dissenting.
The Eighth Amendment of the United States Constitution forbids the State from executing a criminal defendant who is mentally retarded. Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 2252, 153 L.Ed.2d 335, 350 (2002). In Atkins, supra, the United States Supreme Court left “to the States the task of developing ways to enforce the constitutional restriction” against executing mentally retarded defendants. Id. at 317, 122 S.Ct. at 2250, 153 *410L.Ed.2d at 348. Relying on recent developments in federal and state constitutional sentencing jurisprudence, as well as notions of fundamental fairness, the Appellate Division concluded that when mental retardation is at issue, the State should bear the burden of proving a capital defendant’s lack of mental retardation beyond a reasonable doubt as a precondition to carrying out an execution. State v. Jimenez, 380 N.J.Super. 1, 26, 880 A.2d 468 (App.Div.2005) (basing decision on State Constitution); see also id. at 37, 880 A.2d 468 (Fisher, J., concurring) (basing decision on Federal Constitution). In reversing the Appellate Division, the majority has placed on the defendant the burden of proving by a preponderance of evidence his mental retardation. Ante at 405, 908 A.2d at 190. By shifting the burden of proof to the defendant, the majority unnecessarily, and in my opinion unconstitutionally, increases the likelihood of wrongly executing a mentally retarded person. Because that is a level of error that our system of justice should not be willing to tolerate, I respectfully dissent.
Our judicial system demands a high degree of confidence in a correct outcome in a criminal case because the stakes are enormous — the potential loss of freedom. For that reason, even in a run-of-the-mill criminal case, the most rigorous standard of proof applies, requiring the State to bear the burden of proving guilt beyond a reasonable doubt. That standard recognizes an unwillingness to tolerate a wide margin of error when a person’s liberty hangs in the balance. That standard accepts that it is better to err and let a guilty person go free, than to wrongly incarcerate an innocent person. In a capital case, the stakes are considerably higher than in the typical criminal case. Life itself hangs in the balance. See State v. Feaster, 184 N.J. 235, 249, 877 A.2d 229 (2005) (“Not only the defendant, but the state and its citizens have an overwhelming interest in insuring that there is no mistake in the imposition of the death penalty.” (citation and internal quotation marks omitted)). It therefore stands to reason that the finding of any fact that is a necessary precondition to the execution of a criminal defendant, including lack of mental retardation, should likewise be proven by the State beyond a reasonable doubt.
*411That conclusion is compelled by our federal and state constitutional sentencing jurisprudence. Because the Eighth Amendment prohibits the execution of a mentally retarded person, a finding of lack of mental retardation is a fact that must be submitted to a jury and proven by the State beyond a reasonable doubt before a death sentence can be imposed. The majority’s construct requires that the mental retardation claim must be submitted to the jury after a defendant is found guilty of murder in the guilt phase portion of a capital trial. Ante at 408, 908 A.2d at 191. At that stage, without any further factual finding, the defendant cannot receive a sentence greater than life. N.J.S.A. 2C:11-3b, c; State v. Fortin, 178 N.J. 540, 843 A.2d 974 (2004) (Fortin II). Instead of requiring the State to carry the burden of proving lack of mental retardation, the majority permits the defendant to be subject to execution if he fails to prove by a preponderance of evidence his mental retardation. Ante at 409, 908 A.2d at 192. That standard cannot be squared with federal or state case law. See Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435, 455 (2000); State v. Natale, 184 N.J. 458, 466, 878 A.2d 724 (2005).
The Federal Due Process Clause requires that the State bear “the burden of proving all elements” of an offense beyond a reasonable doubt. Sullivan v. Louisiana, 508 U.S. 275, 277-78, 113 S.Ct. 2078, 2080, 124 L.Ed.2d 182, 188 (1993). Once an element of an offense has been identified, it is never permissible to shift the burden of proof to the defendant. See Mullaney v. Wilbur, 421 U.S. 684, 699-702, 95 S.Ct. 1881, 1890-91, 44 L.Ed.2d 508, 520-22 (1975). In Apprendi, the United States Supreme Court declared: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, supra, 530 U.S. at 490, 120 S.Ct. at 2362-63, 147 L.Ed.2d at 455. In refining that formulation, the Court in Blakely v. Washington explained that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts *412reflected in the jury verdict or admitted by the defendant.” 542 U.S. 296, 303, 124 S.Ct. 2531, 2537, 159 L.Ed.2d 403, 413 (2004) (emphasis omitted).
In Ring v. Arizona, the Court applied the Apprendi test in striking down provisions of Arizona’s capital sentencing scheme that allowed a judge to impose the death penalty based solely on a judicial finding of aggravating circumstances. 536 U.S. 584, 588-89, 122 S.Ct. 2428, 2432, 153 L.Ed.2d 556, 563-64 (2002). In that case, the defendant was convicted by a jury of first-degree felony murder. Id. at 591-92, 122 S.Ct. at 2433-34, 153 L.Ed.2d at 565. In the absence of any additional judicial factfinding, the maximum allowable sentence under Arizona law was life imprisonment. Id. at 582, 122 S.Ct. at 2434, 153 L.Ed.2d at 566. Defendant was sentenced to death based on a judicial finding of aggravating circumstances. Id. at 594 — 95, 122 S.Ct. at 2435-36, 153 L.Ed.2d at 567-68. “Because Arizona’s enumerated aggravating factors operate[d] as the functional equivalent of an element of a greater offense,” increasing a sentence of life to death, the Court found that the Sixth Amendment required that those factors be submitted to a jury, which under the Apprendi formulation also requires that all elements be proven by the State beyond a reasonable doubt. Id. at 609, 122 S.Ct. at 2443, 153 L.Ed.2d at 576-77 (internal quotation marks omitted); Apprendi, supra, 530 U.S. at 490, 120 S.Ct. at 2362-63, 147 L.Ed.2d at 455; Natale, supra, 184 N.J. at 473, 878 A.2d 724; see also In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, 375 (1970) (holding that under Due Process Clause, State must prove all elements of crime beyond reasonable doubt).
As with the aggravating factors in Ring, the finding of lack of mental retardation is the functional equivalent of an element of an offense because without that factfinding a sentence of life imprisonment cannot be increased to death. N.J.S.A. 2C:11-3b, c; Fortin II, supra, 178 N.J. at 635-36, 843 A.2d 974. Before the death penalty can be imposed in New Jersey, “the State must prove beyond a reasonable doubt the existence of any alleged *413statutory aggravating factors” in the penalty-phase trial. Fortin II, supra, 178 N.J. at 635, 843 A.2d 974 (citing N.J.S.A. 2C:11-3c(2)(a)). “If the jury finds one or more aggravating factors, it must then determine whether those outweigh all of the mitigating factors beyond a reasonable doubt.” Ibid. (citing N.J.S.A. 3C:11-3c(3)(a)). Without those findings, “life imprisonment is the maximum allowable sentence under the capital-murder statute.” Id. at 636, 843 A.2d 974.
The absence of mental retardation functions in a way similar to an aggravating factor in our capital sentencing system. Lack of mental retardation, like an aggravating factor, is a fact necessary to increase a sentence beyond life imprisonment, the maximum sentence authorized by a murder conviction in the guilt phase of the trial. Because information regarding mental retardation may be in the exclusive control of the defendant, I would place on him the initial burden of production of evidence to raise the issue. Once the defendant raises the issue, however, the State should be required to prove the absence of mental retardation beyond a reasonable doubt. Cf. State v. Kelly, 97 N.J. 178, 200, 478 A.2d 364 (1984) (requiring that once issue of self-defense is adduced in State or defendant’s case, State is required to prove absence of self-defense beyond reasonable doubt). Without a beyond-a-reasonable-doubt finding by a jury, a defendant should not be subject to the death penalty. Stated differently, a reasonable doubt about a defendant’s mental retardation must weigh in favor of life.
Unlike the majority, I do not believe that this State’s statutory insanity defense is the proper paradigm for allocating the burden of proof when lack of mental retardation is a constitutional prerequisite for the execution of a criminal defendant. See ante at 406-408, 908 A.2d at 191. To say that the defendant bears the burden of proving insanity as a defense at trial pursuant to N.J.S.A. 2C:4-1 is quite different from saying that the State can execute an insane person if a jury has a reasonable doubt about his insanity. In Ford v. Wainwright, 477 U.S. 399, 409-10, 106 S.Ct. 2595, 2602, 91 L.Ed.2d 335, 346 (1986), the United States *414Supreme Court declared that insane defendants could not be executed under the Eighth Amendment. There too the Court left it to the States to develop ways to implement its decision. Id. at 416-17, 106 S.Ct. at 2605, 91 L.Ed.2d at 351. In my view, because neither an insane nor mentally retarded defendant can be executed under Ford, supra, and Atkins, supra, when the issue is properly raised, the State must carry the burden of disproving beyond a reasonable doubt the existence of those disabling conditions of the mind.
Even if I were persuaded that the beyond-a-reasonable-doubt standard was not constitutionally compelled, I would maintain that this Court should mandate that standard pursuant to the Court’s general supervisory authority over trial administration. See State v. Cook, 179 N.J. 533, 539, 847 A.2d 530 (2004). This Court should take every reasonable precaution to minimize the potential of wrongly executing a mentally retarded defendant. The majority’s approach today is not in keeping with the rigorous procedural protections that should apply in capital cases. See Feaster, supra, 184 N.J. at 250, 877 A.2d 229 (‘We are mindful that a death sentence is profoundly different from all other penalties, and of the heightened need for reliability in the determination that death is the appropriate punishment in a specific case.” (citations and internal quotation marks omitted)).
In conclusion, I agree with the Appellate Division that when a defendant adequately raises the issue of mental retardation, our federal and state constitutional jurisprudence require that the State bear the burden of proving beyond a reasonable doubt to a jury that the defendant is not mentally retarded. See Jimenez, supra, 380 N.J.Super. at 26, 37, 880 A.2d 468. Because I believe that the majority has unconstitutionally shifted the burden of proof to the defendant, therefore increasing the likelihood of an erroneous execution, I respectfully dissent.
Justice LONG joins in this opinion.
*415For reversal — Chief Justice PORITZ and Justices LaVECCHIA, ZAZZALI, WALLACE and RIVERA-SOTO — 5.
For affirmance — Justices LONG and ALBIN — 2.