dissenting.
I dissent for the reason stated in the first three paragraphs of the dissenting opinion in State v. Williams, 313 Or 19, 44-45, 828 P2d 1006 (1992).
Specifically, the homicide in this case occurred at a time when the Oregon statute did not meet federal constitutional muster. The Supreme Court of the United States vacated the sentence and remanded a death penalty 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 to the statute in an effort to save it from the constitutional infirmity. See State v. Moen, 309 Or 45, 102-04, 786 P2d 111 (1990) (Fadeley J., dissenting, detailing the 100-word addition to statute). The statute had been initiated and adopted in 1984.1 do not believe this court had authority to make a substantial, significant, and after-the-fact addition to the 1984 statute that the people, by their vote adopting it, did not include. Thus, the majority has affirmed a sentence based on judicial amendment to a penalty statute.
Only the legislative branch may enact penal laws. I dissent.