The opinion of the Court was delivered by
WILENTZ, C.J.Under a misapprehension that the death penalty was applicable to juveniles, defendant, Ralph Kiett, pleaded guilty to murder on September 17, 1985, pursuant to a plea bargain that removed the risk of the death penalty. He was seventeen when the crime was committed. After Kiett entered his plea and was sentenced to life imprisonment with thirty-years parole ineligibility, this Court determined that the Legislature never intend*485ed the capital punishment provisions of N.J.S.A. 2C:11-3 to apply to juveniles. State v. Bey, 112 N.J. 45, 95-105, 548 A.2d 846 (1988) {Bey I). The Appellate Division rejected defendant’s request to withdraw his plea. We granted certification, 114 N.J. 470, 555 A.2d 598 (1989), limited to the issue of whether a juvenile’s plea of guilty to murder, agreed to in order to avoid exposure to an inapplicable death penalty, can be withdrawn.
I.
Nineteen-year-old Elizabeth Ann Coutee disappeared on the night of February 25, 1982. Six days later, her body, nude except for her socks, was found in a marshy area near Westend Avenue in Atlantic City. She had been stabbed twenty-eight times. The evidence that defendant committed the crime was overwhelming.
An Atlantic County grand jury returned two indictments against defendant. The first indictment charged him with knowing or purposeful murder by his own conduct (capital murder), in violation of N.J.S.A. 2C:11-3a(1) or (2); knowing or purposeful murder, in violation of N.J.S.A. 2C:11-3a(1) or (2); felony murder, in violation of N.J.S.A. 2C:11-3a(3); fourth-degree unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5d; third-degree possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4d; and two counts of first-degree aggravated sexual assault, in violation of N.J.S.A. 2C:14-2a(4) (use of weapon) and 2C:14-2a(6) (use of force resulting in severe personal injury). The second indictment (arising from his attempted escape) charged him with two counts of third-degree aggravated assault, in violation of N.J.S.A. 2C:12-1b(5)(a), and second-degree escape, in violation of N.J.S.A. 2C:29-5a. Jurisdiction was waived to the Law Division, and Kiett was prosecuted as an adult. N.J.S.A. 2A:4A-26; R. 5:9-5 (now R. 5:22-2). The prosecutor filed notice of aggravating factors under N.J.S.A. 2C:11-3c(2)(e), designating the matter as a capital case. The aggravating factors the prosecutor intend*486ed to prove were N.J.S.A. 2C:11-3c(4)(g), that the murder was committed during the commission of a felony (rape), and 2C:11-3c(4)(c), that the murder involved depravity of mind or an aggravated assault.
Kiett and the prosecutor negotiated a plea bargain. Kiett agreed to plead guilty to knowing and purposeful murder by his own conduct (capital murder) and second-degree escape. In return, the prosecutor agreed, in effect, not to seek the death penalty.1 Eather, he would recommend a sentence of life imprisonment with thirty-years parole ineligibility for the murder charge, plus a consecutive ten-year sentence with five-years parole ineligibility for the escape charge, and dismiss the remaining counts of the indictments (the aggravated sexual assault charges, the weapons charges, and the aggravated assault charges arising from the escape).
Kiett then entered a plea of guilty to capital murder and escape. In accordance with the agreed-upon arrangement, he waived a jury for the penalty phase, allowing the court to determine whether the aggravating factors outweighed the mitigating factors, and ultimately whether he would be sentenced to prison or put to death. The court accepted the guilty plea, scheduled the matter for a penalty proceeding, and requested the defense counsel and the prosecutor to submit information regarding the aggravating and mitigating factors. Pursuant to this arrangement, if the trial court found in the penalty phase that the death penalty was appropriate, then Kiett would retract his guilty plea. Thereafter, assuming no other plea bargain, he would presumably have a trial by jury to determine guilt and, if convicted of the capital crime, a second sentencing proceeding in which the jury would determine whether the penalty would be death.
*487In preparation for the penalty proceeding, the court reviewed a report submitted by the defense and the presentence report. Defense counsel, at the penalty proceeding, indicated that its report “summariz[ed] the material that would have been presented by the defense at the penalty phase of the trial in this matter____” (emphasis supplied). The prosecutor had not received a copy of this defense report before sentencing but stated nevertheless that he did not find this to be an “impediment for sentencing” and even suggested that the court sentence defendant “in accordance with” the report. The record is unclear about whether the prosecutor submitted a report on the aggravating factors. Aggravating factors were never described, much less proved, in the penalty proceeding, and on defense counsel’s prompting that the court specifically enumerate the aggravating and mitigating factors for the record, the prosecutor responded that the aggravating factors “[a]re in the record.” Neither the prosecutor nor the defense counsel made summations. Indeed, the entire proceeding was quite brief, the transcript being only twelve pages long.2
At the conclusion of the penalty hearing, the court found: It is reasonable to conclude that the two aggravating factors do not, beyond a reasonable doubt, outweigh the mitigating factors of which there is evidence. Inasmuch as the defendant was a juvenile at the time of the offense, his age may be deemed a mitigating factor. [N.J.S.A. 2C:11-3c(5)(c).] His borderline mental retardation and substance abuse problems may be considered as having, to a significant degree, impaired his capacity to conform his conduct to the capacity of the law. [N.J.S.A. 2C:11-3c(5)(d).] The early childhood emotional and physical trauma experienced by him may have [sic] deemed to interfere with his character development so as to adversely impact upon his ability to live as a law-abiding citizen. [N.J.S.A. 2C:11 — 3c(5)(h).]
The court sentenced Kiett to life in prison, thirty-years parole ineligibility, for murder. The court indicated that the “reasons for the sentence in the case are that the sentence is imposed in *488accordance with the plea agreement and after careful consideration of all the material available to the court, it is concluded that the recommended sentence is in the interest of justice and it is in accordance with the law as to the ... charge of murder.”
II.
Rule 3:9-2 states:
The court ... shall not accept such plea [of guilty] without first ... determining ... that there is a factual basis for the plea and that the plea is made voluntarily ... and with an understanding of the nature of the charge and the consequences of the plea. (Emphasis supplied.)
The court must be satisfied that the defendant understands the consequences of his or her guilty plea. “The right of the defendant to be informed of the consequences of his plea, however, extends only to those consequences that are ‘direct,’ or ‘penal,’ but not to those that are ‘collateral.’ ” State v. Howard, 110 N.J. 113, 122, 539 A.2d 1203 (1988). That a defendant may be deported or lose a job as a result of the guilty plea has been held to be merely a collateral consequence. See State v. Chung, 210 N.J.Super. 427, 510 A.2d 72 (App.Div.1986); State v. Heitzman, 209 N.J.Super. 617, 508 A.2d 1161 (App.Div.1986), aff'd o.b., 107 N.J. 603, 527 A.2d 439 (1987). That a defendant was mistaken, however, about being subject to imposition of a period of parole ineligibility, or about the impact on parole arising from a sentence to the adult diagnostic and treatment center, has been deemed a direct or penal consequence, allowing for retraction of a guilty plea. See State v. Howard, supra, 110 N.J. 113, 539 A.2d 1203; State v. Kovack, 91 N.J. 476, 453 A.2d 521 (1982). In addition, “where the responsible arms of the judicial and law enforcement establishment, together with defendant’s own counsel, have misinformed [the defendant] as to a material element of a plea negotiation, which the defendant has relied thereon in entering his plea, ... it would be manifestly unjust to hold defendant to his plea.” State v. Nichols, 71 N.J. 358, 361, 365 A.2d 467 (1976) (citation omitted).
*489The potential penalties, especially the potential imposition of a death sentence, for the crimes for which defendant is charged are clearly penal consequences about which a defendant must be fully informed. If a defendant is misinformed about his or her eligibility for the death sentence, and if that misunderstanding is material to the plea, he or she cannot be deemed to have entered a guilty plea with a full understanding of the penal consequences.3 In other words, a defendant who entered a guilty plea to avoid imposition of the death penalty, but who cannot be put to death as a matter of law, labors under the kind of mistake that entitles him or her to withdraw the plea. R. 3:21-1.
Kiett was a juvenile at the time the crime was committed. As this Court subsequently determined, the death penalty never applied to juveniles. State v. Bey, supra, 112 N.J. at 98, 548 A.2d 846 (Bey I). Although the 1982 Act reinstating the death penalty (N.J.S.A. 2C:11-3) was silent regarding its applicability to juveniles tried as adults,4 “[i]t is clear to us that the Legislature never had intended to subject juvenile offenders to capital punishment____” Bey I, supra, 112 N.J. at 98, 548 A.2d 846. The Act was amended in 1986 expressly to prohibit the execution of juveniles tried as adults. L. 1985, c. 478 (codified at N.J.S.A. 2C:11-3g).
*490In Bey I, this Court examined the applicability of the death penalty to a juvenile and determined that even if the Legislature had not amended the Act expressly to preclude the execution of juveniles, a juvenile would not be subject to its capital provisions. Bey I, supra, 112 N.J. at 98-101, 548 A.2d 846. We further found that “the Legislature intended the amendment to operate retroactively and apply to [Bey’s] case; the legislative history ... speaks unmistakably of an intent to preclude the execution of any juvenile offenders under the 1982 Act.” Id. at 101-02, 548 A.2d 846 (citations omitted). To erase any lingering doubt, we also noted that “notions of fundamental fairness, invoked by this Court in State v. Biegenwald, supra, 106 N.J. 13, 65-67, 524 A.2d 130, to order the retroactive application of a burden-of-proof amendment to section c, would likewise demand retroactive application of the juvenile-offender exemption in this case.” Bey I, supra, 112 N.J. at 104, 548 A.2d 846. Therefore, because as a matter of law Kiett could not have been put to death, his plea of guilty, if it Was entered to avoid the death penalty, was not made with a full understanding of its penal consequences.
Defendant must show that his mistaken belief about penal consequences was a material factor in the decision to plead guilty. State v. Howard, supra, 110 N.J. at 123, 539 A.2d 1203; State v. Taylor, 80 N.J. 353, 365, 403 A.2d 889 (1979). The necessary link establishing that Kiett’s misapprehension led to his guilty plea is clear from the nature of the plea proceeding. Kiett pleaded guilty to capital murder and waived the jury for the penalty phase. Under the plea agreement, if the court, after balancing the aggravating and mitigating factors, imposed the death sentence, Kiett could withdraw his plea and proceed to trial. If, on the other hand, the court did not impose a death sentence, Kiett would be sentenced to life with thirty-years parole ineligibility for the murder and five more years of parole ineligibility for the escape. The result of the bargain was that the death penalty would not be imposed, at least not in the proceedings directly following the plea. The *491following colloquy illustrates that the court, prosecutor, and defense counsel were all aware that Kiett’s primary motive in entering the guilty plea was to avoid imposition of the death penalty:
Mr. Rosenberg [defense counsel]: Ralph would like to enter a plea of guilty to Count Two ... which charges him with murder, that being a capital offense where the State is seeking the death penalty____ He understands that there was a possibility that the jury could find him guilty and then, in the penalty phase, impose the death penalty____ He understands that in return for his plea of guilty [the State] is no longer seeking the death penalty____
********
The Court: Do you understand that you’re pleading guilty to charges, which as to murder committed by your own hand, the maximum penalty for that would be the death penalty____ Do you understand that?
Defendant: Yes.
********
Mr. Garafola [prosecutor]: The State, by virtue of its agreement to date, does not seek to withdraw any of the aggravating factors, but is simply providing a vehicle through which the court could conduct the balancing test that the jury is constrained to do should the case, of course, go to trial and a jury finds him guilty of murder by his own conduct. Actually, the procedure that is envisioned, Your Honor, is that which was conducted by the court in [State v. Wright, 196 N.J.Super. 516, 483 A.2d 436 (Law Div.1984) ]. I would also advise the court that in considering the balance of the aggravating and mitigating factors, the State recognizes that there is not an insubstantial possibility that a jury, upon finding Mr. Kiett guilty of murder by his own conduct, would impose life imprisonment rather than a death sentence. The primary consideration, primary mitigating factor, Your Honor, being the ... defendant’s age.
Avoiding the death penalty was a material factor in Kiett’s decision to plead guilty. Because he entered his guilty plea relying on misinformation about his eligibility for execution, he may withdraw the plea.5
*492III.
The Appellate Division found that under the standard of manifest injustice, Rule 3:21-1, the burden on defendant, given his plea agreement, was too heavy to be overcome by a showing of misunderstanding of the penal consequences. The Appellate Division correctly noted that the evidence of Kiett’s guilt was overwhelming, and that avoiding the death penalty may not have been the primary factor in defendant’s decision to plead guilty.
For Kiett, avoiding the death penalty on this record clearly was one factor in his decision to plead guilty. Dismissal of the other counts may have been another factor. Indeed, it is possible that he might have pleaded guilty under this plea bargain regardless of the death penalty. In response, we hold that absent unusual circumstances, a defendant’s belief, incorrect as a matter of law, that he was subject to the death penalty is sufficient basis for withdrawal of a guilty plea if the avoidance of the death penalty was a substantial factor in the decision to plead guilty.6
*493IV.
We refer again to the unusual procedure that followed defendant’s plea, noted above at 486-488, 582 A.2d at 631-632. We realize it is essentially the same as that approved in State v. Wright, 196 N.J.Super. 516, 483 A.2d 436 (Law Div. 1984). In that ease the procedure was authorized for the purpose of validating a plea bargain. The trial court ruled that under Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), when a defendant pleads guilty to capital murder on condition that the death penalty not be imposed, the court cannot accept the plea unless a penalty proceeding is held that results in a non-death outcome. State v. Wright, supra, 196 N.J.Super. at 526-27, 483 A.2d 436. The trial court concluded that without that validation of the plea, its acceptance posed the possibility of arbitrary application of the death sentence. Id. at 528, 483 A.2d 436. The penalty phase, therefore, is to be conducted as if it is genuine, just as if it actually determines life or death, defendant having the right, however, to withdraw the plea if death is the sentence. The immediate result of this type of proceeding is that a defendant who pleads guilty to capital murder and, following a penalty proceeding, is sentenced to death7 will not be executed — indeed the procedure guarantees that he or she will not be executed.8
*494We disapprove of this procedure. The penalty proceeding, instead of determining whether the death penalty shall be imposed, serves only as a validation (or rejection) of a previously-agreed-to plea bargain — as contemplated in Wrighl. The Legislature never intended the use of the penalty phase in this manner. We understand a trial court’s willingness to accommodate the conclusion of both the State and defendant, that this defendant should not be exposed to the death penalty, and to accomplish that, as it did in Wright, in what it believed was a constitutionally acceptable procedure. We do not believe, however, that the Legislature ever intended any such procedure. Literally read, the statute requires, after a guilty verdict of capital murder, that there be a penalty proceeding — it even explicitly prohibits the prosecutor from waiving it. N.J.S.A. 2C:11-3d. Certainly the Legislature did not envision a penalty proceeding that was a charade, and although that may not have been the intent here, it was not the kind of penalty proceeding contemplated by the Legislature — namely, one that in fact, in reality, determined life or death. This penalty proceeding simply determined whether or not there might be another penalty proceeding. The court knew that it could not decide whether death was appropriate because even if it purported to, death would not be imposed. The unreality of the proceeding obviously affected the prosecutor, who presented no evidence of the aggravating factors, suggested the court sentence in accordance with a report submitted by defendant, and offered no *495summation (neither did defense counsel).9
What we have said, and what we are about to say, concerning this procedure is not intended in any way as a criticism of the trial court in this case or in Wright. In both cases the court carefully and conscientiously sought to satisfy the requirements of both the United States Constitution and our death penalty act in a most difficult context, and sought to do so with due regard for all interests involved, the prosecutor’s (who consented to the procedure), the defendant’s, and especially the public’s. Indeed, the trial court’s determination in both cases to give effect to the intent of the statute was such that it would not accept a guilty plea even with the prosecutor’s consent — it insisted on a hearing to determine for itself whether death was appropriate.
Nevertheless, we find the procedure that was used improper. In both cases the court purported to conduct an actual penalty proceeding, to balance all of the factors required to determine the life/death issue, and actually to decide that issue. In fact, despite the nature of that proceeding, what was decided was merely whether a guilty plea avoiding the death sentence should be accepted.
There is no more solemn proceeding in the justice system than the penalty phase of a capital murder case. It decides life or death. It may not be used for any other purpose. Conducting such a proceeding before a jury, allowing it to hear the evidence and deliberate on the most troubling question in our jurisprudence, imposing that incomparable burden on it, only to decide whether a plea bargain should be accepted, would be on its face unthinkable. It should be no less so when the proceeding is before a judge. The object — to determine what the *496fact-finder with the power to decree life or death would decide in a real proceeding — is impossible to attain: the capital punishment decision process is unique, it cannot be duplicated when the judge or jury is told that life is not at stake.10 More than that, if such a procedure ever became widespread, the importance, solemnity, credibility, and finality of the real life or death penalty proceedings would inevitably be denigrated.
No implication is intended here about plea bargaining or any aspect of plea bargaining in capital cases other than the holding of an actual penalty proceeding in conjunction therewith. The issue of plea bargaining, as such, in its various forms, is not in any way before us. Our disapproval here extends only to the penalty proceeding that was conducted. The only capital cause penalty proceeding that may be held in this State is one that in fact determines whether the death penalty shall be imposed. No other is permissible.
V.
We note the concern of the dissent that disapproval of this penalty phase procedure will restrict plea bargaining in capital causes. The dry-run penalty proceeding involved in this case is a rarity. Its prohibition will not affect plea bargaining in capital causes.
The dissent also relies on our recent amendment to Rule 3:9-3(c). That amendment does not contemplate involvement by the judiciary in plea bargaining in any way that suggests *497approval of this nonbinding penalty trial. That 1989 amendment merely permits the court to indicate a probable sentence based on representations of the prosecutor and defense counsel before a tentative plea agreement is reached. There is a world of difference between that involvement of the judiciary in plea bargaining and what is contemplated here — an actual trial, an actual penalty proceeding, and an actual — although false — determination of whether defendant shall live or die.
The impact of our decision on proportionality — another concern of the dissent — is similarly nil. This Court is in the process of studying that issue for the purpose of determining how it may properly discharge its responsibility to assure that any death penalty imposed is not “disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” N.J.S.A. 2C:11-3e. Our study is being conducted with the benefit of a knowledgeable consultant. We have conferred with representatives of the Attorney General, the prosecutors, the Public Defender, and the private defense bar at various stages in these proceedings, both to keep them informed and to get the benefit of their views, suggestions, and criticisms. At no point in this process — now in its third year— has anyone suggested that the procedure involved in this case is important to assure proportionality, or that it has any impact on it; indeed, no one has even mentioned it. The reason is simple — it is a procedure practically unheard of.
Implicit in the position of the dissent is that proportionality would be served by this dry-run penalty procedure. The dissent uses that proposition as the basis for a repetition of concerns about systemic disproportionality in capital causes, focusing mostly on prosecutorial discretion and plea bargaining, and concluding that standards are badly needed to guide such prosecutorial activities. We agree. As noted in State v. Koedatich, 112 N.J. 225, 548 A.2d 939 (1988),
we strongly recommend that the Attorney General, and the various County Prosecutors, in consultation with the Public Defender, adopt guidelines for use throughout the state by prosecutors in determining the selection of capital *498cases. With -the assistance of these various participants in the criminal justice system, the state can begin to develop guidelines that not only will promote uniform prosecutorial standards but also may assist the Court in its eventual proportionality review.
[Id. at 258, 548 A.2d 939.]
Whether this change in plea bargain practice would in fact diminish disproportionality is not known. That question implicates the related question of where disproportionality originates — in prosecutorial or jury decisions. By subjecting the prosecutor’s proposed plea bargain to the test of a dry-run penalty proceeding, the judge will add a new factor to the mix, but despite the presumed uniformity of judicial understanding of the death penalty, we have no way of knowing if proportionality is more likely to be achieved than through whatever process prosecutors have been using to reach decisions in this area.
The logical conclusion of the dissent’s position is that all capital murder plea bargaining must be subjected to this nonbinding penalty proceeding.11 Certainly there is nothing special about this case and no reason, therefore, why Kiett’s plea bargain should include it and others’ should not. The dissent, incorrectly noting that “the Court is disturbed because under this guilty plea procedure defendants deserving the death penalty will not have that punishment imposed on them,” post at 509, 582 A.2d at 643, apparently believes the procedure will enable more defendants to escape death. Clearly, however, lives are in fact jeopardized by this proceeding if it is extended, as it would have to be, to other defendants. Although the question is not before us, we note that plea bargains that are now fully effected, through which defendants avoid the risk of death without any nonbinding penalty proceeding, would become dependent for their effectiveness on the outcome of a dry-run penalty phase. The court might find that death is the appropriate penalty and a defendant who, under present prac*499tice, would have avoided that risk, will now have to go to trial both on guilt and, if convicted, on penalty. The net result, therefore, of wholesale use of this procedure would be fewer completed plea bargains and potentially more executions.
The dry-run penalty proceeding would be a subversion of the capital punishment law. It would take the most solemn judicial proceeding, wherein the decision of life or death is made by a court, and transform it into one that never decides death but decides only whether to accept a plea bargain or force the defendant to trial. It places the judge in a position that can be described only as impossible, for no man or woman can decide whether he or she would in fact impose death by conducting a dress rehearsal of the process with all of the attributes of the real thing except the real thing itself — the determination of life or death. Psychologically and emotionally, the issue simply cannot be duplicated. No person knows what he or she will do when another’s life is truly at stake, and the falsity of assuming that the issue can be duplicated in a non-real proceeding is patent. The proceeding degrades the importance and uniqueness of the death penalty. If generally applied, it jeopardizes the effectiveness of plea bargaining. It serves no purpose whatsoever.
VI.
The death penalty is unique, in result and in procedure. A juvenile who pleaded guilty to capital murder in order to avoid exposure to an inapplicable death penalty may withdraw his guilty plea. We reverse and remand for disposition in accordance with this opinion, subject to reinstatement of all charges against defendant except that of capital murder.
Were this the actual agreement, it would appear to conflict with N.J.S.A. 2C:11-3d, which states that the penalty phase of a capital case "shall not be waived by the prosecuting attorney." As noted, the agreement is more complex.
On this record, it appears that the penalty proceeding was not what the Legislature intended. Given the critical importance of that proceeding, we have dealt with it separately at the conclusion of this opinion, infra at 493-499, 582 A.2d at 635-638, in order to provide guidance in future cases.
Before a guilty plea is accepted by the trial court, the defendant must sign the CP0114 form (formerly form LR-27), which is designed to inform the defendant of certain consequences of the guilty plea. In response to the question on the form about the potential maximum penalty for the murder charge, “Life” was written, then it was crossed out and "Capital offense” was written. In response to the question about the sentence the prosecutor would recommend, "Death penalty waived” was written, then it was crossed out and "State recommends NJSP — Life served 35" was written.
Section c of N.J.S.A. 2C:11-3 states that “[a]ny person” could be subject to the death penalty. The defendant’s age can be considered as a mitigating factor (2C:11-3c(5)(c)), which arguably implies that a juvenile could in fact be put to death.
Our statements that Kiett’s plea was the result of "misinformation" or "misunderstanding” obviously refer to the fact that what he then reasonably believed to be the law was incorrect, but only because of subsequent developments, i.e., our later decision and the legislative amendment. Ordinarily the mistake that enables the defendant to void a plea concerns the facts or the law as they exist at the time of the plea. The unfairness of holding Kiett to the plea, however, is evident here whether the "mistake” related to existing law or a change in the law, even if that change was not retroactive, so long as its effect *492was to bar Kiett's execution — for instance under the principles of State v. Biegenwald, supra, 106 N.J. at 65-67, 524 A.2d 130, as extended in State v. Davis, 116 N.J. 341, 368-70, 561 A.2d 1082 (1989).
We note that Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), and Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970), are similar to the case before us. In those cases the defendants sought collateral relief from their convictions several years after having pleaded guilty to capital crimes. Each had entered a guilty plea in part to avoid the risk of being exposed to the death penalty, which, under the statutes, could be imposed only by a jury. This type of statutory scheme, which reserves the death penalty only for those defendants who do not plead guilty and are tried by a jury, had been held unconstitutional in United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), because it deters exercise of the sixth amendment right to demand a jury trial and discourages assertion of the fifth amendment right not to plead guilty. The death penalty therefore could not be imposed. In Brady and Parker the United States Supreme Court stated that its decision in Jackson did not, however, render all guilty pleas entered to avoid the death penalty inherently invalid, and refused *493to grant collateral relief. Parker, supra, 397 U.S. at 795, 90 S.Ct. at 1461, 25 L.Ed.2d at 791; Brady, supra, 397 U.S. at 755, 90 S.Ct. at 1472, 25 L.Ed.2d at 760; cf. Saffle v. Parks, 494 U.S. -, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990) (applying "general rule” of nonretroactivity of judicial decisions for cases on collateral review); Butler v. McKellar, 494 U.S. -, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990) (same). While different considerations may obtain on direct, rather than collateral, review, the results in these cases appear to be inconsistent with our holding today.
We assume the court (the penalty proceeding here and in Wright were to be held without a jury) would not actually sentence defendant to death but rather would indicate that but for the plea, death would have been the sentence.
The dissent, post at 502, 582 A.2d at 639, labels as “untrue” this statement that "the procedure guarantees that he or she will not be executed." It points *494out the obvious, namely, that if the plea bargain is rejected, defendant will stand trial and indeed may thereafter be executed. That possibility is mentioned explicitly at several points in the majority opinion and is implicit throughout. The dissent further believes that "[tjhe penalty trial in this case resulted in a valid sentence fully capable of being carried out. There was nothing illusory about that sentence." Post at 502, 582 A.2d at 640. There may have been nothing illusory about “that sentence" — since it confirmed the plea bargain — but there was something illusory about the proceeding itself since that which it purported to decide — life or death — it could not decide.
The dissent, post at 511, 582 A.2d at 644, incorrectly attributes to the Court "disapproval] of [the] prosecutor for his decision not to pursue actively a death sentence in this case." There is simply no basis in our opinion for that attribution. We assume the prosecutor had good reason not to seek the death penalty.
Critical to everything said in the dissent is its belief — unstated—that a reliable Iife/death determination can be made by a judge in a proceeding that does not decide that issue. But “[t]he determination of a life or death sentence in a capital case is an extraordinarily delicate and sensitive judgment.” State v. Hightower, 120 N.J. 378, 439, 577 A.2d 99, 129 (1990) (Handler, J„ concurring and dissenting). In addition to the fact-finding and weighing function is the transmutation of the community's conscience into a determination of life or death including "[t]he notion of 'mercy’ ... based on a perception that does not encompass logical relevance to the ... penalty decision.” Id. at 439, 577 A.2d at 129.
See dissent at 505, 507, and 508, 582 A.2d at 641, 642, and 643.