dissenting.
We are reviewing a death sentence imposed in 1986 under a statute enacted in 1984. This court authoritatively construed that statute in 1988, when this case first came before the court. The court correctly held that the statute provided for a death sentence after conviction of aggravated murder if a jury found three facts specified in the statute. The court also held, over two dissents, that the statute as so interpreted was consistent with federal constitutional standards. State v. Wagner, 305 Or 115, 752 P2d 1136 (1988).
The majority was wrong. The United States Supreme Court remanded the case to this court after deciding that the death penalty could not be mandated on the three findings specified in Oregon’s 1984 statute. Penry v. Lynaugh, 492 US _, 109 S Ct 2934, 106 L Ed 2d 256 (1989).
On remand, the majority now acknowledges that the 1984 death penalty statute, as it was drafted by its sponsors and heretofore understood and defended by those charged with applying it, in fact was invalid under the United States Constitution. The majority also acknowledges doubts about applying the text of an emergency repair job attempted by the state’s lawyers in the last hours of the 1989 legislative session. The majority therefore disregards the present text of the statute. It also jettisons its own prior interpretation in this very case. Instead, the majority constructs a statute of its own different from that enacted by the voters. I consider these *21extraordinary efforts to resuscitate an unconstitutional statute unworthy of this court and of this state. I therefore dissent.
I. WHAT DID THE 1984 DEATH PENALTY STATUTE MEAN?
The death penalty measure was put on the ballot by initiative petition in 1984. For reasons of their own, the sponsors chose a formula that calls upon jurors to answer three factual inquiries about a defendant who has been convicted of aggravated murder. The same formula (to be applied by trial judges) had been used in a 1978 initiative measure which was unconstitutional for other reasons. See State v. Quinn, 290 Or 383, 623 P2d 630 (1981). The 1984 statute (codified at ORS 163.150(1)(b)(1985)) instructed the trial judge to “submit the following issues to the jury.” Briefly stated, the three issues were, first, whether the defendant acted deliberately and expected that someone’s death would result; second, whether the defendant probably would commit violent crimes in the future, and third, in case of provocation, whether the defendant’s conduct was an unreasonable response.1 The 1984 statute then provided:
“If the jury returns an affirmative finding on each issue considered under this section, the trial judge shall sentence the defendant to death. If the jury returns a negative finding on any issue submitted under this section, the trial judge shall sentence the defendant to imprisonment for life in the custody of the Department of Corrections as provided in ORS 163.105.”
*22ORS 163.150(1) (e).
The three issues were questions of fact. The statute expressly called for “findings.” It excluded discretion. If the jury returned an “affirmative finding on each issue,” a sentence of death followed as a matter of law; if the jury returned a “negative finding” (more accurately, failed to return an affirmative finding) on any issue, the statute prescribed imprisonment for life.2
Indeed, eliminating discretion was the central feature of the 1984 measure. It sought, at least so far as the words of a law and of jury instructions can do this, to relieve both jury and judge of the choice whether or not to punish a defendant by death. Findings of fact would determine the applicable penalty. The jury could not vote for death without findings; the jury could not vote against death once it found the statutory facts. The judge’s role was not judgment but only to announce the statutory sentence.
For that very reason, the statute included an express provision to allow the prosecution and the defense “to present arguments for or against a sentence of death.” ORS 163.150(1)(a). If the jury were left to choose the penalty, the parties would need no special permission to argue for and against death; that would go without saying. The provision would be surplusage. But a statute limiting the jury to specified findings of fact might seem to forbid arguments drawing attention to the life-or-death consequences of those findings. The special permission for such arguments was not surplusage when its inclusion is seen to confirm the nonjudgmental, fact-finding questions put to the jury under the 1984 measure. The provision did not alter or add to those questions.
The decisive role of the three statutory issues appeared not only on the face of the statute. It was so explained to the voters by the committee charged with providing an impartial explanation in the Voters Pamphlet. The explanation stated:
“If the jury unanimously agrees that the defendant (1) acted deliberately with reasonable expectation of causing death, (2) *23is probably a continuing threat to society, and (3) responded unreasonably to provocation, if any, by the murder victim, the sentence must be death by lethal injection. Otherwise the sentence is life in prison with a minimum of 30 years (20 years minimum upon a unanimous vote of the Parole Board) without possibility of parole. Any sentence of death will be automatically reviewed by the Oregon Supreme Court.”
Official 1984 General Election Voters Pamphlet, Explanation to Measure No. 7. The explanation, like the text, did not refer to three specified findings among others not specified. It explained that if the jury finds the three listed facts, “the sentence must be death by lethal injection.” It “must be” death, not “may be, depending on the jury’s view of other considerations.”
Suppose that shortly after the 1984 vote, in the face of the explicit text of the measure and this official explanation, someone had written in a Bar examination that the statute did not make the three questions decisive, that affirmative answers to all three did not lead to a death sentence, but that the statute required the jury further to answer whether in its view the death sentence for the individual defendant was appropriate on other, unspecified grounds. Such an answer would be graded on the assumption that the student could not or did not read the statute. The contention would be brushed aside by prosecutors and judges as baseless and flatly contrary to the statute. That, of course, is what happened when defendants later made such arguments. The state concedes that until the current round of cases it consistently, and successfully, maintained that the statute left no room for any issue beyond the three specified in the text.
What, in short, did the 1984 statute mean? As written and as presented to the voters, it meant that the penalty depended exclusively on three questions, not four. In this very case, the state told the United States Supreme Court that the statute asks the jury to answer "the three statutory questions. ” Wagner v. Oregon (No. 87-6820), State’s Response in Opposition to Petition for Writ of Certiorari at 2.
Before the United States Supreme Court decided Penry v. Lynaugh, supra, Oregon’s statute meant no “fourth question.”
*24If Penry had never been decided, the 1984 statute would still mean no “fourth question.”
If Penry had been decided differently, the Oregon statute now would mean no “fourth question.” The state and the majority do not pretend otherwise.
The United States Supreme Court, of course, does not reinterpret or alter the meaning of an Oregon statute. The statute means after Penry what it meant before. In the words of the 1984 Voters Pamphlet explanation:
“If the jury unanimously agrees that the defendant (1) acted deliberately with reasonable expectation of causing death, (2) is probably a continuing threat to society, and (3) responded unreasonably to provocation, if any, by the murder victim, the sentence must be death by lethal injection.”
II. THE 1984 STATUTE WAS UNCONSTITUTIONAL
The 1984 measure, and the 1978 measure before it, were deliberately designed so as to specify exclusive criteria confining the scope of the death penalty and to eliminate discretionary imposition of death. However, as Supreme Court decisions subsequently bore out, the drafters went too far. The statute enacted in 1984 fell short of the standards of the Fourteenth Amendment. It was unconstitutional as written.
The 1984 measure was unconstitutional because it did not allow the jury or the judge to decide against putting a particular person to death on individualized “mitigating” grounds unrelated to the three statutory questions. This constitutional requirement was argued at length by the dissenting opinions in this court’s first decision in the present case. The Supreme Court had applied the requirement subsequent to Oregon’s 1978 initiative measure in decisions that need not be again recited here. These decisions were known when the 1984 measure was drafted. Nonetheless, the sponsors of that measure chose to repeat the rigid formula mandating death upon the three specified findings.
The 1984 measure allowed the jury to consider any mitigating circumstances in answering the second question, “[wjhether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” ORS 163.150(1) (b)(B). Attaching *25this provision to the second question made little sense, even to the majority in Wagner I, because personal mitigating conditions of the kind contemplated by the Supreme Court would not make the convicted person less of a future threat; they might just as likely make him more dangerous. See 305 Or at 206 (Linde, J., dissenting). In 1988, the majority believed that it could save the statute by letting the jury consider “any mitigating circumstances or factors with respect to any of the three questions.” 305 Or at 167. But the court refused to go beyond the three specified questions and to create another, open-ended jury issue, a “fourth question,” altogether outside the provisions of the statute.
In this respect the Wagner I majority was right. The statute mandated death upon affirmative answers to the three specified questions. But, as the current majority acknowledges, Wagner I proved to be wrong and the dissents to be right about the validity of the statute. In mandating death upon affirmative answers to the three statutory questions, the 1984 measure indeed was unconstitutional. Even if “mitigating evidence” was extended from the second question to all three questions, as Wagner I held, this would not and could not alter the terms of the factual issues that each juror must decide. A conscientious juror, after taking into account “mitigating evidence,” would still be asked to decide only whether the defendant had acted deliberately, whether his act was an unreasonable response to any provocation, and whether there remained “a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” Under the statute, a juror who conscientiously answered yes to each question still could not vote against death on other, unrelated grounds.
The majority’s efforts in Wagner I did not save the statute. Penry showed that the 1984 measure was unconstitutional as enacted and as interpreted in 1988.
III. THE MAJORITY EXCEEDS THE BOUNDS OF INTERPRETATION
Had this court in 1988 correctly understood that the 1984 measure violated constitutional standards, the court would have so held, and the present case would have been over. It then would have been left to the legislative process to *26reexamine the death penalty in light of due process requirements and of the experience with trials under the 1984 law, including all the issues debated in the earlier opinions in this case. It is ironic that only because the court was wrong in 1988 can it now seize upon the Supreme Court’s remand to try some further, more drastic, rewriting of the 1984 measure. The majority now adopts what it correctly rejected in Wagner I. This second rewriting is far beyond the bounds of interpreting the 1984 law.
The sleight-of-hand by which it is done is easily exposed, if that mattered. It appears at the outset, when the majority puts the question whether the statute “permits” the trial court to ask the jury “whether the death penalty is appropriate for this defendant, considering all aspects of his life and crime.” 309 Or at 7.
The majority’s phrasing is not whether the statute “calls for” such an inquiry or “requires” such an inquiry or whether the answer is an element of the statutory plan. The answer in each case is no. When the majority shifts the question from what the statute means to what the statute does not preclude, 309 Or at 9, it acts in a way that, in a context of life and death, might be criticized as cynical: Instead of holding the lawmakers to the burden of specifying the conditions under which a person may be condemned to death, as other courts have done, the majority shifts to the defendant the burden of showing that the statute excludes each possible additional requirement, not enacted by anyone, that may be needed to allow a valid execution. The point of legislation, however, is to state expressly what is required, not to state expressly what is excluded; and I thought we were long past the era of common law definitions of crimes and punishments. Apparently not.
The majority contends that ORS 163.150(1) (e) did not mandate a sentence of death upon affirmative answers to the three issues specified in subsection (1)(b), because subsection (1)(e) referred to “each issue considered under this section” rather than “under subsection (1)(b).” The argument is specious. The entire section specified three issues, and three issues only, to be decided by the jury. As the Voters Pamphlet explanation stated, if the jury decided each issue affirmatively, “the sentence must be death by lethal injection.”
*27Second, the majority quotes passages from Wagner I concerning the defendant’s right to present mitigating evidence and to have that evidence considered by the jury. But those passages do not help the majority’s argument. As the majority itself points out, the statute refers to evidence “that the court deems relevant to sentence.” ORS 163.150(1)(a). And Wagner I, quoted by the majority, construed the statute to allow “any competent evidence relevant to mitigation on any of the three issues.” (Emphasis added.) 305 Or at 156-57. The point of the passage was that “mitigating” evidence might be relevant to all three statutory issues, not only to the second issue where the statute expressly mentioned it. But the passage contradicts rather than supports the current majority’s attempt to create an entirely new issue beyond the three that the statute made decisive.
Another passage is quoted by the majority to claim that Wagner I allowed the jury to consider “non statutory” mitigating circumstances. 305 Or at 161. But the passage merely referred to evidence of circumstances beyond those that the statute applied to the second issue, ORS 163.150(1)(b)(B). Obviously Wagner I did not mean circumstances wholly outside the three statutory issues, because the 1984 measure denied the jury any way to act outside those issues. Given that Wagner I affirmed a conviction in which the jury was allowed no such opportunity, Wagner I cannot well be quoted to hold that the 1984 measure contemplated additional nonstatutory issues as well as consideration of nonstatutory circumstances bearing on the jury’s findings on the three issues specified in the law.
The court’s basis for its decision was clearly stated in Wagner I, 305 Or at 166:
“Our review of [the] post-Jurek opinions leads us to the conclusion that the Supreme Court of the United States will uphold a scheme such as that presented in Jurek if the sentencer is allowed to consider all competent evidence relevant to any of the three questions presented. ORS 163.150(1) specifically provides for the introduction of any evidence relevant to the three questions, and, as we have noted above, even if the statute did not do so, relevant and competent evidence is admissible on any issue presented to the trier of fact.”
This conclusion proved to be wrong. The current majority’s *28attempt now to reconstruct the opinion in Wagner I fails normal legal analysis as badly as does the majority’s effort to reconstruct the 1984 measure, the measure that was submitted to the voters on the basis that upon affirmative findings on the specified issues, the sentence “must be death.”
This is not a case in which due process under the Fourteenth Amendment simply requires some procedural safeguard not mentioned in a statute, some form of notice or an opportunity to meet the basis for a government action adverse to one’s interests. Such procedural due process is readily provided without rewriting the substantive elements of the state’s law. Nor is the issue here what evidence may be admitted, or what use the jury may make of that evidence. Those issues were settled in Wagner I.
Here we deal not with evidence, or procedure, or even instructions, but with the substance of the statutory test for life or death. The 1984 measure adopted an unmistakable substantive standard, a policy to put to death any person convicted of aggravated murder upon three specified findings. That measure was unconstitutional in 1984, and it was unconstitutional when it came before this court in 1988, as the Supreme Court now has confirmed. The majority now wants to pretend that the 1984 measure did not mean what it said, what the people were told that it said, what the Department of Justice and the courts consistently maintained, what this court one year ago held that the measure meant, and what the Attorney General told the United States Supreme Court in this very case. Rather, the majority now has the measure mean something very different, death or life upon unspecified individual circumstances considered by the jury.
This judicially rewritten statute is not the measure adopted in 1984. Moreover, it creates unexamined new constitutional problems of standardless and potentially unequal application under Article I, sections 20 and 21, of the Oregon Constitution.3 If these problems and the choice of a different *29scheme were properly studied and resolved by the appropriate lawmaking process, future constitutional issues could be decided by this court without a prior commitment to the validity of the revised scheme. The court’s consideration of these issues should not be burdened, or appear to be burdened, by the fact that the court itself promulgated the revised version of the law, as the majority does today.
This is not the first state court to face the question whether it could or should reconstruct a death penalty law after a decision of the United States Supreme Court showed that the law as enacted was unconstitutional. Other courts have refused to do so. Thus, when an Indiana trial court modified the procedures prescribed by that state’s death penalty law in order to make them comply with federal standards, the Indiana Supreme Court reversed and remanded the case with instructions to vacate the death sentence. Bond v. State, 273 Ind 233, 403 NE2d 812 (1980). The court wrote:
“The State concedes that the statute has been ruled unconstitutional, but argues that as long as certain procedures are followed which guarantee the defendant’s due process rights, the death penalty may, nevertheless, be imposed. * * *
“The fixing of penalties for crimes is solely up to the Legislature, as the elected representative body, not the trial *30courts. * * * The judiciary cannot usurp a legislative function by creating standards for imposing the death penalty.”
403 NE at 815-16 (citations omitted).
Similarly, after it was established that an Idaho death penalty statute failed the test of the Fourteenth Amendment, the Idaho Supreme Court refused the state’s request to reconstruct the statute so as to make it constitutional. The court wrote that “[t]o do so would require that we rewrite substantive statutory law,” quoting and agreeing with the California Supreme Court that
“ ‘[decisions as to which criminal defendants shall suffer the death penalty, whether these decisions shall be made by judge or jury, whether and to what extent a jury determination is reviewable by the trial court and/or the reviewing court, and the scope of responsibility to be given this court to safeguard against arbitrary imposition of the death penalty are matters of legislative concern. Were this court to attempt to devise the necessary procedures and criteria we would not only invade the legislative province, but would also be in the position of having to pass objectively on the constitutionality of procedures of our own design.’ ”
State v. Lindquist, 99 Idaho 766, 589 P2d 101, 105 (1979), quoting from Rockwell v. Superior Court, 18 Cal 3d 420, 134 Cal Rptr 650, 665, 556 P2d 1101, 1116 (1976). The Idaho Supreme Court continued:
“The argument that the Idaho first degree murder statute imposing the death penalty can be construed by this Court to make it constitutional is subject to another infirmity. Such a retroactive construction, if applied to the facts of this case, poses serious ex post facto problems under Art. I, § 9, of the United States Constitution and Art. I, § 16, of the Idaho Constitution.”
589 P2d at 105, citing to the same effect Commonwealth v. Harrington, 367 Mass 13, 323 NE2d 895 (1975). The Rhode Island Supreme Court similarly refused a request by the state to conform its death penalty statute to the requirements of the United States Constitution, stating that “[t]he task which the state wishes us to perform is one that comes within the exclusive purview of the legislative branch of our state government.” State v. Cline, 121 RI 299, 397 A2d 1309 (1979). The Wyoming Supreme Court gave the same response to that *31state’s request to conform its death penalty statute to constitutional requirements, pointing out the additions to and changes in the statute that would be required, and concluding:
“In addition, it would be necessary to add a phrase modifying this penalty and providing certain guidelines, which we, not the legislature, would be forced to promulgate. This would clearly be violative of the authorities above mentioned.”
Kennedy v. State, 559 P2d 1014, 1017 (Wyo 1977).
Most telling is the response of the Ohio courts to the decisions of the Supreme Court in Lockett v. Ohio, 438 US 586, 98 S Ct 2954, 57 L Ed 2d 973 (1978), and Bell v. Ohio, 438 US 637, 98 S Ct 2977, 57 L Ed 2d 1010 (1978). It is most telling because Lockett was one of the decisions that showed the invalidity of the 1984 Oregon death penalty measure. After the Supreme Court’s reversal in Lockett, the Ohio court did not send it and other similar cases back for another penalty hearing; instead it ordered entry of sentences of life imprisonment in 54 pending capital cases. See State v. Cornely, 56 Ohio St 2d 1, 7, 381 NE2d 186 (1978); State v. Bridgman, 55 Ohio St 2d 261, 265, 381 NE2d 184 (1978); State v. Collins, No. C-77614 (Ohio Ct App 1979).
This court should follow the example of the Ohio Supreme Court and other state courts that have refused to reverse their prior interpretations of state laws when death sentences under the existing law proved to be invalid.
IV. THE 1989 AMENDMENT CAN ONLY APPLY TO FUTURE CASES
The Supreme Court’s opinion in Penry v. Lynaugh, supra, was announced on June 26, 1989, a few days before the end of the 1989 legislative session. Correctly understanding that Penry invalidated Oregon’s three-issue death penalty formula, the Department of Justice rushed to attach to a pending bill a last-minute amendment that adds a new fourth issue for the jury to decide in death penalty cases. Because today’s majority opinion rightly avoids reliance on the 1989 amendment to revive the invalid death sentence in this 1985 murder case, that amendment requires only brief discussion.
The amendment adds to the three issues stated in ORS 163.150(1)(b)(A)-(C), supra note 1, a new paragraph (D):
*32“If constitutionally required, considering the extent to which the defendant’s character and background, and the circumstances of the offense may reduce the defendant’s moral culpability or blameworthiness for the crime, whether a sentence of death be imposed.”
As the majority observes, the new provision is ungrammatical and obscure. The initial conditional phrase (“If’ etc.) leaves in doubt whether “considering” is supposed to bear on “constitutionally required.” The final phrase, “be imposed,” lacks an active verb. The new provision also may fall short of what Penry requires insofar as it incorporates the state’s position that mitigating circumstances must relate to defendants’ culpability or blameworthiness for the crime, a position that today’s majority opinion rejects. But those problems are for the fixture.
The amendment also provided that, in case a death sentence is set aside, certain provisions should apply in a resentencing proceeding under ORS 163.150(1). The new ORS 163.150(5)(c) states:
“The provisions of this section are procedural and shall apply to any defendant sentenced to death after December 6, 1984.”
One may and probably should credit the drafters with knowing that a substantive provision would not become “procedural” by self-declaration. Retroactive application of a substantively revised death penalty law, newly enacted to replace an invalid law, would violate the prohibition of Article I, section 21, of the Oregon Constitution, supra note 3. State v. Smith, 56 Or 21, 107 P 980 (1910).
Had the prior statute not been unconstitutional, the new ORS 163.150(1)(b)(D) might be a provision mitigating the otherwise applicable penalty and not contravene the ex post facto clause. State v. Smith, 56 Or at 26. But because the 1984 penalty provisions were not valid, no death penalty could validly be applied under those provisions. If this court had correctly so decided in 1988, would anyone maintain that the legislature in 1989 could have provided for resentencing this defendant to death under a new, revised statute? The answer must be no. How could one now defend a different holding merely because the majority in 1988 failed correctly to apply the constitutional standard? Retroactive application of the *331989 statute would not be less ex post facto because this court erred.4
V. CONCLUSION
In sum, the sponsors of the 1984 death penalty initiative chose as their model a Texas statute that was known to be vulnerable under previously decided United States Supreme Court cases. The measure was designed so that the jury only made findings on three factual issues specified in the statute. Neither the jury nor the judge literally decided for or against a death sentence or exercised any discretion apart from deciding the three issues. This was clearly explained to the voters in 1984.
It already was doubtful then that the measure met federal standards, because it excluded possible mitigating facts unrelated to the three statutory issues. When this defendant’s case, the first under the 1984 measure, reached this court in 1988, the court knew that the statute might not pass muster under the decisions of the United States Supreme Court. The issue was fully debated in the opinions in Wagner I. The majority, over two dissents, decided that the scheme could be sustained as long as mitigating evidence could be introduced and considered by the jury in relation to all three *34statutory issues, not only the second question specified in the statute.
The possibility of a further “fourth question” was not overlooked. It was tentatively raised in one dissent. It was knowingly, and correctly, rejected by the six other members of the court. The Wagner I majority authoritatively held that Oregon’s statute called for findings on only three issues, and it sustained the statute and affirmed the sentence on that basis.
In due course the Supreme Court’s decision in Penry proved that the dissents in Wagner I were correct. The 1984 measure as written and as interpreted by this court indeed was unconstitutional. The Supreme Court vacated defendant’s death sentence and remanded his case to this court.
The Chief Justice’s opinion for the new majority now rewrites both the 1984 statute and its interpretation by this court in this same case one year ago. It embraces what it then rightly rejected. It makes a radical change in the design of the statute. Where the statute as written, as explained to the voters, and as interpreted in 1988 called upon the jury only for findings on three factual- issues and deliberately avoided asking for any express judgment on whether to impose the death penalty, the new opinion discovers that the statute after all calls for such a judgment by the jury. And the opinion does this in the name of “interpretation,” disregarding subsequent legislation that could not be applied ex post facto to this case. It is an astonishing performance.
Today’s decision will not mark a proud day in the history of this court. It comes at the beginning of a new decade in which many societies are turning in revulsion from regimes that were too ready to put people to death. While Western nations among whom we claim leadership continue to reject the death penalty even for heinous crimes, this country is rapidly accumulating the largest number of persons sentenced to death and awaiting execution in the world.5
*35There is no legal reason why Oregon must add its share. To the contrary, today’s majority opinion displays the extraordinary gymnastics required to salvage the unconstitutional 1984 measure. The straightforward and far easier course would be to face up to the decision of the United States Supreme Court and let the lawmakers start again, as other state courts have done.
Then why is this not done? That remains for others to explain. If Oregon historians in the coming century take any note of the state’s and this court’s recent experiences with the death penalty, they may note that the current murderous ferocity of criminal behavior has called forth a ferocious popular demand for equivalent retribution against the guilty, to the point of initiating repeal of major constitutional guarantees in such cases.6 But a statute is no more than a statute because it was enacted by the initiative process rather than by the Legislative Assembly. It deserves as much judicial respect as ordinary legislation, but no more than that. I recall no instance where this court has gone to similar lengths to alter and distort its earlier interpretation of far less consequential legislation as it does here, where life or death are at stake.
It is our duty not to extend the death penalty law beyond its exact terms. This is not due to sympathy or concern for a defendant. See Wagner I, 305 Or at 191 (Linde, J., dissenting). The popular demand for retribution may run wide, but it is not unanimous. For many Oregonians, maybe hundreds of thousands, execution of a death sentence by state officials acting on behalf of the citizens of Oregon implicates them in a morally repugnant act. They may not be the majority, but they too are entitled to adherence to the law. The court *36owes them the duty not to create a new death penalty law beyond the unconstitutional 1984 measure. The court fails in that duty today.
I dissent.
Fadeley, J., joins in this dissenting opinion.ORS 163.150(1)(b) (1985) provided:
“(b) Upon the conclusion of the presentation of the evidence, the court shall submit the following issues to the jury:
“(A) Whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that death of the deceased or another would result;
“(B) Whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. In determining this issue, the court shall instruct the jury to consider any mitigating circumstances offered in evidence, including, but not limited to, the defendant’s age, the extent and severity of the defendant’s prior criminal conduct and the extent of the mental and emotional pressure under which the defendant was acting at the time the offense was committed; and
“(C) If raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.”
The statute does not state what vote constitutes a “negative finding” of the jury, but it requires unanimity for affirmative findings. ORS 163.150(1)(d).
Article I, sections 20 and 21, of the Oregon Constitution provide:
“Section 20. * * * No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.
“Section 21. * * * No ex-post facto law, or law impairing the obligation of contracts shall ever be passed, nor shall any law be passed, the taking effect of *29which shall be made to depend upon any authority, except as provided in this Constitution; * *
See State v. Cornell/Pinnell, 304 Or 27, 741 P2d 501 (1987); State v. Graves, 299 Or 189, 195, 700 P2d 244 (1985) (“In addition to its function of giving fair notice of the forbidden conduct, criminal statute must not beso vague as to permit a judge or jury to exercise uncontrolled discretion in punishing defendants, because this offends the principle against ex post facto laws embodied in Article I, section 21, of the Oregon Constitution.”)
Apart from this, questions remain whether the Oregon statute sufficiently narrows the class of defendants eligible for the death penalty to meet federal standards despite the majority’s assurances in Wagner I. So many circumstances characterize aggravated murder under ORS 163.095 that in most intentional homicides prosecutors in fact may have a basis for charging aggravated murder if they so choose. Statewide crime statistics do not now show how many cases are charged and prosecuted as ordinary, nonaggravated murder without prior plea bargaining.
The extent of prosecutorial discretion to choose to pursue a death penalty upon such a broad spectrum of possible aggravated murder theories poses obvious possibilities of unequal or oppressive treatment. Only the state is in a position to maintain and provide adequate records on the initial pools of murder and aggravated murder suspects and the choice of charges. This is in addition to the essentially unguided jury discretion introduced by the “fourth question” invented by the majority.
The following passage from State v. Smith, 56 Or 21, 29, 107 P 980 (1910) (which refused to revive a superseded statute), including a part of the court’s quotations from other cases, is pertinent in the present context:
“To hold otherwise would violate the settled policy of our Federal and State governments since their inception, to the effect that the judiciary shall not encroach upon the legislative departments of government. It is not the function of courts to make laws, but to interpret them. As summarized by Mr. Justice BEAN in State ex rel v. Simon, 20 Or 365, 373 (26 Pac 170, 172):
“ ‘Courts “must not, even in order to give effect to what they may suppose to be the intention of the legislature, put upon the provisions of a statute a construction not supported by the words, even although the consequences should be to defeat the object of the act.” Smith’s Stat. Const. S 714. This is a case, it would seem, where the legislature has omitted by mistake or otherwise to make the necessary provisions to carry out its intention, but we cannot by construction supply these omissions. As was held by Davis, J., “It is always competent for the legislature to speak clearly and without equivocation, and it is safer for the judicial department to follow the plain and obvious meaning of an act, rather than to speculate upon what might have been the views of the legislature in the emergency which may have arisen. It is wiser and safer to leave to the legislative department to supply a supposed or actual casusomissus than to attempt to do so by judicial construction.” People v. Woodruff, 32 NY 364. * * *’”
A recent scholarly study begins: “The pattern is so simple it is stunning. Every Western industrial nation has stopped executing criminals, except the United States.” Zimring and Hawkins, Capital Punishment and the American Agenda 3 (1986). A year ago, when this case was here before, about 2,000 prisoners were awaiting execution in the United States, and death penalty cases occupied large proportions of the work of supreme courts in many states. See Wagner I, 305 Or at 217-19 (Linde, J., dissenting). See also Soering Case, 1/1989/161/217 Eur. Ct. H.R. (1989), in which the *35European Court of Human Rights directed the United Kingdom not to extradite a German national to Virginia because incarceration for years under the conditions prevailing on death row would subject the defendant to cruel and unusual treatment or punishment contrary to Article 3 of the European Convention on Human Rights and Fundamental Freedoms.
As this court is engaged in reinventing a death penalty law for Oregon, press reports note that one of Romania’s first acts upon emerging from totalitarianism was to abolish the death penalty. N.Y. Times, Jan. 2, 1990, at A6, Col. 5.
The 1984 measure accompanied a constitutional amendment that made Article I, section 15 (reformation as object of penal laws) and section 16 (proportionality and prohibition of cruel or unusual punishments) inapplicable to the death penalty for aggravated murder. See Or Const Art I, § 40 (1989).