concurring in part and dissenting in part.
The Court decides in this case that defendant may withdraw from a plea agreement because he misunderstood a factor that *500was material to his decision to enter the plea. Specifically, the Court holds that because defendant, a juvenile, erroneously believed he was eligible for execution, the State cannot bind him to his guilty plea to capital murder. I concur with that sound judgment.
The Court also concludes, in Points IV and V of its opinion, that New Jersey’s capital-punishment scheme cannot tolerate the penalty-phase proceeding employed by the trial court in the plea-bargain procedure below. That procedure allowed the defendant to withdraw his guilty plea and proceed to full trial in the event of a death sentence. The Court’s conclusion that this penalty-phase procedure is improper rests in part on its belief that this will not foreclose or discourage plea agreements in capital cases.
Despite the Court’s assurances to the contrary, its holding effectively denies capital-murder defendants the option of pleading guilty to capital murder in exchange for a life sentence. The Court’s decision virtually eliminates this plea bargain in capital-murder prosecutions. I find no basis for believing that the Legislature intended to foreclose such a plea bargain. Moreover, I have serious reservations that a capital-murder statutory scheme can constitutionally eliminate such an option. I believe that the administration of the death penalty in New Jersey can and should accommodate such plea agreements and, therefore, I dissent from Points IV and V of the majority opinion.
I.
The indictment in this case charged defendant with several counts, including knowing and purposeful murder by his own conduct. Defendant agreed to plead guilty to capital murder and one other count in exchange for the dismissal of the remaining counts and to submit to a sentencing trial. The prosecutor agreed to allow defendant to withdraw his guilt plea and proceed to a full trial in the event he received a death sentence. The prosecutor also agreed to recommend a sentence *501of imprisonment. Defendant then withdrew his earlier plea of not guilty and entered a guilty plea pursuant to the agreement. He then waived his right to a jury for the determination of his sentence and the court proceeded to consider evidence pertaining to aggravating and mitigating factors for the purpose of sentencing.
The court found evidence of three mitigating factors — defendant’s age at the time of the offense, N.J.S.A. 2C:11-3c(5)(c), the impairment of defendant’s ability to conform his conduct to the law as a result of mental disease or defect, N.J.S.A. 2C:11-3c(5)(d), and early childhood emotional and physical trauma, admissible under N.J.S.A. 2C:11-3c(5)(h). Although the court made no explicit findings regarding aggravating factors, it stated that the aggravating factors did not outweigh the mitigating factors beyond a reasonable doubt. The court sentenced defendant on the capital-murder count to life imprisonment, explaining that the sentence followed careful consideration of the sentencing evidence, accorded with the plea agreement, and served the interests of justice.
It is clear that if the court had concluded that aggravating factors proven beyond a reasonable doubt outweighed the mitigating factors and, therefore, that the sentence should be death, N.J.S.A. 2C:11-3c(3)(a), defendant could have withdrawn his guilty plea. Indeed, by its own terms, the agreement was void if the court decided that defendant should receive the death penalty and was binding only if the court decided defendant should be sentenced to a term of imprisonment.
The Court disapproves of the procedure employed by the trial court because, as far as it goes, a determination that defendant should receive a death sentence would not result in the imposition of that penalty. The Court characterizes the sentencing procedure as unreal. Ante at 494, 582 A.2d at 636. Such a “charade,” the Court reasons, undermines both the integrity and the gravity of capital punishment in this State. Ibid.
The premise on which the Court constructs this view is faulty. The Court asserts that “[t]he immediate result of this *502type of proceeding is that a defendant who pleads guilty to capital murder and, following a penalty proceeding, is sentenced to death will not be executed — indeed the procedure guarantees that he or she will not be executed.” Ante at 493, 582 A.2d at 635 (footnote omitted). That is untrue. What is true is that that death sentence will not be carried out, but there is no “guarantee” that the defendant will not be executed. According to the plea agreement a death sentence resulting from this penalty trial only nullifies the guilty plea, not the capital-murder charges. Defendant may still be executed if, through a subsequent trial, he is found guilty of capital murder and then is sentenced to death following the penalty-phase trial.
The Court nevertheless insists that the penalty-phase trial here served “only as a validation (or rejection) of a previously-agreed-to plea bargain.” Ante at 494, 582 A.2d at 636. That mischaracterizes both the function and the effect of this penalty-trial procedure. The penalty trial in this case resulted in a valid sentence — a life sentence — fully capable of being carried out. There was nothing illusory about that sentence. In addition, the sentence effectuated a material condition of the plea bargain. Neither the function nor effect of the penalty trial impugns the integrity of the sentencing determination.
The plea agreement, which presumably benefitted the State as well as defendant, makes clear that defendant would not plead guilty to capital murder absent a life sentence in return. Compare, e.g., State v. DiFrisco, 118 N.J. 253, 571 A.2d 914 (1990) (defendant pled guilty to capital murder without any promise with respect to sentence); State v. Davis, 116 N.J. 341, 561 A.2d 1082 (1989) (defendant pled guilty to capital murder on hope, though not guarantee, of favorable sentence in return). Whether defendant would receive a death sentence could not be determined without a penalty proceeding as required under N.J.S.A. 2C:11-3. The penalty trial determination thus resolves both the appropriate sentence and the enforceability of the plea agreement.
*503It simply does not follow, as the Court views the matter, that “[t]he court knew that it could not decide whether death was appropriate because, even if it purported to, death wold not be imposed,” ante at 494, 582 A.2d at 636. The penalty proceeding was not conducted only to validate the plea. It served also to determine the sentence. The trial court could and did determine whether death was appropriate. This judgment was independent of the decision whether to accept the plea. The Court acknowledges as much in its observation that “the trial court’s determination ... 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.” Ante at 495, 582 A.2d at 636. The plea agreement’s contingent dependence on that sentence determination does not impugn the determination.
The Court also observes that a penalty proceeding must follow a conviction of capital murder, N.J.S.A. 2C:11-3c, and that the prosecutor cannot waive it, ante at 494-495, 582 A.2d at 636. Here, the prosecutor did not waive the death penalty or penalty-phase trial and the trial court in fact conducted such a trial. The trial court took evidence, considered it, and weighed it to determine the sentence, all in compliance with statutory requirements.
The Court nevertheless concludes that the entire proceeding, including the sentencing trial and determination, was a sham. It finds the trial itself wanting. “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 summation____” Ibid. However, the alleged “unreality” of the proceeding is not a result of the plea agreement. Rather, if it exists, it is attributable only to the prosecutor’s perceived lack of effort. The plea agreement cannot, however, be blamed for the prosecutor’s allegedly inadequate perform*504anee. At any rate, there is nothing to suggest that in recommending to the trial court that the defendant be sentenced to imprisonment, the prosecutor’s exercise of discretion was not conscientious, honest, and actuated by an objective assessment of the appropriate sentence. Further, the evidence relating to sentence was relevant and sufficient, and, as with any plea bargain, the trial court was obliged neither to follow the prosecutor’s recommendation nor the terms of the plea agreement. Finally, the conformity of the recommended sentence to the plea bargain and defendant’s expectations serves neither to invalidate the plea arrangement nor to stigmatize the prosecutor. Its validity inheres solely in the evidence adduced to support it.
The Court assumes that its opinion is consistent with the intent of the Legislature and public policy. I feel the Court’s determination virtually disallows capital-murder guilty pleas that are conditioned in part on the imposition of a life sentence. In disallowing this kind of conditional guilty plea, I believe the Court misreads the capital-murder statute and misunderstands the evolution of public policy underlying our death penalty. Indeed, under an ancient death-penalty statute, defendants charged with capital murder were permitted to enter a non vult plea, to be followed by the court’s “examination of witnesses, to determine the degree of the crime and give sentence accordingly.” State v. Sullivan, 43 N.J. 209, 242, 203 A.2d 177 (1964) (describing requirements of Rev.Stat. 1874 § 68, p. 145). The degree-of-guilt proceeding hearing served the function of its current counterpart, the sentencing trial; it was necessary because if the court determined that the crime was first-degree murder, it could impose the death penalty. In 1893, however, the Legislature amended the murder statute so that a defendant pleading non vult could not be sentenced to death, only imprisoned for life or a term of 30 years (the penalties for first and second degree murder, respectively). See L. 1893, c. 36; State v. Ramseur, 106 N.J. 123, 437, 524 A.2d 188 (1987) (Handler, J., dissenting) (recounting history of former non vult *505plea practices). Thus, under the 1874 capital-murder law, the precursor of N.J.S.A. 2A:113-3 (repealed 1979), which in turn was replaced by our current Death Penalty Act, the Legislature recognized and indeed authorized that a defendant charged with capital murder could enter a guilty plea on the condition and with the expectation that only a life sentence would be imposed. Although this legislative understanding ultimately foundered on constitutional rocks, this occurred because the legislative scheme unfairly coerced innocent defendants to plead guilty. The invalidity of this practice inhered in the circumstance that the guilt determination was invalid, not that the sentence was invalid. See State v. Corbitt, 74 N.J. 379, 378 A.2d 235 (1977), aff'd, Corbitt v. New Jersey, 439 U.S. 212, 99 S.Ct. 492, 58 L.Ed.2d 466 (1978) (explaining State v. Funicello, 60 N.J. 60, 286 A.2d 55 (1972), cert. den. sub nom. New Jersey v. Presha, 408 U.S. 942, 92 S.Ct. 2849, 33 L.Ed.2d 766 (1972)); State v. Forcella, 52 N.J. 263, 245 A.2d 181 (1968), rev’d in part, 403 U.S. 948, 91 S.Ct. 2278, 29 L.Ed.2d 859 (1971); United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968). There is not the slightest indication that in the checkered history of the administration of the State’s capital murder death-penalty statutes, the Legislature has espoused the view now ascribed to it by the Court — that a capital defendant is not entitled to enter into a conditional plea bargain and seek to be sentenced to life imprisonment on the strength of a guilty plea to murder.
In sum, the procedure that was invoked in this case was neither a charade, unauthorized, inconsistent with legislative intent, nor contrary to public policy. The death-penalty statute expressly contemplates the use of guilty pleas in capital-murder prosecutions. N.J.S.A. 2C:11-3c(1). In this case, the prosecutor, defense counsel, and trial court followed the procedure detailed in the statute for determination of defendant’s sentence.
Further, it is important to acknowledge, as the Court does not, that the procedure followed below is no different from the *506plea procedures commonly followed in non-capital cases. We recently reviewed the role of plea bargain procedures in our criminal justice system in State v. Warren, 115 N.J. 433, 558 A.2d 1312 (1989). In that case, we observed that “[f]or some time, the courts have accepted plea bargaining as a legitimate and respectable adjunct of the administration of the criminal laws.” Id. at 442, 558 A.2d 1312. We observed further that a plea bargain, properly conducted, benefits defendants, the State, and the administration of criminal justice.
The system enables a defendant to reduce penal exposure and avoid the stress of trial while assuring the State that the wrongdoer will be convicted and punished, and that scarce and vital judicial and prosecutorial resources will be conserved through a speedy resolution of the controversy, (citation omitted)
[Id. at 443, 558 A.2d 1312.]
In this process, the State waives “important prosecutorial prerogatives,” but defendant waives certain constitutional rights, such as the right to jury trial, to counsel, and to present and confront witnesses. Ibid. There is nothing invidious or illusory in allowing a defendant to withdraw from a guilty plea if he or she does not obtain a sentence in accordance with the terms of the plea bargain. Indeed, because “defendant’s constitutional rights and interests weigh more heavily in the scale” of fundamental fairness under this process, “it is only the defendant who, under the Rules, is entitled to withdraw from a guilty plea if his or her sentencing expectations have been defeated by the imposition of a harsher sentence than that contemplated by the plea agreement.” Ibid. See R. 3:9—3(e). Thus, under plea procedures authorized by Rule 3:9-3, which are fully applicable to capital-murder prosecutions, see State v. Davis, supra, 116 N.J. 341, 561 A.2d 1082, the trial court is not obligated to accept the sentence proposed by the State and agreed to by defendant. If, however, the trial court chooses to ignore the State’s recommendation and sentence in excess of the plea, defendant may withdraw the plea and go to trial. The trial court below conformed to these standards.
Further, as noted in State v. Warren, supra, 115 N.J. at 441 n. 6, 448-49 n. 8, 558 A.2d 1312, this Court adopted in June, *5071989, an amendment to the Rule governing the role of the trial court in plea negotiations. The Rule now permits the trial court, prior to an agreement and at both parties’ request, to announce the maximum sentence it would impose if defendant entered a guilty plea. R. 3:9-3(c). The amended Rule thus expressly provides for the trial court’s direct participation in the plea procedure prior to the parties’ agreement to the terms of the plea. A premise of the new Rule is the confidence that we invest in courts fairly and objectively to determine a lawful and appropriate sentence even though the court has itself previously considered an appropriate sentence and that anticipated sentence itself constitutes a material condition of the plea bargain approved by the court. We recognize that it is salutary to encourage plea bargains, which can genuinely benefit the State and the defendant, that judges can constructively assist the parties by participating in the bargaining process, and, most importantly, that this will not impugn the integrity of a sentence that serves to effectuate such a plea bargain.
II.
The Court adds a disclaimer to its prohibition against the sentencing determination in the procedure followed in this case. It states: “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.” Ante at 496, 582 A.2d at 637. Intended or not, the implications of this holding for plea bargaining in capital cases are substantial and grave. To say, as the Court does, that “[t]he issue of plea bargaining, as such, in its various forms, is not in any way before us,” ibid., is to put on blinders, for the Court proscribes the use of the penalty-phase proceeding here in full view of the issue of plea bargaining in capital cases. Indeed, this case came before the Court on the question of the validity of defendant’s guilty plea. I see no escape from the conclusion that the Court’s holding effectively eliminates *508the possibility of guilty pleas to capital murder in exchange for a life sentence. The Court thus denies defendants — and the State — a useful and statutorily permitted option in capital-murder cases.
Criminal defendants may pursue their lawful defenses as they see fit, and capital-murder defendants should not be denied the same opportunity. For any of a multitude of reasons, defendants may decide that their best interest lies in foregoing a defense against the charges against them in an effort to minimize their penalty within the boundaries of the law. This Court has recognized that criminal defendants, particularly capital-murder defendants, may legitimately concede guilt in the hope that the concession will inure to their benefit in the eyes of the sentencer. See, e.g., State v. Davis, supra, 116 N.J. 341, 561 A.2d 1082. Although the defendant has no right to succeed on this calculated gamble, and although the sentencer is not even obliged to consider it in making a determination, there is no constitutional, statutory, or logical reason why a capital-murder defendant should be precluded from pursuing it. Yet, the Court’s holding regarding the penalty-phase proceeding here does just that — it precludes defendant from seeking a particular sentence within the confines of the law in exchange for a guilty plea. The Court now lays down a rule that capital defendants may not legitimately forgo guilt-phase defenses in exchange for a life sentence. The Court’s decision effectively discriminates against capital defendants who are willing to offer the State a guilty plea in exchange for securing a particular sentence. Further, and of greater import, the removal of that option unduly increases the chance that defendants charged with capital murder will receive the death penalty. It necessarily adds, I fear, to the risk of arbitrariness and caprice in the administration of the Death Penalty Act.
III.
Implicit in the Court’s refusal to permit this plea procedure is a stronger criticism of more pervasive abuses in our system of *509capital punishment. The Court acknowledges, albeit elliptically, the existence of such abuses by its disapproval of the prosecutor’s failure to offer evidence of aggravating factors at the penalty proceeding, ante at 494, 582 A.2d at 636, as well as by its overall view of the procedure as an unsuitable game that undermines the solemnity and integrity of capital sentencing in our State. At base, the Court is disturbed because under this guilty-plea procedure defendants deserving the death penalty will not have that punishment imposed on them, serving to heighten the perception of arbitrary and capricious enforcement of the death penalty. I join the Court in its concern over such abuses in the administration of capital punishment. It chooses the wrong target, however, in selecting the plea bargain procedure in this case as contributing culprit. As earlier noted, I do not agree that the prosecutor did not fulfill his duties in this procedure, and I do not agree that this penalty proceeding was a charade. To the extent, however, that the State disregarded or failed to produce available and relevant evidence concerning the appropriateness of the death penalty, undermining the soundness of the ultimate life sentence, this case suggests not a deficient sentencing proceeding, but, at most, the importance of effective judicial supervision and control over this aspect of the administration of criminal justice. It also provides further evidence of the need to develop a system of guided prosecutorial discretion in the administration of our death penalty. The need for uniform standards is particularly acute in terms of the plea bargaining process in the context of capital-murder prosecutions. See State v. Gerald, 113 N.J. 40, 155, 549 A.2d 792 (1988) (Handler, J., concurring in part and dissenting in part). A proper system of proportionality review would also address the concerns of the Court.
Since this Court first passed judgment on the constitutionality of N.J.S.A. 2C:11-3, I have maintained the position that “under constitutional and fundamental-fairness doctrines, our capital murder-death penalty statute [does] not provide sufficient guidance to overcome the genuine risk of arbitrary and *510capricious applications.” State v. Matulewicz, 115 N.J. 191, 206, 557 A.2d 1001 (Handler, J., concurring) (citing State v. Ramseur, 106 N.J. 123, 405-06, 524 A.2d 188 (1987) (Handler, J., dissenting)). A major component of that risk is the virtually unfettered discretion of prosecutors to select whom to prosecute for capital murder. DiFrisco, supra, 118 N.J. at 302-05, 571 A.2d 914 (Handler, J., concurring in part and dissenting in part); Matulewicz, supra, 115 N.J. at 207, 557 A.2d 1001 (Handler, J., concurring); State v. Williams, 113 N.J. 393, 458-61, 550 A.2d 1172 (1988) (Handler, J., concurring), Gerald, supra, 113 N.J. at 153, 549 A.2d 792 (Handler, J., concurring in part and dissenting in part); State v. Bey, 112 N.J. 123, 188-90, 548 A.2d 846 (Handler, J., dissenting); State v. Koedatich, 112 N.J. 225, 372-79, 548 A.2d 939 (1988) (Handler, J., dissenting); Ramseur, supra, 106 N.J. at 404-08, 524 A.2d 188 (Handler, J., dissenting). As I have previously stated,
[t]he absence of uniform standards governing prosecutorial discretion heightens the uncertainty and inconsistency in the administration of the capital murder statute. Derivatively, it loosens the guidelines, complicates immeasurably the discretionary responsibility of the [sentencer], and inevitably compounds the risk of arbitrary and capricious death sentences.
[Gerald, supra, 113 N.J. at 153, 549 A.2d 792 (Handler, J., concurring in part and dissenting in part).]
Absent uniform standards to guide prosecutors in the selection of capital defendants,
the arbitrary enforcement of the death penalty is inevitable because the very pool of people selected to ensure a capital trial at the initial stage of the prosecution is an arbitrarily-composed lot, reflecting determinations by individual prosecutors that may be conscientious but are nonetheless often highly subjective and speculative. Ramseur, supra, 106 N.J. at 405, 524 A.2d 188 (Handler, J., dissenting).
[Matulewicz, supra, 115 N.J. at 205-06, 557 A.2d 1001 (Handler, J., concurring).]
In this case the prosecutor decided to allow defendant to seek to avoid the imposition of the death penalty even though the guilty plea to capital murder suggests defendant’s eligibility for that punishment. It is that decision that disturbs the Court and, ironically, illustrates once again the need for guided prosecutorial discretion. In DiFrisco, supra, in which the State *511sought and procured the death penalty for the defendant while it did not even seek an indictment against the man who hired defendant to commit the murder, I found it “disturbing that the court [was] willing to condone the continued absence of uniform standards to judge prosecutorial decisions to prosecute a homicide as capital murder,” 118 N.J. at 305, 571 A.2d 914 (Handler, J., concurring in part and dissenting in part). I find equally disturbing here the Court’s continued condonation of unfettered prosecutorial discretion even as it disapproves of this prosecutor for his decision not to pursue actively a death sentence in this case. There may be situations in which that decision by a prosecutor is reasonable and serves the interests of justice. Whether this is such a situation is unclear. We do not know why the prosecutor preferred not to pursue a death sentence in this case. The need for guided discretion does not imply that plea agreements such as the one in this case should not be permitted. If the death penalty is not to be meted out arbitrarily and capriciously, however, such agreements must be entered into consistently under uniform standards applicable within each county and throughout the State.
The need for uniform standards of prosecutorial discretion in the capital context is closely related to the need for thorough, mandatory proportionality review. DiFrisco, supra, 118 N.J. at 302-05, 571 A.2d 914 (Handler, J., concurring in part and dissenting in part); Matulewicz, 115 N.J. at 206-09, 557 A.2d 1001 (Handler, J., concurring); Gerald, 113 N.J. at 153-67, 549 A.2d 792 (Handler, J., concurring in part and dissenting in part). Properly conducted, proportionality review would expose disparities in prosecutorial practices in potential death-penalty cases. As I have previously noted, there are indications that the prosecution of these cases in our State is arbitrary. See Matulewicz, 115 N.J. at 208-09, 557 A.2d 1001 (Handler, J., concurring); Gerald, 113 N.J. at 157-66, 549 A.2d 792 (Handler, J., concurring in part and dissenting in part). Certainly there is no evidence on which to conclude with confidence that the *512selection and prosecution of death-penalty cases in this State is consistent and uniform.
Thorough proportionality review would help to curtail random selection for the death penalty. Gregg v. Georgia, 428 U.S. 153, 206, 96 S.Ct. 2909, 2940, 49 L.Ed.2d 859, 893, reh’g denied, 429 U.S. 875, 97 S.Ct. 197, 198, 50 L.Ed.2d 158 (1976); Ramseur, supra, 106 N.J. at 406-08, 524 A.2d 188 (Handler, J., dissenting). It may be that this defendant is one who, in comparison with other capital-murder defendants across the state, should not be protected from a possible death sentence, but it may be that he should be. The Court’s concern that he should not be protected with the consent of the prosecutor, however, itself seems arbitrary and is presumptuous. We simply have no basis for concluding that the sentence defendant received for the crimes to which he pled guilty was not fitting. His guilty plea, alone or in combination with the State’s alleged aggravating factors, does not resolve that question.
I, accordingly, dissent from Points IV and V of the Court’s opinion, and concur in balance thereof.
For reversal and remandment — CLIFFORD, POLLOCK, O’HERN, GARIBALDI and STEIN, JJ.
Concurring in part; dissenting in part — Justice HANDLER — 1.