dissenting.
I agree with Justice Durham’s footnote 5 in the majority opinion and especially the portion that states “Penry [v. Lynaugh, 492 US 302, 109 S Ct 2934, 106 L Ed 2d 256 (1989),] dictates the conclusion * * * that, in 1987, Oregon had enacted no valid statute authorizing a death sentence.” 324 Or at 346 n 5 (emphasis in original).1
*368A death sentence was not possible under the law in place at the time of the murder in this case. On June 20, 1987, there was no valid statute permitting or authorizing a sentence of death. In 1990, this court, in State v. Wagner, 309 Or 5, 786 P2d 93, cert den 498 US 879 (1990) (Wagner II), changed the statutory law. Later, the legislature did likewise. Both changes came after the crime was committed. Both changes were made to permit a punishment of death that was not permissible without those changes.
The death penalty decisions of this court make the change — to permit the punishment of death to be added to the penalties legally available for the crime — eminently clear. In State v. Wagner, 305 Or 115, 752 P2d 1136 (1988) (Wagner I), this court held that no fourth question whether a defendant should be sentenced to death was provided by the Oregon statute, id. at 144-45, and then held that none was needed, id. at 156, 160. That holding was entered after Mon-tez had committed the present crime. It was not until Wagner II was decided in 1990 that the fourth question was added to the statute by the court.
The majority opinion states:
“Under the rationale of Wagner II, the trial court did not apply any post-offense statutory amendments to Oregon’s capital sentencing scheme.” 324 Or at 365.
and
“[T]he trial court, in accordance with Wagner II, applied Oregon law in effect on the date of defendant’s crime, not the 1989 amendment to ORS 163.150.” Id. at 364.
Those statements are not correct. The law in effect on the date of the crime did not contain what was added to it later. That post-crime addition forms the primary basis for this dissent.
*369This dissent rests on the premise of law that only the legislative branch may enact penal laws; the power of punishment is legislative. State v. Isom, 313 Or 391, 395, 837 P2d 491 (1992).2 Yet, here the court legislated in 1990 in Wagner II to enact a penal law, an act that this court says is beyond the power of this court.
There are additional reasons why the more recent penalty-phase trial result should not stand. The ex post facto effect of increasing the permissible punishment for the crime after the crime was committed is obvious. Of course, using the 1989 or 1991 amendments to govern the penalty for this 1987 crime also would have increased the permitted penalty after the crime was committed. That change in permissible punishment was no mere change in “evidence” rules.
In addition, the penalty-phase trial was not conducted fairly. I think there is more than a little likelihood that the nearly constant references to parole of hardened criminals, and to their misdeeds while at large on parole or on temporary passes, affected the jury’s verdict. Certainly, I have a reasonable doubt about that. Continued references to early parole by state witnesses on direct and on cross-examination of defense witnesses, in instructions about early parole given by the judge, and during closing arguments addressed to the jury by the prosecutor permeated this trial.3 When objection was made to testimony on this subject, the court overruled it, a ruling that the majority agrees was erroneous. I see that error, in the context of this trial, as harmful.4
*370The result of the trial is not made any more trustworthy by trial defense counsel’s failure to object at other points. Nor is the issue simply whether other objections were made; the questions posed by harmless error analysis are, at the state level, whether prejudice is unlikely or, at the federal level, whether, beyond a reasonable doubt, the error had no effect. Because I believe that the error may have affected the penalty outcome, I cannot join in affirming the penalty.
As I stated in 1990, when this criminal case was previously before this court,
“the court should assess and fix final punishment now under the statute rather than sending this case back to the trial court for a farther penalty phase trial which will lead to farther delay and may lead to farther appeals costly to the public.” State v. Montez, 309 Or 564, 618, 789 P2d 1352 (1990) (Montez I) (Fadeley, J., dissenting).
In my view, that was then, and remains now, the appropriate lawful disposition of this case.
See also State v. Moen, 309 Or 45, 98, 786 P2d 111 (1990) (Fadeley, J., dissenting) (detailing the 100 words that the majority of this court, not the legislature, *368added in 1990 to the version of the statute that was in effect in 1987, when this crime was committed, in an effort to make the statute, with the 1990 additions by this court, constitutional under the requirements of Penry).
My opinion in State v. Pinnell, 319 Or 438, 447, 877 P2d 635 (1994) (Fadeley, J., dissenting), discusses this and the court’s unlawful death legislating, in more detail.
It is no surprise that the witnesses available to defendant, who had been incarcerated since 1987, on the issue of present character and dangerousness are people who have known him only in prison.
I find that the repeated references to parole and misdeeds of various persons on parole throughout the trial go beyond harmless error. I do not agree with the view that trial counsel’s failure to object to many of those references makes the erroneous ruling when he did object any less harmful. No claim of invited error is present.
In death penalty cases, the statutes provide for a mandatory appeal directly to this court. The purpose of mandatory appeal is to assure society that the sentence *370of death is free from error. Inadequate assistance of trial counsel should be considered on direct appeal in death penalty cases. Relegating consideration of that constitutional violation to a collateral attack creates a multiplicity of proceedings involving additional courts and costs.
Nor is it certain to be an adequate remedy. In Bryant v. Thompson, 324 Or 141, 922 P2d 1219 (1996), the condemned wished to die, abjured any defense to the death warrant proceeding and, therefore, brought no case contesting it or seeking post-conviction relief because of the inadequate assistance of his penalty-phase counsel, even though a colorable claim to that effect was present. The condemned, Wright, was executed notwithstanding the colorable claim that his constitutinal right to counsel had been violated, because neither the condemned nor anyone with authority to represent him had made any post-conviction challenge.