dissenting.
Defendant Steven Fortin has been convicted of a savage and vile crime. But even the most despised of criminal defendants is entitled to the protections afforded by our constitution. Today, in clear violation of the Ex Post Facto Clauses of the Federal and State Constitutions, the majority allows defendant to be punished under a newly enacted and judicially reconfigured sentencing law that did not exist at the time defendant murdered his victim. Although no one will shed a tear for this defendant who is now exposed to a sentence greater than the one permitted under the law existing when he committed the crime, sadly, the majority’s decision represents a tear in the fabric of our constitutional *634jurisprudence. In straining to reach its result, the majority overrules the trial court and a three-judge appellate panel, see State v. Fortin, 400 N.J.Super. 434, 948 A.2d 160 (App.Div.2008), and completely disregards a 2004 decision of this Court that involved the very defendant in this case, see State v. Fortin (Fortin II), 178 N.J. 540, 604-12, 843 A.2d 974 (2004). Because I believe that suspending a fundamental constitutional right, even to one as unsympathetic as this defendant, is too high a price to pay, I respectfully dissent.
I.
Both the United States and New Jersey Constitutions prohibit ex post facto legislation. U.S. Const, art. I, § 10, cl. 1. (“No State shall ... pass any Bill of Attainder, [or] ex post facto Law....”); N.J. Const, art. IV, § 7, H 3 (“The Legislature shall not pass any bill of attainder, [or] ex post facto law... .”)• An ex post facto law is a criminal or penal statute that applies retroactively “to events occurring before its enactment, and [that] ... disadvantage^]” the person against whom it is applied. Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17, 23 (1981); see also State v. Natale, 184 N.J. 458, 491, 878 A.2d 724 (2005). Those who drafted the Ex Post Facto Clauses “understood that it would be unjust to prosecute a person for a crime or to impose a harsher sentence based on a law that was not on the books at the time of the commission of the act covered by the subsequent legislation.” Fortin II, supra, 178 N.J. at 608, 843 A.2d 974. The majority’s decision in this case cannot be squared with those general principles or with the specific question that this Court answered in Fortin II.
Defendant was charged with the 1994 capital murder of Melissa Padilla. Based on the then-applicable statute, if convicted of capital murder, defendant faced the sentence of death, provided that, in the penalty-phase proceedings, the jury unanimously found beyond a reasonable doubt the existence of at least one aggravating factor and later unanimously concluded beyond a *635reasonable doubt that the aggravating factor or factors outweighed any mitigating factors. See L. 1993, c. 206, § 1. If the jury did not make the findings necessary for the imposition of the death penalty, then the trial judge had two available sentencing options—either to sentence defendant to a thirty-year term during which he would be ineligible for parole or to a term between thirty years and life imprisonment during which he would be ineligible for parole for thirty years. Ibid. At the time, there was no sentencing option in our criminal statutes that permitted a trial judge to impose a life sentence without parole ineligibility.
In August 2000, six months before the penalty-phase proceedings in defendant’s first trial, the Legislature enacted a law—to “ ‘take effect immediately’ ”—that allowed a sentence of life without parole in certain capital cases. Fortin II, supra, 178 N.J. at 604, 843 A.2d 974 (quoting L. 2000, c. 88). At his first trial, defendant was convicted by a jury of capital murder. Id. at 567, 843 A.2d 974. Because “[defendant undoubtedly believed that if the jury were instructed on the life-without-parole option, it might be less inclined to return a death verdict,” he requested that the trial court “instruct the jury in accordance with the newly-enacted provision.” Id. at 604, 843 A.2d 974. No one disputed that the newly enacted life-without-parole provision imposed a more severe sentence than the pre-existing law or that “the Ex Post Facto Clause barred the application of the life-without-parole provision.” Id. at 605, 843 A.2d 974. The primary issue was whether a defendant could voluntarily waive, like any other constitutional right, the ex post facto prohibition. Id. at 606, 843 A.2d 974. We concluded that defendant should have been permitted to waive the protections provided by the Ex Post Facto Clause and to be bound by the sentencing provisions of the new law. Id. at 608-09, 611-12, 843 A.2d 974.
Fortin II is instructive to the present case because, there, even when defendant was facing the penalty of death, we accepted that the application of a newly enacted life-without-parole sentencing provision constituted an ex post facto law. Id. at 607-08, 612, 843 *636A.2d 974. We took that position even though, presumably, defendant would have been advantaged by the new law that might well have diminished the likelihood that a jury would impose the death penalty. Id. at 604-05, 843 A. 2d 974.
In light of Fortin II, I do not see how the majority can rationalize its present holding. Here, the newly enacted law repeals the death penalty while exposing defendant to a sentence of life without parole—a sentencing alternative not on the books when he committed the crime. If the State and this Court did not accept in Fortin II that the life-without-parole provision at defendant’s first trial was a lesser sentence than death—therefore rendering the ex post facto argument a nullity—then why does that position resonate now? Certainly, the State would have had a better argument for characterizing the life-without-parole provision as non-ecc post facto in Fortin II, but then, unlike today, the State was intent on maximizing defendant’s potential for receiving a death sentence. The State is still intent on maximizing defendant’s sentencing exposure, but now it is inconvenient to call the life-without-parole provision an ex post facto law.
Both the trial court and Appellate Division recognize—as do I— that the statute in question, which permits the imposition of a more severe mandatory minimum sentence than the law allowed before defendant committed the crime, is a classic example of ex post facto legislation. The cases cited by the majority support that proposition. Ante at 623-24, 626-29, 969 A.2d 1135-36, 1137-39 (citing Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987) (finding statute that increased presumptive sentence range ex post facto as applied to defendant); Weaver, supra, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (finding statute restricting gain-time credit for good conduct in effect increased length of prison term and so was ex post facto as applied to defendant); Lindsey v. Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182 (1937) (finding that statute increasing discretionary maximum sentence to mandatory maximum is ex post facto as applied to defendant); Fortin II, supra, 178 N.J. 540, 843 A.2d 974).
*637Although the Legislature could have conditioned the repeal of the potential punishment of death on defendant’s waiver of the ex post facto application of a life-without-parole sentence, it did not do so. Our Federal and State Constitutions declare that the Legislature does not have the power to retroactively apply a criminal or penal law that disadvantages defendant or exposes him to a more onerous sentence. Natale, supra, 184 N.J. at 490-91, 878 A.2d 724. For ex post facto purposes, I do not believe that life without parole in a maximum-security prison can be equated with death, and therefore it is meaningless to suggest that life imprisonment under horrid conditions is a less severe or onerous punishment. In one case, a defendant awaiting execution on death row was willing to waive any further right of appeal because, apparently, he did not view life-long incarceration as less onerous than death. See State v. Martini, 144 N.J. 603, 605, 609, 677 A.2d 1106 (1996) , cert. denied, 519 U.S. 1063, 117 S.Ct. 699, 136 L.Ed.2d 621 (1997) .
II.
In my opinion, this case is not consistent with our constitutional jurisprudence. When the retroactive application of a life-without-parole provision seemingly benefited defendant because it might have spared him a death sentence, it was deemed ex post facto legislation by the State, but when the same type of retroactive life-without-parole provision disadvantages defendant, as in the present case, the State can see no ex post facto bar. This Court should not place a stamp of approval on such a flip-flop approach to constitutional interpretation.
Given the length of defendant’s expected sentence under the old law, when combined with the twenty-year sentence imposed by the authorities in Maine, defendant would likely serve the rest of his life in prison without the end-run around the Ex Post Facto Clause.1 I respectfully dissent because this Court should not be *638fashioning a constitutional doctrine inconsistent with well-established ex post facto jurisprudence merely to catch within its grasp this one defendant.
Justice LONG joins in this opinion.
For affirmance in part/reversal in part/remandment—Chief Justice RABNER and Justices LaVECCHIA, WALLACE, RIVERA-SOTO and HOENS—5.
Dissenting—Justices LONG and ALBIN—2.
The Appellate Division noted that “the parties agree[d that] it is unlikely [defendant] will face the possibility of parole eligibility until he is over eighty-two *638years old." Fortin, supra, 400 N.J.Super, at 454, 948 A.2d 160 (emphasis added). Defendant, who has been incarcerated since 1995, will turn forty-five years old this year.