concurring in part and dissenting in part.
I concur in the judgment of the Court affirming the sentence of death imposed on Robert O. Marshall. In addition, I concur in parts I, II, VI, VII, VIII, IX and X of the Court’s opinion. Moreover, I agree with the majority that this appeal is properly decided under N.J.S.A. 2C:11-3e, prior to its recent amendment by the Legislature. A. 1992, c. 5 (eff. May 12, 1992). However, I respectfully dissent from the conclusions contained in parts III, IV, and V of the Court’s opinion regarding the scope of proportionality review contemplated by the former N.J.S.A. 2C:11-3e, and the universe of cases against which Marshall’s, death sentence should be compared.
I agree with the majority’s careful construction of a system of proportionality review that incorporates both the analytical statistical study and the collective experience of the members of the Court. The majority’s view correctly acknowledges the proper role of applied judgment in a process in which an enslavement to numbers is tempting. When reviewing sentences of death we must resist the “seductive appeal of science and mathematics,” North Carolina v. Williams, 308 N.C. 47, 301 S.E.2d 335, 355 (citation omitted), cert. denied, 464 U.S. 865, 104 S.Ct. 202, 78 L.Ed.2d 177 (1983), which threatens to overcome the application of our seasoned judgment regarding the appropriateness of a capital sentence.
I
I would limit the universe of cases considered during proportionality review to those in which a prosecutor has served a *222notice of aggravating factor, thereby indicating an intention to seek a capital sentence. The majority on the other hand would include in the “universe” homicides that the Special Master deemed to be “death-worthy” but that were not prosecuted as capital offenses or that may not even have proceeded to trial. Such a universe fails to comport with the United States Supreme Court’s concept of proportionality review or the Legislature’s intent, and adds an unnecessary element of uncertainty and unreliability to New Jersey’s capital-sentencing procedures.
Proportionality is not the vehicle chosen by the Supreme Court to correct the major constitutional infirmities in capital punishment statutes cited in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Instead the Supreme Court looks to newly-enacted death-penalty statutes to eliminate the arbitrary and freakish nature of imposing death sentences that caused the Court in Furman to strike down death-penalty statutes as cruel and unusual punishment.
In New Jersey, those concerns have been addressed by the New Jersey Capital Punishment Act (“the Act”), which provides for bifurcated jury determinations regarding guilt and sentencing, textually-delineated aggravating and mitigating factors for consideration by the capital-sentencing authority, a sufficient narrowing of the class of death-eligible defendants, and direct appellate review by this Court of all death sentences. Those are the safeguards that the Supreme Court has relied on strictly to limit arbitrary application of death sentences and to serve as the principal methods of protecting defendants from arbitrariness. “On its face, this system, without any requirement or practice of comparative proportionality review, cannot be successfully challenged under Furman and our subsequent cases.” Pulley v. Harris, 465 U.S. 37, 53, 104 S.Ct. 871, 881, 79 L.Ed.2d 29, 42 (1984).
Under the federal constitution, proportionality review is concerned with correcting the occasional aberrational outcome of a death-penalty case that exceeds permissible individualized sen-*223fencing. Neither the Supreme Court nor the New Jersey Legislature intended the majority’s expansive view of proportionality review. Surely, nothing in the history of the proportionality statute suggests that the Legislature intended the Court’s review of death sentences to include a comparison of cases that were not prosecuted as capital offenses. As noted by the majority, when the Legislature originally enacted the death-penalty statute, they most likely operated under the misconception that the United States Constitution required proportionality review as an essential element of a valid death-penalty system. Ante at 126, 613 A.2d at 1067. That assumption was proven incorrect by the holding in Pulley v. Harris, supra, 465 U.S. at 37, 104 S.Ct. at 871, 79 L.Ed.2d at 29, which held that a procedural proportionality review was not constitutionally mandated in order to effectuate a properly circumscribed system of capital punishment.
Proportionality review is not a second appellate review nor a broad review of due-process concerns or other constitutional issues. It is a narrow concept directed to whether the defendant received a sentence disproportionate to that imposed on other defendants, considering both the crime and the defendant. It is not a vehicle for determining whether prosecutors abused their discretion. Nor is proportionality review a means of addressing individual instances of racial discrimination or other denials of due process. Of course, this Court will not tolerate such impermissible influences, and any sentence of death that results therefrom will be fatally infected. However, the proper avenue for addressing those issues is the capital defendant’s direct appeal, not on proportionality review.
If the Court wishes to undertake additional data-gathering for the purpose of examining prosecutorial misconduct or to address other issues, it should do so. But such unreliable and speculative data do not belong in a proportionality-review analysis, and its inclusion creates uncertainty and doubts about the validity of the Court’s final result.
*224By the time a sentence of death is considered for its proportionality, the defendant will already have had an opportunity to challenge his or her conviction and sentence before this Court. Both will have survived the rigorous scrutiny that we consistently have applied to sentences of death. At that point, proportionality review is correctly limited to a determination of whether the criminal-justice system of the State generally imposes a death sentence or life sentence on those who have committed crimes of a similar magnitude to that of the death-sentenced defendant.
II
As Special Master Baldus notes:
The first goal of a realistic system of proportionality review, therefore, is to limit its focus to cases in which there was an identifiable judgment as to the defendant’s deathworthiness.
[David T. Baldus, Special Master, Death Penalty Proportionality Review Project Final Report to the New Jersey Supreme Court, 46, Sept. 24, 1991 (Baldus Report).]
The majority’s universe makes securing an identifiable judgment on defendant’s deathworthiness impossible. The problems unleashed by adopting the majority’s universe are recognized by the Special Master:
First, that the information required for the decision is either unknown or unavailable. Second, that even if all relevant information is known, the judgment called for is hopelessly speculative. And third, that even if valid judgments were possible, the information gained is not sufficiently helpful to justify the considerable expense involved in collecting the data required to make them.
[Baldus Report at 51.]
The validity of the entire system depends on the correctness of the subjective evaluations made by personnel of the Administrative Office of the Courts concerning the “deathworthiness of a case” as contrasted with the evidentiary concerns and other hazards of litigation that a case presents. Such evaluations, *225made on a cold record, are extremely difficult, even if undertaken by experienced prosecutors and defense counsel. To replace the reasoned determination of prosecutors, trial judges, and, in some cases, juries, and to rely instead on the subjective evaluations of persons who have never faced the realistic difficulties of trying a criminal case creates an unreliable data-base and misleading conclusions.
I also disagree with the majority’s apparent acceptance of the Special Master’s conclusion that prosecutorial decisions not to seek the death penalty for certain homicides reflect a determination of death-worthiness. To the contrary, decisions by the prosecutor to decline to seek a capital sentence most likely reflect a determination regarding the likelihood that the available evidence will be insufficient to meet the State’s burden of proof. Prosecutors are simply not in the business of discarding clearly death-eligible homicides for which significant evidence establishing guilt has been collected because of a personal decision that a death penalty would be undesirable. As we noted in State v. Koedatich, 112 N.J. 225, 548 A.2d 939 (1988), cert. denied, 488 U.S. 1017, 109 S.Ct. 813, 102 L.Ed.2d 803 (1989):
Surely, there are a myriad of reasons why a prosecutor handles different cases differently, such as the willingness of a defendant to plead guilty, the strength of the State’s case, a defendant’s cooperation in the State’s case against a co-defendant, the relative weight of the statutory aggravating and mitigating factors, the availability and relative credibility and persuasiveness of witnesses, and the resources of the county prosecutor’s office, to list only a few.
[Id. at 256, 548 A.2d at 954.]
Most prosecutorial decisions concerning the pursuit of capital sentences rely on permissible considerations. Most prosecutors will seek the death penalty for homicides that objectively satisfy one or more of the aggravating factors and where the physical and testimonial evidence create a reasonable likelihood that the State will be able to meet its burden of proof.
Second-guessing prosecutorial decisions to pursue capital sentences will riddle the proportionality review with uncertainty. *226For those matters that did not proceed to trial, there will be no established record. Undoubtedly, there will be disputes over what the facts of cases were and what role the defendant played. For example, suppose a capital defendant challenging the proportionality of his or her sentence argues that prosecutors had failed to seek the death penalty for a murder of similar magnitude to that for which he or she had been convicted. What that defendant may not know, however, is that the prosecutor could amass only limited physical evidence connecting the other defendant to the crime, had an inarticulate principal witness with a flawed recollection, and was not at all certain that the evidence would establish the requisite mens rea. Surely, to allow the defendant to argue that the prosecutor’s choice not to dedicate limited resources to the pursuit of a death sentence in that case amounted to an indication that a capital sentence would be disproportionate for that homicide is unfair.
The Special Master’s classification of the death-eligibility cases is an extremely-subjective process carried out in the absence of factual findings or jury determinations. Conversely, limiting the universe to those cases in which a notice of aggravating factor has been served will provide an easily-ascertainable set of cases, free from speculation concerning evidence. I am confident that defining the universe in that manner will provide an adequate foundation of cases against which a sentence of death can be compared but without the pure guesswork necessarily entailed in the majority’s universe.
That approach was adopted in Tichnell v. Maryland, 297 Md. 432, 468 A.2d 1 (1983), cert. denied, 466 U.S. 993, 104 S.Ct. 2374, 80 L.Ed. 2d 846 (1984), in which proportionality review was limited to those cases in which imposition of the death penalty was properly before the sentencing authority for determination. Thus, the universe in Maryland consists of “only those first degree murder cases in which the State sought the death penalty * * * whether it was imposed or not.” Id. 297 Md. at 464, 468 A.2d at 17.
*227The dangers of expanding the universe to include those cases considered clearly death-eligible but that were not prosecuted as capital offenses were addressed in Nebraska v. Palmer, 224 Neb. 282, 399 N.W.2d 706 (1986), cert. denied, 484 U.S. 872, 108 S.Ct. 206, 98 L.Ed.2d 157 (1987). In Palmer, the Nebraska Supreme Court rejected proportionality review that included those cases that could have been prosecuted as capital offenses but had not been.
In examining prosecutorial discretion we would of necessity have to independently gather evidence. * * * We would then determine what charges we think should have been filed. * * * We would make a judgment about the chances of a conviction as against an acquittal * * *. [And, w]e would need to weigh the advisability of a plea bargain to secure a conviction on a lesser charge in order to avoid a likely acquittal of all charges.
[399 N.W.2d at 734.]
Such determinations are clearly outside the scope of a proper proportionality review.
Moreover, the Special Master’s assumption that unfettered discretion exists at the level of prosecutorial decisionmaking in the capital arena is flawed. This Court has already significantly circumscribed the potential for abuse of discretion by prosecutors seeking a death sentence. In response to the Court’s suggestion in State v. Koedatich, supra, 112 N.J. 225, 548 A.2d 939, the Attorney General and the various county prosecutors adopted guidelines for use throughout the state in selecting cases for capital prosecution. Moreover, we permitted judicial scrutiny of prosecutorial-charging decisions at the pre-trial level in State v. McCrary, 97 N.J. 132, 142, 478 A.2d 339, 343-44 (1984). In that opinion we held that defendants who had been served with a notice of an aggravating factor could, through summary proceedings before the trial court, challenge the sufficiency of the evidence to support those factors. Ibid. However, we were careful to limit that holding “to effect only a minimal intrusion into this area of prosecutorial discretion” in light of the “broad discretionary powers” historically exercised by prosecutors in determining charges. Ibid. The review *228established in McCrary has resulted in the nullification of a defendant’s exposure to capital sentencing in at least one case in which the prosecutors originally sought a death sentence. See State v. Matulewicz, 115 N.J. 191, 557 A.2d 1001 (1989).
Ill
The majority acknowledges that a universe comprising cases in which a notice of aggravating factor was served would constitute a reliable pool. Ante at 139, 613 A.2d at 1074. Yet, the majority declines to adopt that universe, ingenuously remarking that “[h]ad it appeared to be an insurmountable task to examine all ‘clearly death eligible cases,’ we might have made a mid-course correction.” Ante at 140, 613 A.2d at 1074 (citing In re Proportionality Review Project, 122 N.J. 345, 585 A.2d 358 (1990)). Although the majority makes short shrift of the time, effort and expense that will be needed to compile its universe of cases, the Special Máster estimates that approximately 250-300 non-penalty-trial cases per year will result in a factual case screen for proportionality-review purposes, Baldus Report at 110 — not an insignificant number to review and evaluate, when included with the penalty-trial cases.
After limiting the universe to those cases in which a notice of aggravating factor was served, I would winnow the cases to those similar to the challenged sentence by applying the procedures generally described by the majority in part IV of its opinion. In addition, I would conduct a comparative analysis similar to that employed by the majority in part V of its opinion. However, to the extent that those parts refer to prosecutorial decision-making, I dissent therefrom.
Because removal of those cases in which a notice of aggravating factor was not served from those cases included in the Court’s universe would reduce the likelihood of Marshall’s sentence being considered disproportionate, application of my universe in this case would not change the Court’s ultimate conclusion that defendant’s death sentence is sound.
*229IV
The Special Master’s report undeniably relies on subjective determinations of death-worthiness and repeated second-guessing of prosecutorial decisions. Such speculation undermines the objectives of proportionality review and unnecessarily complicates our analysis.
The majority concludes that the universe issue, although “vigorously contested,” has been “significantly overstated.” Ante at 132, 613 A.2d at 1070. I agree. Ultimately, the Court will use its common sense and collective experience in reviewing death sentences for proportionality. The Court will rely on those cases with which we are already familiar and for which a thorough record has been developed at trial and on appeal. That approach is most appropriate. Statistical analysis serves only as a departure point from which the Court can apply its judgment regarding the proportionality of a death sentence.