concurring.
In addition to the reasons set forth above, there is an additional and compelling justification for not executing Leslie Nelson. I therefore write separately.
*483I agree with defendant that her execution for crimes that are inextricably bound to her mental illness violates our State Constitution. The State’s legitimate penological interests that purportedly are served by the death penalty are unconstitutionally diminished if the State executes such a mentally ill and psychologically disturbed person. In defendant’s case, it is constitutionally inadequate for a jury to consider her severe mental illness as merely a mitigating factor to be weighed among other aggravating and mitigating factors.
Both the federal and state Constitutions prohibit cruel and unusual punishment. U.S. Const, amend. VIII; N.J. Const, art. I, ¶ 12. To give the federal prohibition a “vital” interpretation, the United States Supreme Court has stated that it “may be ... progressive, and is not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice.” Weems v. United States, 217 U.S. 349, 378, 30 S.Ct. 544, 553, 54 L.Ed. 793, 803 (1910). Thus, the Supreme Court has held that the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630, 642 (1958). Our Court follows the same principles in interpreting our State’s prohibition against cruel and unusual punishment. See Ramseur, supra, 106 N.J. at 171, 524 A.2d 188.
With the principles of evolving standards of decency in mind, the United States Supreme Court fashioned a three-prong analysis for determining whether a punishment constitutes cruel and unusual punishment under the Eighth Amendment. Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859, 874-75 (1976) (plurality opinion). New Jersey has adopted the same test: “First, does the punishment for the crime conform with contemporary standards of decency? Second, is the punishment grossly disproportionate to the offense? Third, does the punishment go beyond what is necessary to accomplish any legitimate penological objective?” Ramseur, supra, 106 N.J. at 169, 524 A.2d 188 (citing Gregg, supra, 428 U.S. at 173, 96 S.Ct. at 2925, 49 L.Ed.2d at 874-*48475). Because the death penalty is not grossly disproportionate to murder, I focus here only on the first and third prongs of the analysis. See State v. Koskovich, 168 N.J. 448, 558, 776 A.2d 144 (2001) (Zazzali, J., concurring).
Contemporary Standards
In assessing the first prong, whether contemporary standards permit the execution of such a mentally disturbed person, we look to objective indicators of those standards. Ramseur, supra, 106 N.J. at 172, 524 A.2d 188. We have held, and continue to endorse, that acts of the Legislature are “[o]ne of the strongest indicators” of contemporary standards. Ibid. The sentiments implied by acts of the Legislature provide “presumptive evidence” of New Jersey citizens’ views on permissible and impermissible punishments. Ibid.
New Jersey’s death penalty statute, N.J.S.A. 2C:ll-3, suggests that contemporary standards might permit the execution of a severely mentally ill person. The provision specifying the statutory aggravating and mitigating factors indicates that the Legislature finds it legally sufficient for the penalty-phase jury or court to consider a capital defendant’s possible mental defects and illnesses as a mitigating factor, which, along with other mitigating factors, may be outweighed by aggravating factors under certain circumstances. N.J.S.A. 2C:ll-3c(5)(d)(5d). 5d allows the sentencer to consider whether a “defendant’s capacity to appreciate the wrongfulness of his [or her] conduct or conform his [or her] conduct to the requirements of the law was significantly impaired as the result of mental disease or defect or intoxication, but not to a degree sufficient to constitute a defense to prosecution.” Ibid. Even if the sentencing body finds credible evidence to support the 5d factor, the statutory scheme permits imposition of the death penalty provided a mentally defective defendant’s act of murder was sufficiently aggravated.
Although the capital murder statute’s scheme is a strong indication of community standards, it does not, by itself, settle the issue. See Ramseur, supra, 106 N.J. at 172, 524 A.2d 188 (stating that *485passage of death penalty statute “cannot be dispositive” in assessing constitutionality of death penalty because “[s]uch an interpretation would render the constitutional ban on cruel and unusual punishments a mere tautology, eliminating its function as a limitation on legislative power”). Although the Legislature’s enactments provide strong evidence of contemporary standards, other considerations are also relevant. Ibid, (stating that statutory enactments provide “presumptive” evidence of contemporary standards). In respect of the present matter, there are objective indicators of contemporary standards that reflect a growing concern about the execution of the mentally disturbed.
Our society has demonstrated increased awareness of, and sensitivity to, the problems facing the mentally ill. Apart from common experience, trends in jury verdicts, although not conclusive, reflect that heightened sensitivity. Chief Justice Rehnquist, in his dissent in Atkins v. Virginia, stated:
Our opinions have also recognized that data concerning the actions of sentencing juries, though entitled to less weight than legislative judgments, “ ‘is a significant and reliable index of contemporary values,’ ” Coker v. Georgia, 433 U.S. 584, 596, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) (plurality opinion) (quoting Gregg, supra, at 181, 96 S.Ct. 2909), because of the jury’s intimate involvement in the case and its function of “ “maintainCing] a link between contemporary community values and the penal system,’” Gregg, supra, at 181, 96 S.Ct. 2909 (quoting Witherspoon v. Illinois, 391 U.S. 510, 519, n. 15, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968)).
[Su^pra, — U.S.-,-, 122 S.Ct. 2242, 2253, 153 L.Ed.2d 335,-(2002) (Rehnquist, C.J., dissenting).]
See also Coker v. Georgia, 433 U.S. 584, 596, 97 S.Ct. 2861, 2868, 53 L.Ed.2d 982, 992 (1977) (plurality opinion) (stating that because juries are a reliable objective index of contemporary values, “it is ... important to look to the sentencing decisions that juries have made in the course of assessing whether capital punishment is an appropriate penalty for the crime being tried”).
An examination of jury verdicts in New Jersey capital sentencing trials in which juries have found the 5d mitigating factor shows that attitudes toward those with mental illness or defects are evolving, with a growing reluctance to execute those whose mental disease or defect or intoxication contributes to their difficulty in *486reasoning about what they are doing.1 From 1983, when the death penalty was reinstated in New Jersey, through 1989, juries sentenced to death 17.4% of capital defendants after finding evidence to support the 5d mitigating factor. During that period, juries sentenced to death 29.8% of all defendants at capital sentencing trials and sentenced 39.7% of capital defendants when 5d was not found. From 1990 to 2001, the rate of jury-imposed death verdicts increased to 31.3% overall, and to 42.6% for defendants when 5d was not found. However, in that same time period juries that found the 5d mitigating factor sentenced only 7.7% of those defendants to death.2 Importantly, the overall rate of death sentences increased, but the rate of sentencing 5d defendants decreased by more than half.
Moreover, the Administrative Office of the Courts (AOC) evaluates the evidence that would have been presented at trial for death-eligible defendants who are sentenced to life without a penalty phase. For each settled case, the AOC makes a judgment regarding what aggravating and mitigating factors would have been found by jurors if a penalty trial had been conducted. From 1990 to 2001, the AOC found credible support for the 5d mitigating factor with regard to one-hundred sixteen capital defendants who received a life sentence without a penalty trial. When added to the capital defendants for whom sentencing juries have found the 5d mitigating factor, there have been one-hundred forty-one 5d capital defendants since 1990, not including defendant: only one of those one-hundred forty-one defendants has received the death penalty. As stated, defendant did not rely on the precise wording of the 5d mitigating factor. Rather, she submitted, and eleven jurors found, that she “ha[d] a long history of mental illness or psychological problems that contributed to her conduct.” In *487addition, eight jurors found that “defendant’s psychological or psychiatric make-up made her susceptible to an emotional breakdown and loss of judgment and reason.” Thus, including defendant in the group of 5d defendants yields two of one-hundred forty-two 5d capital defendants who have received the death penalty since 1990. In other words, only 1.4% of the significant pool of 5d capital defendants have received death in the past twelve years.3
Notably, prosecutors have sought the death penalty at a significantly decreased rate for defendants who can present evidence in support of the 5d mitigating factor. From 1983 to 1989, there were eighty-two capital defendants who either successfully presented evidence of 5d to jurors or, if they did not go to trial, the AOC determined that they could have successfully presented 5d evidence. Prosecutors sought the death penalty for 46 of those 82 defendants, reflecting a rate of 56.1% of 5d defendants. From 1990 to 2001, that rate at which prosecutors sought the death penalty for all 5d defendants decreased to 18.3% (twenty-six out of one-hundred forty-two 5d capital defendants, including defendant). During that same period, prosecutors sought the death penalty for 29.3% of capital defendants who either did not present or demonstrate the 5d mitigator to a jury or, if they did not go to trial, who the AOC determined could not have successfully presented evidence in support of 5d.4
The jury trends are not syllogisms that require the conclusion that the death penalty is in disfavor in this State, but they do suggest an evolving aversion in our community to subjecting defendants with mental disease or defects to execution. Although *488the message of the jury statistics might not be sufficient to show that a majority of New Jersey citizens oppose the execution of a severely mentally ill person whose actions are intricately connected to her mental illness, it is nonetheless clear that contemporary standards are evolving with an increased compassion for those with mental illness.
Penological Objectives
Against the background of evolving contemporary standards, the third prong of the constitutional test may now be considered— whether the execution of defendant is necessary to accomplish a legitimate penological objective. “The death penalty is said to serve two principal social purposes: retribution and deterrence of capital crimes by prospective offenders.” Gregg, supra, 428 U.S. at 183, 96 S.Ct. at 2929-30, 49 L.Ed.2d at 880. “Unless the death penalty measurably contributes to one or both of those goals, it ‘is nothing more than the purposeless and needless imposition of pain and suffering,’ and hence is an unconstitutional punishment.” State v. Marshall, 130 N.J. 109, 190, 613 A.2d 1059 (1992), cert. denied, 507 U.S. 929, 113 S.Ct. 1306, 122 L.Ed.2d 694 (1993) (Marshall II) (quoting Coker, supra, 433 U.S. at 592, 97 S.Ct. at 2866, 53 L.Ed.2d at 989).
I believe that the death penalty is unconstitutional as applied to defendant because it would exceed what is necessary to accomplish either retribution or deterrence. The retributive value to be gained from her execution is unacceptably reduced by “her bizarre psychological derangement and profound emotional disturbance.” Nelson, supra, 155 N.J. at 517, 715 A.2d 281 (Handler, J., concurring and dissenting). In addition, the fear of execution, while possibly serving as a deterrent under some circumstances with some individuals, cannot plausibly be thought to provide a deterring reason to mentally ill persons moved by irrational and delusional motives.
Retribution
I do not conclude that the death penalty is unconstitutional as applied to all capital defendants diagnosed with some mental *489illness or disorder. The United States Supreme Court has held that the execution of mentally retarded defendants violates the Constitution; some state courts have held similarly in respect of their state constitutions. See infra at 483, 803 A.2d at 41. I am not suggesting an analogous prohibition with regard to the mentally ill. As the Tennessee Supreme Court recognized, “[mjental retardation, by definition, is accompanied by serious limitations on intelligence and adaptive behavior; mental illness is not.” Van Tran v. State, 66 S.W.3d 790, 810 (Tenn.2001). However, defendant’s mental illness and psychological problems, and their connection to her violent reaction to the police, demonstrate that her capacities were too diminished to justify her execution. As discussed, defendant was emotionally disturbed throughout her childhood and mentally ill in her adolescence and adult years. She was obsessed with and threatened to commit suicide. She was involuntarily committed to a psychiatric facility and eventually underwent a sex change operation. Defendant, who had no significant interpersonal relationships in her life, except with her mother, and who showed no interest in forging interpersonal relationships, according to her psychiatric diagnoses, stated that she wanted to undergo sex reassignment surgery to become an exotic dancer, adult film actress, or prostitute. Defendant obsessed for years about going through radical sex change surgery to seek human contact in these forms, despite eschewing any other form of social relationship.
By way of background
[without sufBeient psychological basis, in 1992, defendant underwent sexual reassignment surgery — removing her male genitalia and constructing female genitalia in its place — in an attempt to redress her social problems with being an outcast and a loner. Unlike most people who undergo the surgery as a remedial response to transexuality, defendant did not have the clinically accepted conditions of transsexualism. She did not harbor the persistent, unshakeable sense that she was truly a female even though physically she was a male — that she was a woman “trapped” in a man’s body. Defendant did not want to become a woman in order to reconcile her physical gender with her psychological gender.
[Nelson, supra, 155 N.J. at 516, 715 A.2d 281 (Handler, J., concurring and dissenting).]
*490Indeed, the defense expert testified that being mentally ill calls into question the reasons one pursues that kind of surgery.
Ridiculed by members of her family and co-workers, her depression deepened. The expert opinions offered at trial did not depart from the diagnoses included in Nelson’s mental health records. Nelson was consistently diagnosed with dysthymia5 — a long standing depression, which Dr. Weiss opined was a major depression at the time of the murders — as well with traits from been previously diagnosed with post-traumatic stress disorder6 and with problems of social withdrawal, delusions, paranoia, and schizoid 7 and borderline8 personality disorders. She also had anxiety. *491Evaluations suggested that she could become depressed severely enough to injure others.
In defendant’s view, the police officers’ actions, although certainly justified, threatened the loss of all that she found meaningful and everything that was essential to her immature and unstable sense of self, namely, her guns and her womanhood. Defendant knew the officers would confiscate the objects she treated like her children, and that she would be sent to prison.
The psychiatric experts agreed that at the time of the murders, defendant was “suffering from an episode of major depression.” The defense psychiatrist agreed that her long history of mental illness and psychological problems contributed to her condition on the day of the murders. He also agreed that defendant’s psychological and psychiatric makeup made her susceptible to an emotional breakdown and loss of judgment and reason on the day of the murders, so much so that defendant was at the point of suicide on that day. Importantly, the State’s expert, Dr. Sadoff, testified that defendant’s depression, her obsession with her appearance as a woman, and her bizarre attachment to her guns seriously affected her ability to make reasoned judgments: “[Defendant] had an impairment of her judgment at the time because of her condition, which made her more vulnerable to a partial breakdown or an impairment of her judgment more than the average person.” Dr. Sadoff added that defendant’s “ability to think clearly was impaired [in part] both by her anxiety and her depression.” He acknowledged that defendant’s fear of prison, where she could not *492maintain her appearance as a woman and contact with her guns, “was above and beyond the normal fear that anyone would have of going to jail because of her condition.” Defendant’s expert agreed, testifying that the threatened loss of the only objects connected to defendant’s sense of self resulted in a “break down in her ability to reason and control her feelings.”
Although these facts indeed present a “pathetic picture,” Nelson, supra, 155 N.J. at 516, 715 A.2d 281 (Handler J., concurring & dissenting), and may help to explain defendant’s conduct, they do not excuse her heinous crimes, for which she must be punished. In stating that the retributive value to be gained from executing defendant is unacceptably low, defendant is nonetheless responsible and culpable for the murders she committed. The State’s expert denied that defendant experienced a total breakdown in her ability to make reasoned judgments, but that conclusion' is consistent -with defendant’s lack of insanity. Defendant did not plead and could not have successfully maintained an insanity defense. That said, both experts agreed that defendant, at the least, “had an impairment of her judgment at the time because of her condition, which made her more vulnerable to a partial breakdown or an impairment of her judgment more than the average person.”
The testimony of those expert 'witnesses implies that there is a spectrum of abilities in judgment and reason between the complete inability of the insane to the unimpaired functioning of the fully culpable. Stated differently, “moral responsibility is a continuum concept.” Stephen J. Morse, “Excusing and the New Excuse Defenses: A Legal and Conceptual Review,” 23 Crime & Just. 329, 397 (1998).
[Rationality is distributed along a continuum in the population at large and among people who suffer from mental disorders. Depending on the type and severity of disorder and its signs and symptoms, various mental disorders may affect rationality to varying degrees. If rationality is the touchstone of legal responsibility, responsibility is also distributed along a continuum and legal accountability might be adjusted accordingly. In principle, therefore, there are degrees of partial responsibility____
[Stephen J. Morse, “Crazy Reasons,” 10 J. Contemp. Issues 189, 211 (1999).]
*493Executions, our most extreme expression of indignation, cannot be carried out on a defendant whose irrationalities were exacerbated at the time of her criminal acts to such an extent as to undermine our confidence that she is fully culpable. If capital punishment is constitutional, it must be reserved for those defendants whose capacities allow them to be fully culpable, so that the death penalty can exact its intended retributive value. In Atkins, supra, the Supreme Court reiterated that the death penalty must be reserved for the “most deserving.” — U.S. at-, 122 S.Ct. at 2251, 153 L.Ed. 2d at-. The Court stated that the crimes of a defendant sentenced to death must “reflect a consciousness materially more ‘depraved’ than that of any person guilty of murder.’ ” Ibid, (quoting Godfrey v. Georgia, 446 U.S. 420, 433, 100 S.Ct. 1759, 1767, 64 L.Ed.2d 398, 409 (1980)). The Court continued: “If the culpability of the average murderer is insufficient to justify the most extreme sanction available to the State, the lesser culpability of the mentally retarded offender surely does not merit that form of retribution.” Ibid. I reason similarly, for if the culpability of the average murderer is insufficient to invoke the death penalty as our most extreme sanction, then the lesser culpability of Nelson, given her history of mental illness and its connection to her crimes, “surely does not merit that form of retribution.” Ibid.
Deterrence
The execution of defendant would not achieve any significant deterrent effect, whether applied to her future behavior or that of others in similar circumstances.
[T]he concept of deterrence involves the notion of “individual deterrence” — that punishment will dissuade the offender from repeating his criminal acts. State v. Ivan, 33 N.J. 197, 162 A.2d 851 (1960). It also includes the principle of “general deterrence” — that punishment can “discourage similar wrongdoing by others through a reminder that the law’s warnings are real and that the grim consequence of [punishment] is likely to follow from [certain crimes].” United States v. Bergman, 416 F.Supp. 496, 499 (S.D.N.Y.1976); State v. Wentworth, 118 N.H. 832, 395 A.2d 858, 864 (1978).
[In re C.A.H. and B.A.R., 89 N.J. 326, 334-35, 446 A.2d 93 (1982).]
*494Because defendant, who has waived her eligibility for parole, will spend the rest of her life in prison, the death penalty will not better protect society from the danger that she will murder again.
In respect of general deterrence, this Court has held that “the Legislature could reasonably find that the death penalty deters murder.” Ramseur, supra, 106 N.J. at 180, 524 A.2d 188. However, even if the death penalty is justified generally by its allegedly deterrent effect on crime, it may not be imposed on a particular defendant to further the goal of general deterrence if that defendant’s impaired capacities unacceptably diminish the retributive value to be gained from her execution. A defendant cannot be used as an example to others, through her execution, if it is unjust to put her to death because of her lessened culpability. Cf. H.L.A. Hart, Prolegomena to the Principles of Punishment, in Punishment and Responsibility 1-27 (1968) (arguing that general deterrence justifies practice of punishment, but allocation of punishment on specific occasion must be deserved).
Exempting this capital defendant from execution does not detract from any deterrent effect the death penalty might have. Our view is based on defendant’s seriously impaired ability to use reason and judgment on the day of the murders, due to her particular history of mental illness in conjunction with the circumstances surrounding her actions. Moreover, fear of the death penalty cannot provide a deterring reason to similarly-situated persons moved by irrational and delusional motives. Eliminating defendant’s death-eligibility will not lessen the death penalty’s deterrent effect on those capable of weighing the costs of their criminal acts. One who is not suffering from severe mental illness who murders law enforcement officers is still subject to the death penalty.
The State’s Concern
The State argues that finding the death penalty unconstitutional as applied to Leslie Nelson would involve the Court’s re-weighing of all aggravating and mitigating factors. However, it is defendant’s diminished rationality and culpability that constitutionally *495bar her execution. My view is not based on a reweighing of the totality of aggravating and mitigating factors, but rather, on a belief that the State’s interest in carrying out death sentences is not satisfied by the execution of this defendant because of her lessened culpability, regardless of the weight of the aggravating factors.
This approach is analogous to decisions by other courts that hold that execution is an unconstitutional punishment for defendants whose reasoning capacities render them less than fully culpable for their crimes. See Atkins, supra, — U.S. at-, 122 S.Ct. at 2252, 153 L.Ed.2d at-(the Eighth Amendment prohibits execution of mentally retarded persons); Thompson v. Oklahoma, 487 U.S. 815 838, 108 S.Ct. 2687, 2700, 101 L.Ed.2d 702, 720 (1988) (finding that the Eighth Amendment prohibits execution of person who committed offense before turning sixteen years old) (plurality opinion); Van Tran, supra, 66 S.W.3d at 792 (holding that execution of mentally retarded person violates Tennessee Constitution); Fleming v. Zant, 259 Ga. 687, 386 S.E.2d 339, 342 (Ga.1989) (stating that execution of mentally retarded person violates Georgia Constitution); see also Penry v. Lynaugh, 492 U.S. 302, 341, 109 S.Ct. 2934, 2958, 106 L.Ed.2d 256, 292 (1989) (Brennan, J., concurring and dissenting) (arguing that Eighth Amendment prohibits execution of mentally retarded persons), abrogated by Atkins, supra, — U.S. -, 122 S.Ct. 2242, 153 L.Ed.2d 335; Koskovich, supra, 168 N.J. at 552, 776 A.2d 144 (Zazzali, J., concurring) (observing that defendant’s “young age, viewed in the context of his stunted emotional development, his traumatic childhood, and his condition at the time of the crime,” raises concerns under New Jersey Constitution). As noted, the United States Supreme Court recently decided that the Eighth Amendment’s prohibition of cruel and unusual punishment bars the execution of mentally retarded defendants. “Because of their disabilities in areas of reasoning, judgment, and control of their impulses, ... they do not act with the level of moral culpability that characterizes the most serious adult conduct.” Atkins, supra, — U.S. at-, 122 S.Ct. at 2244, 153 L.Ed.2d at-.
*496Those decisions imply that in some instances a defendant’s diminished cognitive or reasoning capacities may bar the weighing of aggravating and mitigating factors because the defendant’s diminished culpability, by itself, removes execution as a possible punishment. However, my position is distinct from the holdings of other courts because it addresses the death-eligibility under our State Constitution of only one defendant, as opposed to a class of defendants. My approach is specific to Nelson and based on her specific set of psychological problems and her condition during the circumstances of her crimes, all of which is fully documented in the record. If there was not substantial proof of serious mental illness, my view of this issue might be different. As a general rule, I believe that substantial documentation of mental illness is necessary to support a defendant’s claim in such circumstances. That expectation should allay the concerns of those who would contend that the view expressed here would create an open sesame for defendants who now may seek to manufacture claims of mental illness.
Considering defendant’s mental illness, evidenced by her partial breakdown of reason and judgment, as merely a mitigating factor does not adequately satisfy the concerns of article 1, paragraph 12 of the New Jersey Constitution. I share Justice Brennan’s view that where a defendant’s impaired capacities render the defendant less culpable for his or her actions, balancing that defendant’s mental problems against other factors does not satisfy constitutional concerns. Penry, supra, 492 U.S. at 347, 109 S.Ct. at 2962, 106 L.Ed.2d at 296-97 (Brennan, J., concurring and dissenting). Aggravating factors, while increasing our outrage as citizens in response to a crime, are irrelevant for capital sentencing purposes if the culpability of a defendant, at the time of his or her crimes, is sufficiently diminished. In respect of the mentally retarded, Justice Brennan wrote:
At sentencing, the judge or jury considers an offender’s level of blameworthiness only along with a host of other factors that the sentencer may decide outweigh any want of responsibility. The sentencer is free to weigh a mentally retarded offender’s relative lack of culpability against the heinousness of the crime and other *497aggravating factors and to decide that even the most retarded and irresponsible of offenders should die.
Lack of culpability as a result of mental retardation is simply not isolated at the sentencing stage as a factor that determinatively bars a death sentence; for individualized consideration at sentencing is not designed to ensure that mentally retarded offenders are not sentenced to death if they are not culpable to the degree necessary to render execution a proportionate response to their crimes.
[Penry, supra, 492 U.S. at 347, 109 S.Ct. at 2962, 106 L.Ed.2d at 296-97 (Brennan, J., concurring and dissenting).]
Similarly, the Tennessee Supreme Court has stated:
[T]he jury’s consideration of mental retardation as a mitigating factor is by itself insufficient to address the concerns protected under the Eighth Amendment or [the Tennessee Constitution]. In such circumstances, evidence of mental retardation would only be weighed in conjunction with one or more aggravating circumstances, such as the heinousness of the crime or defendant’s prior record____In sum the limitations and impairments associated with mental retardation warrant more consideration than simply allowing the evidence to be weighed in the mix of aggravating and mitigating circumstances.
[Van Tran, supra, 66 S.W.3d at 809-10.]
I agree with Justice Brennan’s observation that the state’s interest in exacting retribution by an execution is constitutionally inadequate if a defendant’s reasoning and moral capacities are sufficiently diminished, regardless of the aggravating factors that affect our overall evaluation of a crime’s despicable nature. Indeed, “[b]y killing two police officers in the line of duty, defendant committed one of the worst crimes known to our law.” Nelson, supra, 155 N.J. at 516, 715 A.2d 281 (Handler, J., concurring and dissenting). Despite that fact, the aggravated nature of defendant’s crimes cannot be invoked to justify her execution. Defendant’s mental illness and her concomitant lessened culpability preclude our most extreme form of punishment as a matter of principle.
In sum, the psychiatric testimony presented by both the State and defendant depicts a seriously disturbed and depressed person who has suffered from serious mental illness throughout her life. The experts described a person thoroughly obsessed with her status as a female and with her guns, which she viewed like her surrogate children. Tragically unaware of the extent of defen*498dant’s psychological problems, the police, in carrying out their duties, threatened both things defendant valued most: her ability to maintain her appearance as a woman and her possession of guns. Both experts agreed that defendant experienced at least an impaired ability to use reason and judgment because of the impending loss of all that she found meaningful to her life. Nelson’s impaired state resulting from her long history of mental illness and psychological problems, and its close connection .to her bizarre and violent reaction to the police that day, undermine our confidence that she is fully culpable. The State’s legitimate penological interests in executing defendant are not adequate to satisfy the concerns of our State Constitution’s prohibition against cruel and unusual punishment.
Justice LONG joins in this opinion.
The percentages reported in this section were calculated based on the data provided by the Administrative Office of the Courts, Criminal Practice Division, from its proportionality review database. The data was last updated in 2001.
This calculation includes Nelson as a defendant who received death after a jury found 5d.
From 1983 to 1989, 9.8% of all 5d defendants, including those who did not go to trial, received a death sentence.
During the 1980's, the rate at which prosecutors sought the death penalty for 5d defendants was slightly higher than the rate at which they sought the death penalty for non-5d capital defendants (56.1% versus 54.2%). As stated, from 1990 to 2001, the rate at which prosecutors sought capital punishment for 5d defendants was lower than the rate for non-5d defendants (18.3% versus 29.3%).
"The essential feature of Dysthymic Disorder is a chronically depressed mood that occurs for most of the day more days than not for at least 2 years," and there are other symptoms, possibly including poor appetite, low energy, low self-esteem, insomnia or hypersomnia, and feelings of hopelessness. DSM-IV at 345.
The following are the criteria for post-traumatic stress disorder: (1) responding with intense fear, helpless, or horror to threatened or actual physical harm, (2) persistently reexperiencing the event in or more of certain specified ways, (3) persistent avoidance of associated stimuli, and (4) persistent symptoms of increased arousal, such as difficulty sleeping, irritability or outbursts of anger, difficulty concentrating, and/or exaggerated startle responses. Id. at 427-28.
"The essential feature of Schizoid Personality Disorder is a pervasive pattern of detachment from social relationships and a restricted range of expression of emotions in interpersonal settings. This pattern begins by early childhood and is present in a variety of contexts." Id. at 638. Schizoid Personality Disorder: "Particularly in response to stress, individuals with this disorder may experience very brief psychotic episodes (lasting minutes to hours). In some instances, Schizoid Personality Disorder may appear as the premorbid antecedent of Delusional Disorder or Schizophrenia. Individuals with this disorder may sometimes develop Major Depressive Disorder.” Id. at 639.
"The essential feature of Borderline Personality Disorder is a pervasive pattern of instability of interpersonal relationships, self-image, and affects, and marked impulsivity that beings by early childhood and is present in a variety of contexts." Id. at 650. Multiple symptoms are necessary, and may include the following: (1) identity disturbance: markedly and persistently unstable self-image or sense of self; (2) impulsivity in at least two areas that are self-damaging; (3) recurrent suicidal behavior; (4) affective instability; (4) chronic *491feelings of emptiness; (8) inappropriate, intense anger or difficulty controlling anger; (5) transient, stress-related paranoid ideation. Id. at 654.
Borderline Personality Disorder: "Some individuals develop psychotic-like symptoms (e.g., hallucinations, body-image distortions, ideas of reference, and hypnagogic phenomena) during times of stress. Individuals with this disorder may feel more secure with transitional objects (i.e., a pen or inanimate possession) than in interpersonal relationships. Premature death from suicide may occur in individuals with this disorder, especially those with co-occurring Mood Disorders!, which include depressive disorders,] or Substance-Related Disorders." Id. at 652.