concurring in part and dissenting in part.
I agree that reversible error occurred by the exclusion of evidence in mitigation. With that holding I therefore concur. However, I cannot agree in this 1988 case that placing the “fourth” or “death question” before the jury was a lawfully authorized act in the past, or that it will be in the future. No statute effective in 1988 ever authorized it. And, absent such an authorization, we cannot uphold a death penalty arrived at by a penalty procedure that was and is not authorized by a lawfully adopted statute.
The homicide in this case occurred in 1988 at a time when we know that the Oregon statute, adopted in 1984 to authorize and regulate imposition of the death penalty by a jury, violated federal constitutional standards. The Supreme Court of the United States vacated a death sentence imposed under that statute and remanded the case to this court in Wagner v. Oregon, 492 US 914, 109 S Ct 3235, 106 L Ed 2d 583 (1989). Thereafter, this court, by a majority vote, added 100 words and a completely new question to the statute in an effort to save it from the constitutional infirmity disclosed by Wagner v. Oregon, supra. See State v. Moen, 309 Or 45, 102-04, 786 P2d 111 (1990) (Fadeley, J., dissenting, detailing that judicial legislation); State v. Williams, 313 Or 19, 44-45, 828 P2d 1006, cert den, _ US _, 113 S Ct 171, 121 L Ed 2d 118 (1992) (same). A legally deficient or questionable decision such as that does not form the basis for any stare decisis or have precedential effect.
Our precedents against judicial legislation prohibit that kind of judicial legislation the same as any other kind. In State v. Smith, 56 Or 21, 29, 107 P 980 (1910), this court opined that “[i]t is not the function of courts to make laws, but to interpret them.” More recently, this court held, again, that only the legislative branch may enact penal laws. State v. Isom, 313 Or 391, 395, 837 P2d 491 (1992) (“the power of punishment is legislative”). This court has never had any *587inherent power to authorize the death penalty without the consent of the legislative branch.
Accordingly, the previous remand could not properly have resulted in a “fourth” question or a death penalty. Because both, nonetheless, occurred, the resulting judgment should be vacated — but not, in my view, just because of the erroneous exclusion of background mitigation evidence. Life imprisonment, as it was available in 1988, should be imposed without further ado. I dissent from any implication that any other act is permissible on remand.