dissenting.
Because evidence of the victims’ character and background was admissible, I dissent. The majority distorts the applicable statutes and thereby thwarts the will of the people.
PERTINENT TRIAL PROCEEDINGS
Before the penalty phase of defendant’s trial began, defendant moved in limine to prevent the admission of so-called “victim impact” evidence. He relied on the Eighth and Fourteenth Amendments to the United States Constitution and also asserted that such evidence would “[v]iolate[] the right to an impartial jury secured by Article I, section 11, of the Oregon Constitution.” At the time, Booth v. Maryland, 482 US 496, 107 S Ct 2529, 96 L Ed 2d 440 (1987), described the federal constitutional limits on the presentation of such evidence. The trial court granted defendant’s motion.
After voir dire, but before opening statements, the Supreme Court of the United States overruled Booth in Payne v. Tennessee, 501 US 808, 111 S Ct 2597, 115 L Ed 2d 720 (1991). The next day, the state informed defendant and the court that it intended to introduce evidence from the victims’ family about the victims that was consistent with Payne. The state asserted that it intended to present evidence on two issues: (1) “What kind of people were [the victims],” and (2) “how did the manner of their deaths affect the people directly impacted by them.” The state also told the court that it did not intend to ask the family members their opinions of the crime or what the sentence ought to be.1
*272The trial court noted that ORS 137.013 appeared to make the evidence that the state proposed to offer admissible as a matter of state law. Defendant argued to the court that ORS 137.013 “does not apply to capital sentencing proceedings” and that, if it does, the statute violates the Oregon Constitution. The court then took the matter under advisement. Three days later, before opening statement, the trial court ruled: “[T]here’s no p[er] se prohibition against victim impact evidence, and Oregon has a statute allowing that kind of evidence.”
The testimony now challenged fell within the parameters described by the state to the trial court. In addition to testifying about facts of the crime (such as the children’s description of discovering their parents’ bodies and the family members’ identification of the victims’ personal property that was found in defendant’s possession), the family members described what kind of people the victims were and what they did for a living. Defendant did not ask the court to reconsider its initial ruling in the light of that testimony, nor did he argue that the testimony went beyond what ORS 137.013 would allow. As noted, defendant argued (as the majority now holds) that the statute does not apply in a capital case.
ORS 137.013
In my view, the statute on which the trial court relied supports the trial court’s ruling. In construing a statute, this court first examines its text and context and, if the legislative intent is clear from that examination, the court inquires no further. PGE v. Bureau of Labor and Industries, 317 Or 606, 610-11, 859 P2d 1143 (1993). The same method of analysis applies to initiated statutes. Id. at 612 n 4. In the present case, the text and context of ORS 137.013 make clear the people’s intent when they adopted it as part of Ballot Measure 10 (Or Laws 1987, ch 2), also known as the “Crime Victims’ Bill of Rights.” Or Laws 1987, ch 2, § 1. The majority’s strained interpretation is, in a word, bizarre.
ORS 137.013 provides:
“At the time of sentencing, the victim or the victim’s next of kin has the right to appear personally or by counsel, and has the right to reasonably express any views concerning *273the crime, the person responsible, the impact of the crime on the victim, and the need for restitution and compensatory fine.”
By its terms, that statute applies at the time of any sentencing whatsoever, including a sentencing that may (or, of course, may not) lead to imposition of the death penalty.
The phrase “next of kin” suggests strongly that the statute applies in homicide cases. Any doubt in that regard is dispelled by ORS 131.007, which defines the term “victim,” as it is used in ORS 137.013, to “includeü, in the case of a homicide * * *, a member of the immediate family of the decedent.” The applicable definition draws no distinction between capital and noncapital homicides.
It is equally clear that the “Crime Victims’ Bill of Rights” did not single out for fewer rights the relatives of victims of the most serious of homicides — those in which the death penalty is sought. Other sections of Ballot Measure 10 demonstrate that the initiative as a whole encompasses capital cases.
For example, Section 7 of Ballot Measure 10 added to ORS 136.230 a provision for additional peremptory challenges for the state in capital cases. Or Laws 1987, ch 2, § 7. That section indicates that the initiative as a whole was intended to cover capital murder cases.
In addition, Section 8 of Ballot Measure 10 adopted ORS 41.415, which provides that, “[i]n a prosecution for any criminal homicide,” a photograph of the victim while alive shall be admissible when offered by the state. That section demonstrates that the initiative considered all criminal homicides to be in a single category, covered by the terms of the initiative. Indeed, this court has held that ORS 41.415 applies in capital cases. State v. Williams, 313 Or 19, 27-28, 828 P2d 1006, cert den 506 US 858, (1992); State v. Nefstad, 309 Or 523, 560, 789 P2d 1326 (1990).
It also is clear that “sentencing” occurs in capital cases. ORS 163.150 uses the term “sentencing” many times, in describing what happens in a capital case. That sentencing occurs at a “time,” the time set for the penalty phase of the trial.
*274Finally, we know from Ballot Measure 10 itself what the people intended to accomplish by its enactment. The preamble to Ballot Measure 10 provided in part that “[t]he purpose of this ballot measure is to declare to our legislature and our courts that victims’ rights shall be protected at each stage of the criminal justice system.” Or Laws 1987, ch 2, § 2.
Even if the text and context of ORS 137.013 were not clear, the legislative history would eliminate any uncertainty. The explanatory statement in the November 1986 Voters’ Pamphlet stated that the purpose of Ballot Measure 10 was, in part, to “[ejnsure victim[s], in person * * *, the right to express views in court at sentencing.” Official 1986 General Voters’ Pamphlet at 52 (emphasis added). Again, there is no hint of a limitation that such rights of victims would be ensured only for less serious crimes, but excluded for the most serious crimes.
In summary, the intent of the people is clear. ORS 137.013 applies uniformly to all criminal cases at the time of sentencing and contains no exception for capital sentencing proceedings. A fair reading of the text and context (even without resort to confirming legislative history) shows that the purpose of ORS 137.013 was to ensure that no sentencing proceeding in Oregon focuses exclusively on the defendant; every such proceeding also is to include consideration of the costs that the defendant’s crime imposed on the victim and, in the case of homicides, on the victim’s next of kin. The statute, in other words, makes the impact on the victim relevant to every sentencing proceeding. And, it authorizes the admission of such evidence by making the opportunity of the homicide victim’s next of kin to speak on the designated topics a “right.”
ORS 163.150 (1989)2
Because ORS 137.013 provides that “victim impact” evidence is to be considered in capital (as well as other criminal) cases, the next question is whether ORS 163.150 (1989) precluded the sentencing jury from hearing such evidence. It did not.
*275The two statutes are consistent. ORS 137.013 specifies that one type of evidence is relevant to the sentencing jury’s decision in capital cases; it reflects the people’s determination that the harm caused by a defendant’s criminal act is relevant to sentencing and is admissible. ORS 163.150 (1989) sets out four questions that the jury must answer. The wording of those questions did not preclude the sentencing jury from considering victim impact evidence. The fourth question asked broadly “whether a sentence of death be imposed.” ORS 163.150(l)(b)(D) (1989). As worded, the fourth question was neutral, not one-sided. It permitted the jury to take into account the harm that a defendant caused to the victim or victim’s next of kin, among other factors, in deciding the appropriate sentence.
In State v. Stevens, 319 Or 573, 580-84, 879 P2d 162 (1994) (Stevens IT), this court considered the legislature’s intent in adding the fourth question to ORS 163.150. After tracing the history of the fourth question, the court concluded that the sentencing jury must be able to consider and give effect to any mitigating evidence relevant to a defendant’s background and character or relevant to the circumstances of the crime. Id. at 583. The court then held that the defendant’s offer of proof included testimony that could provide circumstantial evidence of some mitigating aspect of the defendant’s character or background, making it relevant to the fourth question; therefore, the trial court erred in excluding the proffered evidence. Id. at 584-85.
Stevens II construed the requirements of ORS 163.150 respecting what kinds of mitigating evidence must be admitted as relevant. The court was not called on, however, to consider the converse: whether the statute makes noremitigating evidence irrelevant. Neither does its holding answer that question indirectly, lb the extent that Stevens II contains any suggestion at all on the point now in issue, it is an implicit assumption that victim impact statements are relevant and admissible and that the defendant’s opportunity to introduce evidence of his or her character and background was meant to parallel or balance the opportunity that already existed to do the same respecting the victim:
“We agree that testimony by the relatives of a capital defendant may be informative about certain aspects of the defendant’s character. Cf. Payne v. Tennessee, 501 US 808, 111 S *276Ct 2597, 115 L Ed 2d 720 (1991) (recognizing that testimony by loved ones about impact of loss of murder victim says something about the character of the victim).” Id. at 583-84.
See also State v. Wagner, 309 Or 5, 18, 786 P2d 93 (“[t]here is no burden of proof on the fourth question because it does not present an issue subject to proof in the traditional sense, rather, it frames a discretionary determination for the jury”), cert den 498 US 879 (1990).
In short, a reading of the text and context of ORS 163.150 (1989) shows that it was compatible with ORS 137.013. Even if the legislative intent were not clear from the text and context, however, the legislative history likewise shows that the legislature did not intend the 1989 amendment to ORS 163.150 to preclude the kind of evidence that is at issue here. See PGE, 317 Or at 611-12 (if the intent of the legislature is not clear from the text and context, this court will consider legislative history).
The main messages derived from the legislative history of the 1989 amendment to ORS 163.150 track its text: to add mitigation but not to exclude anything. The Oregon legislature added the fourth question to ORS 163.150 in 1989 in response to the decision of the Supreme Court of the United States in Penry v. Lynaugh, 492 US 302, 109 S Ct 2934, 106 L Ed 2d 256 (1989). Minutes, Senate Committee on Judiciary, HB 2250, June 29, 1989, at 2 (statements of Dave Frohnmayer, Attorney General, and Virginia Linder, Solicitor General). That is the consistent and overarching theme of the legislative history as a whole. See also Stevens II, 319 Or at 582-83.
It also is clear from the legislative history as a whole, however, that (1) the legislature did not intend to exclude any category of evidence, (2) the legislature did not intend to do any more to benefit capital defendants than what Penry required, and (3) it was assumed that “aggravating” as well as “mitigating” facts would be introduced during the penalty phase of a capital trial. The following example reflects the foregoing points.
The following version of the fourth question was proposed:
*277“If constitutionally required, considering the extent to which the defendant’s character and background, and the circumstances of the offense may reduce the defendant’s moral culpability or blameworthiness for the crime, should a sentence of death be imposed?”
Tape Recording, Senate Committee on Judiciary, June 29, 1989, Tape 256, Side A at 86. One of the senators objected that the proposed wording was confusing. Id. at 144 (remarks of Sen. Shoemaker). In response, the witness who was then testifying, Dale Penn, explained how the fourth question worked. He told the committee that the proposed wording allowed both the state and the defendant to present arguments for and against the death penalty, even though such arguments were not already relevant to the first three questions.
“And the issue is, ‘Should the death sentence be imposed?’ That allows all the mitigating circumstances to be in there, all kinds of arguments by the state and the defense both for or against death whether or not it — the other three questions are relevant and that’s the intent of the Supreme Court’s opinion [in Penry].”
Id. at 160-75. Immediately after that explanation, Senator Hill moved to substitute “the language just described” for the prior proposal. Id. at 188. With very minor alterations not pertinent to the issue here, “the language just described” became what was the applicable version of ORS 163.150 (1989).
The legislative history shows, as noted, that the fourth question was intended to allow the jury to give effect to a broad range of mitigating evidence that could not be considered in deciding the first three questions. Stevens II, 319 Or at 582-83. It does not follow, however, that in adding the fourth question the legislature intended to foreclose the jury from considering nonmitigating evidence that another statute makes relevant to the sentencing decision. Tb the contrary, in explaining to the Senate Judiciary Committee how the fourth question would work, the witness who described it in essentially the form in which it was adopted said that it would allow “all kinds of arguments by the state * * * for * * * death[,] whether or not” relevant to the other three questions. In other words, the legislative history also *278shows that the legislature contemplated an open-ended, not one-sided, consideration of the defendant’s character, background, and circumstances of the crime. Finally, the legislative history as a whole suggests that the legislature intended to add the minimum protection for defendants that the federal constitution requires.
In conclusion, ORS 163.150 (1989) did not preclude the sentencing jury from considering evidence that ORS 137.013 specifies is relevant. Indeed, even in the terms of ORS 163.150(l)(b)(D), “victim impact” evidence was independently relevant. “Victim impact” evidence provides the jury with relevant evidence about the circumstances of the crime. It informs the jury of the reasonably foreseeable harm to the victim’s family that the defendant’s crime caused. See Payne, 501 US at 838 (Souter, J., concurring) (so stating). Moreover, such evidence makes real the abstract proposition that a murder ends a particular, unique person’s life and affects that person’s family. Thus, the loss that the crime causes is one of the circumstances of the crime and is relevant to the reasoned moral decision that the fourth question asks the jury to make. See Penry, 492 US at 319 (jury must give reasoned moral response to the defendant’s background, character, and crime).
Even if there were some tension between the two statutes, ORS 137.013 is more specific than ORS 163.150 (1989) and, therefore, controls. This court already has held that another provision of Ballot Measure 10 is more specific than the general principles of relevance that otherwise would apply. See Williams, 313 Or at 28 (ORS 41.415, which was enacted as Oregon Laws 1987, chapter 2, section 8, specifically declares photographs of the victim while alive to be relevant and not subject to balancing under OEC 403).
Defendant’s subconstitutional arguments are not well taken. Accordingly, I turn to his constitutional arguments.
CONSTITUTIONAL ARGUMENTS
A. State Constitution.
Defendant preserved only one specific state constitutional argument. He asserted at trial, and asserts in con-clusory fashion here, that the introduction of victim impact *279evidence violated his right to an impartial jury under Article I, section 11, of the Oregon Constitution.3
That clause of Article I, section 11, governs the composition of the jury panel. See State v. Busby, 315 Or 292, 300 n 7, 844 P2d 897 (1993) (this court, in rejecting argument that evidence admitted at trial violated the defendant’s right to an impartial jury, stated: “Defendant does not * * * argue that the jury impaneled for his own trial was influenced * * * by the evidence of his prior conviction, because that evidence was never placed before the jury.” (emphasis added)). The impartial jury clause of Article I, section 11, does not govern what type of evidence that an impartial jury, once empaneled, may hear or consider.
In this court, defendant asserts that the challenged evidence offends Article I, section 11, as well as the Fourteenth Amendment, because it “was fundamentally unfair and seriously compromised his right to a fair trial.” But, this court “repeatedly has stated that Oregon’s constitution does not contain a due process clause.” State v. Moen, 309 Or 45, 98, 786 P2d 111 (1990).
B. Federal Constitution.
1. Eighth Amendment.
Defendant argues that “[allowing evidence of the type challenged her[e] would produce wanton and freakish imposition of the death penalty in contravention of the Eighth Amendment.”4 The Supreme Court of the United States held in Payne, however, that the Eighth Amendment does not preclude states from allowing evidence concerning the victim and the effect of the victim’s death on his or her immediate family. 501 US at 827.
The Supreme Court also has held that a state avoids the Eighth Amendment’s prohibition against arbitrary imposition of the death penalty if it genuinely narrows the class of *280murders for which the death penalty may be imposed. Zant v. Stephens, 462 US 862, 877, 103 S Ct 2733, 77 L Ed 2d 235 (1983). After that occurs, the Eighth Amendment does not bar the introduction of evidence that is relevant to the jury’s sentencing decision. 462 US at 886-87. The Oregon statute genuinely narrows the class of murders for which the death penalty may be imposed, a determination that the jury makes at the guilt phase of the trial. State v. Farrar, 309 Or 132, 184-85, 786 P2d 161, cert den 498 US 879 (1990). Accordingly, the Eighth Amendment does not bar the introduction of relevant evidence, including the kind of evidence permitted by Payne and specifically authorized by ORS 137.013, during the penalty phase.
2. Fourteenth Amendment.
Defendant reiterates the conclusory argument made under the Oregon Constitution, that admission of this evidence was fundamentally unfair, in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution.5 In death penalty cases, the Due Process Clause is coextensive with the Eighth Amendment. Moen, 309 Or at 98. Because the Eighth Amendment does not preclude the victim impact evidence in this case, neither does the Due Process Clause.
CONCLUSION
The victim impact evidence challenged in the present case is relevant under the mandate of ORS 137.013. Its admission is not precluded by ORS 163.150 (1989) or by the constitutional provisions that defendant cited to the trial court.
For the foregoing reasons, I dissent from the majority’s contrary conclusion.
Carson, C. J., and Gillette, J., join in this dissenting opinion.Payne held that, “if the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar.” 501 US at 827. Payne did not address the holding in Booth that the Eighth Amendment bars admission of opinions of the victim’s family about the crime, the defendant, and the appropriate penalty. Payne, 501 US at 830 n 2.
In 1995, the legislature amended ORS 163.150(l)(a) to allow the admission of victim impact evidence of the type at issue in this case at the sentencing phase of a capital case. Or Laws 1995, ch 531, § 2 & ch 657, § 23.
Article I, section 11, of the Oregon Constitution, provides in part:
“In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury * *
The Eighth Amendment to the United States Constitution provides:
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
The Fourteenth Amendment to the United States Constitution provides in part:
“[N]or shall any State deprive any person of life, liberty, or property, without due process of law * * *.”