dissenting:
I would hold that, based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), in the framework of the Maryland death penalty statute, the sentencing authority must find that aggravating factors outweigh mitigating factors beyond a reasonable doubt and not by a mere preponderance of the evidence.1 I would find the por*150tion of Maryland Code (1978, 1996 Repl.Vol., 2001 Supp.) Art. 27, § 413(h)2 that provides that the punishment shall be death if the sentencing authority finds that the aggravating factors outweigh the mitigating factors by a preponderance of evidence violates due process under the Fourteenth Amendment of the United States Constitution and Article 24 of the Maryland Declaration of Rights. Accordingly, I would sever the unconstitutional portion of the statute, require the reasonable doubt standard as a matter of law, and vacate appellant’s sentence of death imposed pursuant to § 413(h).
Summary of Argument
In Maryland, the maximum sentence for first degree murder is life imprisonment, unless certain circumstances are present and certain requirements are met. Death and life imprisonment without the possibility of parole are enhanced penalties; life imprisonment is the default penalty. Under the Maryland death penalty statute, the sentencing authority is required to make additional findings beyond that of guilt before a sentence of death may be imposed.
Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63, 147 L.Ed.2d 435, forms the backdrop for this appeal. In Appren-di, the Supreme Court held that “other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. Ap-prendi has attracted much attention in the legal community “and has important implications for the conduct of criminal trials and sentencing.” In Re Turner, 267 F.3d 225, 227 (3d Cir.2001).
Under the Maryland death penalty statute, before a sentence of death may be imposed, the jury must find that the State has proven at least one aggravating factor beyond a *151reasonable doubt. The jury also must find, beyond a reasonable doubt, that the defendant was a principal in the first degree. The third factor that the sentencing authority must find is that the aggravating factors outweigh the mitigating factors. In my view, Apprendi mandates that this last factor also be found beyond a reasonable doubt.
I. Maryland’s Statutory Scheme
The Maryland death penalty statute prescribes that “a person found guilty of murder in the first degree shall be sentenced to death, imprisonment for life, or imprisonment for life without the possibility of parole. The sentence shall be imprisonment for life unless ... a sentence of death is imposed in accordance with § 413 ....”§ 412 (emphasis added).
Section 413 provides that, if the sentencing authority finds that the aggravating circumstances outweigh the mitigating circumstances by a preponderance of the evidence, the sentence shall be death, but, if it finds that the aggravating circumstances do not outweigh the mitigating circumstances, a sentence of death may not be imposed. See § 413(h). Finally, the Maryland death penalty statute requires that the Court of Appeals automatically review all death sentences and determine whether the evidence supports the sentencer’s finding that the aggravating circumstances outweigh the mitigating circumstances. See § 414(e).
II. Federal Due Process .
In Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), the Supreme Court applied the rule announced in In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), that every fact necessary to the crime charged must be proven beyond a reasonable doubt, to a Maine homicide statute that required a defendant to prove heat of passion on sudden provocation in order to negate the element of malice and reduce a charge of murder to manslaughter. In so doing, the Court held that the Winship rule was not limited only to those facts that constituted a crime as defined by state law because of the significance of the conse*152quences to the defendant depending on whether the fact of provocation could be proven. See Wilbur, 421 U.S. at 698, 95 S.Ct. at 1889, 44 L.Ed.2d 508; cf. maj. op. at 104. The Court explained that the rationale of Winship “requires an analysis that looks to the ‘operation and effect of the law as applied and enforced by the state....”’ Wilbur, 421 U.S. at 699, 95 S.Ct. at 1890, 44 L.Ed.2d 508.
The Court applied the Winship rule again in McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), to a Pennsylvania statute that created a mandatory minimum sentence of five years imprisonment for certain enumerated offenses if the sentencing judge found, by a preponderance of the evidence, that the defendant visibly possessed a firearm during the commission of the offense. Citing Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), the Supreme Court emphasized that “in determining what facts must be proved beyond a reasonable doubt the state legislature’s definition of the elements of the offense is usually dispositive.... ” McMillan, 477 U.S. at 85, 106 S.Ct. at 2415, 91 L.Ed.2d 67. The Court concluded that visible firearm possession was a sentencing factor, not an element of the substantive offense, and therefore did not have to be proven beyond a reasonable doubt. As the majority recognizes, see maj. op. at 106-107, this was so because visible possession merely limited the sentencing court’s discretion in selecting a penalty within the existing range of permissible sentences; it did not alter the maximum sentence for the crime committed or expose the defendant to greater potential punishment. See McMillan, 477 U.S. at 86-88, 106 S.Ct. at 2416-17, 91 L.Ed.2d 67.
In Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), the Supreme Court limited its earlier holding in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (permitting an increased maximum sentence for recidivist offenders based on a prior conviction that was not specifically pleaded in the indictment because it was not an element of the offense), solely to recidivism as a sentencing factor. See Jones, 526 U.S. at 249, *153119 S.Ct. at 1227, 143 L.Ed.2d 311. In reaching that conclusion, the Court set the stage for its decision in Apprendi, remarking in a footnote that: “under the Due Process Clause of the Fifth Amendment ..., any fact (other than prior conviction) that increases the maximum penalty for a crime must be ... proven beyond a reasonable doubt. ” Id. at 243 n. 6, 119 S.Ct. at 1224 n. 6, 143 L.Ed.2d 311 (emphasis added). The Court explained that these constitutional safeguards “concern not the identity of the elements defining criminal liability but only the required procedures for finding the facts that determine the maximum permissible punishment: these are the safeguards going to ... the burden of proof.” M3
It was against this backdrop that the Supreme Court decided Apprendi. The Apprendi Court began by tracing the common law development of the definition of elements of offenses for the purpose of the guarantees of due process and trial by jury, which entitle a defendant to have every element of the crime charged proven to a jury beyond a reasonable doubt. The Court noted that “facts that expose a defendant to a punishment greater than that otherwise legally prescribed were by definition ‘elements’ of a separate legal offense.” Apprendi, 530 U.S. at 482 n. 10, 120 S.Ct. at 2359 n. 10, 147 L.Ed.2d 435 (emphasis added). The Court found that “Win-ship ’s due process associated jury protections extend, to some degree, ‘to determinations that [go] not to a defendant’s guilt or innocence, but simply to the length of the sentence.’ ” Id. at 484, 120 S.Ct. at 2359, 147 L.Ed.2d 435 (alteration in original) (emphasis added) (citations omitted). The Court made clear that McMillan’s holding was limited to “cases that do not involve the imposition of a sentence more severe than the statutory maximum for the offense established by the jury’s *154verdict....” Id. at 487 n. 13, 120 S.Ct. at 2361 n. 13, 147 L.Ed.2d 435.
Prior to Jones and Apprendi, the Supreme Court’s due process jurisprudence had relied heavily on the formalistic, but often blurry, distinction between “elements” and “sentencing factors.” In Apprendi, the Court provided a clear method for distinguishing sentencing factors from elements of an offense, explaining that: “the relevant inquiry is not one of form, but of effect — does the required finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?” Id. at 494, 120 S.Ct. at 2365, 147 L.Ed.2d 435. The Court held that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490, 120 S.Ct. at 2362-63, 147 L.Ed.2d 435 (emphasis added). In doing so, the Court discussed the important distinction between facts in aggravation of punishment and facts in mitigation, emphasizing that mitigating circumstances do not need to be proven beyond a reasonable doubt because, unlike aggravating circumstances, they do not expose a defendant to increased potential punishment. See id. at 490 n. 16, 120 S.Ct. at 2363, n. 16, 147 L.Ed.2d 435.
I believe that a finding that aggravating circumstances outweigh mitigating circumstances increases the penalty beyond the prescribed statutory maximum. Under § 412(b), a defendant is not “death-eligible” merely by having been found guilty of first degree murder. Rather, at the conclusion of the guilt/innocence phase and a finding of guilty of first degree murder, the defendant is eligible only for a sentence of life imprisonment. The defendant cannot receive a sentence of death unless the additional requirements of § 413 have been met, i.e., that at least one aggravating factor has been proven, that the defendant is a principal in the first degree, and that the aggravating circumstance[s] outweigh any mitigating circumstances. See § 413(h). Just as the presence of the hate crime enhancement in Apprendi transformed a second degree offense into a first degree offense under the New Jersey hate *155crime statute, the finding that the aggravating circumstances outweigh the mitigating circumstances transforms a life sentence into a death sentence under the Maryland death penalty statute. Cf. Hoffman v. Arave, 236 F.3d 523, 545-46 (Preger-son, J., concurring in result) (explaining that the presence of an aggravating circumstance under Idaho’s death penalty scheme transforms a life sentence into a death sentence in the same way that the presence of the hate crime enhancement transformed the second degree offense into a first degree offense in Apprendi). There can be no doubt that a death sentence is an increased penalty beyond life imprisonment.
The majority asserts that “Maryland law makes death the maximum penalty for first degree murder.” Maj. op. at 123. I believe that the majority is wrong. This Court, in an unanimous opinion, recently held that the maximum penalty for first degree murder is life imprisonment and that “death or life imprisonment without the possibility of parole are ‘enhanced’ sentences for first degree murder, and are dependent upon special circumstances.” Johnson v. State, 362 Md. 525, 529, 766 A.2d 93, 96 (2001).
In Johnson, we addressed the question of whether Maryland law authorized the imposition of a sentence of life imprisonment without the possibility of parole for a conviction for conspiracy to commit first degree murder. See id. at 528, 766 A.2d at 94. The State argued that the maximum penalty for conspiracy to commit murder was life without parole. We rejected the State’s argument and held that, for the purposes of the limitation on sentences for inchoate offenses, the maximum sentence for murder was its “basic maximum sentence,” not including “any enhanced penalty provisions.” Id. at 530, 766 A.2d at 96. In reaching that conclusion, we reasoned:
“As shown by the language of Art. 27 § 412(b), the basic sentence for first degree murder ‘shall be imprisonment for life.... ’ The greater sentences of death or imprisonment for life without the possibility of parole cannot be imposed unless certain special conditions are met. In addition to the notice requirements set forth in § 412(b), there are special *156conditions for the imposition of death or life without the possibility of parole contained in other statutory provisions.”
Id. at 529, 766 A.2d at 95 (citations omitted).4 Cf. Gary v. State, 341 Md. 513, 671 A.2d 495 (1996) (holding that life imprisonment was not an illegal sentence for conspiracy to commit murder because it was the maximum penalty for the substantive crime of first degree murder).
In light of the structure of the Maryland statute governing imposition of the death penalty, and consistent with the language in Johnson, the finding that the aggravating circumstances outweigh the mitigating circumstances, pursuant to § 413(h), clearly exposes a defendant to an increased potential range of punishment beyond the mere conviction for first degree murder.
In keeping with McMillan’s deference to the legislative determination of the elements of a particular crime, it is the particular structure of the Maryland statutes and rules governing imposition of the death penalty that guides the analysis of the requirements of due process under Apprendi. In enacting §§ 413 and 414 of the death penalty statute, the General Assembly expressed an intention to base death sentences in Maryland on a factual finding within the meaning of Apprendi in two ways: first, by mandating that the sentencer find that the aggravators outweigh the mitigators by a preponderance of the evidence; and, second, by requiring that the Court of Appeals review that factual finding for sufficiency of the evidence.
*157While ordinarily, the broad deference accorded to state legislatures in defining the elements of offenses under Win-ship and its progeny results in state statutes being upheld against the minimal requirements of due process, in the present case, the way that the Maryland General Assembly has chosen to define the death penalty procedures is precisely what implicates and offends the strictures of the Due Process Clause. The fact that the General Assembly prescribed a burden of proof for the weighing process of § 418(h) at all is the clearest indication that the legislature envisioned this determination as a factual finding.
The majority finds Apprendi inapplicable, reasoning that:
“It was not a death penalty case, it did not involve a capital punishment sentencing scheme, and the five Justices forming the majority made clear their view that the rulings enunciated in the case did not serve to invalidate any capital punishment laws.”
Maj. op. at 104. The majority may be correct that Apprendi does not require the invalidation of all state capital punishment schemes. Unfortunately, the majority views the instant challenge to the Maryland statute as occupying the crossroads between the Supreme Court’s due process jurisprudence under Winship, Apprendi, et al. and the Court’s death penalty sentencing jurisprudence under Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), and its progeny. I disagree with that analysis.
Analytically, it is possible to find Maryland’s death penalty statute violative of the guarantees of due process without offending in the slightest the holding or analysis in Walton and other Supreme Court capital sentencing cases. Walton sheds very little light on the question before this Court today. Walton merely held that it did not violate due process to require a defendant to shoulder the burden to prove mitigating circumstances as long as the State was required to prove the existence of aggravating circumstances. See id. at 650, 110 S.Ct. at 3055, 111 L.Ed.2d 511; see also Hildwin v. Florida, 490 U.S. 638, 109 S.Ct. 2055, 104 L.Ed.2d 728 (1989) *158(holding that the specific findings authorizing the imposition of a death sentence did not have to be made by a jury because the existence of aggravating factors was not an element of the offense but merely a “sentencing factor”).
Maryland’s death penalty statute also requires the defendant to prove the existence of mitigating circumstances, and appellant does not challenge that section of the statute here. Unlike the Arizona statute at issue in Walton,5 however, Maryland’s statute requires the jury to make an ultimate finding of fact regarding the balance of aggravating and mitigating circumstances. That finding increases the potential maximum penalty for the defendant and, significantly, is reviewed at the appellate level for sufficiency of the evidence.
More importantly, unlike the Arizona death penalty statute at issue in Walton,6 the Maryland death penalty statute establishes life imprisonment as the basic, default maximum penalty for murder, a characteristic that makes Maryland unique among American death penalty jurisdictions. See Johnson, 362 Md. at 529, 766 A.2d at 96. In most states, a defendant essentially becomes “death eligible” upon conviction of a potentially capital crime, and the sentencing proceeding is merely a vehicle through which the sentencing authority selects from within a potential range of sentences, usually between fife imprisonment and death. In Maryland, however, a defendant is not eligible to receive a death sentence after being *159convicted of first degree murder. Rather, certain additional conditions must be met, including a finding by the sentencing authority that the aggravating circumstances outweigh the mitigating circumstances. See id. at 529, 766 A.2d at 96. As a result, in Maryland, the finding that aggravators outweigh mitigators is much more akin to the finding that aggravating circumstances exist, which must be proven beyond a reasonable doubt, than it is to a finding that there are mitigating circumstances to be considered. Within the holding of Ap-prendi, therefore, due process requires that it be made beyond a reasonable doubt.
In addition, the majority overstates the continued authority of Walton by referring to what it characterizes as the “unequivocal statement by the Apprendi majority that its decision did not render invalid State capital sentencing schemes, such as approved in Walton, that allowed the judge, not sitting as the trier of fact, to find and weigh specific aggravating factors.” Maj. op. at 121. Apprendi did not have a clear majority on the issue of whether Walton survived Apprendi. The four judge plurality attempted to distinguish Apprendi from Walton. See Apprendi, 530 U.S. at 496-97, 120 S.Ct. at 2366, 147 L.Ed.2d 435.7 Justice Thomas, in his concurring opinion, acknowledged the tension between Apprendi and Walton, but ultimately concluded that Walton’s continued viability was “a question for another day.” Id. at 523, 120 S.Ct. at 2380, 147 L.Ed.2d 435 (Thomas, J., concurring). The four-judge dissent argued that Apprendi directly conflicted with Walton. See id. at 538, 120 S.Ct. at 2388, 147 L.Ed.2d 435 (O’Connor, J., dissenting).
*160Furthermore, the Apprendi plurality’s reasoning for why it did not conflict with Walton, if anything, supports my view. The Court reasoned that Apprendi did not conflict with Walton, with respect to capital sentencing schemes, because, under the Arizona death penalty scheme at issue in Walton, once the jury had found the defendant guilty of all of the elements of first degree murder, the defendant was death-eligible, leaving to the sentencing judge only the determination of what penalty to impose within a range of penalties for which the maximum sentence had already been established. See id. at 496-97, 120 S.Ct. at 2366, 147 L.Ed.2d 435. That is not the case under the Maryland death penalty statute. See Johnson, 362 Md. at 529, 766 A.2d at 96.
The majority emphasizes the Supreme Court’s statement in Walton that aggravating facts falling within the traditional scope of capital sentencing merely guide a choice between a greater and lesser penalty, but do not raise the ceiling of the available sentencing range. See maj. op. at 112. The majority also repeatedly stresses that Apprendi does not forbid a judge to exercise sentencing discretion within a statutory range of punishments. See maj. op. at 113-114. I do not dispute either of these propositions.
Nonetheless, it bears repeating that appellant’s challenge is not to all capital sentencing statutes, but to Maryland’s particular statutory scheme. Section 412 prescribes that the penalty for first degree murder “shall be imprisonment for life unless ... a sentence of death is imposed in accordance with § 413 ....”§ 412(b). As such, the Maryland capital sentencing scheme establishes life imprisonment as the default punishment for first degree murder, and the maximum sentence is increased only if the sentencing authority finds that the aggravating circumstances outweigh the mitigating circumstances. Therefore, the Maryland General Assembly, in enacting § 412, has defined the offense of capital murder in Maryland in such a way that its particular elements must be proven beyond a reasonable doubt.
*161The majority asserts that “[i]f it is permissible under Ap-prendi for the law to remove [the] fact-finding and fact-weighing process entirely from the jury and leave it to the judge as a legitimate sentencing factor, without specifying a reasonable doubt standard, it can hardly be impermissible for a jury that has found the prerequisite aggravating factors beyond a reasonable doubt to apply a preponderance standard in weighing them against any mitigating circumstances.” Maj. op. at 121-122.8 The majority concludes: “The Walton scheme ... is in far greater direct conflict with the underpinning of Apprendi than the Maryland approach____If Appren-di renders the Maryland law unconstitutional, then, perforce, it likely renders most of the capital punishment laws in the country unconstitutional.” Id. at 122 (emphasis in original). I disagree. The Supreme Court’s jurisprudence has consistently emphasized the important role that is played by the particular choices made by state legislatures in defining elements of offenses for the purposes of due process analysis. See, e.g., McMillan, 477 U.S. at 85, 106 S.Ct. at 2415, 91 L.Ed.2d 67. The majority’s fallacy is in characterizing Maryland’s statutory death penalty scheme as somehow being merely a subset or permutation of the schemes upheld in Walton, Hildwin, etc. It is not.
Unlike most states that establish a punishment range of life imprisonment to death for first degree murder and then delegate to the sentencing authority the choice between the *162two based upon a normative judgment, the Maryland statute prescribes that the penalty for first degree murder is life imprisonment, unless a series of additional conditions are met, including the weighing of aggravating and mitigating circumstances mandated by § 413. See § 412(b). Death sentences are then automatically reviewed by this Court for sufficiency of the evidence. See § 414(e). The General Assembly could not have conceived of this sentencing determination as the type of “purely judgmental” choice, see maj. op. at 126, within a range of permissible sentences, like the statutes at issue in Walton, etc., but rather established a death sentence as an enhanced penalty based upon the establishment of additional facts (namely, that there are aggravating circumstances that outweigh mitigating circumstances) by a particular standard of proof that is reviewable, as a matter of law, at the appellate level. It is this fact-finding process that brings § 413 within the strictures of Apprendi and the Due Process Clause, even though it is still an open question whether statutes like the one upheld in Walton will survive Supreme Court review after Apprendi. The majority concedes as much, characterizing “the determination whether aggravating or mitigating circumstances exist” as being “in the nature of a fact-finding process, in which the ultimate determination must be based on evidence.” Maj. op. at 126. Nonetheless, the majority concludes that “[njotwithstanding the language in § 413(e)(3) directing this Court, on appellate review, to determine whether ‘the evidence supports the jury’s ... finding that the aggravating circumstances outweigh the mitigating circumstance,’ the weighing process is not a fact-finding process. This is a process that not only traditionally, but quintessentially, is a pure and Constitutionally legitimate sentencing factor, one that does not require a determination to be made beyond a reasonable doubt.” Id. at 126-127.
First, this interpretation of the Maryland death penalty statute is in direct contravention of the plain language and structure of the statute. Second, this conclusion relies on a cursory interpretation of what the Apprendi majority meant when it discussed “factual findings” that expose a defendant to *163greater punishment. The purpose of Apprendi’s functional, rather than purely formal, definition of elements of an offense was to make clear that courts should look beyond the textual, theoretical maximum penalties available for a predefined crime to the more fundamental inquiry of whether additional findings are necessary to increase the penalty for that crime. Third, the fact that the ultimate determination of the balance of aggravating and mitigating circumstances in a capital sentencing proceeding is not entirely like any other determination in the criminal justice system is not a valid reason to refuse to apply Apprendi’s protections to that decision. As the New Jersey Supreme Court explained in State v. Biegenwald, 106 N.J. 13, 524 A.2d 130 (1987):
“In no proceeding is it more imperative to be assured that the outcome is fair than in [the determination that the aggravating factors outweigh the mitigating factors].... We speak here about the ultimate value judgment, the ultimate question of life or death, for while the formulation is in terms of ‘beyond a reasonable doubt,’ and therefore appropriately applicable to fact-finding, the weighing process really is not fact-finding at all but a judgmental determination by the jury, based on conflicting values, of whether defendant should live or die.... If anywhere in the criminal law a defendant is entitled to the benefit of the doubt, it is here.”
Id. at 156 (citations omitted).
The majority makes a point to emphasize that Apprendi “did not involve a capital punishment sentencing scheme.... ” Maj. op. at 104. Nonetheless, Apprendi’s logic is equally applicable to the operation of the Maryland death penalty statute at issue in this case. The fact that the definition of the offense of capital murder occurs within the context of a capital sentencing statute, rather than a hate crimes or carjacking statute, is not dispositive of the due process issue. Such analysis is precisely the type of mere “formalism” against which the Court warned in Wilbur. See Wilbur, 421 U.S. at 700, 95 S.Ct. at 1890, 44 L.Ed.2d 508.
*164The United States Supreme Court repeatedly has stated that death is different. The reason why death is different is reiterated throughout the Court’s death penalty jurisprudence. See e.g., Gardner v. Florida, 430 U.S. 349, 357, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (1977); Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976). The Court has recognized “that the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination.” California v. Ramos, 463 U.S. 992, 998-999, 103 S.Ct. 3446, 3452, 77 L.Ed.2d 1171 (1983). The Court has noted the obvious: that death is different because it is irreversible. This aspect of the difference between death and other penalties merits particularly careful review of the fairness of the trial, the accuracy of the fact-finding process, and the fairness of the sentencing procedure imposing the death penalty. Even a cursory review of Supreme Court death penalty jurisprudence leads to the inescapable conclusion that capital sentencing proceedings are to be subjected to a heightened degree of scrutiny out of concern for the reliability of their outcomes. See Lockett v. Ohio, 438 U.S. 586, 604-05, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973 (1978); Woodson, 428 U.S. at 305, 96 S.Ct. at 2991, 49 L.Ed.2d 944 (“Death in its finality, differs from life imprisonment more than a hundred-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.”). As the Court explained in Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988):
“The decision to exercise the power of the State to execute a defendant is unlike any other decision citizens and public officials are called upon to make. Evolving standards of societal decency have imposed a correspondingly high requirement of reliability on the determination that death is the appropriate penalty in a particular case.”
Id. at 383-84, 108 S.Ct. at 1870, 100 L.Ed.2d 384. As Chief Justice Quinn of the Colorado Supreme Court explained in State v. Tenneson, 788 P.2d 786 (Colo.1990):
*165“The elevated standard of reliability applicable to a capital sentencing proceeding is nothing less than constitutional acknowledgment that there is a qualitative difference between death and other forms of punishment and that this qualitative difference necessitates a ‘corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.’ ”
Id. at 804 (Quinn, C.J., concurring in part and dissenting in part) (quoting Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1988)). The majority turns this concern with heightened reliability on its head by suggesting that capital sentencing procedures should somehow constitute an exception to the values of fairness protected by the Due Process Clause.
The majority also devotes a great deal of time to discussing post-Apprendi challenges to other states’ death penalty statutes. To a great extent, however, those cases are not persuasive because, as indicated in discussion supra pp. 104 -109, they involve death penalty statutes that are significantly different in structure and application than the Maryland statute.
The majority begins with a discussion of State v. Hoskins, 199 Ariz. 127, 14 P.3d 997 (2000), claiming that, despite its awareness of Apprendi, the Arizona Supreme Court dismissed the challenge on the basis of Walton. See maj. op. at 116 - 117. In that case, the court dealt with the relationship between Walton and Apprendi in a footnote only, stating specifically that the precise issue had not been raised, briefed, or argued in Hoskins, so that the court remained bound by Walton’s holding that a judge could constitutionally determine the presence of aggravating circumstances “until the Arizona death penalty statutes are fully analyzed under Apprendi and a final determination is made by the Supreme Court----” Hoskins, 14 P.3d at 1016 n. 5. In addition, the Arizona death penalty statute (which was upheld in Walton) is structured significantly differently than the Maryland statute for the purposes of due process analysis. The Arizona statute provides that a person guilty of first degree murder shall suffer death or life imprisonment at the discretion of the sentencing *166authority. See Aeiz.Rev.Stat. § 13-703(A) (1999). It also provides that, in determining whether to impose a sentence of death or life imprisonment, the sentencing court shall merely “take into account” aggravating and mitigating circumstances and that the court must impose a death sentence if it finds aggravating circumstances and no mitigating circumstances sufficiently substantial to call for leniency. See § 13-703(E).
The California statute at issue in People v. Anderson, 25 Cal.4th 543, 106 Cal.Rptr.2d 575, 22 P.3d 347 (2001), cited by the majority, is also structured like the Arizona statute upheld in Walton and Hoskins, not like the Maryland statute. The California death penalty statute provides that the trier of fact choose between possible sentences of death or life imprisonment and that, in doing so, the trier of fact shall simply “consider, take into account and be guided by the aggravating and mitigating circumstances” and “impose a sentence of death if ... the aggravating circumstances outweigh the mitigating circumstances.” CalPenal Code § 190.3 (West 2001). In other words, as the court in Anderson articulated, the sentencing authority in California engages in an “essentially normative determination,” Anderson, 106 Cal.Rptr.2d 575, 22 P.3d at 378, under a statutory scheme in which death is the prescribed statutory maximum penalty for first degree murder and life imprisonment is the minimum sentence, such that “facts which bear upon, but do not necessarily determine, which of these two alternate penalties do not come within the holding of Apprendi.” Id. 106 Cal.Rptr.2d 575, 22 P.3d at 378 n. 14. As explained supra, the same analysis does not apply to the Maryland statute.
The weighing provision of the statute at issue in Weeks v. State, 761 A.2d 804 (Del.2000) is perhaps the closest in similarity to the Maryland death penalty, in that it requires the sentencing authority to find that the aggravating circumstances outweigh the mitigating circumstances by a preponderance of the evidence. See Del.Code Ann. tit. 11, § 4209 (2000). Nonetheless, the Delaware Supreme Court’s holding in Weeks is inapposite for two reasons. First, the defendant in Weeks was not challenging the weighing portion of Dela*167ware’s death penalty statute; he was challenging the portion of the statute that permits the trial judge to find statutory aggravating factors without being bound by a jury verdict on allegedly underlying issues of fact, and the court’s holding was limited to the finding of enumerated aggravating factors. See § 4209 (providing that the jury report to the judge its final vote on whether the evidence shows the existence of an aggravating factor beyond a reasonable doubt, which the trial judge then considers in independently establishing the existence of at least one statutory aggravator beyond a reasonable doubt); Weeks, 761 A.2d at 806. Second, and more importantly, the Delaware statute prescribes that the punishment for first degree murder is death or life imprisonment without parole. See § 4209. It does not establish life imprisonment as the default or basic maximum sentence, which is later “enhanced” based on additional factual findings, the way that the Maryland statute does.
The reasoning in United States v. Allen, 247 F.3d 741 (8th Cir.2001), also cited by the majority, if anything, supports the position that I take in this dissent. In that case, the United States Court of Appeals for the Eighth Circuit dealt with the question of whether Apprendi required that the mental culpability factors and statutory aggravating factors on which the government relied in seeking the death penalty be charged in an indictment and submitted to a Grand Jury under the Fifth Amendment’s Indictment Clause. See U.S. Const., amend. V (“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury....”). The court held that mental culpability and aggravating circumstances need not be alleged in the indictment because they were not elements of the underlying offense. In particular, the court held that those factors were not elements of the crime because they were not the basis for increasing the maximum punishment. See Allen, 247 F.3d at 763. In doing so, however, the court based its decision on the unique structure of the Federal Death Penalty Act (FDPA), 18 U.S.C. § 3591 (1994), finding that the death penalty was the “first” or “baseline” punishment authorized by FDPA and that *168permitting a jury to sentence a defendant convicted under FDPA to life imprisonment was a “sentencing protection[ ]” to “shield a defendant from automatically receiving the statutorily authorized death sentence.” Allen, 247 F.3d at 763. The court rejected the appellant’s argument that a life sentence was the initial baseline from which the jury’s sentencing determinations under FDPA were viewed because it found that “the statutes at issue expressly authorize a maximum penalty of death and the sentencing factors of mental culpability and aggravating circumstances do not increase the sentencing range but rather provide the particularized standards for choosing which of the alternative available sentences should be imposed.” Id. The court concluded:
“The fact-finding barrier that exists between a jury verdict that a defendant is guilty of a capital crime for which one punishment is known to be death and a court’s ability to impose that capital punishment, id., acts to protect the defendant from an automatic death sentence. Because of the unique context of this scheme, and because the statutes of conviction authorize a penalty of death, we hold that failure to allege the mental culpability and statutory aggravating factors in a capital defendant’s original indictment does not violate the Fifth Amendment’s Indictment Clause.”
Id. at 763-64 (emphasis added). This reasoning cannot control our decision regarding the Maryland death penalty statute because this Court specifically held in Johnson that the basic maximum sentence for murder under § 412(b) is life imprisonment and a death sentence was an enhanced penalty dependent upon special circumstances. See discussion, supra, p. 155.
The Florida Supreme Court applied reasoning in its decision in Mills v. Moore, 786 So.2d 532 (2001), that was similarly inapplicable to the Maryland death penalty statute given this Court’s decision in Johnson. In that case, the court found Apprendi inapplicable to Florida’s death penalty statute because “[t]he plain language of [the statute] is clear that the maximum penalty available for a person convicted of a capital felony is death.” Id. at 538 (emphasis added). In so doing, *169the court relied specifically on the plain meaning of the language of “capital felony” employed in its statute,9 concluding that “a ‘capital felony’ is by definition a felony that may be punishable by death. The maximum possible penalty described in the capital sentencing scheme is clearly death.” Id. This reasoning is in direct contrast to Maryland law, under which life imprisonment is the maximum sentence for first degree murder, absent a sentencing enhancement based on special circumstances. The Florida Supreme Court also relied on the fact that the United States Supreme Court had not overruled Walton or Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), in which Florida’s sentencing scheme was upheld. See Mills, 786 So.2d at 537. Unfortunately, however, the court did so, in part, by relying inappropriately on the fact that the Supreme Court had denied certiorari in several state supreme court cases finding Appren-di inapplicable to their capital sentencing schemes, finding that “[t]he Supreme Court’s denial of certiorari indicates that the Court meant what it said when it held that Apprendi was not intended to affect capital sentencing schemes.” Id. See Bethley v. Louisiana, 520 U.S. 1259, 117 S.Ct. 2425, 138 L.Ed.2d 188 (1997) (explaining that it is well settled that the Supreme Court’s decision to deny certiorari “does not in any sense constitute a ruling on the merits of the case in which the writ is sought”); Barber v. Tennessee, 513 U.S. 1184, 115 S.Ct. 1177, 130 L.Ed.2d 1129 (1995) (restating the “settled proposition” that a denial of certiorari “does not constitute a ruling on the merits”); see also discussion, supra, pp. 106 -110.
State v. Golphin, 352 N.C. 364, 533 S.E.2d 168 (2000), is also inapposite. Golphin dealt with the issue of whether due *170process required that an indictment include aggravating circumstances, concluding that it did not. The court found that the notice of intent to seek the death penalty was sufficient. See id. at 193. The court based its conclusion on the holding that aggravating circumstances are not elements under Ap-prendi. See id. at 193-94. Once again, the North Carolina death penalty statute is fundamentally different from the Maryland scheme. The North Carolina statute provides that, once a defendant has been convicted of “a capital felony,” a sentencing proceeding is conducted to determine whether the defendant should be sentenced to death or life imprisonment. See N.C. Gen.Stat. § 15A-2000 (a)(1) (2000). In addition, unlike the Maryland statute, in North Carolina, aggravating and mitigating circumstances are merely “considerations” for the sentencing authority in selecting a sentence within a permissible range. See § 15A-2000 (b).
The Missouri Supreme Court’s decision in State v. Storey, 40 S.W.3d 898 (Mo.2001), is particularly inapposite to the issue in this case, in that it dealt with the application of the Double Jeopardy Clause to a capital sentencing proceeding in which the court submitted to the sentencing jury an aggravating factor that a prior sentencing jury had failed to find. See id. at 914. The court held that the submission of the aggravating circumstance at the subsequent sentencing hearing did not violate double jeopardy, under Poland v. Arizona, 476 U.S. 147, 106 S.Ct 1749, 90 L.Ed.2d 123 (1986), and that Apprendi did not affect Poland. That holding in no way sheds light on the question of whether Apprendi requires that the finding that aggravating circumstances outweigh mitigating circumstances under the Maryland statute must be done beyond a reasonable doubt.
Hoffman did not deal with the precise Apprendi challenge at issue in this case, a challenge to the weighing portion of Idaho’s death penalty statute, but rather involved a challenge to the portion of the statute that mandates that a judge, rather than a jury, determine the presence of an aggravating circumstance in order for a defendant to be eligible for a death sentence. See Idaho Code § 19-2515(c); Hoffman, 236 F.3d *171at 542. Nonetheless, in reaching its decision that the Idaho death penalty statute was not unconstitutional, while conceding that Apprendi may raise some doubt about the continued vitality of Walton, the United States Court of Appeals for the Ninth Circuit concluded that, absent clear direction from the Supreme Court, Walton foreclosed an Apprendi-based challenge to Idaho’s capital sentencing scheme. See Hoffman, 236 F.3d at 542. Judge Pregerson did not join in this one holding of the court, insisting that Apprendi required a reconsideration of Walton’s continued viability.10 See id. at 543 (Preger-son, J., concurring). Judge Pregerson’s analysis is particularly compelling in light of this Court’s previous interpretation of the Maryland statute in Johnson:
“Under Idaho’s death penalty scheme, a defendant is not actually ‘death-eligible’ after a jury convicts him of first degree murder. Rather, at the conclusion of the first degree murder conviction, the defendant is only eligible for a sentence of life imprisonment. Idaho Code § 19-2515(c). The defendant is not death-eligible until the trial judge finds the presence of an aggravating circumstance. Id. If the trial judge finds an aggravating circumstance, the judge then has the task of weighing the statutory aggravating circumstance against all of the mitigating evidence to determine if the defendant should receive life in prison or the death penalty. Id.
“Just as the presence of the hate crime enhancement transformed a second degree offense sentence into a first degree offense sentence under the New Jersey hate crime statute, the presence of an aggravating circumstance here transforms a life sentence into a potential death sentence under the Idaho death penalty statute. There can be no doubt that a death sentence is an increased penalty beyond life imprisonment. It is equally clear that the presence or *172absence of an aggravating circumstance is a factual determination. I would therefore conclude that the determination of the presence or absence of an aggravating circumstance in a capital case is a factual determination that increases the potential sentence from life imprisonment to capital punishment, and thus must be submitted to the jury under Ap-prendi”
Id. at 546-47 (Pregerson, J., concurring in result) (internal footnote omitted).11
Finally, the majority takes comfort in the recent decision by the United States Court of Appeals for the Fourth Circuit, in Burch v. Corcoran, 273 F.3d 577 (4th Cir.2001). See maj. op. at 115. At the outset, it is important to note that the United States District Court for the District of Maryland held that the appellant’s Apprendi claim was barred by Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). See Brief for Appellant at 19 n. 4, Burch v. Corcoran, 273 F.3d 577 (4th Cir. 2001) (citing Burch v. Kavanagh, No. MJG-98-4054 (D.Md. Aug. 18, 2000) (unpublished Memorandum of Decision denying habeas corpus relief)). The court of appeals agreed, holding that “[bjecause his judgment of conviction was final well before the [Supreme] Court’s decision in Apprendi, and because Apprendi does not apply retroactively to cases pending on collateral review, Burch cannot obtain any federal habeas corpus relief under Apprendi.” Burch, 273 F.3d at 584. As the majority concedes, see maj. op. at 115-116, the court of appeals did not reach the merits of the appellant’s Apprendi challenge, finding it to be precluded by retroactivity *173doctrine.12 See Burch, 273 F.3d at 584. Nonetheless, the court, in dicta, in a two paragraph footnote and with little analysis, states that, in determining that a death sentence was warranted using a preponderance standard, the jury “was simply selecting the appropriate sentence from a range of penalties that already included the death penalty.” Id. at 584 n. 6. It is highly significant to the analysis, however, that neither the parties nor the court even cited, much less discussed, Johnson in their briefs or opinion.13
*174The majority and I agree on at least one point, namely, that the State need not charge in the indictment that the aggravating circumstances that it alleges outweigh any mitigating circumstances. I do not agree, however, with the majority’s view that the “incongruity of applying Apprendi to this process is particularly apparent with respect to the requirement that, if the determination that aggravating circumstances outweigh mitigating circumstances is treated as an element that must be proved by the State beyond a reasonable doubt, it also must be sufficiently alleged in the indictment.” Maj. op. at 127. There is no need to allege intent to seek the death penalty in an indictment, or to include aggravating factors and mitigating factors in an indictment, because the Fourteenth Amendment has never been construed to include the Fifth Amendment right to “presentment or indictment of a Grand Jury.” See Apprendi, 530 U.S. at 476 n. 3, 120 S.Ct. at 2355 n. 3, 147 L.Ed.2d 435. Furthermore, adequate notice, for the purpose of due process analysis, is provided for in the requirement that the State file a notice of its intent to seek the death penalty. See § 412(b)(1). Simply because the indictment ramifications of Apprendi are inapplicable to Maryland death penalty cases does not mean that the logic is also inapplicable.
III. State Constitutional Grounds
“Justice is the objective of Maryland’s judicial process. The process reaches for this objective by seeking the truth. It seeks the truth by means of a fair trial.” Jackson v. State, 322 Md. 117, 119, 586 A.2d 6, 6 (1991).
The relevant portion of Article 24 of the Maryland Declaration of Rights provides: “That no man ought to be ... deprived of his life, liberty or property, but ... by the law of the land.” The weighing provision of the Maryland death penalty statute, § 413(h), also violates Article 24 and the basic principles of fundamental fairness guaranteed by the state *175constitution and as reflected in Maryland common law. Although this Court has generally interpreted Article 24 in pari materia with the Due Process Clause of the Fourteenth Amendment,14 we have interpreted it more broadly in instances where fundamental fairness demanded that we do so. In one such instance, we recognized the common law doctrine of fundamental fairness in criminal cases as. a limitation on prosecutorial discretion to enter a nolle prosequi that was broader than the protection afforded by the Due Process Clause of the United States Constitution. See Hook v. State, 315 Md. 25, 43-44, 553 A.2d 233, 242-43 (1989) (holding that permitting the prosecution to nol pros a lesser included offense was “fundamentally unfair under Maryland common law”). We also applied the Maryland common law principles of fundamental fairness to merge two offenses even though merger was not required by the required evidence test as enunciated in White v. State, 318 Md. 740, 569 A.2d 1271 (1990) (explaining that the normal standard governing merger of offenses in Maryland is the Blockburger required evidence test). See Monoker v. State, 321 Md. 214, 582 A.2d 525 (1990). In Monoker, we based our application on the principle that “[o]ne of the most basic considerations in all our decisions is the principle of fundamental fairness in meting out punishment for a crime.” Id. at 223, 582 A.2d at 529. Certainly, if anything, meting out the ultimate punishment, “the most solemn and final act that the state can take against an individual,” State v. Wood, 648 P.2d 71, 80 (Utah 1982), should demand the ultimate attention to principles of fairness. See *176Tenneson, 788 P.2d at 794 (“These considerations [of fairness] assume profoundly greater importance in the process of determining whether a person convicted of murder shall be sentenced to death.”); Wood, 648 P.2d at 81 (“Nowhere in the law is the interplay of procedural rules and substantive standards more critical than in the penalty phase of a capital case.”).
In Wadlow v. State, 335 Md. 122, 642 A.2d 213 (1994), prior to the Supreme Court’s decisions in Jones and Apprendi, we explained that, despite the fact that federal courts had uniformly held that predicate facts required for imposition of enhanced sentences did not have to be found by a jury beyond a reasonable doubt, Maryland had generally drawn a distinction between sentence enhancement provisions that were dependent upon the prior conduct of the offender and those that were dependent upon the circumstances of the offense. See id. at 128-29, 642 A.2d at 216. We concluded, therefore, that, although not then required by the federal constitution, under Maryland law, where the legislature has prescribed different sentences for the same offense, depending upon a particular circumstance of the offense, the presence of that circumstance had to be determined by the trier of fact applying the reasonable doubt standard. See id; cf. Jones v. State, 324 Md. 32, 37, 595 A.2d 463, 465 (1991) (“Where the General Assembly has required or permitted enhanced punishment for multiple offenders, the burden is on the State to prove, by competent evidence and beyond a reasonable doubt, the existence of all of the statutory conditions precedent for the imposition of enhanced punishment.”); Spratt v. State, 315 Md. 680, 556 A.2d 667 (1989) (holding that the value of the property destroyed was an element of malicious destruction of property that had to be determined by a jury beyond a reasonable doubt). Our reasoning was based in part on the conclusion that enhanced punishment statutes are highly penal and, therefore, must be strictly construed. See Jones, 324 Md. at 38, 595 A.2d at 466.
Long before the Supreme Court decided Jones and Appren-di, these Maryland cases established the principle, under Maryland law, that any fact relating to the circumstance of an offense that exposed a defendant to enhanced punishment had *177to be determined by the trier of fact beyond a reasonable doubt. Thus, Article 24 of the Maryland Declaration of Rights, in conjunction with this Court’s holding in Johnson that life imprisonment is the basic statutory penalty for first degree murder and that life imprisonment without parole and the death penalty constitute enhanced sentences, constitutes an independent and adequate state law ground for invalidating the provision of the Maryland capital sentencing scheme that provides that the aggravating factors need outweigh the mitigating factors only by a preponderance of the evidence See Michigan v. Long, 463 U.S. 1032, 1041, 103 S.Ct. 3469, 3476, 77 L.Ed.2d 1201 (1983).
Allowing a jury to sentence a defendant to death based on only a preponderance of the evidence that the aggravating circumstances outweigh the mitigating circumstances offends the same principles of fundamental fairness articulated in our jurisprudence.
One purpose that is served by requiring the jury to find that aggravating circumstances outweigh the mitigating circumstances beyond a reasonable doubt is “to communicate to the jurors the degree of certainty that they must possess ... before arriving at the ultimate judgment that death is the appropriate penalty.” Tenneson, 788 P.2d at 794 (emphasis added). In that way, “the beyond a reasonable doubt standard as applied to the weighing of aggravating and mitigating factors serves to assure the degree of reliability necessary to support a verdict of death in a sentencing proceeding.” Id. (emphasis added). As the Utah Supreme Court explained: “The reasonable doubt standard ..., which is only used when the most basic interests of the individual are at stake, ... conveys to the decision maker a sense of the solemnity of the task and the necessity for a high degree of certitude, given the nature of the value to be weighed, in imposing the death sentence.” Wood, 648 P.2d at 84.
Several state supreme courts have found, on independent state law grounds, prior to the Supreme Court’s decision in Apprendi, that considerations of fundamental fairness require *178that the ultimate weighing determination in capital sentencing proceedings be made beyond a reasonable doubt. See Biegenwald, 524 A.2d at 151, 156; Wood, 648 P.2d at 71.
Several states require, in their capital punishment statutes, that the determination that aggravators outweigh mitigators be made beyond a reasonable doubt. See Ark.Code Ann. § 5-4-603(a)(2) (Michie 1997); N.J. Stat. Ann. § 2C:11-3.2 (3) (West 1995); N.Y.Crim. Proc. Law § 400.27(11)(a) (McKinney 2000); Ohio Rev.Code Ann. § 2929.03(d)(1) (West 1994); Tenn. Code Ann. § 39-13-204(f)(2) (1997); Utah Code Ann. § 76-3-207(4)(b) (2001); Wash. Rev.Code § 10.95.050(b) (2001). There are also a multitude of situations, involving penalties far less severe than the ultimate penalty at stake under § 413, where we have required determinations to be made by more than a preponderance of the evidence. See, e.g., 1986 Mercedes v. State, 334 Md. 264, 638 A.2d 1164 (1994) (requiring the state to prove the requisite elements under drug forfeiture laws by clear and convincing evidence); Mack v. Mack, 329 Md. 188, 207, 618 A.2d 744, 753 (1993) (requiring clear and convincing evidence for the withdrawal of life-sustaining medical treatment); Owens-Illinois v. Zenobia, 325 Md. 420, 601 A.2d 633 (1992) (requiring the clear and convincing evidence standard for proof of punitive damages); Everett v. Baltimore Gas & Elec., 307 Md. 286, 301, 513 A.2d 882, 889 (1986) (requiring utility to prove sufficient grounds for termination of service by clear and convincing evidence); Wash. Co. Dep’t Soc. Serv. v. Clark, 296 Md. 190, 192, 461 A.2d 1077, 1078 (1983) (requiring proof of parental unfitness by clear and convincing evidence in order to terminate parental rights); Coard v. State, 288 Md. 523, 525, 419 A.2d 383, 384 (1980) (requiring proof by clear and convincing evidence in civil commitment proceedings); Berkey v. Delia, 287 Md. 302, 318, 413 A.2d 170, 178 (1980) (requiring the heightened evidentiary standard of clear and convincing evidence for libel and slander).
I have a hard time reconciling the fact that a utility must prove nonpayment by clear and convincing evidence in order to shut off a consumer’s gas and electric service, while the *179determination of the imposition of the ultimate penalty of death can be made by a preponderance of the evidence, with the basic notions of justice at the core of our fundamental fairness jurisprudence.
As Justice Stewart of the Utah Supreme Court eloquently opined in his concurring opinion in State v. Brown, 607 P.2d 261 (Utah 1980):
“The ‘beyond a reasonable doubt’ standard may, of course, be considered similar in its function to proof by a preponderance of evidence, i.e., both standards are used to resolve factual disputes. However, the term ‘beyond a reasonable doubt’ is something more than a standard for evaluating conflicting facts and inferences; in the context of a penalty hearing, it also conveys to the jury the concept that the values upon which the criminal justice system is built do not permit the ultimate sanction to be imposed unless the conclusion is free of substantial doubt.”
Id. at 275. I could not agree more.
There are only two states in this country that permit the imposition of the death penalty based on a preponderance of the evidence standard. Evolving standards of decency cry out that, if a society is to impose death as a penalty, it should do so on no less a standard than beyond a reasonable doubt that the sentence is fitting and appropriate for the particular offender.
IV. Severability
Although I find that the preponderance of the evidence standard in § 413(h) is invalid, that standard is clearly severa-ble from the remainder of the Maryland death penalty statute. As this Court has emphasized, “[tjhere is a strong presumption that if a portion of an enactment is found to be invalid, the [legislative] intent is that such portion be severed.” Board v. Smallwood, 327 Md. 220, 245, 608 A.2d 1222, 1234 (1992), and cases there cited. See Montrose Christian v. Walsh, 363 Md. 565, 770 A.2d 111 (2001).
*180Moreover, the General Assembly has mandated that statutes are severable unless they specifically provide to the contrary or unless the remaining valid portions are “incomplete and incapable of being executed in accordance with the legislative intent.” Maryland Code (1957, 1998 Repl.Vol., 2001 Supp.), Art. 1, § 23. See Migdal v. State, 358 Md. 308, 323, 747 A.2d 1225 (2000).
The other basic test for severability under our cases is “that ‘[w]hen the dominant purpose of an enactment may largely be carried out notwithstanding the [enactment’s] partial invalidity, courts will generally hold the valid provisions severable and enforce them.’ ” Smallwood, 327 Md. at 246, 608 A.2d at 1235 (quoting O.C. Taxpayers v. Ocean City, 280 Md. 585, 601, 375 A.2d 541, 550 (1977)).
Clearly, the Maryland death penalty statute is complete and capable of being enforced with the preponderance of the evidence standard severed from § 413(h). That standard would, under the requirements of due process, be replaced by the standard of beyond a reasonable doubt. Furthermore, the dominant purpose of the Maryland death penalty statute was obviously not the application of a preponderance of the evidence standard for the weighing process under § 413(h). Rather, the dominant purpose was to authorize the death penalty for the most heinous first degree murders.
Thus, I would sever the preponderance of the evidence standard from § 413(h), vacate appellant’s death sentence, and remand the case for a new capital sentencing proceeding at which a reasonable doubt standard would apply to the weighing process under § 413(h).
Accordingly, I respectfully dissent from the majority’s decision holding that § 413(h) of Maryland’s capital punishment law does not violate due process by allowing the State to prove that the aggravating circumstances outweigh the mitigating circumstances by a mere preponderance of the evidence.
Chief Judge BELL and Judge ELDRIDGE join in this dissenting opinion.
. In Tichnell v. State, 287 Md. 695, 415 A.2d 830 (1980), we held that permitting the State to establish that the aggravating circumstance(s) outweighed the mitigating circumstance(s) by a preponderance of the evidence did not offend due process. See id. at 731, 415 A.2d at 849. Tichnell has been affirmed continuously by this Court in subsequent challenges. Nonetheless, Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), has changed the due process landscape in a landmark way. Dissenting in Apprendi, Justice O’Con-nor stated that Apprendi “will surely be remembered as a watershed change in constitutional law.” Id. at 524, 120 S.Ct. at 2380, 147 L.Ed.2d 435 (O'Connor, J., dissenting). The present case presents the first challenge to the constitutionality of § 413(h) since Apprendi was *150decided and the first meritorious ground for this Court to reexamine its holding in Tichnell in light of evolving due process standards.
. Unless otherwise indicated, all statutory references are to Maryland Code (1978, 1996 Repl.Vol., 2001 Supp.) Article 27.
. The Court also found that the Fifth Amendment to the United States Constitution required that any facts increasing the maximum penalty be charged in the indictment. See Jones v. United States, 526 U.S. 227, 243 n. 6, 119 S.Ct 1215, 1224 n. 6, 143 L.Ed.2d 311 (1999). The Fifth Amendment right to be indicted by a grand jury, however, has not been incorporated to apply to the states through the Fourteenth Amendment. See Apprendi v. New Jersey, 530 U.S. 466, 477 n. 3, 120 S.Ct. 2348, 2355 n. 3, 147 L.Ed.2d 435 (2000).
. In addition to finding that the aggravating circumstances outweigh the mitigating circumstances, pursuant to § 413(h), there are other special conditions for the imposition of the enhanced penalty of death under § 412(b), including: the filing of a notice of intent to seek the death penalty, pursuant to § 412(b); a finding either that the defendant was a principal in the first degree, the murder was for-hire, or the victim was a law enforcement officer, see Maryland Rule 4 — 343(g); State v. Colvin, 314 Md. 1, 17-18, 548 A.2d 506, 514 (1988); and the completion of a pre-sentence investigation report by the Division of Parole and Probation. See Maryland Code (1957, 1999 Repl.Vol., 2001 Supp.) § 6-112 of the Correctional Services Article.
. The Arizona capital sentencing statute requires only that the sentencing judge consider aggravating and mitigating circumstances; it does not require that the sentencing authority make a factual finding as to the relative weight of the two. See Ariz.Rev.Stat. § 13-703 (1989).
. The Arizona death penalty statute states only that: "[a] person guilty of first degree murder ... shall suffer death or imprisonment ... for life as determined and in accordance with the procedures provided. ..." Ariz.Rev.Stat. § 13-703(A) (1989). The statute further provides that, ''[i]n determining whether to impose a sentence of death or life imprisonment, the court shall take into account the aggravating and mitigating circumstances ... and shall impose a sentence of death if the court finds one or more of the aggravating circumstances enumerated ... and that there are no mitigating circumstances sufficiently substantial to call for leniency.” § 13-703(E).
. Interestingly, Justice Stevens, who wrote the Apprendi plurality, seemed to indicate in his concurring opinion in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) that, to the extent that Walton contradicted with the principle that it was unconstitutional lor a legislature to remove from a jury's assessment facts that increase the prescribed range of penalties, it should be reconsidered. See Jones, 526 U.S. at 253, 119 S.Ct. at 1229, 143 L.Ed.2d 311 (Stevens, J., concurring).
. The dissent in Apprendi made a similar complaint about the hate crime statute at issue there, accusing the majority of engaging in a meaningless, formalistic analysis of the statute by pointing out that the New Jersey legislature could simply have rewritten the statute so that the maximum penalty for weapons possession was twenty years with a lesser sentence of ten years if the sentencing authority failed to find, by a preponderance of the evidence, that there was hate bias. See Appren-di v. New Jersey, 530 U.S. 466, 541, 120 S.Ct. 2348, 2389-90, 147 L.Ed.2d 435 (2000) (O’Connor, J., dissenting). The Apprendi majority responded to that complaint by pointing out that the form of particular sentencing statutes reflect substantive policy decisions by state legislatures. See id. at 490 n. 16, 120 S.Ct. at 2363 n. 16, 147 L.Ed.2d 435. It is this legislative decision making to which the Court has repeatedly shown deference in its due process jurisprudence under Winship and its progeny.
. The relevant portion of Florida's death penalty statute, in effect at the time of Mills’s conviction, read:
“A person who has been convicted of a capital felony shall be punished by life imprisonment and shall be required to serve no less than 25 years before becoming eligible for parole unless the proceeding held to determine sentence ... results in finding by the court that such person shall be punished by death, and in the latter event such person shall be punished by death.”
Fla. Stat. Ann § 775.082(1) (1979).
. Judge Pregerson authored the majority opinion for the court, except for the part of the opinion relating to the Apprendi issue, which was authored by Judge Gould, and in which Judge Pregerson concurred separately in the result. See Hoffman v. Arave, 236 F.3d 523, 543 (9th Cir.2001) (Pregerson, J., concurring).
. The relevant portion of the Idaho death penalty statute provides that: "Where a person is convicted of an offense which may be punishable by death, a sentence of death shall not be imposed unless a notice of intent to seek the death penalty was filed and served ... and the court finds at least one (1) statutory aggravating circumstance. Where the court finds a statutory aggravating circumstance the court shall sentence the defendant to death unless the court finds that mitigating circumstances which may be presented are sufficiently compelling that the death penalty would be unjust.” Idaho Code § 19-2515(c) (2000).
. The Fourth Circuit’s holding that Apprendi does not apply retroactively has no relevance here, since this is a direct appeal in Maryland state courts. As a matter of Maryland law, the Apprendi decision is fully applicable to Borchardt. Furthermore, under the Maryland Uniform Postconviction Procedure Act, the standard for retroactive application is whether the Supreme Court decision in Apprendi "imposes upon State criminal proceedings a procedural or substantive standard not previously recognized; and the standard is intended to be applied retrospectively and would thereby affect the validity of the petitioner’s conviction or sentence.” Maryland Code (1957, 2001 Repl.Vol.) § 7-106(c)(2) of the Criminal Procedure Article. See Jones v. State, 314 Md. 111, 112, 549 A.2d 17, 17 (1988); State v. Colvin, 314 Md. 1, 24-25, 548 A.2d 506, 517-18 (1988).
. Significantly, the standard of review discussed by the court of appeals and applied in its evaluation of the appellant’s Apprendi claim is of critical importance to the persuasive value of the court’s dicta. As the court of appeals pointed out, the standard of review applied by federal courts when reviewing the decisions of state courts — namely, the prior decisions by this Court in Burch v. State, 346 Md. 253, 696 A.2d 443 (1997) (Burch I) (affirming the appellant’s convictions), and Burch v. State, 351 Md. 731, 720 A.2d 322 (1998) (Burch II) (denying appellant’s application to appeal the denial of postconviction relief) — is highly deferential. Because this Court, in Burch I, specifically addressed the appellant’s challenge to the allocation of the burdens of proof in his capital sentencing hearing under the Maryland death penalty statute and held that the State did not have to prove beyond a reasonable doubt that the death penalty should be imposed, see Burch, 346 Md. at 297, 696 A.2d at 465, under 28 U.S.C. § 2254(d) (Supp. 2001), a federal court could only grant a writ of habeas corpus if this Court’s decision in that case was contrary to or an unreasonable application of clearly established federal law, as determined by the United States Supreme Court. See Burch, 273 F.3d at 583. Because of the stringent requirements of the federal doctrine of retroactivity on habeas corpus review of state court decisions, the Fourth Circuit’s unwillingness to address and uphold Burch’s challenge to the weighing portion of Maryland’s death penalty statute should not be read as persuasive *174authority in our consideration of Borchardt’s claims on his direct appeal.
. While this Court has generally looked for guidance to the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution and the federal court decisions interpreting them in delineating the scope of Article 24 protection in Maryland, see Crawford v. State, 285 Md. 431, 452 n. 3, 404 A.2d 244, 254 n. 3 (1979), such federal jurisprudence has been used for guidance only and does not compel the result that I suggest in this section. Cf. Hook v. State, 315 Md. 25, 43, 553 A.2d 233, 242-43 (1989). Rather, I suggest that § 413(h) independently violates Maryland Declaration of Rights Article 24. See Michigan v. Long, 463 U.S. 1032, 1041, 103 S.Ct. 3469, 3476, 77 L.Ed.2d 1201 (1983); Perry v. State, 357 Md. 37, 85 n. 11, 741 A.2d 1162, 1188 n. 11 (1999).