dissenting.
The defendant in this case is a New Jersey prisoner serving a life sentence. The Legislature has not authorized subh a person to be extradited to a foreign jurisdiction to be prosecuted, let alone to be executed. Yet that is precisely what the Court orders. I dissent.
The Court now decides that defendant should be sent to California to be put to death. The legal principles gathered to condone this surrogate execution reflect neither sense nor justice in the circumstances. The key to the Court’s thinking appears to be “comity.” “[A]s a matter of comity,” the Court believes, “the decision to extradite a prisoner serving a New Jersey sentence to a demanding state to allow that state to exact its punishment before the prisoner completes his sentence here is within the discretion of the Governor of New Jersey.” Ante at 293, 590 A.2d at 1139. Disembodied from its context, that observation appears innocuous. Given context, it is lethal. The Court’s observation purports to justify, only by the vaguest reference to comity, extraditing a prisoner who is serving a life term despite a specific statutory condition that requires that, in order to be extradited, a prisoner must be serving less than a life sentence. Comity, as used by the Court, implies a gubernatorial discretion that is basically unfettered. That discretion, however, is not absolute; it is constrained by statutory conditions. In the circumstances of this case, without a fully-in*295formed executive determination that manifestly conforms to express legislative standards, comity cannot be invoked to send a prisoner to his death.
I.
The critical question in this case is whether a person serving a life sentence in New Jersey may be delivered up to another state for execution. A provision of the Uniform Criminal Extradition Act (UCEA), enacted in New Jersey as N.J.S.A. 2A: 160-10, governs this issue. It says that an asylum state must deliver to a demanding state
any person charged in that state with treason, felony or other crime, who has fled from justice and is found in this state; provided if the executive authority of any other state or district requests the extradition of any person charged in that state with murder, and that person is imprisoned in a penal institution of this state for a term less than imprisonment for life, the governor of this state may deliver him or her up to the demanding state or district for the purpose of trial in said state or district; provided, however, that prior to removal of the person from this state, the executive authority of the demanding state or district shall have agreed that the person so delivered up is to be returned immediately to this state or district, to serve the balance of his or her term of imprisonment in the event of his or her acquittal in the demanding state, or in the event of his or her conviction in such a state of manslaughter or any degree of murder the punishment for which is less than death or imprisonment for life. [AV.S'.A. 2A:160-10 (emphasis added).]
A fair reading of the statute suggests that the transfer of an offender sentenced to a term of life is barred because persons serving life sentences in New Jersey are expressly excepted from the statute. At the very least, the status of “lifers” is simply not addressed by the legislation.
Other considerations support the conclusion that the Legislature has not authorized extradition in this situation. In the circumstances of this case — in which a prisoner is sought to be extradited to be executed for capital murder in another state— our extradition statute cannot be read without considering our own capital-murder statute and jurisprudence. See discussion infra at 300-302, 590 A.2d at 1142-1143. Our Legislature has made clear and explicit its policies respecting those potentially facing a death sentence. It has not left the execution of a *296capital defendant to an unchannelled discretion. Further, this Court itself has acted scrupulously to conform to these policies. See, e.g., State v. Ramseur, 106 N.J. 123, 524 A.2d 188 (1987) (a defendant may not be sentenced to death in the absence of a unanimous verdict that aggravating factors outweigh mitigating factors beyond a reasonable doubt); State v. Kiett, 121 N.J. 483, 582 A.2d 630 (1990) (a juvenile may not be prosecuted for capital murder). It is both plausible and rational to believe that, in its articulation of state policy concerning capital murder, the Legislature would have made provision, had it so intended, for the extradition of convicted murderers for purposes of fulfilling the capital sentences imposed on such murderers by other states. Given the extraordinary penal consequences of extradition in these circumstances, the only permissible inference to be extracted from the language of the extradition statute, fortified by the absence of any reference to this subject in the capital-murder statute, is that such a transfer is barred. Whether the statute expressly prohibits the transfer or simply fails to address the situation, the Governor is deprived of any discretionary power to extradite defendant. Cf. Watson v. Enslow, 183 Colo. 435, 438, 517 P.2d 1346, 1348 (extradition statute “is both a grant and limitation of the executive authority”), cert. denied, 419 U.S. 880, 95 S.Ct. 145, 42 L.Ed.2d 120 (1974); Carpenter v. Lord, 88 Or. 128, 171 P.577 (1918) (Oregon legislature enacted statute “limiting the authority of the executive” to extradite prisoners; statute is worded in “mandatory language, and completely removes any discretion which the executive might otherwise exercise in such a case”). But see Buffalo v. Tanksley, 189 Colo. 45, 536 P.2d 827 (1975) (limiting Watson to situations in which governor no longer has custody over defendant).
That the Legislature has chosen to deal with the subject of extradition cannot be overemphasized. Because comity, in effect, has been codified, extradition in the context of this case is a matter that must be considered as having been co-opted by the Legislature. Hence, general principles of comity in the *297sense of unrestrained executive discretion are not applicable and cannot trump a contrary statute. Stated simply, under the extradition statute, the duty to extradite does not mature, and extradition cannot be compelled, until defendant finishes serving his New Jersey sentence. Cf. Nelson v. George, 399 U.S. 224, 229 n. 6, 90 S.Ct. 1963, 1966 n. 6, 26 L.Ed.2d 578, 583 n. 6 (1970) (“until the obligation to extradite matures, the Full Faith and Credit Clause does not require [an asylum state] to enforce the [demanding state’s] penal judgment in any way”); Taylor v. Taintor, 83 U.S. 366, 371, 21 L.Ed. 287, 290 (1873) (“if the laws of the [asylum] State have been put in force against the fugitive, and he is imprisoned there, the demands of those laws may first be satisfied”). By contrast to the language of those cases, however, the statute here completely controls the Governor’s discretion.
The Court’s wayward interpretation of N.J.S.A. 2A:160-10 to authorize the foreign execution of a New Jersey prisoner not only fails on counts of common sense and basic justice, it ignores the public policy inherent in the legislative scheme. Sensibly read and construed, N.J.S.A. 2A:160-10 stands as a legislative pronouncement that the State itself will exact the maximum punishment from its worst offenders. The State, in effect, has reserved to itself the prerogative of obtaining the full measure of punishment of those offenders who are particularly blameworthy.
Several factors demonstrate that the statute embraces such a policy. According to the plain terms of the statute, a life-term prisoner is not eligible to be extradited. The statute as written thus means that a prisoner serving a life term would be required to remain in New Jersey to serve out his sentence. Significantly, a prisoner sentenced to death is not even mentioned in the statute. That is a purposeful omission. Obviously, the Legislature could not have been unaware or indifferent to the fact that persons in New Jersey could be subject to a death sentence. N.J.S.A. 2A:160-10 was enacted in 1933 and amended in 1940, a time during which the death penalty existed *298in New Jersey. See State v. Ramseur, supra, 106 N.J. at 371-73, 524 A.2d 188 (Handler, J., dissenting) (reciting history of New Jersey death penalty). In addition, the statute specifically refers to persons who may be sentenced to death by a foreign state. Consequently, the omission from N.J.S.A. 2A:160-10 of persons under a New Jersey death sentence reflects the understanding that such persons presumably would be executed by New Jersey and would not be subject to extradition.
The retributive state policy of assuring that its maximum sentences — life or death — will be carried out can be contrasted instructively with the treatment accorded to prisoners not serving a maximum sentence of at least life imprisonment. The Legislature was satisfied that such prisoners should be eligible for extradition. Hence, with respect only to prisoners serving lesser sentences, a term of years less than life, has the Legislature chosen to give deference to a demanding state’s interest in seeking its own punishments. However, N.J.S.A. 2A:160-10 itself requires the return to New Jersey of such a prisoner if that person receives less than a maximum sentence from the demanding state. Conversely, the statute authorizes the non-return of such a New Jersey prisoner who is given a sentence of life imprisonment or death by the demanding jurisdiction. In short, N.J.S.A. 2A:160-10, by its express exception for those serving life sentences and its purposeful omission of those under a death sentence, reflects a legislative determination that New Jersey has a direct interest in securing the full exaction of its own maximum sentences.
The Court here simply assumes our State’s maximum sentence is not only the same as California’s maximum sentence but that our interest in having our sentence served is no greater than our interest in allowing California to carry out its maximum sentence. The statutory scheme of N.J.S.A. 2A:160-10, however, indicates that the State has chosen not to defer to a similar or parallel retributive interest of a foreign jurisdiction when the prisoner is under a maximum sentence imposed by *299this State. Even if such a jurisdiction seeks to prosecute an offender for crimes that could result in a sentence as harsh as our State’s own maximum sentences of life imprisonment or death, the statute does not make such an offender eligible for extradition. Thus, when it comes to exacting the maximum sentence on an offender, New Jersey has chosen in effect to give priority to its own penal and retributive interests over those of another state.
The majority acknowledges that N.J.S.A. 2A:160-10, by its clear terms, does not authorize an extradition for the purposes of punishment. Ante at 290, 292, 590 A.2d at 1137, 1138. However, it insists that more must be read into N.J.S.A. 2A:160-10 and that “[i]ts proper interpretation may be reached only by reading it in conjunction with [N.J.S.A. 2A:160-5].” Ante at 290, 590 A.2d at 1137. The Court reads N.J.S.A. 2A:160-5 as “permit[ting] the Governor of New Jersey to agree that this State will cover the cost of returning certain demanded prisoners to their asylum state if after trial they receive a New Jersey sentence less than death or life imprisonment.” Ante at 290, 590 A.2d at 1137. It explains that N.J.S.A. 2A: 160-10 “merely intended to create a reciprocal burden on other states.” Ante at 290, 590 A.2d at 1137. It fails to explain, however, why, if our Legislature “merely” sought to create such a reciprocal financial burden, N.J.S.A. 2A: 160-10 excludes those serving life sentences from transfer. The answer is that the Legislature did not intend to let such prisoners go in the first place. Moreover, as noted, N.J.S.A. 2A:160-10 recognizes that a New Jersey prisoner who is extradited and receives a life sentence or a death sentence in the foreign jurisdiction need not be returned to serve his New Jersey sentence. Hence, N.J.S.A. 2A:160-5, which ensures the payment to return a prisoner and is invoked by the Court to amplify N.J.S.A. 2A:160-10, simply has no relevance or applicability in the circumstances of a prisoner v/ho has received, and who will receive, a sentence of death or life imprisonment in both the asylum and demanding states, respectively.
*300Further, the majority unceremoniously brushes aside the specifically underinclusive language of N.J.S.A. 2A:160-10 and fastens on the more sweeping language of N.J.S.A. 2A:160-27. That provision permits the governor to extradite anyone prosecuted criminally by New Jersey when such prosecution “is still pending.” The majority takes an expansive view of that language, finding it “ ‘broad enough to cover rendition of a prisoner then serving his sentence.’ ” Ante at 292, 590 A.2d at 1138 (quoting In re Ierardi, 366 Mass. 640, 647-49, 321 N.E.2d 921, 926 (1975)). However, “prosecution” generally contemplates proceedings designed to “determinfe] the guilt or innocence of a person charged with crime.” Black’s Law Dictionary (5th ed. 1979). This interpretation is supported by the language of N.J.S.A. 2A:160-27, which states that if a governor does not extradite a person while that person is being tried in the asylum state, the governor must “hold him until he has been tried and discharged or convicted and punished in this state.” (Emphasis added). That language suggests that prosecution ceases after discharge or conviction (barring appeal) and that someone convicted may be extradited only after being convicted and punished in New Jersey. It is uncontested that defendant had been found guilty of murder in New Jersey. Indeed, our own capital-murder statute contemplates that a conviction for murder, even though on appeal, constitutes a final murder conviction that can be considered as an aggravating factor, N.J.S.A. 2C:ll-3c(4)(a), in a subsequent capital-murder prosecution. L.1985, c. 178 § 2; N.J.S.A. 2C:11-3c(4)(a); cf. State v. Biegenwald, 96 N.J. 630, 633, 477 A.2d 318 (1984) (holding, prior to the statutory amendment, that murder convictions on appeal were not final). N.J.S.A. 2A:160-27 manifestly does not include prisoners serving life sentences who are no longer being prosecuted by the State.
In effect, this Court is being asked, and has agreed, to send defendant to his death. Our Legislature has expressed its view on the death penalty, see L.1982, c. 111; N.J.S.A. 2C:11-3, and this Court has endeavored to serve the public policy underlying *301that view. See, e.g., State v. Marshall, 123 N.J. 1, 586 A.2d 85 (1991). The very existence of a death-penalty statute, and amendments thereto, demonstrates that our Legislature has set out the class of murders for which it deems the death penalty appropriate. Capital punishment being a matter of critical importance, the Legislature has seen fit to amend the original statute to address problems and situations not addressed in the original enactment. See, e.g., L.1985, c. 178, eff. June 10, 1985 (admissibility of State’s penalty-phase evidence governed by rules of evidence; evidence offered by defendant in mitigation not governed by rules of evidence, but State can rebut such evidence; aggravating factors must outweigh mitigating factors beyond reasonable doubt before death penalty can be imposed; jury shall be informed of the consequences of its verdicts); L.1985, c. 478, eff. Jan. 17, 1986 (making juveniles ineligible for the death penalty; making mandatory an appeal to the Supreme Court when the death penalty is imposed). In light of the policies articulated in the death-penalty statute, if the Legislature wishes to permit extradition of lifers for purposes of execution, one would reasonably infer that it will do so explicitly. New Jersey’s participation is indispensable in carrying out defendant’s execution, and we cannot shed all responsibility for defendant because he has been convicted and sentenced to death in a foreign jurisdiction.
We have repeatedly emphasized that “death is different” — it is final and irreversible. See, e.g., State v. Ramseur, supra, 106 N.J. 123, 524 A.2d 188; State v. Williams, 93 N.J. 39, 459 A.2d 641 (1983). Under our own statute, before allowing a death sentence to stand, we profess to review cases scrupulously to ensure that trials are conducted in accordance with our capital-murder statute and enhanced standards of fairness. See, e.g., State v. Bey, 112 N.J. 123, 548 A.2d 887 (1988). The prospect of execution requires that we ensure as best we can that one facing a final penalty has received the full measure of heightened protections guaranteed to him. To send this defendant away to be executed, in light of the gap in N.J.S.A. *3022A:160-10 and the policies underlying our capital-murder statute, scoffs at those principles. We require heightened standards when a defendant faces death; we can hardly permit death by statutory inference.
II.
In sum, this transfer is barred because the Legislature has said it is, or at least has not expressly or impliedly authorized it. Given our Legislature’s pronouncements on the death penalty, which, notably, was enacted after the extradition statutes, we cannot be sure that the Legislature intended someone such as defendant to be sent to his death. No legislative history exists to amplify the language of N.J.S.A. 2A:160-10. The slate is blank. The Court nevertheless superimposes its own notion of the Legislature’s intent. Unlike the majority, I would not assume that the Legislature’s insulation of those serving life sentences in New Jersey is the freakish consequence of imprecise drafting. Almost all those serving life sentences in New Jersey, like defendant, were convicted of first-degree murder and perhaps other offenses as well. N.J.S.A. 2A:160-10 and the death-penalty statute indicate that the Legislature has a strong retributive interest in securing its own legal punishment from those who commit crimes punishable by New Jersey’s harshest penalties. The Legislature has taken great pains to establish a structure by which such defendants may be tried and sentenced, and maintains a strong interest in seeing its policies in this area carried out. The Governor cannot circumvent the public policy of the State. In concluding otherwise, the Court twists the concept of comity beyond its proper purpose.
For the foregoing reasons, I would hold that the Governor exceeded his authority by signing the warrant of extradition, and that the Law Division committed error by not quashing the warrant.
*303For affirmance — Chief Justice WILENTZ, and Justices CLIFFORD, POLLOCK, O’HERN, GARIBALDI and STEIN — 6.
Dissenting -^Justice HANDLER — 1.