dissenting.
Megan Nicole Kanka is frozen in our collective consciousness because of her beauty, her innocence and the horrific way in which she died. She is remembered as well because of the stalwart efforts of her parents who spearheaded the enactment of Megan’s Law in an effort to save other children from their daughter’s fate.
To trivialize, even obliquely, the crime against Megan Kanka would be unspeakable. Indeed any normal heart responds with a cry for vengeance when faced with an offense like this. But it is precisely in matters such as the one before us that we must set aside our deepest emotions and plumb the depths of our core of rationality in order to account for our stewardship.
That stewardship entails the task of proportionality review — a unique exercise in our law. Unlike direct review, proportionality review does not question whether an individual death sentence is justified by the facts and circumstances of the case or whether, in the abstract, the sentence imposed on a defendant is deserved on a moral level. On the contrary, its role is to place the sentence imposed for one terrible murder on a continuum of sentences imposed for other terrible murders to ensure that the defendant “has not been ‘singled out unfairly for capital punishment.’” State v. Cooper, 159 N.J. 55, 88, 731 A.2d 1000 (1999) (Cooper II) (citing to State v. Martini, 139 N.J. 3, 47, 651 A.2d 949 (1994) (Martini II)), cert. denied, 516 U.S. 875, 116 S.Ct. 203, 133 L.Ed.2d 137 (1995) When that very particularized assignment is undertaken in the bright light of reason, it is evident that Jesse Timmendequas should not have been condemned to death.
*77 I.
The media’s coverage of this case was almost unparalleled. So widespread was the shock at the murder of Megan Kanka that, as the majority notes, reaction to the case “‘changed the legal landscape for sex offenses nationwide.’ ” Ante at 28, 773 A.2d at 22 (citing to State v. Timmendequas, 161 N.J. 515, 650, 737 A.2d 55 (1999) (Handler, J. dissenting)). Despite the trial court’s efforts to keep any reportage of the case from the eyes and ears of the jurors, inevitably some prejudicial information slipped through: “[t]he result was that all but two jurors on the case knew or suspected that [Timmendequas] had a prior record. Of those ten, nine at least suspected that his prior record included a sex offense conviction, and one knew as much.” Timmendequas, 161 N.J. at 669, 737A.2d 55.
On that backdrop, the trial court “never instructed [the jury] that the significance of those prior convictions was not a permissible factor for consideration in the penalty-phase deliberations.” Id. at 650, 737 A.2d 55 (Stein, J. concurring in part and dissenting in part). Because of the unacceptable risk that the jurors took Timmendequas’ prior record into account in their sentencing decision, we are left “[w]ithout accurate and reliable findings concerning aggravating and mitigating circumstances.” State v. Harris, 165 N.J. 303, 387, 757 A.2d 221 (2000) (Harris II) (Long, J., dissenting). That makes it impossible for us to compare Timmendequas’ case with other eases to determine his relative culpability. Lacking the ability to perform even this most basic of tasks, we cannot “administer the most extreme penalty in a fair and consistent manner.” State v. Loftin, 157 N.J. 253, 279, 724 A.2d 129 (1999)(Loftin II), cert. denied, 528 U.S. 897, 120 S.Ct. 229, 145 L.Ed. 2d 193 (1999).
II.
Many of the deficiencies in individual proportionality review have been discussed extensively elsewhere. See In re Proportionality Review Project 161 N.J. 71, 100-06, 735 A.2d 528 (1999) *78(Proportionality Review I) (Handler, J., concurring in part and dissenting in part) (criticizing Court’s standard for assessing disproportionality); State v. DiFrisco, 142 N.J. 148, 224-31, 662 A.2d 442 (1995) (DiFrisco III) (Handler, J., dissenting) (criticizing principle of unique assignment), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L.Ed.2d 873 (1996); Martini II, supra, 139 N.J. at 90-91, 651 A.2d 949 (Handler, J., dissenting) (discussing lack of statistical standard to measure disproportionality under frequency review); State v. Marshall, 130 N.J. 109, 249-50, 263-65, 613 A.2d 1059 (1992) (Marshall II) (Handler, J., dissenting) (criticizing coding of reversed death sentences as death sentences; inconsistency and inherent subjectivity of proportionality tests; inclusion of defendant’s own ease in frequency analysis; and abandonment of generally-imposed standard for proportionality), cert. denied, 507 U.S. 929, 113 S.Ct. 1306, 122 L.Ed.2d 694 (1993). In two recent cases, I expressed my own objections to the way we have conducted proportionality review. See State v. Morton, 165 N.J. 235, 288-289, 757 A.2d 184 (2000) (Morton II) (Long, J., dissenting); State v. Feaster, 165 N.J. 388, 444, 757 A.2d 266 (2000) (Feaster ID (Long, J., dissenting). I take this opportunity to underscore the concerns I previously expressed.
In a nutshell, despite our expressed belief that the New Jersey Constitution provides a “more expansive source of protections against the arbitrary and nonindividualized imposition of the death penalty” than does the United States Constitution, State v. Ramseur, 106 N.J. 123, 190, 524 A.2d 188 (1987), our proportionality review has fallen short of guaranteeing that the death penalty is fairly administered. More particularly, the permeable boundaries of the process; its flaccidity; the constant change in standards from ease to case; the utterly subjective way in which even legitimate standards are applied; and the consistent practice of the Court to focus only on the aggravating aspects of the case under review while underscoring the mitigating factors of the comparison cases allows the Court to conclude that virtually any death sentence is proportional. This case is emblematic of those deficiencies.
*79It is time for the members of this Court to accept that there is simply no meaningful way to distinguish between one grotesque murder and another for the purpose of determining why one defendant has been granted a life sentence and another is awaiting execution. The very exercise of individual proportionality review stands on a fundamentally unstable pediment. It should thus be scrapped and a moratorium declared on the death penalty until a meaningful process is developed.
III.
Like the majority, I am satisfied with a consolidation of the D-l and D-2 categories for this exercise. In terms of frequency analysis, I also agree that, because there is not a dramatic difference in death sentencing rates between D1-D2 homicides and other death-eligible homicides, precedent-seeking review is the critical path to any purported proportionality determination. It is here that I part company from my colleagues.
The precedent-seeking analysis performed by the majority in this case follows the format of all prior proportionality review opinions. It begins with a “subjective moral evaluation” of Jesse Timmendequas, presumably as a benchmark for the other comparisons. Feaster II, supra, 165 N.J. at 459, 757 A.2d 266. To be sure, that evaluation is more measured than we have seen in the past, yet its result is still foreordained.
A. Moral Blameworthiness
The majority catalogues the following factors as undergirding its view that this case possesses a high level of moral blameworthiness: the horrific nature of the crime; that Timmendequas knew of Megan’s helplessness; that he lured her with a puppy; that he killed her to escape detection; that he participated in the search and lied to the police; and the effect of the crime on Megan’s family. Against that litany, the majority concludes that neither Timmendequas’ background, his pedophilia, nor his age is mitigating.
*80Timmendequas’ background requires recounting here. Born with fetal alcohol effect and classified as educable retarded, his home life was nothing short of nightmarish. He was raised in abject poverty without adequate food, housing, or medical care, often filthy, hungry and lice ridden, and sometimes living out of cars. His mother, who was assessed by one professional as “hating” her children, was an alcoholic who constantly brought men home for sexual encounters. His father sexually assaulted him and his brother several times a week over a course of years; his brother still recalls hearing him scream. His father also forced him, at age eight or nine, to watch as he raped a seven-year old girl. Finally, his father tortured the family’s pets, cut off the head of the family eat in the children’s presence, and even forced his children to eat their pet rabbit.
To be sure, capital cases regularly detail the abuse suffered by defendants. But even when viewed on that miserable backdrop, this case stands out, and the short shrift the majority accords Timmendequas’ past reveals the trajectory of its analysis.
Further, the majority notes that Jesse Timmendequas is a pedophile but gives that fact no mitigational import. When used to denote sexual preference, of course, pedophilia is not in itself mitigating. And, in fact, consensus has yet to be reached in the scientific community on the precise etiology of pedophilia. See generally William Winslade, T. Howard Stone, Michelle Smith Bell & Denise M. Webb, Castrating Pedophiles Convicted of Sex Offenses Against Children: New Treatment or Old Punishment, 51 SMU L.Rev. 349, 364-65 (1998). Nevertheless, our public policy, as manifested by acts of the Legislature, makes clear that we, as a society, believe that many sex offenders, particularly pedophiles, have an illness; they can be distinguished from other classes of offenders in that they are not likely to be rehabilitated and are bound to reoffend. See N.J.S.A. 2C:7-1 (explaining that the “danger of recidivism posed by sex offenders and offenders who commit other predatory acts against children ... require[s] a system of registration that will permit law enforcement officials to *81identify and alert the public when neeessary for the public safety”).
What is mitigating about pedophilia, then, is the way in which it expresses itself in one’s behavior. Timmendequas’ prior commitment to the Adult Diagnostic and Treatment Center was based upon the characterization of his conduct as repetitive and compulsive. See N.J.S.A. 2C:47-3(b) (stating that if a “court finds that an offender’s conduct was characterized by a pattern of repetitive, compulsive behavior ... [it] shall, upon the recommendation of the Department of Corrections, sentence the offender to a term of incarceration to be served in the custody of the commissioner at the Adult Diagnostic and Treatment Center for sex offender treatment”). If his conduct was compulsive, how could that not be mitigating? Thus, while the majority is correct that pedophilia does not rise to the level of defect such as to excuse his crime, it must be viewed as affecting his level of moral blameworthiness.
In addition, the fact that Jesse Timmendequas was thirty-three-years old at the time of the crime is viewed by the majority as non-mitigating in that he was “ ‘old enough to know right from wrong.’ ” Ante at 42, 773 A.2d at 31 (citing to Harris II, supra, 165 N.J. at 324, 757 A.2d 221). However, to say that his age is not a mitigating factor does violence to the very notion of age as relevant to moral blameworthiness at all. Age mitigates to the extent that it reflects an immaturity on the part of a defendant — a level of moral reasoning and self-control that has not yet reached an “adult” level. Indeed, that basic principle is not foreign to New Jersey death penalty jurisprudence. See State v. Bey, 129 N.J. 557, 612, 610 A.2d 814 (1992) (Bey III) (holding that “[i]n determining a defendant’s ‘relative’ youth, a jury must look beyond chronological age to considerations of defendant’s overall maturity” and citing to cases from other jurisdictions that take the same position), cert. denied, 513 U.S. 1164, 115 S.Ct. 1131, 130 L.Ed.2d 1093 (1995).
Here, Jesse Timmendequas was identified as educable mentally retarded as a child, a designation that reflects both a subaverage *82IQ as well as multiple adaptive limitations. See Dennis W. Keyes, William J. Edwards & Timothy J. Derning, Mitigating Mental Retardation in Capital Cases: Finding the “Invisible” Defendant, 22 Mental & Physical Disability L.Rep. 529, 530-31 (1998) (comparing definitions of mental retardation given by the American Association on Mental Retardation and the American Psychiatric Association). Moreover, there is little doubt that his “ ‘mental and emotional development’ ” were stunted at an early age due to the extreme abuse he suffered at the hands of his parents. Bey III, supra, 129 N.J. at 612, 610 A.2d 814 (citing to Eddings v. Oklahoma, 455 U.S. 104, 116, 102 S.Ct. 869, 877, 71 L.Ed.2d 1, 12 (1982)). What does all of that mean if not that his chronological age overstates his capacity?
Indeed, in a number of proportionality review eases, the Court has found borderline intelligence to be mitigating. See Harris II, supra, 165 N.J. at 339, 757 A.2d 221; State v. Chew, 159 N.J. 183, 217, 731 A.2d 1070 (Chew II), cert. denied, 528 U.S. 1052, 120 S.Ct. 593, 145 L.Ed.2d 493 (1999); Cooper II, supra, 159 N.J. at 96, 100, 731 A.2d 1000; Loftin II, supra, 157 N.J. at 340, 724 A.2d 129. The Court even found a defendant’s “cultural retardation” to be mitigating, although that defendant was not mentally retarded. See State v. Harvey, 159 N.J. 277, 318, 731 A.2d 1121 (1999) (Harvey III); id. at 408 n. 25, 731 A.2d 1121 (Handler, J., dissenting). Given Timmendequas’ deficiencies, and the fact that his emotional growth was stunted perhaps as far back as when he was forced to watch as his own father-undoubtedly his first and most influential model-raped a young child, how could anyone legitimately conclude that Timmendequas’ mental and emotional age is not mitigating?
The majority also focuses on the fact that Timmendequas killed to escape detection. I do not view the escape detection factor as a legitimate aggravator, except where a third party eyewitness is killed to silence him or her. Morton II, supra, 165 N.J. at 290-291, 757 A.2d 184 (Long, J., dissenting). In my opinion, a defendant who kills to escape detection is no more culpable than one who kills a victim who resists. Further, because the escape *83detection factor is so pervasive, I believe, as did Justice Handler, that its universal application “destroys its efficacy as an appropriate aggravating factor.” Harvey III, supra, 159 N.J. at 386, 731 A.2d 1121 (Handler, J., dissenting).
Likewise, I continue to oppose the inclusion by the majority in this and other cases of the notion of family victimization, not because it is not terribly real, but because it is universal and thus cannot serve as a basis to distinguish between defendants. Morton II, supra, 165 N.J. at 293, 757 A.2d 184 (Long, J., dissenting) (criticizing Court’s application of the “non-decedent victim factor” to “every case in which the victim was a ‘unique person’ with a ‘web of familial relations’ — in other words, to every single murder case”) (citation omitted). The majority should not have accorded any weight to that factor in this case. That is especially true because family victimization is not once alluded to by the majority in describing any of the comparison cases, although it is clear that the victims in those cases also had families.
One final note on blameworthiness: the majority opines that because Jesse Timmendequas lured Megan with a puppy, his blameworthiness is enhanced. That is just another example of the Court’s willingness to denominate whatever methodology a defendant uses to commit his crime as a factor rendering him more blameworthy. Cf. Cooper II, supra, 159 N.J. at 90, 731 A.2d 1000 (holding that fact that defendant promised his victim ice cream to lure her to his place of residence aggravated his offense); Chew II, 159 N.J. at 212, 731 A.2d 1070 (holding that fact that at the time of the mu *der the victim was sitting in driver’s seat of car and could not ► fit through driver’s side door was aggravating); DiFrisco III, supra, 142 N.J. at 203, 662 A.2d 442 (holding that fact that defer iant “affix[ed] tape to his fingertips” to avoid leaving fingerprints increased his blameworthiness). That is a fundamental problem with the process.
B. Victimization
I agree with the majority that the crime against Megan Kanka was terrible, and that the degree of victimization in this case was high.
*84C. Character of Defendant
The majority has denominated Timmendequas’ “participation in the search and lying to police” as increasing his moral blameworthiness and reflecting badly on his character. Ante at 41, 773 A.2d at 30. Those conclusions fail to account for his retarded emotional and intellectual functioning. This is not a case of a clever felon weaving a web of deceit to mislead the police, and in fact, leading them astray. Here, Jesse Timmendequas’ pathetic pretense of searching for Megan was the act of an intellectually and emotionally retarded person seeking to avoid punishment, not an indicator of enhanced blameworthiness.
I also take issue with the majority’s use of Timmendequas’ prior criminal record as an aggravating character trait. The fact that he has committed prior acts of sexual assault serves only to illustrate the compulsive nature of pedophilia.
Somewhat inconsistently, the majority then accepts, without hesitation, Timmendequas’ concession that his “pedophilic urges” make rehabilitation unlikely. Ante at 43, 773 A.2d at 32. His chances of being rehabilitated are, in fact, non-existent. Nonetheless, the majority cannot accept pedophilia as compulsive for purposes of determining likelihood of rehabilitation but not when it comes to analyzing his moral blameworthiness.
IV.
Comparison Cases
Our duty in this portion of proportionality review is to ensure that Timmendequas has not been “ ‘singled out unfairly for capital punishment.’ ” Cooper II, supra, 159 N.J. at 88, 731 A.2d 1000 (quoting Martini II, supra, 139 N.J. at 47, 651 A.2d 949); accord Chew II, supra, 159 N.J. at 210, 731 A.2d 1070. Considering both a defendant’s crime and his character, it is our responsibility to determine whether the sentences imposed in the comparison cases render his death sentence disproportionate. For purposes of that analysis, I agree with the logic of the majority in expanding the *85list of comparisons beyond the agreed-upon eases to include cases involving other crimes against extremely vulnerable victims.
A. Agreed-upon Cases
The fourteen agreed-upon cases are David Cooper, Joseph Harris, Jerome Dennis, James Henderson, Leroy Taylor, Michael Manfredonia, Vincent Brown, Rasheed Muhammad, Ralph Edwards, Gary Lippen, Frederick Richie, Alphonso Timpson, Mark Luciana and Lester Wilson. Of the fourteen, only two received the death penalty.
The majority concedes that the death — worthiness of one of the two death-sentenced defendants — Joseph Harris — exceeds that of Timmendequas but inexplicably dismisses that fact as ineffectual for purposes of reviewing Timmendequas’ disproportionality claim. In the past, this Court has maintained that the exercise of precedent-seeking review is undertaken to determine whether a defendant’s culpability is greater than that of similarly-situated life-sentenced defendants as well as “whether it equals or exceeds that of other death-sentenced defendants.” Loftin II, supra, 157 N.J. at 335, 724 A.2d 129 (quoting DiFrisco III, supra, 142 N.J. at 184, 662 A.2d 442). Of course, a defendant cannot prove disproportionality merely by pointing out that his or her culpability is less than that of the other death-sentenced defendants. What is required is that demonstration plus a showing that the defendant’s culpability is “more like that of similar life-sentenced defendants.” Martini II, supra, 139 N.J. at 47, 651 A.2d 949. In that case, the defendant’s sentence of death must be viewed as aberrational, “requir[ing] a reduction of sentence to a life term.” Ibid.
I further disagree that the other death-sentenced defendant, David Cooper, is less culpable than Jesse Timmendequas. Cooper’s sexual assault and murder of a six-year old child by strangulation was a mirror image of Timmendequas’ crime. Cooper also had a prior record and was on parole at the time of the murder, but for wilful criminal acts, not for compulsive sexual behavior. Like Timmendequas, Cooper was accorded the (c)(4)(f) (escape detection) and (c)(4)(g) (contemporaneous felony) aggravators. *86He also received the benefit of the (c)(5)(h) (catchall) mitigator. Unlike Timmendequas, though, he was not accorded the (e)(5)(a) (extreme emotional disturbance) or (c)(5)(d) (diminished capacity) mitigators. Further, although both defendants had abusive childhoods, there was no evidence in Cooper’s case of the horrifying sex abuse Timmendequas and his brother (who, perhaps not coincidentally, has also turned out to be a sex offender) endured throughout their childhood. It is clear, then, that Timmendequas is less culpable than Cooper because he presented much more mitigation. Thus, both death sentenced cases support Timmendequas’ disproportionality claim.
As for the cases in which the defendants received life sentences, the majority has concluded that Timmendequas is less culpable than Jerome Dennis and Leroy Taylor and equally culpable to James Henderson and Michael Manfredonia, none of whom was sentenced to death and that those four cases support his claim of disproportionality. I agree with that conclusion. I also agree with the majority that Timmendequas is more culpable than Mark Luciana. It is here that I part company from my colleagues.
The majority concludes inexplicably that although Vincent Brown,2 a violent repeat offender, is more “culpable” than Timmendequas because he left the ten-year old victim he sexually assaulted and strangled “to die in a ditch as she screamed for help,” Timmendequas is more “death-worthy” because he “penetrate® his victim.” Ante at 46, 773 A.2d at 33. The notion of penetration as more death-worthy than extended suffering is totally subjective and the fact that the majority agrees on that does not render it less so. Moreover, the majority’s assessment of Brown flies in the face of the cases in which we have held the extent of a victim’s suffering to be an aggravator. See, e.g., Harris II, supra, 165 N.J. at 324-25, 757 A.2d 221. From an objective standpoint, Vincent Brown is plainly no less culpable *87than Jesse Timmendequas, yet, as a result of a plea agreement, he was only sentenced to a term of life imprisonment with a thirty-year parole disqualifier plus ten years.
The majority’s attempt to distinguish Timmendequas from Ralph Edwards, who accosted a nine-year old girl; exposed himself; sought to penetrate her anally; wrapped a plastic strap around her neck; strangled her; and left her body on the railroad tracks is also unjustifiable. Edwards was subsequently arrested for sexually assaulting a young boy. He was eighteen-years old, but had a history of mental problems and functioned at a much lower level. Unlike Timmendequas, he did not receive the benefit of the e(5)(a) mitigator (extreme emotional disturbance) from the jury. Yet, the majority, again omitting the notion of intellectual/emotional age from its analysis, talismanically cling to Edwards’ chronological age as a valid distinguishing characteristic. That is hardly a sufficient basis on which to justify the fact that Timmendequas was sentenced to death while Edwards was only sentenced to life imprisonment with a thirty-year parole disqualifier.
James Henderson and Gary Lippen picked up a seventeen-year old acquaintance. After she refused their advances, Henderson threw her down and began to tear her shirt. Lippen fondled her and held her down while Henderson sexually assaulted her; Lip-pen may have also sexually assaulted her. Both beat her throughout the assault, including striking her with a stick, and Henderson choked her with his hands. Lippen handed a stick to Henderson, which he placed on her throat. Lippen put his hand on the stick and the two men crushed the victim’s throat. Henderson then stabbed her many times in the chest, genital area, neck and back. They dragged her up a hill and hoisted her legs into a tree. Henderson twisted her legs around the tree and broke them. The victim’s dead body was found three months later. Lippen had no history of mental illness, although Henderson did. Despite the staggering violence of this crime, the majority only views Henderson as “similarly deathworthy” to Timmendequas. Ante at 48, 773 A.2d at 34. In fact, he is manifestly more deathworthy, *88although his case supports Timmendequas’ disproportionality claim even accepting the majority’s view that the two are equal.
Moreover, the majority characterizes Lippen as less deathworthy, because he was nineteen-years old and essentially in Henderson’s thrall. Again, it gives no recognition to the notion that chronological age is not the end of the inquiry. Also, the suggestion that Henderson’s influence renders Lippen less death-worthy than Timmendequas is impossible to square with the recent majority opinion in State v. Morton, 165 N.J. at 252, 757 A.2d 184 (holding that although co-defendant “primarily planned the robbery and murder, defendant willingly participated in the crimes” and so defendant’s own “culpability in planning the murder should not be diminished”).
Interestingly, although Henderson and Lippen’s victim was not found for three months, the majority .does not consider her family’s suffering in assessing culpability as it does in this case. It is thus impossible to avoid the conclusion that the majority’s assessment is based solely on the aggravating factors of Timmendequas and the meager mitigating factors of Henderson and Lippen. That kind of analysis has no place in proportionality review, a scheme meant to compare all aspects of the cases under review. Under the correct approach, Henderson is dearly more culpable and Lippen is at least equally as culpable as Timmendequas. Yet, only Timmendequas sits on death row, Henderson having pled guilty to murder, for which he received a sentence of life imprisonment with a thirty-year parole disqualifier, and Lip-pen having pled guilty to aggravated manslaughter, for which he received a thirty-year sentence with fifteen-years parole ineligibility-
Rasheed Muhammad kidnaped, sexually assaulted and strangled an eight-year old girl. Muhammad did not even argue at trial— and so no jurors found — that mitigating factors c(5)(a)(extreme emotional disturbance) and c(5)(d)(diminished capacity) applied to his case. Although he too received the benefit of the c(5)(h) *89(catchall) mitigator, the absence of the other mitigators plainly renders him at least equal to Timmendequas. Moreover, because it “appears” to the majority that Muhammad “confessed without attempting to outwit the police and the victim’s family,” it concludes that Timmendequas’ pathetic attempts to evade law enforcement make him the more deathworthy of the two. Ante at 49, 773 A.2d 35. In fact, Muhammad did not voluntarily turn himself in to the police; rather, the police were led to his apartment where they found the body of his victim underneath a pile of clothes in his closet.
The majority also views Jesse Timmendequas as more culpable than Frederick Ritchie, both of whom committed murders contemporaneously with other felonies and with the intent to escape detection. Ritchie enticed the victim, a twelve-year old boy, to sneak out and come to his trailer, where Ritchie got the victim drank. While reading pornographic magazines, Ritchie masturbated and penetrated the victim with a dildo. Ritchie claimed that the victim, due to the intoxication, fell into the washing machine and then ran into a tree, severely injuring himself. Later, Ritchie wrapped the victim in a blanket and took him, alive, to a creek in the nearby woods, where he died from drowning and head injuries. Ritchie then cleaned his trailer and discarded any evidence of the victim’s presence in an effort to avoid being caught. He confessed after he was arrested for sexually assaulting another seven-year old child.
In comparison to Timmendequas, Ritchie had a worse prior record, including prior convictions for burglary; lewd and laseivious/crimes against children; indecent exposure; and indecent proposal to a child. However, the majority notes that he was an Army veteran and had been diagnosed with Crohn’s disease, as though those were somehow mitigating. The majority also notes Ritchie was an alcoholic who had received treatment in the past, a fact that it views as evidencing “diminished capacity.” Ante at 50, 773 A.2d at 35. From an objective standpoint, his capacity was no more diminished than that of Timmendequas, who, unlike Ritchie, *90actually received the benefit of that mitigator from the jury. Thus, there is absolutely no rational basis for Jesse Timmendequas to be on death row while Ritchie continues to serve a life sentence.
The majority’s conclusion that Alphonso Timpson, on whom a life sentence was imposed, is less death-worthy than Timmendequas is also belied by the record. Timpson, who was nineteen-years old, forced a twelve-year old girl into the woods as she was walking home from school. She fought him, but he beat her severely and knocked her unconscious. He penetrated her vagina with his fingers and his penis. He also nearly bit off her breast. The victim screamed when she regained consciousness. He then stuffed her panties in her mouth, and she suffocated and died. As she was gasping for breath and dying, he continued to sexually assault her.
Timpson initially denied involvement, but ultimately confessed. Timpson had severe developmental disabilities and was borderline mentally retarded. He was diagnosed as being highly impulsive and unable to exhibit emotional control. He abused drugs and alcohol. As a juvenile, he attacked a girl under similar circumstances to this offense. Timpson pled guilty to capital murder, aggravated sexual assault and kidnaping. The court found the e(4)(c) (torture or depravity) and c(4)(g) (contemporaneous felony) aggravating factors and the c(5)(a) (extreme emotional disturbance), c(5)(c)(age), e(5)(d) (diminished capacity), and c(5)(h) (catchall) mitigating factors. Timpson differs from Timmendequas only in that Timmendequas was given the c(4)(f) (escape detection) aggravator and Timpson the e(4)(c) (torture and depravity) aggravator. Who would not conclude that torture and depravity are worse? Yet the court imposed an aggregate sentence of life imprisonment plus fifty years with a fifty-five-year parole disqualifier on Timpson while Timmendequas was condemned to death. There is simply no principled way to declare Timpson is less death-worthy than Timmendequas. His crime was more brutal and involved torture and imprisonment. His mitigators were *91identical. Only his age is different. But given that both he and Timmendequas are retarded and developmentally disabled, his chronological age cannot be the basis on which to justify the fact that he will live out his life in prison while Timmendequas will be executed.
It is almost impossible to tell from the entirely superficial and limited case summary whether Lester Wilson was more or less culpable than Jesse Timmendequas. However, this much is clear: Wilson sexually assaulted and strangled a fourteen-year old girl and, without any evidence of the kind of mitigation present in this case, was not even prosecuted capitally.
Thus, of the fourteen agreed-upon cases, Jesse Timmendequas is less culpable than both death sentenced defendants; equal to or less culpable than ten life sentenced defendants; more culpable than one life sentenced defendant and unable to be compared with one life sentenced case. In sum, twelve of the thirteen cases that contain sufficient information to be of use at this stage of proportionality review support Timmendequas’ disproportionality claim.
B. Additional Case Comparisons
The majority has accepted seven of the ten additional cases as comparable, because of the vulnerability of the victim. (Conley, Masini(two), Mineey, Rivera, James and Vasquez). I accept them as comparable as well.
I agree with my colleagues in the majority that both Masini (two cases), who murdered four elderly persons, and Vasquez are more culpable than Timmendequas. I also agree that Conley is equally culpable, thus automatically rendering four out of the seven cases supportive of Timmendequas’ disproportionality claim.
Samuel Mincey’s life sentence also bolsters Timmendequas’ disproportionality claim. Mineey, who had an extensive prior record and no mitigating evidence, raped and murdered a seventy-three-year old woman. In the course of the crime, he tortured her. The majority concludes that, although Mineey is “roughly as culpable” as Timmendequas, because the prosecutor did not seek a *92death sentence against Mincey as a result of an erroneous belief that the statute of limitations had run, a valid basis for the discrepancy between Mincey’s life sentence and Timmendequas’ death sentence is thereby established. Ante at 53, 773 A.2d at 37. The fact that the prosecutor misunderstood the law is irrelevant in assessing the proportionality of Timmendequas’ death sentence; indeed, it provides a clear illustration of the arbitrary way in which capital punishment is administered. The simple fact is that Jesse Timmendequas awaits death while an identically culpable person has been granted a life sentence.
How the majority can view Jesse Timmendequas as more culpable than Rafael Rivera is hard to fathom. Rivera lived next door to and had a close, almost familial, relationship with the victim, a seventy-eight-year old widow. While the victim was visiting Rivera and his girlfriend, Rivera went into her apartment to steal from her. However, she returned to her apartment and surprised him. A struggle ensued in which he struck her many times in the face, forearms, ribs and back. He tore her vagina with either his hand or her cane. The cause of death was strangulation.
Rivera had a vast prior record. He also had a history of abusing cocaine, marijuana and alcohol, and he was seen drunk shortly before the murder. The jury convicted him of capital murder, robbery, aggravated sexual assault and burglary and found the c(4)(c) (torture or depravity) aggravator, a factor not present in Timmendequas’ case; it did not find the extreme emotional disturbance mitigator. From his record, his lack of mitigating evidence and the sheer violence of his crime, Rivera plainly is more culpable than Jesse Timmendequas. Yet Rivera received life and Jesse Timmendequas death.
I further disagree that Otis James, who committed the asphyxiation murder of an eighty-three-year old woman whom he had sexually assaulted, is less culpable than Timmendequas. He had a long record and had no mitigating evidence of the quality present*93ed by Timmendequas. At worst, then, he is equally as culpable as Timmendequas.
Thus, of the seven comparable life sentenced cases in this category, three (Masini twice) are more culpable than Jesse Timmendequas; the other four are equally culpable; and none is less culpable.
Eecapitulating, of the twenty-one cases (fourteen agreed on and seven additional), twenty possess enough information to be useful in our comparison exercise. Of those, Jesse Timmendequas is less culpable than both death sentenced defendants; equal to or less culpable than the sixteen life sentenced defendants; and more culpable than one life sentenced defendant. Moreover, three of the comparison cases, including one that the majority characterizes as equally culpable, were not even prosecuted capitally (Wilson, Conley and Mineey). Thirteen of the twenty-one comparison cases resulted in plea offers by the State. Although under our proportionality review scheme, an occasional sentencing disparity is permissible, the gross disparity demonstrated here between Timmendequas and all other similarly situated defendants shows that his sentence is an aberration,
V.
Timmendequas advances systemic proportionality claims with identical evidentiary underpinnings as those the Court rejected last term in Morton, Harris and Feaster. As I indicated in In Re Proportionality Review Project:
The Court is comfortable to continue to ‘tinker with the machinery of death,’ Callins v. Collins, 510 U.S. 1141, 1145, 114 S.Ct. 1127, 1130, 127 L.Ed.2d 435, 438 (1994) (Blackmun, J., dissenting) when we do not yet fully understand the role of racial bias in the operation of our death penalty. I am not. Executions should not be approved while we wait for statistics to be compiled to the point of relentlessness.
165 N.J. 206, 234, 757 A.2d 168 (2000) (Long, J., concurring in part and dissenting in part).
*94 VI.
Jesse Timmendequas committed an indescribably horrible crime against a totally innocent child and left her family to suffer a lifetime of loss. He should never be released from prison. But he should not be executed. Proportionality review, to which we have committed ourselves, requires that a defendant not be singled out unfairly for the most extreme punishment. Of the twenty-one comparison cases, all involving terrible sex murders against extremely vulnerable victims — many committed with torture and depravity — only two received death sentences. Both of those defendants presented more aggravating and less mitigating factors than Timmendequas. Of the vast majority who received life sentences (a number of whom were not even prosecuted capitally) only one, Mark Luciana, should be considered less culpable than Timmendequas. Based on that analysis, Jesse Timmendequas has been singled out for death in violation of our promise of proportional sentencing. Thus, his life should be spared.
For affirmance — Justices STEIN, COLEMAN, LaVECCHIA and ZAZZALI — 4.
For reversal — Justice LONG — 1.
Because he was suicidal and depressed in jail after the crime. Brown was declared incompetent to stand trial.