(concurring). I concur in the opinion of the court. Under the recent amendment to art. 26, the death penalty itself is not forbidden by any provision of the State Constitution. However, the amendment does not preclude consideration of the constitutionality of the statutory implementation of the death penalty. Under c. 554, a defendant who pleads guilty to murder in the first degree cannot be sentenced to death. Consequently, it is clear that any defendant who does not plead guilty, is found guilty after a trial, and is subsequently sentenced to death, has been, under art. 12 of the Declaration of Rights, unconstitutionally penalized for exercising his right to try his case rather than to plead guilty. This conclusion is unavoidable unless one distorts and “rewrites” in an impermissible manner the clear language of the legislation.
I add that I should prefer that the court rest its conclusion of unconstitutionality upon the United States Constitution.1 If the court had done so, it would be unnecessary at this time to reach the issue of the scope and meaning of art. 116 of the Amendments to the State Constitution. In United States v. Jackson, 390 U.S. 570, 581 (1968), the Supreme Court stated: “Our problem is to decide whether the Constitution permits the establishment of such a death penalty, applicable only to those defendants who assert the right to contest their guilt before a jury. The inevitable effect of any such provision is, of course, to discourage assertion of the Fifth Amendment right not to plead guilty and to deter exercise of the Sixth Amendment right to demand a jury trial.” In a number of cases the Supreme Court has relied on the Jackson principle in vacating death sentences. Orders at 403 U.S. 948 (1971) (State v. Forcella, 52 N.J. 263 [1968], sub nom. Funicello v. New Jersey, State v. Childs, 269 N.C. 307 [1967]; State v. Atkinson, *174275 N.C. 288 [1969]; State v. Hill, 276 N.C. 1 [1969]; State v. Roseboro, 276 N.C. 185 [1970]; State v. Williams, 276 N.C. 703 [1970]; State v. Sanders, 276 N.C. 598 [1970]; State v. Atkinson, 278 N.C. 168 [1971]). Pope v. United States, 392 U.S. 651 (1968) (per curiam). See also Lockett v. Ohio, 438 U.S. 586, 617-619 (1978) (Blackmun, J., concurring); State v. Frampton, 95 Wash. 2d 469,478-479 (1981). Chapter 554 suffers from the same defect found in Jackson and is clearly unconstitutional under the Fifth and Sixth Amendments to the Constitution of the United States.
The dissenting Justices in this case say that the court is premature in confronting the constitutional issues at this time. We have before us the briefs and constitutional arguments of the parties and more than a score of amici curiae, including civic and religious organizations, as well as bar associations. Unconstitutionality of this statute is argued on many distinct grounds. Yet all these arguments are advanced in the abstract, because none of the defendants has yet been tried. In the public interest, and in the interests of the parties, which, if any, of the arguments should this court reach and rule upon at this time? 1. The Many Constitutional Issues Now Argued.
This question will be in better focus if I first summarize some of the many constitutional arguments which have been advanced by the parties. I turn to that summary now. In doing so I imply no opinion as to the merits of any of these arguments.
Effect of the constitutional amendment. Because there are contentions that c. 554 is unconstitutional under various provisions of the State Constitution, as well as the Federal Constitution, the broadest and most sweeping issue argued before us concerns the meaning and effect of art. 116, which amended art. 26 of the Massachusetts Declaration of Rights. This court held in District Attorney for the Suffolk Dist. v. Watson, 381 Mass. 648 (1980), that the death penalty is per se unconstitutional because it is offensive to contemporary standards of decency and because it is arbitrarily inflicted. Subsequently, art. 116 was adopted, providing as follows: “No provision of the Constitution, however, shall be construed as prohibiting the imposition of the punishment of death. The general court *175may, for the purpose of protecting the general welfare of the citizens, authorize the imposition of the punishment of death by the courts of law having jurisdiction of crimes subject to the punishment of death.”
Various arguments are advanced as to the effect of art. 116. The most restrictive view is that the amendment is obviously responsive to Watson, that it addresses only the provision of art. 26 banning “cruel or unusual” punishment, and that it does not affect constitutional analysis under other provisions of the Declaration of Rights, including art. 1. See Watson, supra at 665 n.9 (though issue not reached, “[i]t could ... be said that . . . arbitrariness [in infliction of death penalty] violates art. 1”). The most sweeping position of all is that which contends that the amendment entirely precludes consideration of the death penalty statute under the State Constitution, and that constitutionality of the death penalty statute must be appraised only under the United States Constitution.
Keeping in mind the preliminary and overriding nature of the question as to the effect of the amendment of art. 26, I turn to a summary of the challenges asserted against the death penalty statute under the State and Federal Constitutions.
Vagueness. A variety of challenges are asserted on the basis of some of the less precisely drawn provisions of c. 554. “[D]ue process requires that the penalty provision of a criminal statute must be drawn with sufficient definitiveness to foreclose speculation as to its meaning.” Commonwealth v. Bongarzone, 390 Mass. 326, 335 (1983). Particular specificity is required where the penalty is death. Woodson v. North Carolina, 428 U.S. 280,305 (1976) (opinion of Stewart, Powell, and Stevens, JJ.).
It is argued that c. 554 is notably imprecise with respect to its identification of certain capital offenses. It provides that one who “is guilty of murder committed with deliberately premeditated malice aforethought or with extreme atrocity or cruelty . . . may suffer the punishment of death.” G. L. c. 265, § 2, as appearing in St. 1982, c. 554, § 3. It has been stated that “proof of malice aforethought is the only requisite mental intent for a conviction of murder in the first degree based on *176murder committed with extreme atrocity or cruelty.” Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983). It has also been said that the term “malice aforethought” is “very technical and somewhat misleading,” Commonwealth v. Starling, 382 Mass. 423, 428 (1981), quoting from Commonwealth v. Madeiros, 255 Mass. 304, 309 (1926). Thus it is argued that the statute is not sufficiently precise so as to provide adequate guidance to a jury determining whether the death sentence should be imposed.
It is also asserted that the statute is vague with respect to the identification and proof of certain factors relevant to sentencing. It is pointed out that the statute does not specify the burden of proof to be applied to mitigating circumstances. See G. L. c. 279, § 68, inserted by St. 1982, c. 554, § 6. The issue is raised whether the judge must instruct the jury on every mitigating circumstance supported by some evidence in the record, or only on those supported by a preponderance of the evidence. Moreover, it is shown that the statute does not specify whether the judge or the jury is to identify nonstatutory mitigating factors, and it is asked whether the judge is simply to instruct the jury to consider “any other relevant mitigating . . . circumstances,” id., or whether the judge must specify those circumstances.
It is further argued that the statute provides the jury with very little guidance on how to conduct the weighing of aggravating and mitigating circumstances. The process is not to be “a mere tallying ... for the purpose of numerical comparison.” G. L. c. 279, § 68. Instead, the jury are to determine whether, “in view of all the relevant circumstances in an individual case,” id., the death sentence shall be imposed. The claim here is that this statutory formula does not adequately “channel the sentencer’s discretion by ‘clear and objective standards’ that provide ‘specific and detailed guidance,’ and that ‘make rationally reviewable the process for imposing a sentence of death.’ ” Godfrey v. Georgia, 446 U.S. 420, 428 (1980) (plurality) (footnotes omitted). See also Gregg v. Georgia, 428 U.S. 153, 195 n.46 (1976) (opinion of Stewart, Powell, and Stevens, JJ.).
*177The statute requires this court, in each case, to determine whether the sentence of death is “disproportionate to the penalty imposed in other similar cases of one or more jurisdictions legally authorized to impose said penalty of death,” and then to reverse or affirm the sentence according to the results of its determination. G. L. c. 279, § 71, inserted by St. 1982, c. 554, § 6. The statute fails to specify which jurisdictions should be examined, or even which criteria should be used to identify those jurisdictions, and it is asserted that there is great variation in the scope of the capital punishment schemes in effect throughout this country today.2 Thus it is argued that the choice which the statute requires this court to make in selecting one jurisdiction over another for the purposes of proportionality review could have a fundamental effect on the way in which the death penalty would be imposed in Massachusetts.3
Meaningful appellate review. General Laws c. 279, § 71, requires this court to review, among other things, whether the death sentence “was imposed under the influence of passion, prejudice or any other arbitrary factor,” and whether the evidence supports the jury’s weighing of aggravating and mitigating circumstances. G. L. c. 279, § 71. Nevertheless, it is pointed out that there is no assurance that the record would be sufficient to enable this court to make this determination in any meaningful way because, for example, the statute does not even require that the jury make written findings on mitigating circumstances. See G. L. c. 279, § 68. It is argued that, because “it is important that the record on appeal disclose to the reviewing court the considerations which motivated the death sentence in every case in which it is imposed,” Gardner v. Florida, 430 U.S. 349, 361 (1977) (plurality), there is a *178substantial issue as to whether c. 554 adequately provides for preservation of a sufficient record on appeal.
Proportionality. General Laws c. 265, § 2, as appearing in St. 1982, c. 554, § 3, authorizes the death penalty for one who is “guilty of murder committed . . . with extreme atrocity or cruelty.” As noted above, under certain circumstances the Commonwealth need only show “proof of malice aforethought” as the requisite mental state for a conviction of murder in the first degree committed with extreme atrocity or cruelty. Commonwealth v. Cunneen, supra at 227. Moreover, according to Commonwealth v. Starling, supra at 428, under certain circumstances “[m]alice aforethought simply does not require any actual intent to kill or to do grievous bodily harm, or any foresight of such consequences.” In sum, G. L. c. 265, § 2, purports to authorize the penalty of death for one who, in fact, may not have intended or even foreseen the consequences of his action.
According to the Supreme Court in Enmund v. Florida, 458 U.S. 782 (1982), “American criminal law has long considered a defendant’s intention — and therefore his moral guilt — to be critical to ‘the degree of [his] criminal culpability’ . . . and the Court has found criminal penalties to be unconstitutionally excessive in the absence of intentional wrongdoing.” Id. at 800, quoting Mullaney v. Wilbur, 421 U.S. 684, 698 (1975). It is asserted that the State Constitution, art. 26, recognizes a similar principle. See Commonwealth v. Bianco, 390 Mass. 254, 261 (1983) (sentence upheld under art. 26 “[i]n light of the evidence that the defendants’ conduct was wilful and deliberate”). Accordingly, because G. L. c. 265, § 2, does not distinguish between those murders committed intentionally, and those which are not, it is argued that there may be circumstances where this statute raises serious issues under the Eighth Amendment, and art. 26 of the Massachusetts Constitution.
Adequacy of the indictment. It is well established that, under art. 12, an indictment must set forth “a full and unambiguous statement of all the elements necessary to constitute the offence intended to be punished.” Commonwealth v. Palladino, 358 Mass. 28, 30 (1970). Commonwealth v. Bracy, 313 Mass. *179121, 124 (1943). The same principle has been applied, in Massachusetts, to aggravating factors which increase the potential punishment. In Tuttle v. Commonwealth, 2 Gray 505, 506 (1854) (Shaw, C.J.), the court held that “[w]hen the statute imposes a higher penalty upon a second and a third conviction, respectively, it makes the prior conviction of a similar offence a part of the description and character of the offence intended to be punished; and therefore the fact of such prior conviction must be charged, as well as proved.” See also Commonwealth v. Murphy, 389 Mass. 316, 320-321 (1983); Commonwealth v. Harrington, 130 Mass. 35, 36 (1880).
General Laws c. 279 does not require that the indictment show that the grand jury found probable cause to allege the existence of an aggravating factor. Instead, the statute requires only that the prosecutor inform the defendant of “evidence in aggravation of punishment. . . prior to his trial.” G. L. c. 279, § 68. Accordingly, it is argued that c. 279 does not comport with the art. 12 command that “the accused should understand, from the indictment, that he is charged with an offence aggravated by the fact of a prior conviction,” or by other statutory aggravating factors. Commonwealth v. Holley, 3 Gray 458, 459 (1855). See Tuttle v. Commonwealth, supra at 506.
2. The Dilemma, and the Court’s Solution.
Whether these pretrial questions as to constitutionality should be answered lies in the discretion of the court. The court deals here with a death penalty statute which consists of fully ten printed pages of complex provisions. Further, the court is confronted with two reported questions from the trial judge which together ask, in the broadest possible terms, whether the death penalty statute is “in compliance with” the Federal and State Constitutions. No specific challenge to the constitutionality of the statute has been raised below by the defendants.4
*180The above facts would provide rational support for a decision by this court to forgo all consideration of the statute at this time. There are other reasons to support such a conclusion. If the defendants here concerned, or any other defendants charged with murder in the first degree, were ever to be sentenced to death, some of the many constitutional issues now argued may be inapplicable after the cases are tried. Any attempt by the court toward a broad constitutional review may lead to a morass of speculation. Many of these issues ought properly to be considered only after trial and on the basis of a fully developed factual presentation.
On the other hand, the reasons are even more compelling for the course the court has chosen. A majority of the court has concluded that the statute is facially unconstitutional under the Jackson principle; no death sentence imposed under this statute can stand. If it is assumed that the Legislature may intend to construct a constitutional death penalty statute, it is preferable that the court should speak now rather than a year or several years hence when these defendants, or some other defendants, present their cases on appeal. The public interest and the interests of the parties would not be well served if these, and perhaps other cases as well, are allowed to proceed in the lengthy and complex statutory death penalty procedure, while this court remains silent. By reason of the course we have chosen, the opinion of this court, as well as the briefs of the many persons and organizations who have addressed the court in this case, are available to the Legislature and to any other concerned persons.
I am somewhat reassured, however, by note 33 of the opinion of the court, which indicates that the court would perceive no difficulty in resting its decision upon the Federal Constitution.
Compare, e.g., Ill. Ann. Stat. c. 38, § 9-1 (Smith-Hurd Supp. 1984), with Tex. Crim. Proc. Code Ann. §37.071 (Vernon 1981 & Supp. 1984).
Amici also contend that providing this court with the opportunity to choose among States for the purposes of proportionality review is an unlawful delegation of legislative power to the judiciary. See Commonwealth v. Jackson, 369 Mass. 904, 922 (1976); Commonwealth v. Diaz, 326 Mass. 525, 527 (1950).
The legislative and executive branches did not ask the Justices of this court for an advisory opinion when c. 554 was in preparation for enactment. Indeed, if questions as general as those proffered here had been posed in a request for an advisory opinion, the Justices would probably have respectfully declined to answer them, and for appropriate reasons. See Answer of the Justices, 375 Mass. 847, 850 (1978), and cases cited; Opinion of the *180Justices, 368 Mass. 849, 852 (1975); Opinion of the Justices, 333 Mass. 773, 782 (1955).