dissenting.
Today, for the fourth time, the Court finds no disproportionality in the death sentence of a capital defendant. The reasoning by which the Court reaches its result is strained, and inevitably so, by the fundamental infirmities of our capital murder jurisprudence generally and our proportionality jurisprudence specifically. I have previously discussed many of the persistent defects of the Court’s proportionality methodology. Those defects include the coding of reversed death sentences as death sentences for the purposes of proportionality review, State v. Martini, 139 N.J. 3, 82-90, 651 A.2d 949 (1994) (Martini II) (Handler, J., dissenting), the refusal of the Court to hint at what level of statistical infrequency of imposition of a death sentence might justify a finding of disproportionality under frequency review, id. at 90-91, 651 A.2d 949, and the pervasive ambiguity of precedent-seeking review, id. at 98-106, 651 A.2d 949.
The circumstances of this ease bring to light other serious methodological problems with proportionality review as conducted by the Court. One problem concerns the principles by which *213cases are admitted to, or excluded from, the proportionality universe of cases. A second problem involves the principles governing the selection of eases from the universe for inclusion in a particular defendant’s comparison group. Other defects relate to specific techniques the Court employs in its evaluation of the proportionality of death sentences. Taken together, those problems further substantially undermine the reliability of the proportionality review conducted in this ease.
The Court’s unsound proportionality review conceals an ultimate judgment that responds simply to considerations that “are moral and hopelessly subjective and value-laden” in nature. State v. Marshall, 130 N.J. 109, 265, 613 A.2d 1059 (1992) (Marshall II) (Handler, J., dissenting). On that subjective, moral level, I find the Court’s reasoning unconvincing. The Court gives no satisfactory answer to the arguments advanced by Justice O’Hem in his dissent, which I therefore join. Because I believe that the proportionality review conducted by the Court suffers from several structural flaws, I write separately in dissent.
I
While in prison in New York, defendant Anthony DiFriseo met Anthony Franciotti, an inmate who became, for defendant, a kind of father-figure. After both men were paroled, defendant renewed his acquaintance with Franciotti, who became a source of drugs as well as a mentor. In July 1986, Franciotti asked defendant if he would be willing to kill somebody. Defendant replied that he would think about it, and in August, when Franciotti raised the subject again, defendant agreed. Franciotti told defendant that the person to be killed was the owner of a pizza parlor in New Jersey who was “ratting on” Franciotti and his friends.
On August 12, 1986, Franciotti drove defendant to Edward Potcher’s pizza parlor in Maplewood. Defendant entered the store, ordered a pizza and used the bathroom while waiting for a delivery boy to leave, and then killed Potcher by firing several *214bullets into the back of his head when Potcher turned away to get defendant a drink. Franeiotti paid defendant $2,500 for the killing, and also forgave defendant’s $500 drug debt.
In the six months immediately following the murder, the police discovered no promising leads. Such eyewitnesses as existed were unable to identify the suspect, no likely motive was known, and no fingerprints were found at the scene.
Thus the situation remained until April 1,1987, when defendant was arrested in New York on charges of auto theft and reckless endangerment. Upon being arrested, defendant showed some apprehension about returning to prison. Accordingly, he asked the arresting officer whether he could “do or say anything that ... could get [himself] out of this situation.” The officer suggested that defendant give information about a serious crime. Some time later, defendant asked “who’s more guilty or responsible, a guy who does the shooting or a guy who gets paid for shooting?” Upon being assured that the principal in such situations is the more culpable, defendant confessed to the murder of Potcher. Defendant now claims that it was primarily remorse that moved him to confess, and in support of this he observes that a person who genuinely sought to escape incarceration for car theft could hardly hope to do so by confessing to capital murder.
After confessing to the New York police and again to the Maplewood police, defendant was asked to obtain evidence against Franeiotti by calling him and engaging him in a taped conversation about the murders. Defendant initially agreed to do so but then changed his mind, allegedly after hearing his father express concern for the safety of the family if defendant should thus further incriminate Franeiotti.
Although mitigating evidence is as surely relevant to the assessment of proportionality as aggravating evidence, the Court today neglects even to summarize much of the mitigating evidence offered by defendant. At the penalty hearing, defendant presented several different varieties of mitigating evidence.
*215First, he suggested that the circumstances of his confession established his remorse for the crime. The Court declares itself “convinced that his confession was not the product of a remorseful conscience,” ante at 206, 662 A.2d at 471, and asserts that defen-' dant made no allegation of remorse until his proportionality review. In fact, as Justice O’Hern notes, post at 252, 662 A.2d at 494, the record does contain evidence of an expression of remorse made at the time of defendant’s 1987 confession. The Court also, and admittedly, ante at 205-206, 662 A.2d at 471, can give no explanation for why a defendant motivated entirely by self-interest would confess to capital murder to escape six months of imprisonment for car theft. In any case, it is certainly true that defendant’s voluntary confession solved for the police a crime that would not probably have been solved without that confession.
Second, defendant advanced as mitigation the fact that Anthony Franciotti has never been prosecuted for his part in Potcher’s murder. Justice O’Hern rightly emphasizes the significance of that fact as tending to establish an intra-ease disproportionality. Post at 251-252, 662 A.2d at 494.
Third, defendant introduced evidence of his family background. Defendant’s father was a convicted robber who left the family home for another woman while defendant was still quite young. Thereafter, the family became increasingly dysfunctional and occasionally violent. Both of defendant’s older brothers were for many years drug addicts; one of them has since recovered and the other died of an overdose. There were drugs in the house from the time defendant was very young, and he himself first used marijuana at the age of 12 or 13. At about that age, he also dropped out of school. Defendant was addicted to heroin by the age of 17 or 18, and developed a habit that sometimes cost as much as $300 a day. Defendant also claims to have used drugs on the night of the murder, immediately before leaving New York to drive to Maplewood.
*216The ease was first called to trial in January 1988. At that time, defendant pled guilty to murder and waived his right to a sentencing jury. With the agreement of the prosecution and the court, defendant submitted the issue of sentence to the court, sitting without a jury. Finding two aggravating factors, c(4)(d) and c(4)(f), and only one mitigating factor, c(5)(g), the court sentenced defendant to death. Defendant appealed, and this Court reversed the sentence on the ground of a lack of sufficient extrinsic evidence corroborating defendant’s confession. State v. DiFrisco, 118 N.J. 258, 571 A.2d 914 (1990) (DiFrisco I).
The question of sentence was retried to a jury in February 1993. The jury unanimously found the c(4)(d) (pecuniary gain) aggravating factor, but could not unanimously agree on the existence of the e(4)(f) (murder for the purpose of escaping detection) aggravating factor, as one juror held out against that factor. The jury found two mitigating factors. The c(5)(g) (rendered substantial assistance to the State in the prosecution of another person for murder) mitigating factor was found by six jurors. The c(5)(h) (catchall) mitigating factor was found unanimously. Under the catchall factor, the jury found the following circumstances to be mitigating: defendant’s childhood and upbringing (unanimously); defendant suffered from his father’s lack of love, recognition, and attention (unanimously); defendant’s mother was unable to provide him with the discipline and guidance he needed while growing up (unanimously); defendant could not turn to his two older brothers for guidance and support because they were drug abusers (unanimously); defendant never developed any self-esteem (unanimously); defendant’s emotional maturity level was stunted due to his early addiction to drugs (unanimously); defendant’s excessive drug abuse affected his ability to make sound judgments (four'jurors); defendant was vulnerable and susceptible to the older Franeiotti because he looked up to him as a father figure (unanimously); defendant was dependent on Franeiotti for drugs (one juror); defendant allowed himself to be manipulated by Franeiotti (unanimously); defendant remains remorseful about the *217crime (one juror); and the crime would have remained unsolved if defendant had not confessed (unanimously).
Nevertheless, finding the aggravating factor to outweigh the mitigating factors, the jury sentenced defendant to death. Over the dissent of Justices Clifford, Handler and Stein, a divided Court affirmed this second sentence. State v. DiFrisco, 137 N.J. 434, 645 A.2d 734 (1994) (DiFrisco II).
II
The first principle of comparative proportionality review is that it is offender-oriented, and not offense-oriented. State v. Marshall, 130 N.J. 109, 126-27, 613 A.2d 1059 (1992) (.Marshall II). Offender-oriented review considers whether, “when compared to factually similar cases involving the same offense, a defendant’s death sentence is excessive.” Id. at 127, 613 A.2d 1059. The purpose of comparative proportionality review is “to ensure that the death penalty is being administered in a rational, non-arbitrary, and evenhanded manner, fairly and with reasonable consistency.” Id. at 131, 613 A.2d 1059.
The touchstone of consistency is founded upon this State’s constitutional commitment to prevent the infliction of cruel and unusual punishments, to ensure due process and equal protection of the laws, and to protect the right of enjoying life. N.J. Const., Art. I, paras. 1, 5,12. “Any failure to assure evenhandedness and consistency in the sentencing of all capital defendants and any failure to assure comparative proportionality of individual death sentences violates those constitutional principles, and, indeed, fails to honor the constitutional values placed on individual dignity and human life.” Marshall II, supra, 130 N.J. at 235, 613 A.2d 1059 (Handler, J., dissenting). If proportionality review is to have any hope of assuring consistency, it must not be made blind to relevant and comparable cases. By endorsing the exclusion of certain cases from the proportionality universe, the Court today undermines whatever capacity a rational proportionality review might have for blocking the encroachment of arbitrariness.
*218The first step in the performance of comparative proportionality review thus requires the identification of the relevant universe of comparison cases. Marshall II, supra, 130 N.J. at 131, 613 A.2d 1059. In the previous proportionality reviews, and again today, the Court has employed a universe consisting of death-eligible homicides occurring since the effective date of Capital Murder Act. Id. at 137-41, 613 A.2d 1059. The Court has so far declined to apply the 1992 amendment by which the Legislature narrowed the universe to contain only death-sentenced cases.6
The proportionality review universe, as presently defined, includes every defendant about whom it can fairly be said that his or her sentence reflects a determination of deathworthiness or nondeathworthiness. See Marshall II, supra, 130 N.J. at 135, 613 A.2d 1059 (noting that proportionality review ought reflect both jury and prosecutorial decisions about deathworthiness). Thus, the universe includes only defendants whose crimes render them eligible for the death penalty, and equally it includes among all defendants who committed death-eligible crimes only those whose ultimate sentence did not turn on such extra-culpability considerations as the weakness of the evidence. David C. Baldus, Death Penalty Proportionality Review Project: Final Report to the New Jersey Supreme Court, 6-9 (1991) (hereinafter Final Report).
Once the universe is defined, the Court proceeds to draw from the universe a comparison group of cases. Marshall II, supra, 130 N.J. at 141, 613 A.2d 1059. The Court applies to the comparison group two varieties of review: the salient-factors method of frequency review, and precedent-seeking review. Id. at 144, 613 A.2d 1059. The Court further uses two other methods of frequency review that draw not simply on the comparison group, but rather on the proportionality universe as a whole: the prepon*219derance-of-aggravating-and-mitigating-factors test, and the index-of-outcomes test.
Today, defendant seeks to add to the proportionality universe several eases not previously included. Five of these cases belong in what defendant calls the “executions to further the goals of organized crime” category.7 Two of the defendants in the category, Thomas Ricciardi and Louis Auricchio, killed to advance the ends of the organized crime factions to which they belonged. Michael Taccetta, Michael Perna, and Anthony Accetturo pled guilty to, or were convicted of, charges specifying among other things that they directed Ricciardi to kill his victim.
. The Court cites three reasons for refusing to include any of those defendants in the proportionality universe. Ante at 167-168, 662 A.2d at 452. The first two reasons advanced both assert a lack of evidence that any of the defendants committed a death-eligible offense. Underlying these objections appears to be a concern that there exists no evidence that the homicides in question were procured by the promise of money. The third reason begins with the observation that “in screening the cases, Special Master Baldus initially excluded all defendants who pled to an offense less serious than aggravated manslaughter, such as conspiracy.” Ante at 167, 662 A.2d at 452. The Court adopts the Special Master’s decision to exclude all such cases on the grounds that a prosecutorial decision to accept a plea to a lesser offense demonstrates only problems with the State’s evidence, and does not establish the non-deathworthiness of the crime.
Under the circumstances, I disagree with the Court’s reasoning, and therefore would admit the five defendants to the proportionality universe, at least for the purposes of DiFrisco’s proportionality review. I believe that the organized-crime defendants are covered by a narrow interpretation of the pecuniary motive and procurement aggravating factors. I further believe that compelling eir*220cumstances peculiar to defendant’s case warrant the admission of the organized-crime defendants, notwithstanding that some of them were convicted of such non-homicide crimes as racketeering.
All five of the defendants participated in organized crime. Indictments of the defendants speak of their participation in racketeering enterprises, and allege that the enterprises existed for the purpose of enriching the defendants. Evidence also exists showing that Ricciardi and Auricehio were directed by their respective bosses to commit the killings, and that the killings were ordered to further the goals of the racketeering enterprises. There is some evidence that Ricciardi understood that he was to receive a share in a specific business enterprise as consideration for his crime. Apparently in reliance on that evidence, the Administrative Office of the Courts (AOC) has tentatively included Ricciardi in the proportionality universe. DiFrisco Report, Alternate Tbl. 20. I believe that the pecuniary motive and procurement aggravating factors cover a killing committed by a member of a racketeering enterprise where the enterprise exists for the purpose of enriching its members, the member who commits the killing is ordered to do so by a supervisory member or members, and the killing is in furtherance of the enterprise’s activities. I would not, in short, draw a distinction between murders committed by the “salaried” operatives of criminal enterprises, and murders committed by independent contractors.
The Court’s second objection to the inclusion of the organized-crime defendants in the proportionality universe relates to the state of the evidence against those defendants. The objection does not apply to Ricciardi and Auricehio, who were convicted of murder and aggravated manslaughter respectively, but does apply to Perna, Taccetta and Accetturo, who were convicted of racketeering and other non-homicide offenses. The record does suggest that the State confronted significant problems of proof in those eases.
I agree that the logic of proportionality review generally requires the exclusion of such eases from the universe, because the *221non-death sentences imposed in such cases may not reflect considerations of deathworthiness so much as the need to secure a plea bargain or the difficulty of proving a murder in a case where the State’s evidence is relatively weak. See Final Report at 3-4 n. 3 (recommending that even convictions for crimes less serious than aggravated manslaughter should be admitted to proportionality universe in particular cases if basis of decision is deathworthiness rather than evidentiary considerations). In the organized-crime cases, the weaknesses in the' State’s evidence existed in part because the defendants either never confessed, or did so only at a plea hearing, after securing a favorable plea bargain.
In the present case, however, defendant did confess his crime, and did so without first taking care to obtain a favorable plea bargain. In giving the confession, therefore, defendant displayed a lack of sophistication in dealing with the criminal justice system that distinguishes him from the organized-crime defendants. Moreover, defendant’s confession here contributed more to the State’s case than merely one more piece of evidence. Indeed, by confessing, defendant solved a crime that his sentencing jury unanimously agreed would not probably ever have been solved if defendant had not confessed.
Under the circumstances outlined above, I am compelled to reach the following conclusions. First, Perna, Taceetta, and Accetturo were convicted of non-homicide crimes, and therefore were excluded from the proportionality universe, only because of the weakness of the State’s evidence against them. Second, aside from defendant’s confession, the State’s evidence was, if anything, initially weaker in defendant’s case than in the cases of those organized-crime defendants. Third, the State ultimately obtained evidence sufficiently strong to proceed with a capital prosecution of defendant only because defendant confessed, and did so without demanding beforehand any favorable sentencing consideration. Fourth, the fact that defendant offered an unbargained-for confession which solved a murder is, properly viewed, a mitigating circumstance. Certainly, his jury unanimously found it to be such. *222Fifth, and finally, to exclude the organized-crime defendants from the proportionality universe in these circumstances is to penalize this defendant for actions which, properly viewed, should only serve as mitigating factors.
I therefore cannot join the Court in its decision to exclude the five organized-crime defendants. Finding inadequate both of the Court’s reasons for excluding the organized-crime defendants from the proportionality universe, I would admit them for the purpose of this defendant’s proportionality review.
Ill
Once the universe of cases is defined, comparative proportionality review next requires the identification of those eases in the universe sufficiently similar to defendant’s to warrant inclusion in his comparison group. Martini II, supra, 139 N.J. at 24, 651 A.2d 949. This step is crucial, because it is on the comparison group that the salient-factors method of frequency review is performed, and on the same comparison group that precedent-seeking review operates. Id. at 49, 651 A.2d 949. The preponderance-of-aggravating-and-mitigating-factors test and the index-of-outcomes test, however, do not operate on the comparison group, but rather on the death-eligible universe as a whole.
In initially constructing the comparison groups, the Court applied both a priori reasoning and empirical analysis to identify the factors sufficiently important and distinctive to merit use in the definition of the comparison groups. Id. at 24, 651 A.2d 949. Reasoning from intuition and experience, the Court selects “features that it determines probably influenced the life/death decision.” Marshall II, supra, 130 N.J. at 141, 613 A.2d 1059. From the empirical evidence, the Court discovers “the distinguishing characteristics that appear to present a pattern of life/death decisions.” Id. at 144, 613 A.2d 1059. Using those methods, the Special Master constructed, and the Court adopted, thirteen basic comparison groups, each of which contains between two and seven *223subcategories.8 DiFrisco is assigned to the comparison group identified as “Pecuniary Motive without A-H above.” DiFrisco Report, Tbl. 7A. That comparison group contains three subcategories: contract killers, contract principals, and other pecuniary advantage killers. DiFrisco Report, Tbl. 7. Defendant’s case is listed in the contract killer subcategory. The Administrative Office of the Courts (AOC) places a total of 14 cases in the pecuniary motive group. Nine of the fourteen cases are assigned to the contract killer subcategory.
Certain features of the comparison group scheme are distinctive. Mitigating factors, obviously, play no role in the organization of the comparison groups. Also, the groups are constructed in part by reference to the relative aggravating force of the various aggravating factors. Final Report at 81. Thus, “[t]he order of ranking of the principal salient factors in table 7 was informed in part by the aggravation level of the eases____” Ibid.9 Further, *224each case in the universe is assigned only to one comparison group, and within that group, to only one subeategory. Final Report at 81. This “unique assignment” feature exists by operation of the “without” clause which qualifies every comparison group but the first.10
The Court today reaffirms the principle of unique assignment. Ante at 165-166, 662 A.2d at 451. The Court does so by refusing to add John Martini, Patrick Lanzel, or Daniel Nicini to defendant’s comparison group. Ante at 167-170, 662 A.2d at 452-453. I join the Court in its refusal to admit Martini to defendant’s comparison group. I believe, however, that the Court errs in refusing to admit Lanzel and Nicini. I am convinced that, as applied to exclude those life-sentenced defendants, the principle of unique assignment fatally warps proportionality review, and so cannot be sustained.
In the Court’s scheme of proportionality review, the question of how to form comparison groups is crucial. Precedent-seeking review, on which the Court now relies more heavily than frequency review, ante at 171-172, 662 A.2d at 454, operates on the selected comparison group, rather than on the proportionality universe as a whole. Also, the salient-factors method of frequency review, preferred by the Court as the “most persuasive of the frequency tests,” ante at 173, 662 A.2d at 454, operates only on the *225comparison group. Only the two less-favored methods of frequency review do not draw exclusively from the comparison group.
The principles applied in the construction of comparison groups determine which cases are collected in a defendant’s comparison group. Applying different principles to the problem of constructing a comparison group, thus, a court could collect different eases. Inevitably, because the outcome of his proportionality review depends on who else is included in this defendant’s comparison group, both he and the State suggest modifications to the comparison group. In order to reduce the salient-factors test’s assessment of the frequency of imposition of death sentences in the comparison group, defendant seeks to add life-sentenced cases to the group, and remove death-sentenced cases. Applying the same logic but with the opposite motivation, the. State seeks to add death-sentenced cases such as Martini’s to the comparison group, and extract life-sentenced cases.11
The facts of Martini’s case are reported in State v. Martini, 131 N.J. 176, 619 A.2d 1208 (1993) (Martini I), and again in State v. Martini, 139 N.J. 3, 651 A.2d 949 (1994) (Martini II ).12 Justice *226O’Hern, post at 247-248, 662 A.2d at 492-493 describes the essential facts of Lanzel’s crime.13 The facts of Daniel Nicini’s crime are summarized in Appendix D of the DiFriseo Report, and in greater detail in the proportionality review narrative summary.14 All three cases share with DiFriseo one common aggravating circumstance: pecuniary motive. All three cases further contain other aggravating circumstances not present in DiFrisco’s case and sufficient to warrant the inclusion of the three defendants in comparison groups higher on the list than defendant’s comparison group. Under the unique assignment principle, none therefore belongs in DiFrisco’s comparison group. The three cases differ from each other, for the purposes of admission to defendant’s comparison group, only in that Martini received a death sentence, while Lanzel and Nicini received life sentences.
*227The Court today admits none of the three into defendant’s comparison group. Ante at 167-170, 662 A.2d at 452-453. The Court excludes each simply because the AOC assigns them to a different comparison group. Ante at 167-170, 662 A.2d at 452-453. The Court, however, misconceives the basis of the AOC’s exclusion. The AOC does not exclude Lanzel and Nicini because they had no pecuniary motive. Ante at 170, 662 A.2d at 453. The AOC excludes them despite the fact that they did have a pecuniary motive, simply because they also had other aggravating factors higher on the comparison group list than pecuniary motive. Both defendants for that reason fail the “without A-H above” condition on admission to defendant’s comparison group, Lanzel because he killed more than one person, and Nicini because his pecuniary motive was expressed through a violent robbery.
Under the unique assignment principle, all three defendants should be excluded, and no distinction between them is drawn according to the sentence each received. Such exclusions, however, remove from defendant’s comparison group cases which share in common with defendant’s case the pecuniary motive circumstance. The purpose of a comparison group is to compile cases containing “similarities relevant to the determination of deathworthiness.” State v. Bey, 137 N.J. 334, 350, 645 A.2d 685 (1994) (Bey IV). Consequently, the removal from defendant’s comparison group of any case containing a similarity as important as pecuniary motive would seem unnecessarily to diminish the reliability of our determination of the deathworthiness of the pecuniary motive circumstance. Certainly, the exclusion of the cases prevents us from learning from the decisions of the jurors or prosecutors who were, in those cases, called upon to assess the deathworthiness of a defendant whose case contained the pecuniary motive circumstance.
In defense of the unique assignment principle, it may be argued that we can in fact learn little about the deathworthiness of the pecuniary motive circumstance from cases containing, in addition *228to pecuniary motive, such other significant aggravating circumstances as multiple murder, kidnapping, or extreme violence. In those cases, so the argument goes, the other aggravating circumstances overshadow the pecuniary motive circumstance such that no reliable inference may be drawn about juror or prosecutorial determinations of the deathworthiness of the pecuniary motive circumstance.
The argument has force in the context of death-sentenced cases such as Martini’s. In sentencing Martini to death, his jury had before it evidence of kidnapping and extreme violence or terror, in addition to evidence of pecuniary motive. Would Martini have been sentenced to death if he had not kidnapped nor inflicted extreme violence or terror, and had only had, as an aggravating circumstance, his pecuniary motive? The question cannot be answered, as it may have been the unshared aggravating circumstances that swayed Martini’s jury toward the death penalty. Thus, we cannot know what Martini’s jury thought about the deathworthiness of the pecuniary motive circumstance standing alone. Therefore, I conclude that the principle of unique assignment is sound insofar as it is applied to keep death-sentenced defendants with surplus aggravating circumstances out of defendant’s comparison group.
The same logic of exclusion justifying the use of the “unique assignment” principle does not apply, though, with respect to life-sentenced defendants in more aggravated classifications. In those cases, despite the existence of surplus aggravating circumstances, we do know beyond all doubt what judgment a jury or prosecutor made about the deathworthiness of the pecuniary motive circumstance. Specifically, we know that, in the circumstances of that case, the jury or prosecutor found the pecuniary motive circumstance not to make the case deathworthy.
The point becomes clear by applying it to the case of Lanzel or Nicini. In Lanzel’s ease, a determination of non-deathworthiness was made despite the existence of the multiple-murder circumstance, the extreme violence circumstance, and. the pecuniary *229motive circumstance. If a determination of non-deathworthiness was made despite the existence of all three aggravating circumstances, it necessarily follows that a determination of non-death-worthiness attaches to each aggravating circumstance standing alone. In other words, when defendants like Lanzel get a life sentence despite having DiFrisco’s aggravating circumstance and despite having additional aggravating circumstances, it follows that the jury (or prosecutor) considered the shared aggravating circumstance to be insufficient to warrant the death penalty in that ease. Therefore, to delete Lanzel from DiFrisco’s comparison group is to prevent DiFrisco from applying an unmistakable- and relevant jury’s (or prosecutor’s) judgment of the weight of the pecuniary motive circumstance. To treat the life-sentenced Lanzel as incomparable to DiFrisco simply because of Lanzel’s extra aggravating factors, therefore, is arbitrary.
It is no answer to the argument thus far advanced to suggest that Lanzel’s and Nicini’s life sentences rest on the existence of substantial mitigating circumstances present in their cases and not present in defendant’s. That may well in fact be true. But the issue here is only whether Lanzel and Nicini belong in defendant’s comparison group, and, as noted above, mitigating factors have no role at all in the formation of the comparison groups. Supra at 165-166, 662 A.2d at 451. The State may invoke any mitigating factors present in Lanzel’s and Nicini’s case only when, in the course of precedent-seeking review conducted on the cases in defendant’s comparison group, the parties debate whether
defendant’s criminal culpability exceeds that of similar life-sentenced defendants and whether it is equal to or greater than that of other death-sentenced defendants, such that the defendant’s culpability justifies the capital sentence; or whether [] defendant’s culpability is more like that of similar life-sentenced defendants and less than that of death-sentenced defendants, such that the defendant’s culpability requires a reduction of sentence to a life term.
[Martini II, supra, 139 N.J. at 47, 651 A.2d 949.]
I concede that there is a certain lack of symmetry in the determination that life-sentenced cases should be admitted to defendant’s comparison group in circumstances in which death-sentenced cases must be excluded. That lack of symmetry is *230commanded, however, by the logical application of this Court’s proportionality-review principles. To admit a death-sentenced defendant such as Martini is to add to the comparison group a case which can provide no useful instruction, because perhaps only the dissimilarities (the kidnapping and infliction of extreme terror) accounted for Martini’s death sentence. No inference about the deathworthiness of the similarity, the pecuniary motive, can safely be drawn.
To exclude a life-sentenced defendant such as Lanzel or Nicini is to commit the opposite error. In such cases, there exists a similarity (pecuniary motive) about which the jury or prosecutor made a determination of an indisputable nature. Because those cases ended in life sentences, a determination of non-deathworthiness attaches to each aggravating circumstance in the case. By putting Lanzel in category A(l) (“multiple victims with particular violence or terror”), and by adhering here to the unique assignment principle, the Court bars defendants who share the pecuniary motive circumstance from referencing an incontestable and relevant similarity.
The effect of the Court’s rule is absurd. It allows that death-sentenced defendants whose crimes were not terrible enough to get them into Lanzel’s comparison group, but who share with Lanzel a common aggravating circumstance, nevertheless cannot invoke Lanzel’s life sentence in support of the disproportionality of their own death sentences. If there were a life-sentenced defendant whose crime was like DiFrisco’s in every respect except that the hypothetical defendant killed the delivery boy in addition to the proprietor, the AOC would assign that defendant to the multiple victims comparison group. Under the majority’s rule, DiFrisco could not reference such a case in support of the disproportionality of his own death sentence, but surely the life sentence of another defendant distinguishable only by some extra aggravating factor constitutes powerful evidence of inconsistency in the administration of capital punishment, and of the disproportionality of defendant’s death sentence.
*231For the reasons given above, I conclude that the only fully justifiable disposition allows the inclusion in defendant’s comparison group of life-sentenced defendants such as Nicini and Lanzel, and bars the inclusion of death-sentenced defendants such as Martini. The Court’s strict adherence to the unique assignment principle excludes both the life- and death-sentenced cases, at the cost of irrationality in the exclusion of the life-sentenced cases.
IV
Once the universe of cases and the relevant comparison group are established, the Court proceeds to perform two kinds of review: frequency review and precedent-seeking review. . Frequency review aims, by statistical techniques, to discover the frequency with which defendants similar to the defendant in question are sentenced to death. Precedent-seeking review avoids the numerical analysis of frequency review, and instead requires the Court to engage in a “more traditional case-by-case comparison of similar death-eligible cases.” Bey IV, supra, 137 N.J. at 366, 645 A.2d 685. In conducting precedent-seeking review, the Court looks both at statutory aggravating and mitigating factors, and at such non-statutory aggravating and mitigating factors as reflect “objective criteria rooted in traditional sentencing guidelines.” Marshall II, supra, 130 N.J. at 159, 613 A.2d 1059. By these objective factors, the Court searches for evidence of the presence or absence of three elements of criminal culpability: the defendant’s moral blameworthiness, the degree of victimization, and the character of the defendant. See, e.g., Bey IV, supra, 137 N.J. at 366, 645 A.2d 685.
A.
The first of the three frequency tests, the salient-factors test, operates only on a defendant’s comparison group, and not on the proportionality universe as a whole. Supra at 165-166, 662 A.2d at 451. The salient-factors test functions by comparing the number of death-sentenced defendants in a comparison group to the *232number of life-sentenced defendants. In the present case, for the reasons expressed above, supra at 160-176, 662 A.2d at 448-456, I would add to the pecuniary motive comparison group as defined by the AOC the five organized-crime defendants, Lanzel, and Nicini.
The pecuniary motive comparison group contains three subcategories: contract killers, contract principals, and other pecuniary advantage killers. DiFrisco’s own subcategory contains contract killers. The AOC includes 9 cases in the contract killer subcategory.15 DiFrisco Report, Tbl. 7. Adding Lanzel and the two organized-crime triggermen, I calculate a death sentencing rate of .25 $2) including defendant’s cases, and .10 Q/m) excluding defendant’s own death sentences.
Considering all three subeategories in the pecuniary motive comparison group, I find that the rate of imposition of death sentences falls. Adding the three organized-crime principals to the four cases assigned by the AOC to the contract principal subcategory yields a total of seven cases.16 The third subcategory contains “other pecuniary advantage” killers. As modified, the subcategory contains two cases: Walter Williams and Daniel Nicini. The death sentencing rate for the comparison group as a whole is .19 (%i). Excluding defendant’s eases, the rate falls to .11 <*»).
. The Court today reiterates its view that the salient-factors method is the “most persuasive” of the three frequency-review tests. Ante at 171, 662 A.2d at 454. I cannot join the Court in reposing such confidence in the salient-factors measure, for several reasons. First, I find unjustifiable the practice of coding reversed death sentences as death sentences for the purposes of proportionality review. See, e.g., Martini II, supra, 139 N.J. at *23382-90, 651 A.2d 949 (Handler, J., dissenting); Marshall II, supra, 130 N.J. at 253-57, 613 A.2d 1059 (Handler, J., dissenting). In this case, defendant’s comparison group contains James Clausell’s reversed death sentence, as well as defendant’s own reversed death sentence. Second, in the absence of any hint as to what degree of infrequency of imposition of death sentences would support a determination of disproportionality, I find the numbers themselves unedifying. See, e.g., Martini II, supra, 139 N.J. at 90-91, 651 A.2d 949 (Handler, J., dissenting).
Finally, I question the Court’s preference for a test that takes absolutely no account of mitigating circumstances. As shown above, the comparison groups on which the salient-factors test operates are formed without reference to mitigating circumstances. Supra at 165-166, 662 A.2d at 451. Some of the comparison groups at least contain subcategories distinguished on the basis of mitigating factors, but defendant’s does not. See, e.g., DiFrisco Report, Tbl. 7 (dividing multiple victim comparison group into subcategories according to number of mitigating factors). A consequence of the singular focus on aggravating factors is that every defendant in the comparison group will have, at any given time, an identical salient-factors result, regardless of variations in mitigating circumstances among the cases.
The salient-factors test, therefore, would fail to recognize, and account for, the existence of any uniquely significant mitigating factor. Thus, a death-sentenced defendant with a mitigating circumstance so powerful that no other defendant with that circumstance had ever been sentenced to death could not, through the salient-factors test, bring the fact to the Court’s attention. In the instant case, defendant does have such a compelling mitigating factor. DiFrisco is the only defendant ever sentenced to death in this or any comparison group notwithstanding the existence of the mitigating factor recognizing substantial assistance to the state in the prosecution of another for murder. The salient-factors test operates in this case as a device for concealing that significant *234mitigating factor. I do not, therefore, find the salient-factors test to be very persuasive.
Some measure of the extent to which the salient-factors test conceals important information becomes apparent upon applying the index-of-outcomes method to the cases in defendant’s comparison group. As noted below, infra at 237-238, 662 A.2d at 487-488, the index-of-outcomes test suffers very significant defects of its own, owing to the small size of the sample on which it conducts its multiple-regression analysis. The index-of-outcomes test does, though, at least attempt to ascertain the weight of various mitigating factors and include its estimation of their weight in the overall assessment of culpability. Defendant’s predicted probability of death sentence under the index-of-outcomes methodology is lower than that of most of the other defendants in his subcategory, taking into account both statutory and non-statutory factors. DiFrisco’s predicted probability of death is .11, equal to Burroughs’, higher than Rose’s (.07) and Irizarry’s (.05), but lower than Harris’ (.19), Melendez’s (.22), Clausell’s (.46), and Lanzel’s (.87). DiFrisco Report, Appendix F.
The second method of frequency review assesses the proportionality of a defendant’s case by comparing the number of aggravating and mitigating factors found. Because of the inability of this measure to account for the varied weight individual aggravating and mitigating factors carry, the Court has regarded this as the least persuasive of the frequency methods. Marshall II, supra, 130 N.J. at 171, 613 A.2d 1059. The method, however, has at least the advantage of making some accommodation of both aggravating and mitigating factors.
In the present case, DiFrisco’s jury found one aggravating factor, c(4)(d) (pecuniary gain), and two mitigating factors, c(5)(g) (defendant rendered substantial assistance to the State in the prosecution of another person for murder) and c(5)(h) (catchall). Under the catchall factor, at least one member of the jury found twelve distinct circumstances to mitigate the offense, and seven of these were found unanimously.
*235The DiFrisco Report finds that of the twenty penalty-trial cases in which a defendant had two mitigating factors and one aggravating factor, only four produced death sentences. The penalty-trial death sentencing rate, therefore, is .20 (4/20). DiFrisco Report, Table 8. Excluding DiFrisco’s own case, the rate drops to .16 (3/19). The AOC finds 69 cases in the death-eligible universe containing one aggravating factor and two mitigating factors. The death-sentencing rate in the death-eligible universe, therefore, is .06 (4/69), or .04 (3/68) excluding DiFrisco’s own case. DiFrisco Report, Tbl. 9.
Within the one aggravator/two mitigator class of defendants, there are three cases involving the c(4)(d) (pecuniary motive) aggravating factor.17 Of these, only defendant was sentenced to death, producing a death-sentencing rate of .33 (1/3) with defendant, and of .00 (0/2) excluding defendant. Ignoring the number of mitigating factors, one finds five cases in which the c(4)(d) factor was the sole aggravating factor.18 Again, of these only defendant was sentenced to death, producing a death-sentencing rate of .20 (1/5), or .00 (0/4) excluding defendant’s own case.
The overall penalty-trial death sentencing rate for cases with only one aggravating factor is .11 (7/62), and .10 (6/61) excluding DiFrisco. DiFrisco Report, Tbl. 8. In the larger death-eligible universe, the death-sentencing rate for cases with only one aggravating factor is .04 (7/183). DiFrisco Report, Tbl. 9.
Despite its weaknesses, I conclude that the preponderance-of-aggravating-and-mitigating-eircumstances test suggests that defendant’s death sentence is disproportional. Only four of the sixty-nine defendants in the death-eligible universe having one aggravating factor and two mitigating factors were sentenced to death. No other defendant has been sentenced to death on the *236basis of the e(4)(d) pecuniary motive aggravating factor alone. No other defendant has been sentenced to death notwithstanding a finding of the c(5)(g) substantial assistance mitigating factor.
The third method of frequency review, the index-of-outcomes test, attempts to gauge a defendant’s overall criminal culpability by measuring the aggravating and mitigating weight of the various circumstances present in the case. The actual weight of statutory and non-statutory aggravating and mitigating factors is determined by the results of a multiple-regression analysis performed either on all the cases in the proportionality universe, or on the cases in the penalty-trial universe only. Final Report at 92-93. By the index-of-outcomes test, therefore, the Court “compare(s) eases that are factually dissimilar but that are nevertheless comparable from the perspective of the defendants’ blameworthiness.” Martini II, supra, 139 N.J. at 42, 651 A.2d 949.
Each case emerges from the analysis with a number expressing its degree of culpability. The cases having a predicted probability of death between .00 and .20 are assigned to “culpability level 1,” the cases having a predicted probability of death between .21 and .40 are assigned to “culpability level 2,” and so forth. The AOC reminds us that, as in the previous proportionality reviews, “the combination of a small number of cases, especially actual death cases, and the relatively large number of factors assessed, led to difficulties in estimation of the logistic regression equations.” AOC Memorandum of John McCarthy, Jr., at 2. Accordingly, the AOC recommends that “little substantive reliance should be given to this statistic at this time.” Ibid.
Defendant’s standing on the index-of-outcomes measure varies greatly depending on whether one. considers the penalty-trial universe or the larger death-eligible universe. In the penalty-trial universe, considering both statutory and non-statutory factors, defendant has a predicted probability of death sentence of .74, with a probability range containing a lower limit of .29 and an upper limit of .95. DiFrisco Report, Tbl. 12. This result places defendant in culpability level 4.
*237Still considering both statutory and non-statutory factors, but expanding the universe to include all death-eligible cases, one finds that defendant has a predicted death-sentence probability of .11, with an lower limit of .00 and an upper limit of .86. DiFriseo Report, Tbl. 14. This result places him in culpability level 1.
When non-statutory factors are excluded from the indexing process, so that only statutory aggravating and mitigating factors remain, defendant falls into two new culpability levels depending on whether one uses the penalty-trial universe or the death-eligible universe. Considering only penalty-trial cases, DiFriseo has a predicted probability of death sentence of .43, with a lower limit of .09 and an upper limit of .87. DiFriseo Report, Tbl. 16. This puts him in culpability level 3.
Continuing only to consider statutory aggravating and mitigating factors, but now expanding the universe to include all death-eligible cases, one finds the following result. Defendant has a predicted probability of death sentence of .23, with a lower limit of .01 and an upper limit of .76. DiFriseo Report, Tbl. 17. This puts him in culpability level 2.
Several significant defects in the index-of-outcomes test preclude me from investing any confidence in it. First, in this case, there exists an extreme variability in the test’s result. Defendant belongs anywhere from culpability level 1 to culpability level 4, depending on the parameters of the analysis.
Second, as the AOC points out, small sample sizes prevent any multi-variate analysis from announcing a statistically rehable result. The problem of statistical unreliability is particularly acute in the penalty-trial universe, because that universe contains fewer than half the number of cases in the already too small death-eligible universe.19
*238Third, I am skeptical of the capacity of any statistical analysis to do justice to some mitigating factors. Defendant asserts that the AOC’s coding system inadequately accounts for the weight of evidence of his childhood neglect. He argues that, owing to the inadequacy of the coding system, if he were the only defendant to be sentenced to death despite compelling evidence of neglect, the AOC coding system and statistics would not bring out that fact.
The problem lies deeper than the AOC’s information-gathering apparatus, however. Much non-statutory mitigating evidence tends to be very idiosyncratic, and so if one defendant presents compelling but unique mitigating evidence, the lack of any record of how juries in other cases have treated such evidence bars the index-of-outcomes test from assessing its weight.
Moreover, even mitigating evidence capable of categorization under such broad rubrics as “childhood neglect” may yet prove uncongenial to analysis by the index-of-outcomes test, because the quality of evidence of childhood neglect will vary significantly in different cases. That fact highlights one unresolvable contradiction of our capital-murder jurisprudence. Federal constitutional law requires that a sentencer “not be precluded from considering as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973, 990 (1978) (emphasis in original). As a result of the rule, courts in capital cases admit such a diversity in quality and type of mitigating evidence as to beggar any attempt, by multi-variate statistical techniques, to discover the weight some kind of mitigating evidence carries with sentencers generally.
For all these reasons, I have no confidence in the index-of-outcomes test as a tool for the evaluation of the proportionality of defendant’s death sentence. Furthermore, insofar as the Court has affirmed the death sentence on proportionality review of a defendant, Robert Marshall, who now falls in culpability level 1 under all four sets of assumptions, and of a defendant, John *239Martini, who falls in culpability level 1 under three of the four sets of assumptions, it appears that the index-of-outcomes test has not gained the Court’s regard in the past. I see no reason why, given its continuing flaws, the test should be relied on in this case.
B.
In precedent-seeking review, the Court undertakes a “more traditional case-by-case comparison of similar death-eligible cases.” Bey IV, supra, 137 N.J. at 366, 645 A.2d 685. The precise nature of the relationship between precedent-seeking review and frequency review remains mysterious to me, and I find unhelpful the Court’s statement that although we rely more heavily on precedent-seeking review, that review is not “primary,” but rather remains a “complement to frequency analysis.” Ante at 184, 662 A.2d at 460. In any event, in order to make a case in precedent-seeking review for the disproportionahty of a death sentence, a defendant must convince the Court that his or her criminal culpability “is more like that of similar life-sentenced defendants and less than that of death-sentenced defendants, such that the defendant’s culpability requires a reduction of sentence to a life term.” Martini II, supra, 139 N.J. at 47, 651 A.2d 949.
The theory of precedent-seeking review requires the Court first to identify “all relevant aggravating and mitigating factors, both statutory and non-statutory, that are ‘rooted in traditional sentencing guidelines.’ ” Id. at 48, 651 A.2d 949 (quoting Marshall II, supra, 130 N.J. at 159, 613 A.2d 1059). Three different criteria of criminal culpability exist. First, the Court examines a defendant’s moral blameworthiness,
which includes elements such as motive; premeditation; justification or excuse, such as provocation; evidence of mental disease, defect, or disturbance; knowledge of the helplessness of the victim; knowledge of the murder’s effects on any non-decedent victims; defendant’s age and maturity; and defendant’s involvement in planning the murder.
[Martini II, supra, 139 N.J. at 48-49, 651 A.2d 949.]
Second, the Court considers the “degree of victimization, which includes the violence and brutality of the murder, and the exis*240tence of injury to non-decedent victims.” Id. at 49, 651 A.2d 949. In Bey IV, the Court additionally referred to this criterion as encompassing “the extent of mutilation of the victim.” 137 N.J. at 366, 645 A.2d 685. Finally, the Court examines “the character of the defendant, which includes the defendant’s prior record and other acts of violence, cooperation with authorities, remorse, and capacity for rehabilitation.” Ibid.
Looking no farther than the statement of the principles governing precedent-seeking review, one might suppose that the Court has developed a tool that introduces a measure of objectivity and reliability into proportionality review. Today, it becomes apparent once again that the promise is a chimera. See, e.g., Martini II, supra, 139 N.J. at 103, 651 A.2d 949 (Handler, J., dissenting) (noting that “[djespite its effort at objectivity, the Court’s reasoning and conclusion expose the pervasive subjectivity of its precedent-seeking analysis”). In the exercise of its own moral sensibility, the Court latches on to the worst aspects of defendant’s case and finds in them assurance that his death sentence is not disproportional. Justice O’Hern, in dissent, identifies other circumstances that tend to show that defendant is no worse than many life-sentenced murderers. I am more persuaded by Justice O’Hern’s reasoning than by the majority’s.
In focusing on such facts as defendant’s pecuniary motive and his age, the Court is able to state uncontroversial moral principles. See, e.g., ante at 204, 662 A.2d at 470 (stating that “[ajlthough a young man, he was an adult who should have conformed to the norms of society”); ante at 204, 662 A.2d at 470 (“[t]he coldblooded, perfunctory manner with which DiFriseo murdered Potcher establishes defendant’s high moral blameworthiness”); ante at 205, 662 A.2d at 471 (“[wjhile the degree of victimization is not great, at the end of the day there is still a victim, a man who was murdered in a cold-blooded, execution-style killing”). The truistic quality of these statements, in turn, gives a patina of objectivity and certainty to the Court’s precedent-seeking review. The problem, though, is that such statements of basic moral *241principle cannot assist in the task at hand. The Court is correct in stating that defendant should have conformed to the norms of society, and correct also in regarding his crime as cold-blooded. But the same can be said of the crimes of every pecuniary-motive killer in the universe. And proportionality review, if it is to have any purpose, must help us to discern a principled distinction between the defendants who are sentenced to death and the defendants who are not. Thus, in trying to assess the proportionality of a death sentence in light of other sentences imposed on perpetrators of death-eligible murders, we confront not a simple problem of distinguishing right from wrong, but rather the “insoluble moral conundrums” attendant upon an effort to distinguish fine degrees of wrong. Marshall II, supra, 130 N.J. at 274, 613 A.2d 1059 (Handler, J., dissenting).
To the extent that there is a solution to the moral conundrums raised by a comparison of the cases in defendant’s comparison group, that solution calls for a finding of the disproportionality of defendant’s death sentence. An examination of a few of the circumstances of this case demonstrates that defendant’s culpability is “more like that of similar life-sentenced defendants and less than that of death-sentenced defendants.” Martini II, supra, 139 N.J. at 47, 651 A.2d 949.
One element of moral blameworthiness focuses on the degree of planning and premeditation shown by the defendant. The State admits, as surely it must, that DiFriseo was not the “prime mover” of his crime. The State would diminish the fact, though, with the observation that hitmen in contract-murder eases are never prime movers. In fact, however, the extent of planning undertaken by DiFriseo is less even than that customarily performed by hitmen.
It is uncontested that Franciotti planned the crime down to the details of choosing the time and arranging for the transportation of defendant to and from the scene. Indeed, when defendant confessed to the police, he was unable to name the town in which the crime had happened or to give the name of the victim. As for premeditation, defendant first learned that Franciotti wanted him *242to commit a murder a few weeks before the event. And defendant was not told of the specific time of the crime until the day before the event. Among the mitigating circumstances found by the jury relevant to this issue were the facts, found unanimously, that DiFrisco looked up to Franciotti as a father-figure and that DiFrisco allowed himself to be manipulated by Franciotti.
The death-sentenced defendants in the comparison group displayed considerably greater degrees of planning and premeditation. Marshall busied himself arranging his wife’s murder between December 1983 and September 1984. His plan required many and protracted discussions with the intermediaries who supplied the hitman, and required him to acquire additional insurance policies on his wife’s life. See Marshall II, supra, 130 N.J. at 121-24, 613 A.2d 1059. At least two months before the murder, people associated with Clausell were offered money in order to kill the victim. State v. Clausell, 121 N.J. 298, 309, 580 A.2d 221 (1990). And a couple of days before the murder, Clausell arranged his own transportation from Philadelphia to the victim’s residence in Willingboro. Id. at 309-10, 580 A.2d 221. Upon their arrival, Clausell and his accomplices knocked on the victim’s door and discovered that he was not home. They then waited an hour for the victim to arrive. Id. at 307, 580 A.2d 221.
Many of the life-sentenced eases also involve more extensive planning and premeditation than is evident in defendant’s case. Brand and Burroughs first attempted to kill their victim in October 1988, but did not finally succeed until July 1989. See Martini II, supra, 139 N.J. at 59, 651 A.2d 949. The Engel brothers thoroughly planned the murder of their victim, down to the detail of disposing the body in South Carolina. Id. at 60-63, 651 A.2d 949. Rose knew of the plan to kill his victim at least a month beforehand, id. at 71, 651 A.2d 949, and Williams purchased the poison with which he killed his wife six months before she died. Id. at 72-73, 651 A.2d 949.
Another factor assessed in the course of precedent-seeking review involves the degree of victimization inflicted by a defen*243dant. The degree of victimization element of criminal culpability relates to the extent of mutilation, the infliction of suffering on non-decedent victims, and in general, the brutality of the murder. Id. at 49, 651 A.2d 949.
Defendant inflicted less victimization than anybody else in the comparison group, and indeed, as little victimization as it is possible for any murderer to cause. The victim was shot as he turned away from defendant, and thus suffered no fear before the killing. The manner of the killing, gunshots to the head, was calculated to cause immediate death, and so it is unlikely that the victim suffered any prolonged pain. The evidence also shows that DiFrisco stalled for time while the delivery boy was present, and only committed the crime after he had left. The stalling thus saved the delivery boy the shock of witnessing the murder of his employer.
The Court, oddly in my view, discounts defendant’s stalling for time as merely “sparing DiFrisco from having a witness to the killing.” Ante at 205, 662 A.2d at 471. If defendant had truly desired to spare himself the threat of a witness, he would have killed the delivery boy. Indeed, by stalling and allowing the delivery boy to leave, defendant spared the life of a witness who did in fact testify against defendant at his trial.
A fairer reading of the facts establishes that DiFrisco inflicted a degree of victimization no greater than that inflicted by any life-sentenced defendant, and less than that of every death-sentenced defendant. Thus, Clausell, who received first a death sentence and then on remand a life sentence, shot his victim to death in the presence of several members of the victim’s family. Clausell, supra, 121 N.J. at 307-08, 580 A.2d 221. Marshall arranged to kill his own wife, thus producing a “shattering impact” on his three sons and the other surviving members of his family. Marshall II, supra, 130 N.J. at 181, 613 A.2d 1059.
Most, if not all, of the life-sentenced defendants in the comparison group similarly inflicted greater suffering on their victims. For example, the strangulation of the victim of the Engel brothers *244took some four minutes to complete, and as in Marshall’s case, the principal and the victim had had children together. See Martini II, supra, 139 N.J. at 62-63, 651 A.2d 949. Melendez shot his victim to death in the presence of the victim’s ten-year-old daughter, id. at 69-70, 651 A.2d 949, while Rose “used two knives, a tackhammer, a stick, a hacksaw, and a sump pump” to kill his pregnant victim. Ante at 196, 662 A.2d at 466. The facts of Nicini’s case, described above, evince a terrible degree of victimization, supra at 225-226, 662 A.2d at 481.
Moreover, the death-sentenced defendants already affirmed on proportionality review all inflicted substantially greater victimization. The Court characterized as “substantial” Martini’s degree of victimization, given his terrorization of his kidnapping victim’s wife. Martini II, supra, 139 N.J. at 75, 651 A.2d 949. The Court found Bey’s degree of victimization also great, given that Bey “sexually assaulted, beat, strangled, and stomped on his victim.” Bey IV, supra, 137 N.J. at 383, 645 A.2d 685. Marshall’s victim, like DiFrisco’s, was not aware of her impending death, being asleep at the time she was shot. In Marshall’s proportionality review, though, the Court took notice of the “shattering impact” on Marshall’s children of the fact that their father had arranged to kill their mother. 130 N.J. at 181, 613 A.2d 1059.
Defendant’s degree of victimization is less than that of any death-sentenced defendant in his comparison group, less than that of most if not all of the life-sentenced defendants in the comparison group, and less than that of all of the defendants already affirmed on proportionality review. I therefore find in the comparatively minimal degree of victimization inflicted by defendant a strong suggestion of the disproportionality of his death sentence.
I conclude, in light of the facts presented above and in light of the other considerations emphasized in Justice O’Hern’s dissent, that the most coherent application of precedent-seeking review strongly suggests that defendant’s death sentence is disproportionate. Adding to the precedent-seeking review such conclusions as frequency review allows, I find that defendant is significantly *245distinguished from the other defendants in his comparison group only by a mitigating factor: the provision of substantial assistance to the State. To the extent, therefore, that any principled distinction can be drawn between the life-sentenced murderers and the death-sentenced murderers in defendant’s comparison group, defendant belongs among the life-sentenced murderers.
V
Proportionality review bears a great responsibility in the administration of capital punishment. It operates “ ‘as a check against the random and arbitrary imposition of the death penalty1 by an aberrant jury.” State v. Ramseur, 106 N.J. 123, 327, 524 A.2d 188 (1987) (quoting Gregg v. Georgia, 428 U.S. 153, 206, 96 S.Ct. 2909, 2940, 49 L.Ed.2d 859, 893 (1976)). Beyond the prevention of arbitrariness, proportionality review also “is a means through which to monitor the imposition of death sentences and thereby to prevent any impermissible discrimination in imposing the death penalty” on such bases as race, sex, or other suspect classification. Ramseur, supra, 106 N.J. at 327, 524 A.2d 188.
I am skeptical of the capacity of any method of proportionality review so greatly to restrain arbitrariness and invidious discrimination as to save capital punishment from its profound contradictions. See Marshall II, supra, 130 N.J. at 245-46, 613 A.2d 1059 (Handler, J., dissenting). I am convinced, though, that the deeply flawed proportionality review conducted by the Court in this and in previous cases cannot begin to remedy the defects of the death penalty. Irrationalities afflict almost every aspect of the methodology presently employed. Problems exist in the definition of the proportionality universe, in the construction of comparison groups, in each of the three methods of frequency review, in the endlessly debatable conundrums of precedent-seeking review, and in the ambiguity of the relationship between the two methods of review. The consequence of those problems is a method of proportionality review that leads us nowhere, and so leaves the Court free, in the application of its subjective moral evaluations, to go anywhere.
I have previously expressed, and continue to have, serious doubts about the constitutionality of the 1992 amendment. See Martini II, supra, 139 N.J. at 83, n. 1, 651 A.2d 949 (Handler, J., dissenting).
Anthony Accetturo, Louis Auricchio, Thomas Ricciardi, Michael Perna, and Michael Taccetta.
The thirteen basic comparison groups are the following:
(A) Multiple Victims;
(B) Prior Murder Conviction without A above;
(C) Sexual Assault without A-B above;
(D) Victim a Public Servant without A-C above;
(E) Robbery without A-D above;
(F) Arson without A-E above;
(G) Burglary without A-E [sic] above;
(H) Kidnapping without A-G above;
(I) Pecuniary Motive without A-H above;
(J) Torture/aggravated assault without A-I above;
(K) Depravity of Mind without A-J above;
(L) Grave risk of death as primary statutory aggravating circumstance without A-K above;
(M) Escape Detection, etc., as sole factor without A-L above.
[DiFrisco Report, Tbl. 7.]
The level or degree of aggravation was thus explained:
[B]ecause multiple-victim and prior-murder cases involve more than one life, they are listed first on a priori grounds. Categories C (sexual assault) and D (public servant) appear next because of the above-average rate at which either prosecutors seek or jurors impose the death sentence in these cases. Categories E (robbery) through H (kidnapping) reflect no judgment *224concerning the relative aggravation level of the cases involved. Among the remaining statutory aggravating circumstances which are based on more subjective case characteristics, pecuniary motive (4d and 4e) is listed first because of the uncommonly high rate at which prosecutors seek death sentences in these cases. The remaining categories, J through M, reflect no judgment of relative culpability.
[Final Report at 81-82.]
For example, if in the course of a capital murder by arson a defendant kills more than one person, the defendant does not join both comparison group (F) (arson) and comparison group (A) (multiple victims). Such a defendant joins group (A) only, for failure to satisfy the “without A-E" clause of the arson comparison group. Table 7A of the DiFrisco Report lists, for each of the 309 cases in the proportionality universe, the single comparison group and subcategory to which each case is assigned.
Among their suggestions for additions to defendant’s comparison group, both the State and defendant have offered cases which transgress the principle of unique assignment. The State, as noted, suggests the addition of Martini. Defendant suggests the addition of Patrick Lanzel and Daniel Nicini. If admitted to defendant's comparison group, all three cases would violate the principal of unique assignment in a similar way. In all three cases, as in DiFrisco’s case, there is substantial evidence that the defendant's crime was motivated at least in part by considerations of pecuniary gain. But in all three cases, there exists evidence of at least one aggravating circumstance not present in DiFrisco's case and of a sort to cause the case to fail the "without A-H above’’ condition for admission to defendant's comparison group. Accordingly, all three cases have been assigned to some comparison group higher on the list than defendant's comparison group. To add the cases to defendant's comparison group, thus, is to allow that each can be used in more than one comparison group: its own, and defendant's.
Reduced to their bare essentials, the facts show that Martini kidnapped his victim and held him for ransom while terrorizing the victim's wife with threats of violence to herself and her husband. Martini's crime thus contains the *226aggravating circumstances of pecuniary motive, kidnapping, and the infliction of extreme violence or terror. The AOC accordingly assigned the case to comparison group (H) ("kidnapping without A-G above”), subcategory (2) ("abduction with particular violence/terror and other victim”). DiFriseo Report, Tbls. 7 & 7A.
In summary, the evidence suggests that Lanzel, after unsuccessfully attempting to poison one of his victims, beat two people to death, and a third almost to death, for money. Lanzel’s crime thus contains the aggravating circumstances of multiple victims, pecuniary motive, and extreme violence or terror. Accordingly, the AOC assigned the case to comparison group (A) ("multiple victims"), subcategory (1) ("with sexual assault or particular violence/terror"). DiFriseo Report, Tbls. 7 & 7A.
To accomplish a robbery, Nicini lured the victim, a homosexual man in his 60’s known to co-defendant Felmey, to a remote area with the promise of sexual favors. According to the plan, Nicini bound the victim and put him in the trunk of the car, after robbing him. When the victim recognized Felmey, Nicini and Felmey decided to kill him. After a prolonged period of extreme abuse, Nicini killed the victim by tying the victim’s neck to the car’s bumper, and then dragging the victim at high speed. After the victim’s death, Nicini and Felmey burglarized his home. Nicini was not prosecuted capitally. Nicini’s crime contains the features of pecuniary motive and particular violence or terror. The AOC accordingly assigned Nicini to comparison group (E) ("robbery without AD above"), subcategory (2) (“[no residential forced entry but] with particular violence/terror”). DiFriseo Report, Tbls. 7 & 7A.
Randy Burroughs, James Clausell (2 cases), Anthony DiFrisco (2 cases), Danny Harris, Richard Irizarry, Miguel Melendez, and Michael Rose.
Francis Brand, Herbert Engel, William Engel, Robert Marshall, Michael Taccetta, Michael Pema, and Anthony Accetturo.
Danny Harris and Miguel Melendez are the others.
Danny Harris, Miguel Melendez, Randy Burroughs, and Richard Irizarry are the others.
The death-sentenced universe contains 38 cases, the penalty-trial universe contains 128, and the death-eligible universe, 309. DiFriseo Report, Tbl. 15.