dissenting.
I continue to adhere to my dissent in State v. Jimenez, 188 N.J. 390, 410, 908 A.2d 181 (2006), in which I concluded that the absence of mental retardation is a fact that the State must prove beyond a reasonable doubt to a jury before a defendant can be executed. In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435, 455 (2000), the United States Supreme Court declared 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.” In Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 2252, 153 L.Ed.2d 335, 350 (2002), the Court held that the Eighth Amendment to the United States Constitution forbids the execution of criminal defendants who are mentally retarded. It follows logically that only the fact of the absence of mental retardation permits the elevation of a sentence of life imprisonment to a death sentence. For that reason, I maintained that it was impermissible under both our Federal and State Constitutions to shift the burden of proof to the defendant, as the majority has done. Jimenez, supra, 188 N.J. at 411, 908 A.2d 181 (Albin, J., dissenting).
*459The current formula outlined by the majority for dealing with mental retardation — allowing for a life sentence if even one juror finds mental retardation — comes much closer to what I believe is contemplated by our Federal and State Constitutions. See ante at 454-55, 924 A.2d at 514. However, because the majority’s formulation still does not comply with the dictates of Apprendi and Atkins, I must respectfully dissent.
Justice LONG joins in this opinion.
For remandment — Chief Justice ZAZZALI and Justices LaVECCHIA, WALLACE and RIVERA-SOTO — 4. For dissent — Justices LONG and ALBIN — 2.