dissenting.
I dissent for the reasons stated in the dissenting opinion in State v. Moen, 309 Or 45, 102-04, 786 P2d 111 (1990) (Fadeley, J., dissenting). Following the United States Supreme Court’s decision in Penry v. Lynaugh, 492 US 302, 109 S Ct 2934, 106 L Ed 2d 256 (1989), that court, in Wagner v. Oregon, 492 US 914, 109 S Ct 3235, 106 L Ed 2d 583 (1989), vacated an Oregon death penalty sentence, because of inadequacy in Oregon’s statute providing the method whereby a jury determines the sentence to be imposed.
That statute was proposed by the initiative process and adopted by a vote in 1984. On remand of Wagner v. Oregon by the United States Supreme Court, the Oregon Supreme Court reacted by a majority decision to save the initiated statute by adding a 100-word amendment. See State v. Moen, supra, 309 Or at 102-04 (dissenting opinion).
I continue to dissent from the decision of the majority to make an after-the-fact addition to the statute that the people, by their vote adopting the statute, did not put there.