future cases will arise which make the application of the "simple principle” difficult.7
See Tex Code Crim Proc, Art 37.071 (Supp 1975-1976).
The following cases hold that it is improper to impose an enhanced penalty, based upon a finding by the judge, post-verdict, where the post-verdict determination is made by the judge and relates to the criminal offense charged. State v. Ferris, 249 A2d 523 (Me 1969); State v. Wheeler, 252 A2d 455 (Me 1969); State v. Blea, 84 N Mex 595, 506 P2d 339 (1973); State v. Wilkins, 88 N Mex 116, 537 P2d 1012 (1975).
The Nebraska statute states:
"(1) Aggravating Circumstances:
"(a) The offender was previously convicted of another murder or a crime involving the use or threat of violence to the person, or has a substantial history of serious assaultive or terrorizing criminal activity;
"(b) The murder was committed in an apparent effort to conceal the commission of a crime, or to conceal the identity of the perpetrator of a crime;
"(c) The minder was committed for hire, or for pecuniary gain, or the defendant hired another to commit the murder for the defendant;
"(d) The murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence;
"(e) At the time the murder was committed, the offender also committed another murder;
"(f) The offender knowingly created a great risk of death to at least several persons;
"(g) The victim was a law enforcement officer or a public servant having custody of the offender or another; or
"(h) The crime was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of the laws.
"(2) Mitigating Circumstances:
"(a) The offender has no significant history of prior criminal activity;
"(b) The offender acted under unusual pressures or influences or under the domination of another person;
"(c) The crime was committed while the offender was under the influence of externe mental or emotional disturbance;
"(d) The age of the defendant at the time of the crime;
"(e) The offender was an accomplice in the crime committed by another person and his participation was relatively minor;
"(f) The victim was a participant in the defendant’s conduct or consented to the act; or
"(g) At the time of the crime, the capacity of the defendant to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental illness, mental defect, or intoxication.” Neb Rev Stat § 29-2523.
The case was vacated due to the Supreme Court’s holding in Lockett v. Ohio, 438 US 586, 98 S Ct 2954, 57 L Ed 2d 973 (1978), that the sentencing provisions of the Ohio death penalty statute violated the Eighth and Fourteenth Amendments to the United States Constitution. However, the court stated:
"In view of our holding that Lockett was not sentenced in accord with the Eighth Amendment, we need not address her contention * * * that the Constitution requires that the death sentence be imposed by a jury * * *.” 438 US at 609 n 16.
Ohio Code § 2929.04 lists the aggravating and mitigating circumstances.
At the time of the court’s opinion, in Arizona first degree murder was defined as follows:
"A person commits first degree murder if:
"1. Knowing that his conduct will cause death, such person causes the death of another with premeditation * * Ariz Rev Stat Anno § 13-1105.
The aggravating and mitigating factors in Arizona are as follows:
"F. Aggravating circumstances to be considered shall be the following:
"1. The defendant has been convicted of another offense in the United States for which under Arizona law a sentence of life imprisonment or death was imposable.
"2. The defendant was previously convicted of a felony in the United States involving the use or threat of violence on another person.
*427"3. In the commission of the offense the defendant knowingly created a grave risk of death to another person or persons in addition to the victim of the offense.
"4. The defendant procured the commission of the offense by payment, or promise of payment, of anything of pecuniary value.
"5. The defendant committed the offense as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value.
"6. The defendant committed the offense in an especially heinous, cruel, or depraved manner.
"7. The defendant committed the offense while in the custody of the department of corrections, a law enforcement agency or county or city jail.
"G. Mitigating circumstances shall be the following:
"1. The defendant’s capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was significantly impaired, but not so impaired as to constitute a defense to prosecution.
"2. The defendant was under unusual and substantial duress, although not such as to constitute a defense to prosecution.
"3. The defendant was legally accountable for the conduct of another under the provisions of § 13-303, but his participation was relatively minor, although not so minor as to constitute a defense to prosecution.
"4. The defendant could not reasonably have foreseen that his conduct in the course of the commission of the offense for which the defendant was convicted would cause, or would create a grave risk of causing, death to another person.
"5. The defendant’s age.” Ariz Rev Stat Anno § 13-703.
In Florida, the murder statute under which the defendant was convicted required the jury to find that the death was "perpetrated from a premeditated design to effect the death of the person killed * * Fla Stat Anno § 782.04(l)(a) (Supp 1976-1977). The aggravating and mitigating circumstances were:
"(a) The capital felony was committed by a person under sentence of imprisonment.
"(b) The defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person.
"(c) The defendant knowingly created a great risk of death to many persons.
"(d) The capital felony was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any robbery, rape, arson, burglary, kidnapping, or aircraft piracy or the unlawful throwing, placing, or discharging of a destructive device or bomb.
*428"(e) The capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.
"(f) The capital felony was committed for pecuniary gain.
"(g) The capital felony was committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws.
"(h) The capital felony was especially heinous, atrocious, or cruel.” § 921.141(5) (Supp 1976-1977).
"The mitigating circumstances are:
"(a) The defendant has no significant history of prior criminal activity.
"(b) The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance.
"(c) The victim was a participant in the defendant’s conduct or consented to the act.
"(d) The defendant was an accomplice in the capital felony committed by another person and his participation was relatively minor.
"(e) The defendant acted under extreme duress or under the substantial domination of another person.
"(f) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.
"(g) The age of the defendant at the time of the crime.” § 921.141(6) (Supp 1976-1977).
In Alabama, the aggravating and mitigating circumstances are virtually identical to those in Florida. Ala Code §§ 13-11-6, 13-11-7.
For example, if our death penalty law were identical to Florida’s (see footnote 6), could aggravating factors (c) through (h) properly be considered by the court rather than a jury? Would those factors be "the facts which constitute the crime”?