concurring in part and dissenting in part.
In 1984, defendant was indicted for the aggravated murder of Joey Keever. Before trial in 1988, defendant sought to enforce an agreement of the district attorney to accept a plea of guilty to that charge. A written stipulation in support of the motion to compel performance provided that the state “would accept a plea * * * and decline to present any evidence” on sentencing “if the parents of the alleged victim would agree to such a resolution of this case.” The parents did not agree. Without explanation, the trial court denied defendant’s motion to compel performance of the agreement notwithstanding the veto and commenced the trial, which concluded with a judgment of death.
At the time of the motion to compel, ORS 163.150(2) provided that “[w]hen the defendant is found guilty of aggravated murder upon a plea of guilty * * * and * * * the state declines to present evidence for purposes of sentencing, * * * the court shall sentence the defendant to life imprisonment as prescribed by ORS 163.105.” As can be seen, the stipulation in the plea agreement tracks the language of that statute.
*108On direct review of the death sentence, the parties have segregated the plea agreement issue from other assignments of error for an accelerated decision. Defendant contends that the condition — “if the parents of the alleged victim would agree” — should be disregarded and the remainder of the bargain enforced.
The state acknowledges that this condition is neither enforceable nor permitted, i.e., that the state may not let the victim’s family decide whether a defendant shall be executed.1
The state seeks to avoid enforcement of the plea agreement. It does so by urging that no one can ascertain the basis upon which the plea agreement was acceptable to the state if that condition was deleted or the considerations the state would have taken into account before deciding in the first instance whether to enter into plea discussions or an agreement, absent the impermissible veto.
I concur with the majority holding that the condition is not permitted. Cf. Booth v. Maryland, 482 US 496, 509, 107 S Ct 2529, 96 L Ed 2d 440 (1987) (Eighth amendment violated by statute which required placing before jury and the jury consideration of attitudes of victim’s family where jury was sentencing authority in capital murder case and where material placed before the jury included son’s attitude that no one “should be able to do something like that and get away with it” and daughter’s attitude was she “could never forgive anyone for killing [her parents] that way.”). I agree that the trial judge erred by permitting effect to be given, over objection, to the impermissible condition.2 But I would hold that the case should have been concluded then and there, by accepting the stipulated guilty plea and the district attorney’s declination to present evidence on sentencing and by imposing the statutorily mandated sentence. Because the case was not so concluded, we should remand for entry of the plea and sentence as commanded by the statute, thereby achieving finality.
I dissent from both the majority decision to remand *109the case for a hearing to determine further facts and the legally incorrect methodology employed to arrive at that result.
My disagreement with the methodology arises at four points:
(1) The stipulation is exact enough to be specifically performed; it is not ambiguous or uncertain, as is now urged. The law prohibits the state from attempting to undercut a plea agreement to which it stipulated.
(2) The specific statute should govern, not the much more general statute about plea bargaining decisions. Specific statutory terms cover the situation where the prosecutor stipulates that the state declines to present evidence on sentencing.
(3) Illegalities among the items in a plea agreement are disregarded at the request of a defendant, not used as an excuse to vitiate the agreement at the request of the prosecutor.
(4) The applicable law requires that the benefit of the bargain be specifically enforced at the request of a defendant who has relied upon the agreement, not that an ad hoc3 procedure be devised to resolve the matter through a new hearing to determine what was in a former prosecutor’s mind some time ago.4
THE STIPULATION IS NOT AMBIGUOUS
Stripped of its impermissible condition that the family of the victim “agree,” the in-court stipulation states that the defendant would plead guilty to aggravated murder and that the district attorney would accept that plea. The district attorney would decline to present any evidence. Under those conditions, the result is dictated by the statute and was *110included in the stipulation. The judge “shall” impose a sentence to life imprisonment as prescribed by ORS 163.150.
The district attorney cannot be assumed to have been playing cat and mouse with the defendant, gaining concessions from defense counsel and channeling his time and effort into plea bargaining just before trial, all the while knowing that the victim’s parents would not agree and that the condition requiring agreement would make counsel’s efforts fruitless. Instead, the stipulation represents a carefully considered official act. Whatever any other considerations in the district attorney’s mind may have been, and regardless of them, the conclusion reached by the district attorney was that the death penalty was not required. As an official decision, he took a course of action, which he knew would result in a mandatory life sentence, not death. His later attempt to nullify this official position and agreement arises because of the unlawful condition — the victim’s parents did not agree.
The majority’s opinion offers only the following explanation:
“The record does not show what other considerations, if any, the district attorney used in assessing the proposed plea agreement. The stipulation does not indicate, for example, whether the district attorney decided to enter into the plea agreement based on appropriate criteria but conditioned his acceptance on the victim’s parents’ concurrence or if the district attorney entirely delegated that decision to the victim’s parents.” 310 Or at 105.
Defendant has not challenged anything else the district attorney may have considered. Only the defendant appealed, not the Attorney General or the trial judge. Whether the district attorney otherwise relied on inappropriate criteria is not before this court. No one is before this court with standing to question the propriety of any other considerations in the district attorney’s mind. Accordingly, this court must assume that the district attorney acted properly in performing his official duties and that he stipulated his assent to the agreed plea because he believed a life sentence was sufficient.
The prosecutor is not permitted to undercut the plea bargain befpre the judge but, instead, is required to support it. See, e.g., United States v. Crusco, 536 F2d 21 (3d Cir 1976); United States v. Brown, 500 F2d 375 (4th Cir 1974); cf. United *111States v. Ammidown, 497 F2d 615 (DC Cir 1973); Correale v. United States, 479 F2d 944 (1st Cir 1973). The invitation of the state to have us believe that we cannot tell what “considerations the District Attorney took into consideration” before agreeing to the plea bargain is both contrary to law and irrelevant under the specific statute for aggravated murder plea bargains. The majority accepts the invitation. I do not.
A serious distortion of the record is required to either state or infer from it that the district attorney had not decided that the plea bargain was correct on its own merits. Likewise, a distortion of the record is required to state that a defense counsel’s objections to the prosecutor’s in-court statements prevented evidence of the district attorney’s real state of mind concerning this aggravated murder case from coming before the court. That was not the setting or context for the objection.
The comments of the deputy district attorney, which were subject to objection by defense counsel, were not about the meaning of the stipulation at all, let alone about the meaning of the portion of the stipulation that the district attorney would accept the plea to the main charge and decline to present evidence on sentencing. Rather, the objection arose over an argument about a collateral fact asserted by defense counsel in a memorandum supporting the motion to compel. That memorandum asserted that, in very few cases in the county, did the district attorney take account of the victim’s attitudes in a plea bargain. In response to that portion of the memorandum, the deputy district attorney asserted another case involving a different class of crime where the victim had been listened to in the process of working out a plea bargain. Objection was made to the assertions on the non-relevant point of whether the district attorney usually or infrequently listened to victims of other classes of crimes.
Just before the objection the prosecutor attacked the accuracy of that collateral “fact,” arguing:
“Also there was a case I can recall, talking about taking victims into consideration, in late December, I dismissed a case on State v. Thomas Finney and I am sure the court,
“[Defense Counsel]: I object, your honor, to anything outside the record of this case. I don’t know anything about State *112v. Thomas Finney. It’s not within the bounds of the stipulation.”
After making it clear that the prosecutor’s remarks were about the side argument in the memorandum, the deputy prosecutor said, “I was just responding to that statement.”
Defense counsel continued his objection:
“I object to anything beyond the scope of the stipulation. We agreed here between Christmas and New Year’s that there was a stipulation that we had entered into that we had reduced to writing that would obviate the need for any hearing of evidence and I would submit that simply making representations as to what one has or has not done in other cases is inappropriate.”
Shortly thereafter, the following exchange took place:
“The Court: I take it from your remarks then, [deputy district attorney], that you do not intend to call any witnesses to bolster the facts of the case of this particular hearing from either side?
“[Deputy District Attorney]: Your honor, in my discussions with [defense counsel], once the stipulation was made his understanding of my agreement is that I would be prohibited from doing that.”5
The court then sustained the objection to introduction of any evidence “that was by representation.”
THE SPECIFIC STATUTE APPLIES
Specific statutes, rather than general ones, are to be used when conflicts between them arise. ORS 174.020 (“when a general and particular provision are inconsistent, the latter is paramount to the former”); Colby v. Larson, 208 Or 121, 126-27, 297 P2d 1073, 299 P2d 1076 (1956); Ricker v. Ricker, Administratix, 201 Or 416, 424, 270 P2d 150 (1954). The 1987 legislature enacted, as a new subsection 2 of ORS 163.150, the *113mandatory sentencing provisions upon which defendant relies to obtain a life sentence. Or Laws 1987, ch 557, § 1. That 1987 amendment provided:
“When the defendant is found guilty of aggravated murder upon a plea of guilty * * * prior to the introduction of evidence before the trier of fact and the state advises the court on the record that the state declines to present evidence for purposes of sentencing, the court shall not conduct a sentencing proceeding * * * but the court shall sentence the defendant to life imprisonment as prescribed by ORS 163.105.”
The original statute section amended was adopted by initiative in 1984 and became Oregon Laws 1985, chapter 3, section 3. The initiative dealt exclusively with aggravated murder, as does ORS 163.150 presently.
Concerning the subject at issue, the statute with its 1987 amendment was in 1988 the complete scheme for dealing with guilty pleas to a charge of aggravated murder. The purpose of the amendment was to obviate any role for, or recourse to, a jury sentencing procedure in the event of a guilty plea to aggravated murder. No reference to earlier enacted statutes dealing in general terms with plea bargaining is required or authorized by the plain words of the specific statute. The specific statute prescribes in mandatory language the effect of a plea of guilty and a district attorney’s statement that the state declines to present evidence for sentencing.
The trial court does not have discretionary power to reject the plea to an aggravated murder bargain that it normally would have concerning other plea bargains under the more general provisions of ORS chapter 135. The legislation provides that the judge “shall” enter a sentence of life imprisonment. There is no office left for ORS 135.432(4) and its cross-reference to ORS 135.415 to fill. The specific provisions of ORS 163.150 provide what the judge “shall” do.
In any event, ORS 135.415 and ORS 135.432(4) are addressed to different problems, stated in terms of whether the district attorney may “engage in plea discussions for the purpose of reaching a plea agreement” and whether the trial judge “may reach an independent decision on whether to grant sentence concessions under the criteria set forth in ORS 135.415.” They may authorize a district attorney to refuse to engage in plea discussions, but that is not this case. They may *114authorize a trial judge to override an overly generous concession made by a district attorney, but that is not this case. This is a case where the defendant agreed to plead guilty to the most significant charge, not some lesser offense, and to all charges made, not just some of them.
While questions about voluntariness, defendant’s understanding of the effect of his plea, and whether the facts confessed constitute the crime charged are still open to the trial court under the requirements of due process, the issue of whether the plea bargain is based on the 1973 general statute’s discretionary considerations is not a matter for court review under the specific 1987 statute involving a plea of guilty to aggravated murder. The specific statute for aggravated murder pleas must be applied.6
ILLEGALITIES IN A PLEA BARGAIN ARE DISREGARDED
In a criminal setting, courts disregard a legally impermissible condition. Palermo v. Warden, Green Haven State Prison, 545 F2d 286, 294-97 (2d Cir 1976); People v. Macrander, 756 P2d 356, 359-61 (Colo 1988); State v. Miller, 110 Wash 2d 528, 756 P2d 122, 126 (1988); See also State v. Schaupp, 111 Wash 2d 34, 757 P2d 970, 972 (1988) (false explanation of basis of agreement).
Many courts employ contract analysis as a bottom line in this phase of a plea-bargain case. As a recent federal decision states:
“Given the relative interests implicated by a plea bargain, we find that the costs of an unclear agreement must fall upon the government. While we affirm the general applicability of contract law principles, we hold that the government must shoulder a greater degree of responsibility for lack of clarity in a plea agreement.”
United States v. Giorgi, 840 F2d 1022, 1026 (1st Cir 1988). See United States v. Harvey, 791 F2d 294, 300 (4th Cir 1986).
For state cases, see, e.g., Ex Parte Yarber, 437 So2d *1151330, 1334 (Ala 1983); State v. Georgeoff,_Ariz_, 788 P2d 1185, 1188 (1990) (“breach of a plea agreement must not be raised for the first time on appeal”); People v. Shepeard, 169 Cal App 3d 580, 586, 215 Cal Rptr 401 (1985) (“plea agreement is, in essence, a contract between the defendant and the prosecutor to which the court consents to be bound”), disapproved on other grounds People v. Martin, 42 Cal 3d 437, 229 Cal Rptr 131, 722 P2d 905, 915 n 13 (1986); People v. Macrander, supra, 756 P2d at 359-61; Shields v. State, 374 A2d 816, 819 (Del), cert den 434 US 893 (1977); Lopez v. State, 536 So2d 226, 229 (Fla 1988); State v. Yoon, 66 Haw 342, 662 P2d 1112, 1116 (1983); State v. Rutherford, 107 Idaho 910, 693 P2d 1112, 1116 (Ct App 1985); People v. Wolfe, 156 Ill App 3d 1023, 510 NE2d 145, 148, appeal denied 517 NE2d 1094 (1987); Spivey v. State, 1990 Ind App Lexis 499, _ NE2d_ (April 30, 1990); Parker v. State, 542 NE2d 1026, 1028 (Ind App 1989); Boge v. State, 309 NW2d 428, 430 (Iowa 1981); State v. Smith, 244 Kan 283, 767 P2d 1302, 1303-04 (1989); State v. Wills, 244 Kan 62, 765 P2d 1114, 1120 (1988) (even an ambiguous plea agreement must be strictly construed in favor of defendant); Com. v. Reyes, 764 SW2d 62, 65 (Ky 1989); State v. Lewis, 539 So2d 1199, 1204 (La 1989); State v. Brockman, 277 Md 687, 357 A2d 376, 383 (1976); State v. Williams, 418 NW2d 163, 168 (Minn 1988); Wright v. McAdory, 536 So2d 897, 901 (Miss 1988); State v. Jones, 1990 Mo App Lexis 764,_SW2d_(May 15, 1990) (if there is a claim of ambiguity “costs of an unclear agreement must fall upon the government” (quoting United States v. Giorgi, supra, 840 F2d at 1026)); State v. Dinndorf, 202 Mont 308, 658 P2d 372, 373 (1983); State v. Thomas, 61 NJ 314, 294 A2d 57, 60-61 (1972); State v. Collins, 300 NC 142, 265 SE2d 172, 176 (1980); State v. Thorstad, 261 NW2d 899, 902 (ND), cert den 436 US 906 (1978); State v. Malone, 568 A2d 1378, 1380 (RI 1990); State v. Turner, 713 SW2d 327, 330 (Tenn Cr App), cert den 479 US 933 (1986); Ex Parte Williams, 637 SW2d 943, 947 (Tex Cr App 1982), cert den 462 US 1108 (1983); State v. Byrne, 149 Vt 224, 542 A2d 276, 277 (1988); State v. Hall, 104 Wash 2d 486, 706 P2d 1074, 1076 (1985); Myers v. Frazier, 319 SE2d 782, 796 n 21 (W Va 1984); State v. Rivest, 106 Wis 2d 406, 316 NW2d 395, 399 (1982); cf. Jones, Negotiation, Ratification, and Rescission of the Guilty Plea Agreement: A Contractual Analysis and Typology, 17 Duq *116L Rev 591 (1978-1979); Comment, Where Promises End: Prosecutorial Adherence to Sentence Recommendation Commitments in Plea Bargains, 52 U Chi L Rev 751 (1985). But see, e.g., People v. Reagan, 395 Mich 306, 235 NW2d 581, 585 (1975) (“here the analogy to contract law is inappropriate to evaluate agreement not to prosecute” which was enforced nonetheless); State v. Doe, 103 NM 178, 704 P2d 432, 435 (NM App 1984) (rejecting contract law as basis for interpreting agreement not to prosecute, relying on Selikoff, infra); People v. Selikoff, 35 NY2d 227, 360 NYS2d 623, 318 NE2d 784, 791-92 (1974), cert den 419 US 1122 (1975) (application of contract law to plea negotiations is “incongruous” because “[t]he strong public policy of rehabilitating offenders, protecting society, and deterring other potential offenders presents considerations paramount to benefits beyond the power of individuals to ‘contract.’ ” However, the result is consistent with contract analysis, and the opinion employs contract terminology).7
Oregon courts considering plea agreements have employed contract terminology. State v. Snider, 296 Or 168, 172, 674 P2d 585 (1983) (referring to plea agreement as “the contract”); Brock v. Wright, 98 Or App 323, 326, 778 P2d 999 (1989) (meeting of the minds required for enforceable plea agreement). But cf. State v. Allen, 79 Or App 674, 720 P2d 761, rev den 301 Or 765 (1986) (finding, inexplicably, no authority for proposition that contract law applies to review of plea agreement and noting that the plea agreement did not grant immunity from prosecution for murder even if the parol evidence rule applied).
Oregon disregards the illegality and enforces the contract. W. J. Seufert Land Co. v. Greenfield, 262 Or 83, 87, 496 P2d 197 (1972) (where part of contract contrary to public policy is separable, remaining provisions of contract will be enforced); Eldridge et al. v. Johnston, 195 Or 379, 405, 245 P2d 239 (1952) (where a contract is partly legal and partly illegal, the legal part of the contract will be enforced where separable from the illegal part); Fisher v. Lane, 174 Or 438, 448, 149 P2d *117562 (1944) (where refusal to enforce illegal contract provision would produce harmful effect on party for whose protection law making contract provision illegal exists, enforcement or rescission, whichever is appropriate, is allowed); Hagen v. O’Connell, Goyak & Ball, 68 Or App 700, 704, 683 P2d 563 (1984) (where entire agreement is not contrary to public policy, severable provision which is so contrary is invalid but remaining provisions may be enforced); cf. Walsh v. Schlecht, 429 US 401, 408, 97 S Ct 679, 50 L Ed 2d 641 (1977) (“ambiguously worded contracts should not be interpreted to render them illegal and unenforceable where the wording lends itself to a logically acceptable construction that renders them legal and enforceable”).
BARGAIN ENFORCED AT DEFENDANT’S REQUEST
Following a United States Supreme Court decision, the Oregon Court of Appeals stated:
“Recently the United States Supreme Court held the practice of plea bargaining to be an ‘essential’ and ‘desirable’ part of the administration of criminal justice when ‘properly administered.’ Santobello v. New York, 404 US 257, 92 S Ct 495, 30 L Ed 2d 427, 432 (1971). One element of proper administration is:
‘* * * [W]hen a plea [of guilty] rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.’ Santobello v. New York, supra, 404 US at 262.’ ”
Stewart v. Cupp, 12 Or App 167, 168, 506 P2d 503 (1973).
The Santobello decision is still the law of the land. Mabry v. Johnson, 467 US 504, 509, 104 S Ct 2543, 81 L Ed 2d 437 (1984) (on federal habeas corpus concerning a state court sentence entered on a guilty plea, where the exact bargain made prior to the plea was expressly enforced in the sentence entered, holding that there is no due process right to withdraw plea “in no sense induced by the. prosecutor’s withdrawn offer” of a lesser sentence offered two years before the plea at issue was entered).
The effect of Santobello has been explained, in language apt to this case, as follows:
“We must lastly observe, because of the government’s *118argument here, that a prosecutorial failure to fulfill a promise or to make a proper promise is not rendered harmless because of judicial refusal to follow the recommendation or judicial awareness of the impropriety. In Santobello, supra, the trial judge had explicitly stated that ‘It doesn’t make a particle of difference what the District Attorney says he will do, or what he doesn’t do.’ 404 U.S. at 259, 92 S.Ct. at 497, and the Supreme Court saw ‘no reason to doubt that,’ id. at 262, 92 S. Ct. 495. It nevertheless concluded that the defendant was entitled to relief. The reason is obvious; it is the defendant’s rights which are being violated when the plea agreement is broken or meaningless. It is his waiver which must be voluntary and knowing. He offers that waiver not in exchange for the actual sentence or impact on the judge, but for the prosecutor’s statements in court. If they are not adequate, the waiver is ineffective.
“We reach then the question of remedy. The right is to have the promise fulfilled. In Santobello, the Court listed the remedies as either ‘specific performance of the agreement’ or ‘the opportunity to withdraw his plea’, 404 U.S. at 263, 92 S.Ct. at 499. Appellant now seeks only the former.”
Correale v. United States, supra, at 949.
Other courts enforce the plea agreement, even though a guilty plea has not yet been entered, where a defendant has acted in reliance on the plea bargain. United States v. Garcia, 519 F2d 1343 (9th Cir 1975); People v. Reagan, supra, (agreement not to prosecute); see also Ex Parte Yarber, supra, (defendant who had not yet detrimentally relied on unwritten negotiated plea agreement could not bind trial court to accept it but could compel tender of agreement to trial court); Westen & Westin, A Constitutional Law of Remedies for Broken Plea Bargains, 66 Cal L Rev 471, 536 (1978).
Defendant relied upon the agreement and attempted to have the unlawful-as-against-public-policy condition deleted with the aid of the court. Before trial, he told the trial judge8 that he considered himself guilty as charged. He also *119agreed to, and did, stipulate that he caused the death of Mrs. Keever by cutting her with a knife. That stipulation was introduced in the subsequent jury trial. His defense counsel’s energy and time were expended in the weeks just prior to trial toward working out the stipulated guilty plea and enforcing it, as the record discloses. He could have been working on issues related to a trial on the merits. These detriments suffered in fact should be balanced by providing defendant the benefit of the bargain. His guilty plea should be entered as of the procedural stage of the case when he sought to compel enforcement, i.e., before trial commenced. ORS 163.150, in effect in 1988, mandates the result of life imprisonment defined under the terms of that statute.
I would reverse and remand to the circuit court for acceptance of plea as stipulated and resentencing as provided in the statute.
We are not talking here of the right of a victim’s family to speak their mind to the district attorney or the district attorney’s duty to listen to what they have to say. No one questions or doubts their need or right to offer input to the decision-maker empowered by state law to plea bargain.
The majority does not directly say whose error causes the remand.
The majority’s opinion cites no authority on the merits or the methodology of their disposition.
The state is represented before us by the Attorney General, not the district attorney who made the stipulation that he would accept a guilty plea to aggravated murder and would not seek the death penalty “if’ the victim’s family “would agree.” That district attorney is no longer in that office but is no w a judge of the county where the aggravated murder indictment was issued and to which the majority recommits this six-year-old case on a collateral question of fact.
The state may not lead the defendant to accept one agreement and then undercut it unilaterally by half-hearted support or weaseling interpretations. United States v. Brown, 500 F2d 375 (4th Cir 1974) (prosecutor fails to live up to his part of the plea bargain unless he supports the result recommended with some degree of advocacy). See also Santobello v. New York, 404 US 257, 92 S Ct 495, 30 L Ed 2d 427 (1971); United States v. Crusco, 536 F2d 21 (3d Cir 1976) (prosecutor promising to take no position precluded from making any response to argument of defense counsel at sentencing).
Even if the general statute were applicable as the majority insists, without citing authority, the trial court still would not have discretion to refiise to accept the guilty plea because of the specific provisions of ORS 163.150. See United States v. Ammidown, 497 F2d 615 (DC Cir 1973).
Some of these cases involve potentially ambiguous agreements. They are cited for the proposition that courts employ contract analysis. Where, as here, the agreement stipulated is not ambiguous, they offer authority that the state may not benefit from creating an ambiguity in the agreement.
The same circuit judge presided over the subsequent jury trial knowing that it was likely that defendant considered himself guilty as charged. No one contends that a murder trial conducted by a judge who knows before trial starts that the defendant likely considers himself guilty as charged results in reversible error, but creation of a detriment to the defendant may be properly claimed. Cf. Bruton v. United States, 391 US 123, 88 S Ct 1620, 20 L Ed 2d 476 (1968) (jury cannot be relied on to disregard, upon instruction, confession of codefendant, which implicates objecting defendant, *119where confessing codefendant does not testify and thus cannot be cross-examined); Jackson v. Denno, 378 US 368, 84 S Ct 1774, 12 L Ed 2d 908 (1964) (jury cannot be relied on to consider truthfulness and voluntariness of confession). While these cases involve jurors, not judges, the invalidation of decisions made by human beings because they may not have been fully able to separate knowledge of guilt from their decision, where required by law to make such separation, reflects an understanding about human intellect and psychology. A detriment is suffered by a defendant when decisions presupposing absolute impartiality are made in a trial of guilt or innocence by one who knows the subject of the trial likely believes himself guilty as charged. No indication that this was an Alford plea is present or hinted in the record.