dissenting, in which BELL, C.J., and GREENE, J., join:
I would reverse the death sentence, affirm the guilty verdicts, and affirm the prison sentences in this case. I would remand for a new sentencing proceeding on the murder conviction.
My reasons for dissenting are essentially the same reasons as expressed in Borchardt v. State, 367 Md. 91, 786 A.2d 631 (2001) (Raker, J., dissenting, joined by Bell, C.J. and Eldridge, J.), Oken v. State, 378 Md. 179, 835 A.2d 1105 (2003) (Raker, J., dissenting, joined by Bell, C.J. and Eldridge, J.), and Miller v. State, 380 Md. 1, 843 A.2d 803 (2004) (Raker, J., concurring in part and dissenting in part, joined by Bell, C.J., and Eldridge, J.). 1 would hold that the portion of Maryland Code (1957, 1996 Repl.Vol.) Art. 27, § 413(h)1 that provides *484that the punishment shall be death if the sentencing authority 2 finds that the aggravating factors outweigh the mitigating factors by a preponderance of the evidence violates due process under the Fourteenth Amendment and the Sixth Amendment of the United States Constitution and Article 24 of the Maryland Declaration of Rights. I would sever the unconstitutional portion of the statute, require the beyond a reasonable doubt standard to be applied as a matter of law, vacate appellant’s sentence of death imposed pursuant to § 413 and remand for a new sentencing hearing.
The Maryland death penalty statute requires the State to give notice of an intent to seek the death penalty and to allege in that notice the existence of a statutory aggravating factor. § 412(b)(l)(i). With the exception of a contract murder and the killing of a law enforcement officer, the jury must find that the State has proven, beyond a reasonable doubt, that the defendant was a principal in the first degree. § 413(d)(7), (e)(1). The jury must then make three findings for a death sentence to be imposed. First, the jury must find that the State has proven, beyond a reasonable doubt, the existence of at least one aggravating factor. § 413(d), (f). Second, the jury must then consider and find, by a preponderance of the evidence, whether one or more mitigating circumstances exist. § 413(g). Third, the jury must also find that the aggravating factors outweigh the mitigating factors. § 413(h)(1). The statute states that “the sentence shall be death” if the jury finds that the aggravating factors outweigh the mitigating factors by a preponderance of the evidence. § 413(h)(2). This finding is a necessary predicate to the imposition of a sentence of death. In my view, the jury must find this last and ultimate finding beyond a reasonable doubt.
Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Apprendi v. New Jersey, 530 U.S. 466, 120 *485S.Ct. 2348, 147 L.Ed.2d 435 (2000), in the framework of the Maryland death penalty statute, mandate that the jury must find that aggravating factors outweigh mitigating factors beyond a reasonable doubt and not by a mere preponderance of the evidence. Apprendi held that “(o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490, 120 S.Ct. at 2362-63. Ring made clear that Apprendi applied to death penalty proceedings, reasoning that “[cjapital defendants, no less than non-capital defendants ... are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment.” Ring, 536 U.S. at 589, 122 S.Ct. at 2432.
Life imprisonment is the maximum sentence for first degree murder in Maryland. The penalty for first degree murder in Maryland is “death, imprisonment for life, or imprisonment for life without the possibility of parole.” § 412(b). Life imprisonment without the possibility of parole and death are enhanced penalties and may not be imposed unless the State satisfies the statutory requirements of § 413 justifying enhancement. Id. The statute requires that before a sentence of death may be imposed, the jury must make certain additional findings beyond the finding of guilt of the murder. Those findings increase the maximum penalty from life imprisonment to death. It is the jury finding that aggravating circumstances outweigh mitigating circumstances that increases the penalty for first degree murder in Maryland beyond the prescribed statutory maximum. See Johnson v. State, 362 Md. 525, 529, 766 A.2d 93, 95 (2001) (holding that “basic sentence” for first degree murder is life imprisonment and that life without parole and death are enhanced penalties); Gary v. State, 341 Md. 513, 520, 671 A.2d 495, 498 (1996) (holding that maximum penalty for first degree murder is life imprisonment). Because the default penalty for first degree murder in Maryland is life imprisonment, a jury’s determination that aggravating circumstances outweigh mitigating circumstances is an additional finding beyond that of guilt that *486serves to make a defendant eligible for the enhanced penalty of death. Ring and Apprendi require that such a finding be made beyond a reasonable doubt.
The Ring Court pointed out that every fact that the legislature requires before death may be imposed be found by a jury beyond a reasonable doubt. The Court reiterated that “the dispositive question ... ‘is one not of form, but of effect.’ ” Ring, 536 U.S. at 602, 122 S.Ct. at 2439, 153 L.Ed.2d at 572 (quoting Apprendi, 530 U.S. at 494, 120 S.Ct. at 2365, 147 L.Ed.2d at 457). The Court stated:
“If a State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact — no matter how the State labels it — must be found by a jury beyond a reasonable doubt.”
Id. Thus, under Ring, a substantive element of a capital offense is one that makes an increase in authorized punishment contingent on a finding of fact. Using this description, before the death penalty may be mandated in Maryland, the jury must find the existence of one or more aggravating circumstances and that the aggravators outweigh the mitigators. It is the latter finding, that aggravators outweigh mitigators, including the determination that death is appropriate, that ultimately authorizes jurors to consider and then to impose a sentence of death. That is, the increase in punishment from life imprisonment to the death penalty is contingent on the factual finding that the aggravators outweigh the mitigators. Under the death penalty statute, then, when the jury finds that the aggravating outweigh the mitigating circumstances, the defendant is exposed to an increased potential range of punishment beyond that for a conviction for first degree murder. See Harris v. United States, 536 U.S. 545, 567, 122 S.Ct. 2406, 2419, 153 L.Ed.2d 524 (2002) (plurality opinion) (“Read together, McMillan and Apprendi mean that those facts setting the outer limits of a sentence, and of the judicial power to impose it, are the elements of the crime for the purposes of the constitutional analysis”).
In an attempt to escape the conclusion that Ring requires every factual finding necessary for imposition of the death *487penalty to be found beyond a reasonable doubt, some courts have portrayed the balancing of aggravating and mitigating factors as a nonfactual determination. See, e.g., Commonwealth v. Roney, 581 Pa. 587, 866 A.2d 351, 360 (2005) (stating that Ring and Apprendi “narrowly focused on a jury’s fact-finding responsibility and did not involve any question concerning whether the ‘beyond a reasonable doubt’ standard applies to a jury’s weighing of the aggravating and mitigating circumstances after the defendant has been found eligible for the death penalty”). The balancing of the aggravating and mitigating factors, however, is a factual finding of the sort Ring and Apprendi require to be proved beyond a reasonable doubt.
Three aspects of the Maryland death penalty statute show that all three steps in the death penalty scheme are factual in nature. First, the General Assembly has provided for a burden of proof in the weighing process. Such standards of proof are reserved customarily for factual findings. See Olsen v. State, 67 P.3d 536, 589 (Wyo.2003) (stating that language in Wyoming death penalty statute “that aggravating circumstances be proved beyond a reasonable doubt and mitigating circumstances be proved by a preponderance of the evidence references burdens assigned to factual issues ” (emphasis added)). Second, this Court is mandated under § 414(e)(3) to review the jury finding of death for sufficiency of the evidence, which involves determining whether the evidence before the trier of fact was sufficient to support its factual findings. See Polk v. State, 378 Md. 1, 7-8, 835 A.2d 575, 579 (2003). Finally, the repeated use of the word “find” suggests the determination of an observable fact. See Webster’s Third New International Dictionary 852 (1961) (defining “finding” as “the result of a judicial or quasi-judicial examination or inquiry especially] into matters of fact as embodied in the verdict of a jury or decision of a court, referee, or administrative body”).
In addition to affronting the guarantee of federal due process, Maryland’s death penalty scheme violates Article 24 of *488the Maryland Declaration of Rights and the basic principles of fundamental fairness guaranteed by the State Constitution. Article 24 of the Maryland Declaration of Rights provides, in pertinent part, “That no man ought to be ... deprived of his life, liberty or property, but ... by the Law of the land.” Long before Apprendi, Maryland law recognized that any fact relating to the circumstance of an offense that exposed a defendant to enhanced punishment had to be determined by the trier of fact beyond a reasonable doubt. See, e.g., Fisher v. State, 367 Md. 218, 280-82, 786 A.2d 706, 748-44 (2001) (holding that imposition of enhanced penalty under child abuse statute where abuse causes the death must be alleged and proven beyond a reasonable doubt); Wadlow v. State, 335 Md. 122, 132, 642 A.2d 213, 217-18 (1994) (holding that when the State seeks enhanced penalties, provided by statute, for possession of cocaine with intent to distribute, the State must allege the necessary fact concerning the amount of controlled dangerous substance, and prove that fact beyond a reasonable doubt); Jones v. State, 324 Md. 32, 37, 595 A.2d 463, 465 (1991) (holding that for imposition of enhanced penalty provided for by Legislature, the State must prove all statutory conditions precedent beyond a reasonable doubt). Permitting a jury to sentence a person to death based on a preponderance of the evidence standard, i.e., that death is more appropriate than not, offends Maryland due process and principles of fundamental fairness. Cf. State v. Biegenwald, 106 N.J. 13, 524 A.2d 130, 151, 155-56 (1987); State v. Wood, 648 P.2d 71, 80-81 (Utah 1981).
Evans was ahead of the times. At his initial trial, Evans objected to a jury instruction on grounds that it improperly specified the burden of proof on the issue of the balancing of aggravating and mitigating factors. Evans v. State, 304 Md. 487, 537, 499 A.2d 1261, 1287 (1985). Well before Apprendi and Ring, in his opinion in Evans dissenting from the Court’s decision to affirm the sentence death, Judge John F. McAuliffe, concluded that the portion of the Maryland death penalty statute addressing the ultimate burden of persuasion and the weighing of the aggravating versus mitigating factors was *489unconstitutional. Id. at 539, 499 A.2d at 1288 (McAuliffe, J., concurring in part and dissenting in part). He was persuaded that “[d]rawing upon the basic principles of [In re ] Winship [, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)], Mullaney [v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975),] and Patterson [v. New York, 432 U.S. 197, 209, 97 S.Ct. 2319, 2326, 53 L.Ed.2d 281 (1977)], ... due process requires that the burden of persuasion on this ultimate issue must be upon the State, and the jury must be persuaded, beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating circumstances before the penalty of death can be imposed.” Id,, at 550-51, 499 A.2d at 1294 (emphasis added). Apprendi and Ring, in my view, have proven Judge McAuliffe to be correct.
Several other states have held that due process requires a jury to find beyond a reasonable doubt that the aggravating circumstances found to exist outweigh any mitigators found to exist beyond a reasonable doubt.3 In Woldt v. People, 64 P.3d 256 (Colo.2003), the Colorado Supreme Court, following Ring, concluded that the Colorado death penalty statute, like the Arizona statute, improperly assigned a factfinding role to a judge in violation of the Sixth Amendment.4 Noting that “[i]n a weighing state, the trier of fact must weigh the aggravating factors against all the mitigating evidence to determine if the *490defendant is eligible for death.... A standard of beyond a reasonable doubt applies to eligibility fact-finding.” Id. at 263. The court found the balancing stage to be a factfinding stage, required to be determined by a jury and beyond a reasonable doubt as required under Ring. Id. at 265.
The Nevada Supreme Court, in Johnson v. State, 118 Nev. 787, 59 P.3d 450 (2002), held that the weighing of aggravating against mitigating circumstances is in part a factual determination falling within the Ring rubric. The court stated:
“Moreover, Nevada statutory law requires two distinct findings to render a defendant death-eligible: ‘The jury or the panel of judges may impose a sentence of death only if it finds at least one aggravating circumstance and further finds that there are no mitigating circumstances sufficient to outweigh the aggravating circumstance or circumstances found.’ This second finding regarding mitigating circumstances is necessary to authorize the death penalty in Nevada, and we conclude that it is in part a factual determination, not merely discretionary weighing. So even though Ring expressly abstained from ruling on any ‘Sixth Amendment claim with respect to mitigating circumstances,’ we conclude that Ring requires a jury to make this finding as well: ‘If a State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact — no matter how the State labels it — must be found by a jury beyond a reasonable doubt.’ ”
Id. at 460 (citations and footnotes omitted).
Wyoming, a weighing state like Maryland, addressed the burden of persuasion on the process of weighing aggravating *491factors against mitigating factors under the state’s death penalty statute. See Olsen, 67 P.3d at 584-92. The Wyoming statute does not assign a specific burden in directing the jury to “consider aggravating and mitigating circumstances.” Id. at 587. Nonetheless, the court directed that the jury should be instructed that before the sentence may be death, each juror “must be persuaded that the aggravating circumstances are so substantial in comparison with the mitigating circumstances that it warrants death instead of a life sentence.” Id. at 588. The court went on to state that the burden of proof in a capital case necessary for a sentence of death remains on the state, and that if the jury is to be instructed to “weigh,” the defendant must produce evidence of mitigating circumstances. Id. at 589. The court concluded that, “just as with affirmative defenses, the ultimate burden of negating such defenses by proof beyond a reasonable doubt remains with the State.” Id. at 589 n. 12. See also Rizzo, 833 A.2d at 407 (noting that “[ijmposing the reasonable doubt standard on the weighing process, moreover, fulfills all of the functions of burdens of persuasion. By instructing the jury that its level of certitude in arriving at the outcome of the weighing process must meet the demanding standard of beyond a reasonable doubt, we minimize the risk of error, and we communicate both to the jury and to society at large the importance that we place on the awesome decision of whether a convicted capital felon shall live or die.”).
Missouri considered the question of whether the principles set out in Ring invalidated a death sentence when a judge made the factual determinations on which eligibility for the death sentence was predicated in State v. Whitfield, 107 S.W.3d 253 (Mo.2003). Step three of the Missouri statute requires the jury to determine whether the evidence in mitigation outweighs the evidence in aggravation. Id. at 259. Like the Maryland statute, “[i]f it does, the defendant is not eligible for death, and the jury must return a sentence of life imprisonment. While the State once more argues that this merely calls for the jury to offer its subjective and discretionary opinion rather than to make a factual finding, this Court again *492disagrees.” Id. The court held that steps one, two, and three (similar to the Maryland steps) “require factual findings that are prerequisites to the trier of fact’s determination that a defendant is death-eligible.” Id. at 261. The Missouri Supreme Court rejected the state’s argument that the finding merely required a subjective finding by the trier of fact, noting as follows:
“But, the State fails to note that this Court rejected this very argument in its opinion on Mr. Whitfield’s appeal of his initial conviction, in which it remanded for the new trial at issue here. In that decision, this Court held that step 2 requires a ‘finding of fact by the jury, not a discretionary decision.’ This holding is supported by the plain language of the statute. In order to fulfill its duty, the trier of fact is required to make a case-by-case factual determination based on all the aggravating facts the trier of fact finds are present in the case. This is necessarily a determination to be made on the facts of each case. Accordingly, under Ring, it is not permissible for a judge to make this factual determination. The jury is required to determine whether the statutory and other aggravators shown by the evidence warrants the imposition of death.”5
Id. at 259 (citations and emphasis omitted).
Finally, the Supreme Court of Arizona, in State v. Ring, 204 Ariz. 534, 65 P.3d 915 (2003), on remand from the Supreme Court, rejected the state’s argument that the Arizona death penalty statute requiring a judge to weigh aggravating against mitigating circumstances did not require a factual determination. The Arizona court, in concluding that Ring required that finding to be made by a jury, necessarily concluded that the determination was a factual one. Id. at 942-43.
*493Commentators recognize that balancing aggravating against mitigating circumstances is a factfinding process. For example:
“Although there are many variations among the capital sentencing statutes currently in existence, most of these statutes employ a common, tripartite factfinding process that involves the sentencer’s making factual findings on three different issues: the existence of aggravating circumstances; the existence of mitigating aspects of the defendant’s character, record, or offense; and whether the aggravating circumstances outweigh the mitigating circumstances. The portion of this tripartite structure that has been the central focus of Sixth Amendment scrutiny up to this point has been the first prong: factfinding on the existence of aggravating circumstances. This was the factfinding determination that the now-overruled Walton decision and its jurisprudentially linked predecessor, Hildwin, deemed suitable for a judge. And it is the factfinding determination that Ring, in overruling Walton, reserved for the jury. In the wake of Ring, the inevitable next questions for resolution are whether the Ring rationale requires a jury also to make the second and third factfinding determinations — the determination of the existence of mitigating circumstances and the assessment whether aggravating circumstances outweigh mitigating circumstances.”
B. Stevenson, The Ultimate Authority on the Ultimate Punishment: The Requisite Role of the Jwy in Capital Sentencing, 54 Ala. L.Rev. 1091, 1121 (2003) (emphasis added) (footnote omitted). See also id. at 1129 n. 214 (recognizing that balancing of aggravating against mitigating factors is a factual finding). Noting the tripartite nature of the Arizona death penalty statute, Professor Stevenson argues that the Ring reasoning as to the first determination, the finding of an aggravating factor, applies equally to the other two determinations. He reasons as follows:
“All of the features of the aggravation finding that the Ring Court regarded as significant are equally true of the two other components of the tripartite sentencing determination. *494Arizona law conditions a death sentence upon not just a finding of an aggravating circumstance, but also a determination — after identification of any mitigating circumstances in the case — of whether the ‘mitigating circumstances [are] sufficiently substantial to call for leniency.’ Thus, as the Ring Court itself remarked, a defendant cannot ‘be sentenced to death [under Arizona law] ... unless [these] further findings [are] made.’ Indeed, the statutory feature that the Ring Court deemed essential to rejecting the state’s characterization of Arizona law as treating a conviction of first-degree murder as sufficient authorization for a death sentence — that the first-degree murder statute itself cross-i’eferenced the aggravation finding as a necessary additional predicate for a sentence of death — applies equally to the other two findings. The statutory cross-reference is not merely to the provision governing the finding of aggravating circumstances: It references the entire tripartite structure for determining the existence of aggravating and mitigating circumstances and gauging their relative weight.”
Id. at 1126-27 (footnotes omitted) (alterations in original). Inasmuch as the Maryland statute requires that the aggravators outweigh the mitigators as an essential predicate for imposition of the death penalty, the central reasoning of Ring should apply to it just as to the Arizona statute.
Reflected throughout the Supreme Court jurisprudence underlying the Eighth Amendment is the principle that death is different. See, e.g., Ring, 536 U.S. at 605-06, 122 S.Ct. at 2441-42; Ford v. Wainwrigkt, 477 U.S. 399, 411, 106 S.Ct. 2595, 2602, 91 L.Ed.2d 335 (1986) (plurality opinion) (noting that “[t]his especial concern [for reliability in capital proceedings] is a natural consequence of the knowledge that execution is the most irremediable and unfathomable of penalties; that death is different.”); Gardner v. Florida, 430 U.S. 349, 357, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (1977) (plurality opinion); Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976) (plurality opinion); Furman v. Georgia, 408 U.S. 238, 289, 92 S.Ct. 2726, 2752, 33 L.Ed.2d 346 (1972) (Brennan, J., concurring). In a death proceeding, the *495Supreme Court has recognized that “the Eighth Amendment requires a greater degree of accuracy and factfinding than would be true in a noncapital case.” Gilmore v. Taylor, 508 U.S. 333, 342, 113 S.Ct. 2112, 2117, 124 L.Ed.2d 306 (1993). Justice Kennedy has observed that “[a]ll of our Eighth Amendment jurisprudence concerning capital sentencing is directed toward the enhancement of reliability and accuracy in some sense.” Sawyer v. Smith, 497 U.S. 227, 243, 110 S.Ct. 2822, 2832, 111 L.Ed.2d 193 (1990).
We pay mere lip service to the principle that death is different and yet continue to impose a lower level of certainty in the death penalty context than we do for other lesser important interests in Maryland. Maryland has required a higher burden of persuasion than preponderance of the evidence in situations involving penalties far less severe than the ultimate penalty at stake under § 413. See, e.g., 1986 Mercedes v. State, 334 Md. 264, 282, 638 A.2d 1164, 1173 (1994) (requiring the state to prove the requisite elements under drug forfeiture laws by clear and convincing evidence); Mack v. Mack, 329 Md. 188, 207, 618 A.2d 744, 753 (1993) (requiring clear and convincing evidence for the withdrawal of life-sustaining medical treatment); Owens-Illinois v. Zenobia, 325 Md. 420, 469, 601 A.2d 633, 657 (1992) (requiring the clear and convincing evidence standard for proof of punitive damages); Wash. Co. Dep’t Soc. Serv. v. Clark, 296 Md. 190, 197, 461 A.2d 1077, 1081 (1983) (requiring proof of parental unfitness by clear and convincing evidence in order to terminate parental rights); Coard v. State, 288 Md. 523, 525, 419 A.2d 383, 384 (1980) (per curiam) (requiring proof by clear and convincing evidence in civil commitment proceedings); Berkey v. Delia, 287 Md. 302, 317-20, 413 A.2d 170, 177-78 (1980) (requiring the heightened evidentiary standard of clear and convincing evidence for libel and slander of a public official); cf. Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 1809, 60 L.Ed.2d 323 (1979) (stating that “in cases involving individual rights, whether criminal or civil, ‘[t]he standard of proof [at a minimum] reflects the value society places on individual liberty.’ ” quoting Tippett v. Maryland,, 436 F.2d 1153, 1166 (4th Cir. *4961971) (Sobeloff, J., concurring in part and dissenting in part), cert. dismissed sub nom. Murel v. Baltimore City Criminal Court, 407 U.S. 355, 92 S.Ct. 2091, 32 L.Ed.2d 791 (1972)).
Chief Judge BELL and Judge GREENE have authorized me to state that they join in this dissenting opinion.
. This case was tried prior to the 2002 Code recodification. For that reason, unless otherwise indicated, all statutory references are to Maryland Code (1957, 1996 Repl.Vol.), Art. 27.
. Future references to the sentencing authority will be to a jury, with the recognition that the defendant may waive the right to have the sentence determined by a jury and may elect to have the court sentence. See § 413(b)(3), (k)(3).
. Some state statutes require a beyond a reasonable doubt standard, others require a preponderance of the evidence standard, and others are silent. Compare Ark.Code Ann. § 5-4-603(a)(2) (1987); Conn. Gen.Stat. § 53a-46a (2005) (beyond a reasonable doubt standard not directly in statute, but interpreted as such in Connecticut v. Rizzo, 266 Conn. 171, 833 A.2d 363, 410-11 (2003)); N.J. Stat. Ann. § 2C:11-3(c)(3) (West 2005); N.Y.Crim. Proc. Law § 400.27(1 1)(a) (McKinney 2005); Ohio Rev.Code Ann. § 2929.03(D)(1) (West 2005); Tenn.Code Ann. § 39-13-204(g)(1)(B) (2003); Utah Code Ann. § 76-3-207(5)(b) (2003) (beyond a reasonable doubt), with Del.Code Ann. tit. 11 § 4209(d)(1) (2001); Md.Code (1974, 2002 Repl.Vol., 2005 Cum.Supp.), § 2-303(i)(1) of the Criminal Law Article (preponderance of the evidence); Mo.Rev.Stat. § 565.030 (2004) (silent).
. The Colorado statute has four steps, with the third step the weighing one. The court noted that "through the first three steps, Colorado's process resembles a weighing state. '[T]he eligibility phase continues *490through step three, when the jury weighs mitigating evidence against statutory aggravators.’ " Id. at 264 (citations omitted) (alteration in original). The fourth step, determining whether under all the circumstances, death should be imposed, is the selection stage. Id. The court held that ”[b]ecause the Sixth Amendment requires that a jury find any facts necessary to make a defendant eligible for the death penalty, and the first three steps of [the statute] required judges to make findings of fact that render a defendant eligible for death, the statute under which Woldt and Martinez received their death sentences is unconstitutional on its face.” Id. at 266-67.
. In Missouri, step four of the statute requires the jury to assess and declare the punishment at life imprisonment if it decides under all of the circumstances not to assess and declare the punishment at death. Id. at 261. Step four in Missouri gives the jury the discretion to give a life sentence. Id. Under the Maryland statute, the Missouri steps three and four are collapsed into one step — step three. Thus, step three in Maryland is a factual finding.