with whom BELL, Chief Judge and ELDRIDGE, Judge, join, dissenting:
I respectfully dissent. I would hold that the portion of Maryland Code (1957, 1996 Repl.Vol., 2001 Cum.Supp.), Article 27, § 413(h)1 that provides that punishment shall be death if the sentencing authority2 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 adhere to my views expressed in the dissent in Borchardt v. State, 367 Md. 91, 786 A.2d 631 (2001) (Raker, J., dissenting, joined by Bell, C.J. and Eldridge, J.), stating that the sentencing authority must find that aggravating factors outweigh mitigating factors beyond a reasonable doubt and not by a preponderance of the evidence. I would sever the unconstitutional portion of the statute, require the reasonable doubt standard to be applied as a matter of law, and vacate appellant’s sentence of death imposed pursuant to § 413.
Summary of Discussion
Under the Maryland death penalty scheme, the State must give notice of an intent to seek the death penalty and allege in that notice, the existence of a statutory aggravating factor. With the exception of a contract murder and the killing of a law enforcement officer, the jury must find that the State has *271proven, beyond a reasonable doubt, that the defendant was a principal in the first degree. The jury must find that the State has proven, beyond a reasonable doubt, the existence of at least one aggravating factor. The jury must also find that the aggravating factors outweigh the mitigating factors. 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. 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 S.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 “[ojther 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, 147 L.Ed.2d at 455. 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, 153 L.Ed.2d at 564.
The maximum sentence for first degree murder in Maryland is life imprisonment. Life imprisonment without the possibility of parole and death are enhanced penalties and may not be imposed unless the State meets the statutory requirements justifying enhancement. The Maryland statutory scheme 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 to death.
*272The plain language of the Maryland death penalty statute requires certain findings during the weighing stage as an absolute precondition for the imposition of the death penalty, a determination on which the Maryland General Assembly conditioned an increase in the penalty from life imprisonment to death. These findings are, at a minimum, partially factual and are quintessential^ Apprendi type findings, requiring proof beyond a reasonable doubt.
I. Maryland Death Penalty Statute
The penalty for first degree murder in Maryland is “death, imprisonment for life, or imprisonment for life without the possibility of parole.” § 412(b). The sentence shall be imprisonment for life unless a sentence of death is imposed in accordance with § 413. Id. The statute mandates that the jury first consider and find, beyond a reasonable doubt, whether any alleged aggravating circumstances exist. § 413(d) & (f). The jury must then consider and find, by a preponderance of the evidence, whether one or more mitigating circumstances exist. § 413(g). Finally, the jury must determine, by a preponderance of the evidence, whether the aggravating circumstances outweigh the mitigating circumstances.3 § 413(h)(1). If the jury finds that the aggravating circumstances outweigh the mitigating circumstances, “the sentence shall be death.” § 413(h)(2). The trial court is then instructed to impose a sentence as decided by the jury. § 414(k)(l). After sentence is imposed, Maryland Rule 4-343(k) requires the trial judge to promptly prepare, send to the parties, and file with the Clerk of the Court of Appeals a report in the form prescribed by the Rule, including a recommendation of the trial court as to whether imposition of a death sentence is justified. The statute requires the Court of Appeals to review the imposition of the death penalty and, inter alia, to determine “[wjhether the evidence supports the jury’s or court’s finding that the aggravating circumstances outweigh the mitigating circumstances.” § 414(e)(3) (emphasis added).
*273II. Borchardt v. State
In Borchardt v. State, 367 Md. 91, 786 A.2d 631 (2001), a divided Court held that the Maryland death penalty scheme does not run afoul of Apprendi and that the statute passes constitutional muster. The Court rejected appellant’s arguments in that case on three grounds: (1) that Apprendi did not apply to capital sentencing schemes; (2) that the maximum penalty for first degree murder in Maryland was death and that Borchardt did not receive a sentence in excess of the statutory maximum; and (3) that Apprendi is inapplicable to the weighing of aggravators against mitigators because the process is a purely judgmental one and the weighing process is a sentencing factor. In rejecting appellant’s arguments in Borchardt, the majority reasoned as follows:
“Perhaps the easiest answer lies in the unequivocal statement by the Apprendi majority that its decision did not render invalid State capital sentencing schemes, such as approved in Walton, that allowed the judge, not sitting as the trier of fact, to find and weigh specific aggravating factors. If it is permissible under Apprendi for the law to remove that fact-finding and fact-weighing process entirely from the jury and leave it to the judge as a legitimate sentencing factor, without specifying a reasonable doubt standard, it can hardly be impermissible for a jury that has found the prerequisite aggravating factors beyond a reasonable doubt to apply a preponderance standard in weighing them against any mitigating circumstances. The Walton scheme, in other words, is in far greater direct conflict with the underpinning of Apprendi than the Maryland approach. Thus, if the aggravating circumstances do not constitute elements of the offense or serve to increase the maximum punishment for the offense in the Walton context, they cannot reasonably be found to have that status under the Maryland law. If Apprendi renders the Maryland law unconstitutional, then, perforce, it likely renders most of the capital punishment laws in the country unconstitutional. We cannot conceive that the Supreme Court, especially in light of its contrary statement, intended such a dramatic *274result to flow from a case that did not even involve a capital punishment law.”
Id. at 121-22, 786 A.2d at 649 (footnote omitted).
That reasoning was wrong. The majority acknowledges that it was wrong. See maj. op. at 253, 255. As a result, the foundation of the majority’s reasoning set out in Borchardt no longer exists. In Ring v. Arizona, 536 U.S. at 589, 122 S.Ct. at 2432, 153 L.Ed.2d at 564, the Supreme Court expressly overruled Walton because the reasoning in Apprendi is “irreconcilable” with the holding in Walton.
The majority continues to rely on the third Borchardt prong — the only one the majority finds to survive Ring. See maj. op. at 257. The majority maintains that “the weighing process is purely a judgmental one, of balancing the miti-gator[s] against the aggravator[s] to determine whether death is the appropriate punishment in the particular case. This is a process that not only traditionally, but quintessentially is a pure and Constitutionally legitimate sentencing factor, one that does not require a determination to be made beyond a reasonable doubt.” Maj. op. at 208 (quoting Borchardt, 367 Md. at 126-27, 786 A.2d at 652).
III. Ring v. Arizona and Apprendi v. New Jersey
Ring and Apprendi entitle a capital defendant to a jury determination of the facts on which eligibility for a death sentence is predicated. In Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63, 147 L.Ed.2d at 455 (2000), the Supreme Court held that regardless of the labeling by a State, “other 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.” The Court made clear that “the relevant inquiry is one not of form, but of effect — does the required finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?” Id. at 494, 120 S.Ct. at 2365, 147 L.Ed.2d at 457.
*275In Ring, the Supreme Court held the Arizona death penalty statute unconstitutional because under that statute, a judge, rather than a jury, was required to determine the existence of an aggravating factor, thereby making the factual findings prerequisite to the imposition of the death penalty following a jury determination of a defendant’s guilt of first degree murder. Ring, 536 U.S. at 609, 122 S.Ct. at 2443, 153 L.Ed.2d at 576-77. The Court held that the Arizona statute violated the defendant’s Sixth Amendment right to trial by jury. Id. The Court expressly overruled Walton in favor of Apprendi’s Sixth Amendment approach, 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.” Id. at 589, 122 S.Ct. at 2432, 153 L.Ed.2d at 564. The Court concluded that the Arizona statute was invalid because the “enumerated aggravating factors operate as ‘the functional equivalent of an element of a greater offense,”’ and therefore “the Sixth Amendment requires that they be found by a jury.” Id. at 609, 122 S.Ct. at 2443, 153 L.Ed.2d at 577 (quoting Apprendi, 530 U.S. at 494 n. 19, 120 S.Ct. at 2365 n. 19, 147 L.Ed.2d at 457 n. 19).
Thus, contrary to the majority’s assertion in Borchardt that Apprendi has no application to death penalty sentencing proceedings, the Supreme Court applied the Apprendi holding that “the Sixth Amendment does not permit a defendant to be ‘expose[d] ... to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.’ ” Ring, 536 U.S. at 588-89, 122 S.Ct. at 2432, 153 L.Ed.2d at 564 (quoting Apprendi, 530 U.S. at 483, 120 S.Ct. at 2359, 147 L.Ed.2d at 450).
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:
*276“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.
IV. Application of Ring/Apprendi
The weighing portion of Maryland’s death penalty law violates due process under the Fourteenth Amendment and Sixth Amendment of the United States Constitution and Article 24 of the Maryland Declaration of Rights because the balancing serves as an absolute prerequisite finding to a death sentence and, thus, must be subject to the reasonable doubt standard.4 Accordingly, under Ring and Apprendi, the trier of fact must find that the aggravating outweigh the mitigating factors beyond a reasonable doubt.
A defendant does not become death-eligible under the Maryland statutory scheme until the jury finds that the aggrava-tors outweigh the mitigators. Under the Maryland statute, the weighing process includes the jury determination that the ultimate penalty of death is the appropriate sentence. Until the jury makes this finding, the defendant is not eligible for a sentence of death.
The maximum penalty for first degree murder in Maryland is life imprisonment; death or life imprisonment without the *277possibility of parole are enhanced sentences for first degree murder, and are dependent upon special circumstances. See maj. op. at 253-54; Borchardt, 367 Md. at 154-55, 786 A.2d at 668-69 (Raker, J., dissenting); Johnson v. State, 362 Md. 525, 529, 766 A.2d 93, 95 (2001). 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, 362 Md. at 529, 766 A.2d at 95 (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 circumstanee[s] outweigh mitigating circumstance[s] is an additional finding beyond that of guilt that serves 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.
It is the unique structure of the Maryland death penalty statute that distinguishes the statute from many others, if not all, in the country. Under Maryland law, jurors are factfin-ders throughout the entire sentencing procedure. Before the sentencing commences, a defendant must be found guilty of first degree murder and at least one aggravating circumstance must be alleged. The State must then present evidence supporting the aggravating cireumstance[s]. The jury then engages in a three-step process and proceeds to each succeeding phase of that process only after it makes findings with respect to the preceding phase. First, the jurors must find at least one aggravating circumstance unanimously beyond a reasonable doubt. Second, the jury determines the existence vet non of any mitigating circumstances, based on a preponderance of the evidence standard. Third and finally, the jury weighs the aggravating against the mitigating circumstances. Thus, before a defendant is eligible for the death penalty in Maryland, the jury must determine that the aggravating *278circumstances outweigh the mitigating circumstances. Included within that determination is the conclusion that death is the appropriate sentence.
Section 413 permits the jury to find as a mitigating circumstance, in addition to those enumerated in § 413(g)(l)-(7), “[a]ny other facts which the jury or the court specifically sets forth in writing that it finds as mitigating circumstances in the case.” § 413(g)(8). This provision, known as the “catchall” provision, permits a jury to extend mercy, if it is so inclined. See Grandison v. State, 305 Md. 685, 756, 506 A.2d 580, 615 (1986). We stated in Foster v. State, 304 Md. 439, 474-75, 499 A.2d 1236, 1254 (1985), that the jury, “unconvinced that death is appropriate, may list as a mitigating circumstance whatever factor or factors may have led to this conclusion, irrespective of what the defendant produced or argued. If the sentencing authority perceives anything relating to the defendant or the crime which causes it to believe that death may not be appropriate, it may treat such factor as a mitigating circumstance and decide that it outweighs the aggravating circumstances.”
Ring describes a substantive element of a capital offense as one which makes an increase in authorized punishment contingent on a finding of fact. Using this description, the substantive elements of capital murder in Maryland are the jury’s finding of the aggravating circumstance[s] necessary to support a capital sentence and the fact that the aggravators outweigh the mitigators. It is the latter finding, that aggrava-tors 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 aggrava-tors outweigh the mitigators. Under the 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, 544 (2002) (plurali*279ty 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.”) (emphasis added). It is evident by reading § 413 and § 414 that the Legislature intended to base a death sentence on a factual finding, first by mandating that the jury find that the aggrava-tors outweigh the mitigators by a specific burden of proof, i.e., by a preponderance of the evidence, and second, by requiring that this Court review that finding for sufficiency of the evidence.
Step three, the balancing of the aggravating and mitigating factors, in my view, is a factual determination. Unless, and until, the jury finds that the aggravating factor[s] outweigh the mitigating faetor[s], the defendant is not eligible for the death penalty. Because it is a factual determination which raises the maximum penalty from life to death, Ring requires that the standard be beyond a reasonable doubt.
Three aspects of the statute show that all three steps in the Maryland death penalty scheme are factual in nature. First, the Legislature has provided for a burden of proof in the weighing process. Second, this Court is mandated to review the jury finding of death for sufficiency of the evidence. 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”).
A standard of proof has commonly been applied to factual findings. See Olsen v. State, 67 P.3d 536, 589 (Wyo.2003) (stating that the language of the 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). The prescription by the General Assembly of a specific burden of proof, ordinarily reserved for factual find*280ings, is the clearest indication that the Legislature envisioned this determination as a factual finding.
The burden of proof consists of two components: the burden of going forward and the burden of persuasion. McCormick on Evidence describes the term as follows: “One burden is that of producing evidence, satisfactory to the judge, of a particular fact in issue. The second is the burden of persuading the trier of fact that the alleged fact is true.” McCormick on Evidence § 336, at 409 (Strong 5th ed.1999) (footnote omitted). In the context of the weighing of aggravating and mitigating circumstances, we refer to the burden of persuasion. In the ordinary civil case, “proof by a preponderance, seems to be proof which leads the jury to find that’ the existence of the contested fact is more probable than its nonexistence.” Id. at 422. The clear-and-eonvincing burden of persuasion has been described to mean that a fact is “proved” only if the evidence leads the factfinder to the conclusion that the truth of the contention is highly probable. Id. at 425. As expressed by Justice Harlan, in In re Winship, 397 U.S. 358, 370, 90 S.Ct. 1068, 1075, 25 L.Ed.2d 368, 378 (1970) (concurring opinion), the expression of a “choice of the standard for a particular variety of adjudication does ... reflect a very fundamental assessment of the comparative social costs of erroneous factual determinations.” In discussing the function of a standard of proof, he further noted:
“[A] standard of proof represents an attempt to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication. Although the phrases ‘preponderance of the evidence’ and ‘proof beyond a reasonable doubt’ are quantitatively imprecise, they do communicate to the finder of fact different notions concerning the degree of confidence he is expected to have in the correctness of his factual conclusions.”
Id. at 370, 90 S.Ct. at 1076, 25 L.Ed.2d at 379 (emphasis added).
*281The Maryland Legislature, in providing for a specific burden of proof, recognized that the weighing process was a factual finding, at least in part, that could be satisfied by a preponderance of the evidence standard. This statute was enacted before the Supreme Court spoke in Apprendi and in Ring. If the majority’s view is correct, and the weighing determination is not susceptible of a burden of proof and is merely a judgment call, why would the Legislature have provided for any particular burden of proof? As to the two burdens, Justice Stewart of the Utah Supreme Court observed:
“The ‘beyond a reasonable doubt’ standard may, of course, be considered similar in its function to proof by a preponderance of evidence, i.e., both standards are used to resolve factual disputes.”
State v. Brown, 607 P.2d 261, 275 (Utah 1980) (emphasis added). The majority characterizes 'Oken’s contention regarding “factfinding” as merely semantics. See maj. op. at 260. The majority is resorting to form over substance and relying on labels to avoid the application of Ring and Apprendi.
The Maryland Legislature has provided for automatic review by the Court of Appeals of the jury’s sentence of death for “sufficiency of the evidence.” § 414. The Legislature could not have conceived of the death penalty sentencing determination as a “purely judgmental choice” if it provided for appellate review of the sufficiency of the evidence, a traditional review of findings of fact. The Legislature established the sentence of death as an enhanced penalty, to be imposed upon the establishment of additional facts (with the ultimate factual finding that the aggravating factors outweigh the mitigating factors) by a particular standard of proof that is renewable, as a matter of law, at the appellate level.
Commentators 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 *282statutes 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, Hild-win, deemed suitable for a judge. And it is the factfind-ing 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 Jury in Capital Sentencing, 54 Ala. L.Rev. 1091, 1121 (2003) (emphasis added) (footnote omitted) (hereinafter Stevenson). See also id. at 1129 n. 214 (recognizing that balancing of aggravating against mitigating factors is a factual finding: “In Alabama, as in Arizona and Florida, defendants are not eligible for the death penalty unless a factfinding is made that aggravating circumstances outweigh mitigating circumstances. Ala.Code § 13A-5-46(e)(2) (2003) (providing that if jury determines that aggravating circumstances do not outweigh mitigating circumstances, jury ‘shall’ return advisory verdict recommending life imprisonment without parole)”).
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 *283factor, 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. Arizona 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 1 “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-referenced 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). 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.
Other states have concluded that Ring/Apprendi applies to the balancing process in death cases and, as a result, have held that due process requires that the aggravating circumstances outweigh the mitigating circumstances beyond a reasonable doubt. Recently, the Colorado Supreme Court recognized that a balancing of aggravating factors and mitigating factors can go to a defendant’s eligibility for the death penalty. In Woldt v. People, 64 P.3d 256 (Colo.2003), following Ring, the Colorado Supreme Court concluded that the Colorado death penalty statute, like the Arizona statute, improperly *284assigned a factfinding role to a judge in violation of the Sixth Amendment. 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 defendant is eligible for death ... A standard of beyond a reasonable doubt applies to eligibility fact-finding.” Id. at 263. The Colorado statute has four steps, with the third step the weighing one. The court noted that “[t]hrough the first three steps, Colorado’s process resembles a weighing state. ‘The eligibility phase continues through step three, when the jury weighs mitigating evidence against statutory aggravators.’ ” Id. at 264 (citation omitted). The fourth step, determining whether under all the circumstances, death should be imposed, is the selection stage. The court held that “[bjecause 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. 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.
In Maryland, the weighing stage includes elements of eligibility and selection. In that single stage, in concluding that aggravators outweigh mitigators, the jury is both weighing the factors and also determining whether death is appropriate.
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 *285opinion rather than to make a factual finding, this Court again disagrees.” 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 261.5 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.’ Whitfield, 837 S.W.2d at 515. 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 aggra-vators shown by the evidence warrants the imposition of death.”
Id. at 259 (emphasis omitted).
Similarly, the Nevada Supreme Court, in Johnson v. State, 59 P.3d 450 (Nev.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 *286panel 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 (second emphasis added) (footnotes omitted).
Wyoming, a weighing state like Maryland, recently addressed the burden of persuasion on the process of weighing aggravating factors against mitigating factors under the state’s death penalty statute. See Olsen v. State, 67 P.3d 536 (Wyo.2003). 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 State v. Rizzo, 266 Conn. 171, 236, 833 A.2d 363, 407 (2003) (noting that “Imposing the reasonable doubt standard on the weighing process, moreover, fulfills all of the functions of *287burdens 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.”).
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.
V. The Majority’s “Eligibility” Distinction
The majority maintains that “Ring only implicates the finding of aggravating circumstances, and not the process of weighing aggravating against mitigating factors.” Maj. op. at 207-08. It is correct that the Ring Court did not address specifically the issue of whether, in weighing the aggravators against the mitigators, Apprendi applies or whether the jury must be convinced beyond a reasonable doubt before death may be imposed. The Court did not do so, however, most likely because Ring did not argue anything with respect to mitigators or balancing. Ring presented a “tightly delineated” claim, Ring, 536 U.S. at 597 n. 4, 122 S.Ct. at 2437 n. 4, 153 L.Ed.2d at 569 n. 4, raising only the question of whether a trial judge, sitting alone, could determine the presence or absence of the aggravating factors required by Arizona law for imposition of the death penalty.6 Ring, 536 U.S. at 588, 122 *288S.Ct. at 2432, 153 L.Ed.2d at 563. Ring argued that the Arizona death penalty statute violated the Sixth and Fourteenth Amendments because it entrusted to a judge the finding of a fact raising the defendant’s maximum penalty from life to death. Id. at 595, 122 S.Ct. at 2436, 153 L.Ed.2d at 568. Nonetheless, Ring set out the general principles that courts must apply in deciding what issues may be decided by a judge and those for which a defendant is entitled to a jury determination, as well as the applicability of the higher reasonable doubt standard at least as to the finding of aggrava-tors. Moreover, as noted earlier, on remand, the Arizona Supreme Court rejected the contention that the requirement that mitigating circumstances be considered and weighed against aggravators was not a factual predicate for imposition of the death penalty. See State v. Ring, 65 P.3d at 942-43.
The majority’s thesis rests upon the view that due process only requires the finding of aggravating circumstances beyond a reasonable doubt, and not the process of weighing aggravating against mitigating factors. See maj. op. at 207-08 (stating that “Ring only implicates the finding of aggravating circumstances, and not the process of weighing aggravating against mitigating factors”). It is the majority’s view that the Supreme Court death penalty jurisprudence requiring the reasonable doubt standard applies only to the part of the sentencing process which makes a defendant death-eligible, as opposed to those elements involved in selecting those death-eligible defendants who will be actually sentenced to death. The majority concludes that the selection process, that which *289determines whether in the judgment of the jury, the death penalty should be applied, may constitutionally be determined based on the preponderance of the evidence. See maj. op. at 209-11.
The majority’s sole focus is upon the eligibility phase of the sentencing process. The majority concludes that “the [Supreme] Court’s Eighth Amendment jurisprudence and its holding in Ring make clear, it is the finding of an aggravating circumstance, and only the finding of an aggravating circumstance, which makes a defendant death-eligible.” Maj. op. at 255-56. The majority recognizes that “states must specify aggravating factors in order to direct and limit the sentencing authority’s discretion as to the class of convicted defendants to which the death penalty may apply.” See maj. op. at 219.
The Supreme Court’s discussion of eligibility versus selection arose in the context of the Court’s requirement that a capital sentencing scheme must genuinely narrow the class of persons eligible for the death penalty. The Supreme Court has stated that the cruel and unusual prohibition of the Eighth Amendment prohibits a state from imposing the death penalty in an arbitrary and capricious manner. Accordingly, the sentencing authority must be provided with standards which will genuinely narrow the class of crimes and the persons against whom the death penalty is imposed by allowing it to make an individualized determination on the basis of the character of the individual and the circumstances of the crime. Zant v. Stephens, 462 U.S. 862, 878-80, 103 S.Ct. 2733, 2743-44, 77 L.Ed.2d 235, 250-51 (1983); Gregg v. Georgia, 428 U.S. 153, 206-07, 96 S.Ct. 2909, 2940-41, 49 L.Ed.2d 859, 893 (1976); Furman v. Georgia, 408 U.S. 238, 293-94, 92 S.Ct. 2726, 2754-55, 33 L.Ed.2d 346, 380-81 (1972) (Brennan, J., concurring).
The majority ignores several important considerations. First, the majority underestimates the impact and reach of Ring. It has been said of Ring v. Arizona that it is “clearly the most significant death penalty decision of the U.S. Supreme Court since the decision in Furman v. Georgia, 408 *290U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), invalidating the death penalty schemes of virtually all states.” Bottoson v. Moore, 833 So.2d 693 (Fla.2002) (Anstead, C.J., concurring). Ring has been called a “monumental decision that will have extensive implications across the country.” Note, The Death Penalty and the Sixth Amendment: How Will the System Look After Ring v. Arizona?, 77 St. John’s L.Rev. 371, 399 (2003). Ring discusses the death penalty for the first time within the framework of the Sixth Amendment. It has been suggested that the Supreme Court’s overruling of Walton raises questions about the viability of earlier capital cases. See Stevenson, supra, at 1111, 1122 (noting that “A central difficulty in resolving these second-stage issues is that the jurisprudential tools that one would naturally use to analyze the questions-the Supreme Court’s prior decisions on the jury’s role in capital sentencing-are now inherently suspect in light of Ring”).
But even if the “eligibility” versus “selection” distinction holds in the context of the weighing process, the language and structure of the Maryland statute put the weighing process on the eligibility side rather than the selection side. I reiterate my analysis in Borchardt:
“Under § 412(b), a defendant is not ‘death-eligible’ merely by having been found guilty of first degree murder. Rather, at the conclusion of the guilt/innocenee phase and a finding of guilty of first degree murder, the defendant is eligible only for a sentence of life imprisonment. The defendant cannot receive a sentence of death unless the additional requirements of § 413 have been met, i.e., that at least one aggravating factor has been proven, that the defendant is a principal in the first degree, and that the aggravating circumstance[s] outweigh any mitigating circumstances. See § 413(h). Just as the presence of the hate crime enhancement in Apprendi transformed a second degree offense into a first degree offense under the New Jersey hate crime statute, the finding that the aggravating circumstances outweigh the mitigating circumstances trans*291forms a life sentence into a death sentence under the Maryland death penalty statute.”
367 Md. at 154-55, 786 A.2d at 668-69.
VI. State Grounds
In addition to affronting the guarantee of federal due process, Maryland’s death penalty scheme violates Article 24 of the 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 & Utley v. State, 367 Md. 218, 280-82, 786 A.2d 706, 743-44 (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, 218 (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, 156 (1987); State v. Wood, 648 P.2d 71, 80-81 (Utah 1981).
The allocation of a particular burden of proof reflects the gravity of the task before the factfinder, the relative impor*292tance of the decision, and “a fundamental value determination of our society[.]” In re Winship, 397 U.S. at 372, 90 S.Ct. at 1077, 25 L.Ed.2d at 380 (Harlan, J., concurring). In Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979), Chief Justice Burger expressed for the Court the significance of the highest level of requisite proof as follows:
“The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to ‘instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.’ In re Winship, 397 U.S. 358, 370[, 90 S.Ct. 1068, 25 L.Ed.2d 368] (1970) (Harlan, J., concurring). The standard serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision.
Generally speaking, the evolution of this area of the law has produced across a continuum three standards or levels of proof for different types of cases. At one end of the spectrum is the typical civil case involving a monetary dispute between private parties. Since society has a minimal concern with the outcome of such private suits, plaintiffs burden of proof is a mere preponderance of the evidence. The litigants thus share the risk of error in roughly equal fashion.
In a criminal case, on the other hand, the interests of the defendant are of such magnitude that historically and without any explicit constitutional requirement they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment. In the administration of criminal justice, our society imposes almost the entire risk of error upon itself. This is accomplished by requiring under the Due Process Clause that the state prove the guilt of an accused beyond a reasonable doubt. In re Winship, supra.”
Id. at 423-24, 99 S.Ct. at 1808, 60 L.Ed.2d at 329 (footnote omitted). The more serious the risk of error, the higher the requisite standard of proof.
*293Included within step three of the Maryland statute, the weighing provision, is the ultimate decision that death is the appropriate sentence. The reasonable doubt standard communicates to the jury the degree of certainty it must possess before arriving at the ultimate decision that death is the proper sentence. See State v. Rizzo, 266 Conn. 171, 833 A.2d 363 (2003);7 People v. Tenneson, 788 P.2d 786, 795 (Colo. 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, 282-83, 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 *294clear 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); Washington County Dep’t of 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) (requiring proof by clear and convincing evidence in civil commitment proceedings); Berkey v. Delia, 287 Md. 302, 320, 413 A.2d 170, 178 (1980) (requiring the heightened evidentiary standard of clear and convincing evidence for libel and slander). Cf. Summerlin v. Stewart, 341 F.3d 1082, 1123 (9th Cir.2003) (stating that “We do not execute people according to ordinary legal principles that may be good enough for our more routine decisions. When the state assumes the role of the Deity, it must exercise greater care.”); see also Addington, 441 U.S. at 425, 99 S.Ct. at 1809, 60 L.Ed.2d at 330 (stating that “[i]n eases involving individual rights, whether criminal or civil, ‘[t]he standard of proof [at a minimum] reflects the value society places on individual liberty.’”).
VII. The Reasonable Doubt Standard
It is correct that states must narrow the class of persons deemed to be death-eligible, in order to eliminate total arbitrariness and capriciousness in the imposition of the death penalty. But reliability is equally as important. Even assuming arguendo that the weighing portion of Maryland’s death penalty scheme is purely a matter of selection, which I do not accept, I would nonetheless hold that a finding that aggravating factors outweigh mitigating factors should be determined beyond a reasonable doubt. A jury engaging in the relative comparison of aggravating factors to mitigating factors is making the final determination of whether to grant mercy and spare a defendant’s life. It seems entirely incongruous that we should require the highest standards of proof when a jury decides whether a defendant is “eligible” to be executed, yet *295lower the bar when the jury decides whether or not the defendant is “eligible” to be spared. These life and death decisions are two sides of the same coin and they should be subject to the same level of proof.
Requiring a finding “beyond a reasonable doubt” that a defendant should be given a death sentence is in line entirely with the procedural safeguards of Maryland’s death penalty scheme. A death penalty sentencing phase differs markedly from a typical sentencing in Maryland. In Maryland, a jury may impose a sentence only in a death penalty proceeding. In all other cases, a judge imposes the sentence. In the capital case sentencing phase, evidence is presented, a jury must pass judgment on this evidence, and the rules of evidence, although somewhat relaxed, are in force.8 If the State must prove, beyond a reasonable doubt, every element of a crime, why should it not need to prove every element of a capital murder proceeding in the punishment phase?
Reflected throughout the Supreme Court jurisprudence underlying the Eighth Amendment is the principle that death is different. See, e.g., Ring, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556; Ford v. Wainwright, 477 U.S. 399, 411, 106 S.Ct. 2595, 2602, 91 L.Ed.2d 335, 347 (1986) (plurality opinion) (noting that “This 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, 401 (1977) (plurality opinion); Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944, 961 (1976) (plurality opinion); Furman, 408 U.S. at 289, 92 S.Ct. at 2752, 33 L.Ed.2d at 378 (Brennan, J., concurring). In a death proceeding, the Supreme Court has recognized that “the Eighth Amendment requires a greater degree of accuracy and fact-finding 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 *296306, 318 (1993). Justice Kennedy has observed that “all 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, 212 (1990).
Ring dealt with the Sixth Amendment right to a jury trial. Not to be overlooked, however, is the right to a fair and reliable sentencing determination. Throughout the jurisprudence on the death penalty is the universal recognition that death is different. See Zant, 462 U.S. at 884-85, 103 S.Ct. at 2747, 77 L.Ed.2d at 255 (noting that “because there is a qualitative difference between death and any other permissible form of punishment, ‘there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.’ ”) (quoting Woodson, 428 U.S. at 305, 96 S.Ct. at 2991, 49 L.Ed.2d at 961); Gardner, 430 U.S. at 357, 97 S.Ct. at 1204, 51 L.Ed.2d at 401. Because the death penalty is qualitatively different from a prison sentence, the Supreme Court, and our Court, requires that the death penalty may not be imposed unless the jury makes an individualized determination that death is the appropriate sentence for the particular defendant. Woodson, 428 U.S. at 303-04, 96 S.Ct. at 2991, 49 L.Ed.2d at 960-61. In Furman, 408 U.S. at 306, 92 S.Ct. at 2760, 33 L.Ed.2d at 388 (Stewart, J., concurring), Justice Stewart stated:
“The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity.”
Because death is fundamentally different, heightened reliability is required at all stages of a death penalty trial. That includes the guilt/innocence phase, and the entire sentencing process. In discussing the unique nature of capital punishment, Justice Stevens in dissent noted in Murray v. Giarratano, 492 U.S. 1, 22 n. 9, 109 S.Ct. 2765, 2777 n. 9, 106 L.Ed.2d 1, 19 n. 9 (1989), as follows:
*297“In 1983, 11 years after Furman had been decided, Justice O’Connor observed in a majority opinion that the ‘Court, as well as the separate opinions of a majority of the individual Justices, has recognized that the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination.’ California v. Ramos, 463 U.S. 992, 998-999[, 103 S.Ct. 3446, 77 L.Ed.2d 1171]; see id., at 999, n. 9[, 103 S.Ct. 3446] (citing cases). See also, e.g., Ford v. Wainwright, 477 U.S. 399, 41[, 106 S.Ct. 2595, 91 L.Ed.2d 335] (1986) (Marshall, J., plurality opinion) (‘In capital proceedings generally, this Court has demanded that factfinding procedures aspire to a heightened standard of reliability.... This especial concern is a natural consequence of the knowledge that execution is the most irremediable and unfathomable of penalties; that death is different’); Ake v. Oklahoma, 470 U.S. 68, 87[, 105 S.Ct. 1087, 84 L.Ed.2d 53] (1985) (Burger, C.J., concurring in judgment) (‘In capital cases the finality of the sentence imposed warrants protections that may or may not be required in other cases’); Gardner v. Florida, 430 U.S. 349, 357-358[, 97 S.Ct. 1197, 51 L.Ed.2d 393] (1977) (Stevens, J., plurality opinion) (‘From the point of view of the defendant, it is different in both its severity and its finality. From the point of view of society, the action of the sovereign in taking the life of one of its citizens also differs dramatically from any other legitimate state action. It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion’).”
In sum, the touchstone of Apprendi, applied to capital cases in Ring, is to decide whether a requisite finding exposes the defendant to a higher sentence than can be imposed solely on the basis of a criminal conviction. As the Ring 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.” Ring, 536 U.S. at 602, 122 S.Ct. *298at 2439, 153 L.Ed.2d at 572. Because in Maryland the finding that aggravating factors outweigh mitigating factors is a necessary predicate for the imposition of the death penalty, Apprendi and Ring require that this finding be made, by a jury, and not by a preponderance of the evidence, but beyond a reasonable doubt.
Chief Judge BELL and Judge ELDRIDGE authorize me to state that they join in this dissenting opinion.
. The majority opinion cites to the Maryland Code as it existed prior to the 2002 recodification. Maj. op. at 195. For consistency, I will do the same. Unless otherwise indicated, all statutory references are to Maryland Code (1957, 1996 Repl.Vol., 2001 Cum.Supp.), Article 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 Art. 27, § 413(b)(3)(k)(3).
. Maryland is regarded as a "weighing” state.
. I need not recount the history of the rule announced in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), that due process requires that every fact necessary to the crime charged be proven beyond a reasonable doubt. See Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) through Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) and Apprendi and Ring. See also Borchardt, 367 Md. at 151-52, 786 A.2d at 667 (Raker, J., dissenting); Evans v. State, 304 Md. 487, 550-51, 499 A.2d 1261, 1294 (1985) (McAuliffe, J., dissenting) (reasoning that "the basic principles of [due process as explicated in] Winship, Mullaney and Patterson [v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977)] require[ ] 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”).
. 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. Step four in Missouri gives the jury the discretion to give a life sentence. 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.
. Footnote 4 in Ring v. Arizona, 536 U.S. 584, 597-98, 122 S.Ct. 2428, 2437, 153 L.Ed.2d 556, 569, makes clear that the weighing process was not before the Court. The Court stated:
"Ring's claim is tightly delineated: He contends only that the Sixth Amendment required jury findings on the aggravating circumstances asserted against him. No aggravating circumstance related to past *288convictions in his case; Ring therefore does not challenge Almenda-rez-Torres v. United States, which held that the fact of prior conviction may be found by the judge even if it increases the statutory maximum sentence. He makes no Sixth Amendment claim with respect to mitigating circumstances. Nor does he argue that the Sixth Amendment required the jury to make the ultimate determination whether to impose the death penalty. He does not question the Arizona Supreme Court's authority to reweigh the aggravating and mitigating circumstances after that court struck one aggravator. Finally, Ring does not contend that his indictment was constitutionally defective.”
Id. (citations omitted) (emphasis added).
. In State v. Rizzo, 266 Conn. 171, 238 n. 37, 833 A.2d 363, 408 n. 37 (2003), the Connecticut Supreme Court rejected the dissent’s argument that the jury’s determination in the weighing process is a moral judgment, inconsistent with a reasonable doubt standard. The court reasoned as follows:
"We disagree with the dissent of Sullivan, C. J., suggesting that, because the jury’s determination is a moral judgment, it is somehow inconsistent to assign a burden of persuasion to that determination. The dissent’s contention relies on its understanding of the reasonable doubt standard as a quantitative evaluation of the evidence. We have already explained in this opinion that the traditional meaning of the reasonable doubt standard focuses, not on a quantification of the evidence, but on the degree of certainty of the fact finder or, in this case, the sentencer. Therefore, the nature of the jury’s determination as a moral judgment does not render the application of the reasonable doubt standard to that determination inconsistent or confusing. On the contrary, it makes sense, and, indeed, is quite common, when making a moral determination, to assign a degree of certainty to that judgment. Put another way, the notion of a particular level of certainty is not inconsistent with the process of arriving at a moral judgment; our conclusion simply assigns the law's most demanding level of certainty to the jury’s most demanding and irrevocable moral judgment.”
. A question arises as to whether Ring requires strict rules of evidence during the entire post-conviction part of a death penalty trial.