SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

State v. Jesse Timmendequas (A-109-99)

Argued September 12, 2000 -- Decided February 1, 2001

ZAZZALI, J., writing for a majority of the Court.

    This appeal addresses defendant's claim that his death sentence is disproportionate.

    On 9/29/94, defendant lured his seven-year-old neighbor, Megan Kanka, into his house, ostensibly to play with his puppy. Defendant drew her into his bedroom where he attempted to sexually assault her. Megan screamed and tried to escape but defendant, fearing detection, would not let her leave. Defendant strangled Megan with a belt and, during the struggle, hit her face on a dresser and her head on the floor, causing bleeding. To avoid stains on the carpet, defendant placed a plastic bag over Megan's head. Defendant then sexually assaulted her.

    Believing Megan to be dead, defendant placed her body in a toy box and carried it downstairs. When he put the box in his truck, he thought he heard Megan cough. Defendant drove to Mercer County Park, took Megan's body out of the box, and placed her in tall weeds. Before he left, he sexually assaulted her again.

    Megan's family called police when she did not return home. Officers arrived and joined neighbors in the search. Defendant participated, handing out fliers with Megan's picture. Defendant gave conflicting statements to police and Megan's family, however, about when he had last seen Megan. He also gave conflicting statements concerning his whereabouts during the time of Megan's disappearance.

    The following day, at the prompting of his roommate, defendant told police that Megan was dead and led them to her body. In a formal statement, he confessed to the murder and some, but not all aspects of the sexual assault. After police presented him with the results of the autopsy, defendant provided further details of the sexual assault and Megan's other injuries.

    Defendant did not testify or present witnesses at the guilt phase of the trial, and the jury found him guilty of murder, kidnapping, and aggravated sexual assault. At the penalty phase, defendant offered two witnesses who presented evidence of mitigating circumstances in his background. A social worker testified that defendant's mother was a promiscuous alcoholic who had ten children by seven different men, and that defendant's father was a violent drinker with a criminal history. Based on information provided by defendant's mother, the social worker testified that defendant was raised in poverty and was often cold, dirty, hungry and without adequate medical care. Other sources told the social worker that defendant's father had sexually abused defendant and his brother, that the brothers saw their father rape a seven-year-old girl, and that the father tortured and killed their pets.

    Defendant's second expert, a psychologist, relied on the report of the social worker. He found that defendant suffers from pedophilia, borderline mental retardation, fetal alcohol effect, and schizoid personality disorder. The psychologist expressed the opinion that at the time of the crime, defendant was under “extreme emotional disturbance.” Megan's death, said the psychologist, was caused by a reflexive response to the panic defendant felt when the victim attempted to flee.

    The State presented a psychiatrist as a rebuttal witness. He testified that there was no evidence to support defendant's claims of extreme emotional disturbance and diminished capacity. He said that defendant's I.Q., seventy-four, showed a borderline intelligence that did not prevent him from functioning or appreciating the nature of his conduct.

    Defendant gave an allocution statement in which he said he was sorry for what he had done and that he prayed for Megan and her family every day. He asked the jury to let him live so that someday he could have an understanding why something like this could happen.

    The jury unanimously found the c(4)(f) (escape detection) and c(4)(g) (contemporaneous felony) aggravating factors. Some jurors found mitigating factors of extreme emotional disturbance and diminished capacity. Jurors in varying degrees also found catchall mitigating factors arising out of defendant's violent and unstable childhood. Nonetheless, the jury unanimously found that each aggravating factor outweighed the mitigating factors beyond a reasonable doubt. Accordingly, defendant was sentenced to death. This Court affirmed defendant's convictions and death sentence on direct appeal.

HELD: Defendant's death sentence is not disproportionate.

1. Proportionality review focuses on whether a specific defendant's death sentence is inconsistent with the penalty imposed in comparable cases. To aid in this process, the Administrative Office of the Courts (AOC) maintains a database of all death-eligible cases. The AOC subdivides the cases into thirteen distinct categories of comparison cases. With the concurrence of the parties, defendant has been placed in the “sexual assault” category. (Pp. 11-17)

2. The first step in comparing defendant's case to other sexual assault cases is to perform frequency analysis, which now consists exclusively of the salient-factors test. This test allows the Court to measure the relative frequency of a death sentence in factually-similar cases to determine whether there is a societal consensus that death is the appropriate remedy. A review of the data reveals that a greater percentage of sexual assault cases advanced to penalty trial and received the death sentence than did all death-eligible defendants. This demonstrates that sexual- assault murders are considered more deathworthy than other death-eligible homicides. (Pp. 17-20)

3. The next step is to conduct precedent-seeking review, which is the traditional, case-by-case form of review in which the Court compares similar death-eligible cases. The Court first examines the criminal culpability of the defendant, which has three components: moral blameworthiness, the degree of victimization, and the character of the defendant. Consideration of defendant's moral blameworthiness, the degree of victimization of Megan and her family, and defendant's character leads the Court to conclude that defendant is highly deathworthy. (Pp. 20-27)

4. The Court then analyzes the comparison cases in defendant's category to determine if defendant is more or less deathworthy than the comparison defendant. If defendant is less deathworthy than a life-sentenced defendant, that conclusion supports defendant's claim of disproportionality. If defendant is more deathworthy than a life-sentenced defendant, that detracts from defendant's claim. Although defendant's death sentence is arguably disparate compared to the life sentences imposed on several other defendants, disparity alone does not demonstrate disproportionality. Proportionality review seeks to assure that a death sentence is not an aberration; it is not intended to ensure that one killer's sentence is identical to all other similarly categorized killers. The fact that defendant is more culpable than the bulk of the defendants in his comparison group demonstrates that his death sentence is not an aberration. (Pp. 27-44)

     JUSTICE LONG, dissenting, acknowledges that any normal heart responds to defendant's unspeakable crime with a cry for vengeance. She points out, however, that proportionality review does not question whether an individual sentence is deserved on a moral level, but whether a defendant has been singled out unfairly for capital punishment. She expresses the view that at present, there is no meaningful way to distinguish between one grotesque murder and another to determine why one defendant has been granted a life sentence and another is awaiting execution. She suggests that proportionality review be scrapped and a moratorium declared on the death penalty until a meaningful process is developed.

     JUSTICES STEIN, COLEMAN, and LaVECCHIA join in JUSTICE ZAZZALI's opinion. JUSTICE LONG filed a separate, dissenting opinion. CHIEF JUSTICE PORITZ and JUSTICE VERNIERO did not participate.
                    
                            SUPREME COURT OF NEW JERSEY
                             A- 109 September Term 1999

        
STATE OF NEW JERSEY,

        Plaintiff-Respondent,

        v.

JESSE TIMMENDEQUAS,

        Defendant-Appellant.

Argued September 12, 2000 -- Decided February 1, 2001

On proportionality review of a death sentence imposed in the Superior Court, Law Division, Mercer County.    

Jay L. Wilensky, Assistant Deputy Public Defender, argued the cause for appellant (Ivelisse Torres, Public Defender, attorney; Mr. Wilensky and Claudia Van Wyk, Deputy Public Defender, of counsel and on the briefs).

Catherine A. Foddai, Deputy Attorney General, argued the cause for respondent (John J. Farmer, Jr., Attorney General of New Jersey, attorney).

    The opinion of the Court was delivered by
ZAZZALI, J.
    This appeal concerns the capital sentencing of Jesse K. Timmendequas, who was convicted of the 1994 murder of seven-year- old Megan Kanka. We affirmed defendant's conviction and death sentence on direct appeal. State v. Timmendequas, 161 N.J. 515, 640 (1999) (Timmendequas I). We also acknowledged his request for proportionality review. Ibid. We now conclude, upon review, that defendant's death sentence is not disproportionate when compared to the sentences imposed in similar cases.
    The notoriety of this case renders our effort to evaluate defendant's claim that his death sentence is disproportionate all the more critical. “One can say with certainty that the crime committed by Jesse Timmendequas was horrific, so uniformly condemned that it changed the legal landscape for sex offenses nationwide.” Timmendequas I, supra, 161 N.J. at 650 (Handler, J., dissenting). The murder of Megan Kanka sparked outrage after the public learned that defendant had been twice convicted of sex offenses against children, and that Megan's community had not been made aware of those convictions. E.B. v. Verniero, 119 F.3d 1077, 1081 (3d Cir. 1997), cert. denied, 522 U.S. 1110, 118 S. Ct. 1039, 140 L. Ed.2d 105 (1995); Timmendequas I, supra, 161 N.J. at 641 (Handler, J., dissenting). Megan's parents, Maureen and Richard Kanka, successfully pressed for a law requiring notification when sexual predators become neighbors. Timmendequas I, supra, 161 N.J. at 569; See L. 1994, c. 133 (enacting “Megan's Law” registration requirements, later codified at N.J.S.A. 2C:7-1 to -5); L. 1994, c. 128 (enacting community notification requirements, later codified at N.J.S.A. 2C:7-6 to - 11). Megan's murder also inspired a similar effort across the country. E.B., supra, 119 F. 3d at 1081; Timmendequas I, supra, 161 N.J. at 569. That movement culminated in a 1996 federal “Megan's Law.” E.B., supra, 119 F. 3d at 1082 n.1 (discussing Pub. L. No. 104-145, 110 Stat. 1345 (1996), which was codified at 42 U.S.C.A. §14071).
    We set forth that background because it underscores the importance of a careful and comprehensive proportionality review, as an improper death sentence would result in “the ultimate injustice.” State v. Ramseur, 106 N.J. 123, 374 (1987) (Handler, J., dissenting). Sensitive to that concern, our single task in this appeal is to determine if defendant's death sentence is disproportionate when compared to the sentences of other similar offenders.

TABLE OF CONTENTS
                
        I.    THE FACTS4

        II.    INDIVIDUAL PROPORTIONALITY REVIEW11

            A.    UNIVERSE OF CASES12

            B.    FREQUENCY ANALYSIS17

            C.    PRECEDENT-SEEKING REVIEW20
            
                1.    RELEVANT FACTORS21
                
                    a.    Defendant's Moral Blameworthiness22
                    
                    b.    Degree of Victimization24                     
                    c.    Character of Defendant25
                    
                2.    CASE COMPARISONS27
                
                    a.    Agreed-Upon Cases28
                    
                        1)    Death Sentences28
                        
                        2)    Life Sentences31
                        
                    b.    Contested Cases38
            
III.    OTHER ARGUMENTS44

        IV. CONCLUSION45
* * *
I.    THE FACTS
    This Court's opinion in the direct appeal contains the facts in detail. Timmendequas I, supra, 161 N.J. at 534-50. We set forth here only those facts, both from the direct appeal and the record, that are necessary for proportionality review.
    On July 29, 1994, seven-year-old Megan Kanka lived with her parents in Hamilton Township, diagonally across the street from defendant. At about 5:30 p.m., defendant lured Megan into his house, ostensibly to play with his puppy. He drew her into his bedroom where he attempted to sexually assault her. She screamed and tried to escape but defendant, fearing detection, would not let her leave. Megan fought for her life as defendant strangled her with a belt until she lost consciousness. During the struggle, Megan hit her face on a dresser and her head on a door, causing bleeding. To avoid blood stains on the carpet, defendant placed a plastic bag over her head. Defendant then sexually assaulted Megan. Those facts are recounted fully in Timmendequas I, supra, 161 N.J. at 541-43.
    Believing Megan to be dead, defendant placed her body in a toy box and carried it downstairs. When he put the box in his truck, he thought he heard Megan cough. He drove to Mercer County Park, took Megan's body out of the box, and placed her in tall weeds. Before he left, he sexually assaulted her again.
    Megan's family called police when she did not return home. Officers arrived and joined neighbors in the search for Megan. Defendant participated in the search, handing out fliers with Megan's picture. Defendant told the police that he had seen Megan riding a bicycle at 2:30 in the afternoon. That statement conflicted with his prior statement to Maureen Kanka that he last saw Megan before dinner. Police asked defendant if he had seen Megan at any other time. He said he saw Megan riding her bicycle in front of his home between 5:30 and 6:00 p.m.
    The police obtained the consent of the homeowner, defendant's roommate, to search defendant's living quarters. Police questioned defendant again in the house. Shaking and perspiring, defendant said that he saw Megan and a friend between 5:00 and 5:30 p.m. while he was washing his boat. The police then interviewed defendant at the police station where he gave conflicting statements concerning his whereabouts during the time of Megan's disappearance. Soon thereafter, he was released.
    The following day, at police headquarters, defendant told the police that Megan was dead and that he had left her body in Mercer County Park. He did so at the prompting of his roommate, after repeatedly denying involvement. Defendant led the police to the body and, on the drive back to the police station, he recounted what had happened. At the station, in a formal statement, he confessed to the murder and some but not all aspects of the sexual assault. After the police presented him with the results of the autopsy, he provided further details of the sexual assault, the head injuries, and other conduct described above.
    Defendant did not testify or present witnesses on his behalf at the guilt phase of the trial, which was held from May 5 to May 30, 1997. The jury found him guilty of purposeful-or-knowing murder, two counts of felony murder, first-degree kidnapping, and four counts of first-degree aggravated sexual assault.
    The penalty phase of the trial commenced on June 9 and continued to June 20, 1997. The jury concluded that the aggravating factors outweighed the mitigating factors beyond a reasonable doubt. The court sentenced defendant to death.
    In our proportionality review, we consider testimony adduced at the penalty phase together with the evidence elicited at the guilt phase. Defendant offered two witnesses who presented evidence of mitigating circumstances in his background.
    Carol Krych, a forensic social worker, testified that defendant's mother was a promiscuous alcoholic who had ten children by seven different men. Defendant's father was a violent drinker with a criminal history. Krych testified, based on information provided by defendant's mother, that defendant was raised in poverty, the family lived for a time in a shack, and defendant was often cold, dirty, hungry and without adequate medical care. Other sources told Krych that defendant's father had sexually abused defendant and his brother Paul frequently, that the two brothers once saw their father rape a seven-year-old girl, that the father tortured and killed their pets, and that he once forced the brothers to eat their pet rabbit. Krych therefore concluded that defendant had a severely dysfunctional family life.
    Krych added that defendant had been diagnosed with emotional problems as a youth and was classified as “educable mentally retarded,” but conceded that a conflict existed with respect to that classification. She also acknowledged that she had not testified on direct regarding academic reports that indicated defendant had made good progress in school. Krych further admitted that although Paul originally said defendant should not be sentenced to death, she had since heard that he had changed his mind.
    Defendant's second expert, Dr. John Podboy, a psychologist, relied upon the Krych report but never evaluated defendant personally. Podboy found that defendant suffers from pedophilia, borderline mental retardation, fetal alcohol effect, and a schizoid personality disorder. He testified that defendant likely had “generalized anxiety, . . . perhaps . . . includ[ing] post-traumatic stress disorder.” Podboy expressed the opinion that, at the time of the crime, defendant was under “extreme emotional disturbance” and that his “capacity to appreciate the wrongfulness of his conduct was very much impaired,” as was his ability “to conform his conduct . . . to the requirements of the law.” He also concluded that defendant may have had a serious brain abnormality, which could reflect a post-traumatic insult, a vascular insult, or a congenital abnormality. Megan's death, said the psychologist, was caused by a reflexive response to the panic defendant felt when the victim attempted to flee.
    The State presented rebuttal witnesses. Two detectives testified that people to whom they spoke about defendant's childhood said that defendant's mother was not constantly intoxicated, that defendant's house was not substandard, and that his clothing was not disheveled. One detective testified that Paul Timmendequas told him that their father physically abused Paul and defendant, and that their mother broke defendant's arm when defendant was seventeen years old. According to the detective, Paul gave several inconsistent statements regarding sexual abuse, at one point even denying that he knew whether defendant had been abused at all. Paul also claimed that he was drunk when he spoke with Krych.
    Dr. Robert L. Sadoff, a psychiatrist, said that there was no evidence to support defendant's claims of extreme emotional disturbance and diminished capacity. Sadoff said that defendant's description of his own conduct demonstrated that defendant was in control of the situation and had simply acted logically to avoid apprehension. Sadoff also said that defendant's I.Q., seventy-four, showed that he had borderline intelligence that did not prevent him from functioning or appreciating the nature of his conduct.
    In his allocution statement, defendant said:
            Okay. I am sorry for what I've done to Megan. I pray for her and her family every day. I have to live with this and what I've done for the rest of my life. I ask you to let me live so I, some day, I can understand and have an understanding why something like this could happen. Thanks.

    The jury unanimously found the N.J.S.A. 2C:11-3c(4)(f) (escape detection) and c(4)(g) (contemporaneous felony) aggravating factors. Timmendequas I, supra, 161 N.J. at 534, 548. Four jurors found the c(5)(a) (extreme emotional disturbance) mitigating factor to be present. Two jurors found the c(5)(d) (diminished capacity) factor. Jurors in varying numbers found the following c(5)(h) (catchall) mitigating factors, which defendant had submitted to the jury:
        [D]efendant (1) did not plan in advance to kill or seriously injure the victim (twelve jurors); (2) felt remorse (six jurors); (3) was subjected to years of sexual and physical abuse by his father, including but not limited to fondling, forced oral sex, anal penetration, and beatings by his father's hand or a strap (three jurors); (4) was exposed to domestic violence between his mother and several of her paramours (twelve jurors); (5) was born to a father who had a history of incarceration, drank excessively and totally disregarded the needs of his family and even their lives (eleven jurors); (6) was born to a promiscuous mother who had ten children by seven different men and gave up or had to relinquish seven of these children to the State (twelve jurors); (7) was raised in an atmosphere that did not provide him with stability, having moved twenty-one times by the time he was seventeen years old (twelve jurors); (8) was born to a mother who was emotionally unfit and unable to meet his physical and emotional needs and caused him to suffer from fetal alcohol effect due to her drinking throughout her pregnancy (four jurors); (9) suffered traumatic loss when his stepfather, the only father figure who did not abuse him, died (seven jurors).
        [Id. at 549-50.]
    The jury unanimously concluded that defendant's “childhood and adolescence were characterized by exposure to domestic violence, criminal activity, substance abuse, instability of the home, emotional and physical neglect and possible physical and sexual abuse. His parents did not serve as role models of normal behavior and treated him poorly. Also, the family was poor and received public assistance.” The jury rejected several other proposed catchall mitigating factors.
    The jury, nonetheless, unanimously found that each aggravating factor outweighed the mitigating factors beyond a reasonable doubt. Accordingly, the court sentenced defendant to death, as required by N.J.S.A. 2C:11-3c(3)(a). On the kidnapping count, the court imposed a life sentence with a twenty-five-year parole disqualifier. As noted, this Court affirmed defendant's convictions and sentence on direct appeal.
II.    INDIVIDUAL PROPORTIONALITY REVIEW
    At a capitally-sentenced defendant's request, N.J.S.A. 2C:11-3e, we engage in proportionality review “to ensure that the death penalty is being administered in a rational, non-arbitrary, and evenhanded manner, fairly and with reasonable consistency.” State v. Marshall, 130 N.J. 109, 131 (1992) (Marshall II), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed.2d 694 (1993). To that end, proportionality review focuses on whether a specific defendant's death sentence is inconsistent with the penalty imposed in comparable cases. State v. DiFrisco, 142 N.J. 148, 160 (1995) (DiFrisco II), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed.2d 873 (1996); State v. Martini, 139 N.J. 3, 20 (1994) (Martini II). The defendant must demonstrate that his or her death sentence is aberrant, arbitrary, or otherwise anomalous. In Re Proportionality Review, 161 N.J. 71, 76-77 (1999) (Proportionality Review I); State v. Harvey, 159 N.J. 277, 289-90 (1999) (Harvey III).
    A.    UNIVERSE OF CASES
    In order to compare this case with similar death-eligible cases, we must first determine the “universe” of cases from which we draw the comparison cases. An amendment to N.J.S.A. 2C:11-3e sought to limit “this comparison group to only those cases in which a death sentence had actually been imposed.” State v. Chew, 159 N.J. 183, 196 (1999) (Chew II), cert. denied, ___ U.S. ___, 120 S. Ct. 593, 145 L. Ed.2d 493 (1999). This Court has concluded, however:
[A] universe limited to cases in which the death-penalty sentence has been imposed cannot support a coherent proportionality system. This is so because “[w]ithout knowledge of the life-sentenced cases, [a court] would be unable to determine whether there is a 'meaningful basis' for distinguishing the death sentences it reviews from the 'many cases' in which lesser sentences are imposed.”

[Proportionality Review I, supra, 161 N.J. at 84 (quoting David S. Baime, Report to the New Jersey Supreme Court: Proportionality Review Project at 10 (Apr. 28, 1999) (Baime Report)).]

We thus consider all death-eligible cases, rather than only death-sentenced cases. We also consider death-eligible cases “whether or not they were capitally prosecuted,” State v. Harris, 165 N.J. 303, 315 (2000) (Harris II), because the decision not to seek the death penalty “is not necessarily a reflection of [the] defendant's lack of deathworthiness.” Martini II, supra, 139 N.J. at 27. Thus, all cases in which the defendant was eligible for the death penalty comprise the universe under consideration.
    In order to aid our proportionality review process, the Administrative Office of the Courts (AOC) maintains a database of all death-eligible cases. The AOC has subdivided the cases into thirteen distinct categories of comparison cases. State v. Cooper, 159 N.J. 55, 71 (1999) (Cooper II), cert. denied, __ U.S. __, 120 S. Ct. 809, 145 L. Ed.2d 681 (2000). The AOC assigns cases for comparison to the following categories:
(A) Victim is a Public Servant;

(B) Prior Murder Conviction without A above;

(C) Contract Killing without A-B above;

(D) Sexual Assault without A-C above (subdivided into (1) aggravated and (2) other);

(E) Multiple Victims without A-D above (subdivided into (1) aggravated and (2) other);

(F) Robbery without A-E above (subdivided into (1) home, (2) business, and (3) other);

(G) Torture/Depravity without A-F above;

(H) Abduction without A-G above;

(I) Arson without A-H above;

(J) Escape Detection without A-I above;

(K) Burglary without A-J above;

(L) Grave Risk without A-K above;

(M) Victim Under 14 Years Old without A-L above.

[Harris II, supra, 165 N.J. at 316.]

    Category D includes defendants who commit murders involving a sexual assault. The Attorney General and Public Defender concur that defendant should be assigned to D-1, a subcategory of D. Subcategory D-1 comprises defendants who have committed sexual-assault murders with “particular violence or terror.” Proportionality Review I, supra, 161 N.J. at 88. “Generally, [those] cases . . . include murders that involve multiple wounds from a gun, knife or physical beating, murders that involve mutilation or wounds intended to cause pain, and murders involving a minor victim.” Harris II, supra, 165 N.J. at 317. The D-2 subcategory consists of “non-aggravated” sexual-assault murders. Id. at 316-17. A threshold question concerns whether we should in this case consolidate the D-1 and D-2 subcategories.
    In Harris II, this Court consolidated the D-1 and D-2 subcategories for proportionality analysis. Id. at 317-19. The original rationale for the distinction was that “juries and prosecutors tended to view [D-1] defendants as more deathworthy” than a “simple” sexual-assault-murder defendant. Harris II, supra, 165 N.J. at 317 (citing Proportionality Review I, supra, 161 N.J. at 88). Nevertheless, Harris II states:
Trying to create objective criteria that consistently distinguish among sexual assault murders on the basis of the degree of particular violence and terror is problematic. Cases of this nature inherently involve subjective factors, particularly when the determinative linedrawing is supposed to focus on “particular violence or terror.”

[Harris II, supra, 165 N.J. at 318.]

Harris II concluded that “consolidation of the entire D category offers a more appropriate sampling of cases like defendant's to assess deathworthiness.” Id. at 319.
    We agree that we should consolidate the categories in this case as well. D-2 cases simply may not be substantially less deathworthy than D-1 cases. As Harris II noted, “the D-2 category has so few cases with which to compare [a] defendant.” Id. at 318-19. At present, fifty-nine cases fall within the composite D category; forty-seven cases comprise subcategory D-1; and twelve cases comprise subcategory D-2.
    We now compare defendant's case to similar cases within the entire D category. We first conduct frequency analysis, and then we apply precedent-seeking review. State v. Feaster, 165 N.J. 388, 398 (2000) (Feaster II); State v. Morton, 165 N.J. 235, 244 (2000) (Morton II); Cooper II, supra, 159 N.J. at 70; Proportionality Review I, supra, 161 N.J. at 77. As we explained in Cooper II:
        [F]irst, we use a frequency analysis that includes both mathematical and statistical calculations to compare defendant's case to other cases with similar fact patterns or similar levels of culpability in order to ascertain the rate of death sentencing in those similar cases; second, we engage in precedent-seeking review in which we compare all relevant factors in factually similar cases to determine whether defendant's death sentence appears to be disproportionate in comparison to the sentences imposed
        on other defendants who committed comparable homicides.
        [Id. at 70.]
We begin with frequency analysis.
    B.    FREQUENCY ANALYSIS
    At one point, frequency analysis required application of three tests, the salient-factors test, the numerical preponderance test, and the index-of-outcomes test. Within the past two years, we abandoned some of that arcana by eliminating both the index-of-outcomes test and the numerical preponderance test due to inherent flaws in each approach. Proportionality Review I, supra, 161 N.J. at 87, 91-92 (adopting Judge Baime's recommendation and abandoning index-of-outcomes test); State v. Loftin, 157 N.J. 253, 295 (1999) (Loftin II) (abandoning numerical preponderance test), cert. denied, __ U.S. __, 120 S. Ct. 229, 145 L. Ed.2d 193 (1999). Frequency analysis thus consists exclusively of the salient-factors test. As we described in Martini II:
            The salient-factors test allows us to measure the relative frequency of a defendant's sentence by comparing it to sentences in factually-similar cases. Its purpose is to help us determine whether the death sentence is imposed in a category of comparable cases often enough to create confidence in the existence of a societal consensus that death is the appropriate remedy.
        
        [Martini II, supra, 139 N.J. at 33.] Thus, the objective is to determine whether the frequency of death sentences in similar cases involving defendants with similar culpability supports a determination that the death penalty in the case before us is or is not aberrational. Chew II, supra, 159 N.J. at 201-02. The process compares a defendant's culpability with that of other death-eligible defendants. We measure the relative frequency of a defendant's sentence by determining the rate at which factually-similar cases culminate in a death sentence. Id. at 202. The salient-factors test, demystified, is largely deductive, involving a simple “if- then” method of reasoning. If, in similar cases, the ratio of death sentences to penalty-trial cases or the ratio of death sentences to death-eligible cases is high, then the Court may interpret the relatively high rate of death sentencing as “strong evidence of the reliability of [the] defendant's death sentence.” State v. Bey, 137 N.J. 334, 358 (1994) (Bey IV), cert. denied, 513 U.S. 1164, 115 S. Ct. 1131, 130 L. Ed.2d 1093 (1995). As noted, we have assigned defendant to the consolidated D category. We now examine the death-sentencing rates among the penalty-trial and death-eligible cases within that category.
    Notwithstanding the consolidation of the D-1 and D-2 categories, the following chart demonstrates that, whether we use the D category or the D-1 subcategory, defendant's death sentence is not aberrational. We examine the relevant data under both alternatives.
  Cases that Advanced to Penalty Trial   Penalty-Trial Resulted In Death Sentence   Death Sentencing Rate In All Death-Eligible Cases   D. Sexual Assault
59 Death-Eligible Cases
Exclude Defendant  
44% (26/59)
43% (25/58)  
35% (9/26)
32% (8/25)  
15% (9/59)
14% (8/58)   D-1. Aggravated Sexual Assault
47 Death-Eligible Cases
Exclude Defendant  
49% (23/47)
48% (22/46)  
35% (8/23)
32% (7/22)  
17% (8/47)
15% (7/46)   All Death-Eligible Cases
455 Death-Eligible Cases
Exclude Defendant  
39% (176/455)
39% (175/454)  
30% (52/176)
29% (51/175)  
11% (52/455)
11% (51/454)  
    A greater percentage of D category defendants advanced to penalty trial, received the death sentence after a penalty trial, and received the death sentence overall, than did all death- eligible defendants. Excluding defendant leads to the same result. Thus, those statistics do not support defendant's contention that his death sentence is an aberration, as they did not support Ambrose Harris's recent disproportionality claim based on the same statistics. Harris II, supra, 165 N.J. at 319- 20. Neither do the D-1 statistics, had we not combined the D subcategories, demonstrate disproportionality. D-1 defendants advanced to penalty trial and received the death sentence at a greater rate than all death-eligible defendants. When defendant is excluded, the D-1 rates still exceed the rates for all death- eligible defendants. Thus, neither the composite D category nor the D-1 subcategory statistics support defendant's claim of disproportionality.
    The results of the salient-factors test demonstrate that prosecutors and juries consider sexual-assault murders more deathworthy than other death-eligible homicides. However, because there is not a dramatic difference between death- sentencing rates in D and D-1 homicides and other death-eligible homicides, we must “give enhanced weight to the process of precedent-seeking review.” Cooper II, supra, 159 N.J. at 88.
    C.    PRECEDENT-SEEKING REVIEW
    In precedent-seeking review “we examine death-eligible cases similar to defendant's case to determine whether his death sentence is aberrant when compared to the sentences received by defendants in those other cases.” Chew II, supra, 159 N.J. at 210. This is “the traditional, case-by-case form of review in which we compare similar death-eligible cases.” Martini II, supra, 139 N.J. at 46.
            Through this method we determine whether a defendant's criminal culpability exceeds that of similar life-sentenced defendants and whether it is equal to or greater than that of other death sentenced defendants, such that the defendant's culpability justifies the capital sentence; or whether a defendant's culpability is more like that of similar life-sentenced defendants and less than that of death-sentenced defendants, such that the defendant's culpability requires a reduction of sentence to a life term. We note that statutory proportionality does not require identical verdicts even in closely- similar cases. It merely requires that the defendant was not singled out unfairly for capital punishment.

        [Id. at 47 (citations omitted).]
“[T]he process of precedent-seeking review is one familiar to us as judges and is not vulnerable to the concerns about reliability that burden frequency analysis.” Cooper II, supra, 159 N.J. at 70. “We have consistently placed our reliance on this form of review because of the analytic difficulties we have encountered in applying frequency analysis.” Loftin II, supra, 157 N.J. at 296. Precedent-seeking review is less empirical and more analytical than frequency analysis. The exercise is more inductive, less formulaic.
        1.    RELEVANT FACTORS
    In precedent-seeking review, we first examine the criminal culpability of the defendant. Criminal culpability, in turn, has three components: the moral blameworthiness of the defendant, the degree of victimization, and the character of the defendant. Chew II, supra, 159 N.J. at 210; Martini II, supra, 139 N.J. at 48-49; Marshall II, supra, 130 N.J. at 155.
            a.    Defendant's Moral Blameworthiness
    Blameworthiness requires consideration of “motive, premeditation, justification or excuse, evidence of mental defect or disturbance, knowledge of helplessness of the victim, defendant's age or maturity level, and defendant's involvement in planning the murder.” Loftin II, supra, 157 N.J. at 336. We conclude, upon an application of the above factors, that the moral blameworthiness of defendant is high.
    Although we have not described the graphic details of this sexual-assault murder, defendant's conduct can, as noted, fairly be described as “horrific.” Timmendequas I, supra, 161 N.J. at 650 (Handler, J., dissenting). That he knew seven-year-old Megan was helpless aggravates his moral blameworthiness substantially. See Cooper II, supra, 159 N.J. at 90 (finding defendant's knowledge of the rape-murder victim's youth aggravating). Defendant also lured Megan into his house by letting her play with his puppy. Defendant's motive, that he strangled Megan because of his fear that she would reveal the sexual assault, is highly blameworthy. Harris II, supra, 165 N.J. at 322 (finding motive to escape detection increased moral blameworthiness); Harvey III, supra, 159 N.J. at 312-13 (same). Defendant's participation in the search and lying to police also aggravate his blameworthiness.
    Although the effect of the murder on the victim's family has not received extended discussion, Chew II, Morton II, and Harvey III consider that element during precedent-seeking review. Morton II, supra, 165 N.J. at 251 (considering, during analysis of moral blameworthiness, defendant's knowledge of effect of murder on victim's surviving family); Chew II, supra, 159 N.J. at 212-13 (same); Harvey III, supra, 159 N.J. at 313 (same). See also Feaster II, supra, 165 N.J. at 406 (considering, during analysis of victimization, whether evidence was adduced regarding impact of murder on victim's family). Those cases make clear that the effect of the murder on the victim's family is a proper consideration during moral blameworthiness analysis. We note, as the dissent suggests, that the effect of the murder on the victim's family is likely present in the vast majority of the comparison cases, which reduces the factor's significance substantially. That factor nonetheless exists here. Megan's parents and siblings must live each day with the ache of her absence and their awareness of the terror she endured in the final moments of her life, which also aggravates defendant's moral blameworthiness.
    Defendant was thirty-three years old at the time of the murder. As in Harris II, “there is nothing mitigating about defendant's age or level of maturity at the time of the murder. He was . . . old enough to know right from wrong.” Harris II, supra, 165 N.J. at 324.
    Defendant did offer proof that he had suffered from emotional deficits and a highly abusive childhood, which reduce his moral blameworthiness. Yet, as we found in Harris II, “[d]espite this poor childhood and resulting debilitating effects on defendant, the evidence was not persuasive that defendant should be relieved of his culpability.” Ibid.
    Timmendequas murdered a seven-year-old child, Megan Kanka, and did so to escape detection for his sexual assault. The fact that he was a pedophile does not excuse his conduct. His moral blameworthiness is therefore high.
            b.    Degree of Victimization
    Victimization concerns the relative violence and brutality of the murder. Harvey III, supra, 159 N.J. at 313-14. We also examine “injury to non-decedent victims.” Chew II, supra, 159 N.J. at 211. The level of victimization was exceptional in this case, given the violence and brutality of the murder. The victimization is similar to that described in Cooper II:
The extent of victimization in defendant's case is extremely high. Defendant kidnapped, raped, and strangled his six-year-old victim. The record indicates that there was neither torture . . . nor mutilation of the victim. The incident was relatively brief, but there was evidence that defendant choked the victim for four to six minutes. Although her suffering was not prolonged, the victim undoubtedly was terrified and obviously suffered physically and emotionally before her death.

[Cooper II, supra, 159 N.J. at 91.]

Although defendant concedes that victimization is high, he asserts that it is not as high as it could have been because Megan's pain “was not prolonged.” For Megan, however, those moments of suffering likely seemed an eternity. Coupled with the sexual assault that preceded the fatal strangulation, as well as the terror and fright that Megan endured, the victimization is extremely high.
            c.    Character of Defendant
    The final consideration in determining overall culpability, defendant's character, is a catchall category that warrants consideration of “defendant's prior criminal history, unrelated acts of violence, cooperation with authorities, remorse and capacity for rehabilitation.” Feaster II, supra, 165 N.J. at 406; see also Chew II, supra, 159 N.J. at 211; Bey IV, supra, 137 N.J. at 366. Those factors substantially augment defendant's blameworthiness.
    Defendant's criminal record reflects both a 1980 conviction for attempted aggravated sexual contact and a 1982 conviction for sexual assault and aggravated assault. That criminal record increases his culpability. Harvey III, supra, 159 N.J. at 314- 15. Defendant acknowledges that his pedophilic urges prevent rehabilitation. Finally, his deceit in connection with the investigation, particularly his distribution of the photos of Megan during the search for her whereabouts, compounds the felony, in both a literal and figurative sense.
    It is true that certain factors mitigate. Timmendequas's first confession exhibited some remorse, as evidenced by his statement that he felt guilty when he observed Megan's parents and neighbors searching for her. In his allocution, he expressed further remorse. There was also some evidence of cooperation. Defendant's evasion and lies, however, minimize the value of cooperation as a mitigating factor. He omitted significant details from his first statement. It appears that the autopsy results, rather than any pang of conscience, prompted a more complete confession. During the confession, defendant also blamed Megan for biting his hand and causing him pain. Notably, the jury unanimously rejected a proposed mitigating factor that his “cooperation” demonstrated the acceptance of responsibility.
    After a careful consideration of his moral blameworthiness, the degree of victimization of Megan and her family, and defendant's character, we conclude that defendant is highly deathworthy.
        2.    CASE COMPARISONS
    We review the comparison cases to determine if those similarly culpable to or more culpable than defendant generally receive life sentences rather than death sentences. See Chew II, supra, 159 N.J. at 210. Such a finding would support a claim of disproportionality, because it would provide evidence of a societal consensus that the death penalty is not imposed in cases similar to this one. We consider each comparison defendant's motive, premeditation, justification or excuse, evidence of mental disease, defect, or disturbance, knowledge of the victim's helplessness, knowledge of the effects on nondecedent victims, age, involvement in planning the murder, violence and brutality of the murder, injury to nondecedent victims, prior record, other unrelated acts of violence, cooperation with authorities, remorse, and capacity for rehabilitation. Marshall II, supra, 130 N.J. at 155. With regard to the actual mechanics, we analyze each case to determine if defendant is more or less deathworthy than the comparison defendant. If defendant is less deathworthy than a life-sentenced defendant, that conclusion supports defendant's claim of disproportionality. If, however, defendant is more deathworthy than a life-sentenced defendant, that detracts from defendant's claim. After we compare defendant to all of the comparison cases, we determine if the results demonstrate that cases more deathworthy than defendant's generally receive life sentences, which would strongly indicate disproportionality.
    The parties have agreed upon fourteen comparison cases. We base our discussion of the comparison cases on the AOC records of those cases, which are summarized in Appendix A. In our discussion of the cases, we omit reference to irrelevant factors.
            a.    Agreed-Upon Cases
    We first address cases in which the comparison defendants have been sentenced to death, in order to determine if defendant is more or less culpable than those defendants.
                1)    Death Sentences
    Defendant is more culpable than David Cooper, whose death sentence was not disproportionate. Cooper II, supra, 159 N.J. at 116. Defendant and Cooper both sexually assaulted and strangled a young girl, and denied involvement until police confronted them with the evidence against them. Both had mothers who drank heavily during pregnancy, and both had abusive and unstable childhoods. There were some contrasts between defendant and Cooper. Cooper was an alcoholic who claimed to have been drunk during the murder; however, he presented no evidence of his alleged intoxication at trial. Although Cooper was on parole at the time of the murder, he had no prior violent or sexual offenses. Defendant presented evidence demonstrating that he was sexually abused as a child and diagnosed as a pedophile as an adult. In addition, defendant was a prior sex offender. On balance, defendant's prior record renders him slightly more deathworthy than Cooper. Therefore, Cooper's death sentence weakens defendant's disproportionality claim.
    Turning to the other death-sentenced case, the victimization in Joseph Harris's revenge killing was significant. Not only did Harris sexually assault Ron Ellison's wife and two young daughters, causing incredible victimization to them, he did so while Ellison was tied up, powerless to stop the attacks. Furthermore, Ellison feared for his life before Harris shot him. Harris heard voices and was diagnosed as a schizoid and with inadequate personality disorder, but his jury rejected the proposed c(5)(a) (extreme emotional disturbance) and c(5)(d) (diminished capacity) mitigating factors. Based on the additional victimization, Harris is more deathworthy than defendant. The dissent agrees, and concludes that Harris's death sentence supports defendant's claim of disproportionality. Post at __ (slip op. at 15-16). We also reach that conclusion, but to a lesser degree than the dissent. The dissent's thesis is that because we reserve the death penalty for the most heinous cases, and Harris is more deathworthy than defendant (and therefore his case more heinous), Harris's case is appropriate for the death penalty and defendant's is not. That approach misapplies concepts of proportionality review. Two defendants, both sentenced to death, may have different degrees of culpability. Proportionality review is not undertaken to ensure that those two defendants are similarly deathworthy. Its purpose is instead to ensure that one defendant's death sentence is not aberrational when compared to other similar defendants. See Harvey III, supra, 159 N.J. at 319 (“Proportionality review seeks only to assure that defendant's sentence is not an aberration. It is not intended to ensure that one killer's sentence is identical to all other similarly categorized killers.”) (citation omitted). Even if Timmendequas is the least deathworthy of the death-sentenced defendants, we must affirm provided his death penalty is not aberrational.
    Moreover, little can be inferred from Harris's death sentence. Harris's sentence indicates that the jury found his case sufficiently serious to warrant the imposition of the death penalty. Harris's sentence does not, however, create any necessary inference about whether defendant's case is sufficiently serious to warrant that penalty as well. The most that can be said is that in light of defendant's lesser deathworthiness, imposition of the death sentence on defendant may have been somewhat less likely than it was for Harris. To that extent, we agree with the dissent. That vague notion, however, does not provide substantial support for defendant's claim of disproportionality.
                2)    Life Sentences
    The bulk of the comparison cases resulted in life sentences. Thus, if defendant is less culpable than the defendants in most of those cases, he has arguably demonstrated that his death sentence was an aberration. If he is more culpable than most of those cases, his disproportionality claim is diminished.
    The case of Vincent Brown is similar to defendant. Brown sexually assaulted a young girl and strangled her to death. He confessed to sexual assault and murder after unsuccessfully attempting to deceive the police. Brown's criminal record included violent offenses. During his youth, he was physically and sexually abused. In one respect, Brown is more culpable than defendant: Brown left his victim to die in a ditch as she screamed for help. Nevertheless, defendant is more deathworthy than Brown. Unlike defendant, Brown did not penetrate his victim. In addition, Brown suffered from major depression with psychotic features and was declared incompetent to stand trial.
    On the other hand, Jerome Dennis's life sentence supports defendant's disproportionality claim. Dennis stabbed a fourteen year-old girl twenty-four times and raped her. Although his victim was less vulnerable than Megan and he did not kill to avoid apprehension, Dennis's murder entailed more victimization than defendant's murder. Dennis, a prior sex offender, committed murder two weeks after he was released on parole. He killed four more people in the following four months. Moreover, there is no indication that Dennis was sexually abused or suffered from any mental illnesses. The substantial victimization, Dennis's prior record, and the lack of mitigating evidence make him more deathworthy than defendant.
    Ralph Edwards's victim was nearly as vulnerable as Megan. Like defendant, Edwards had a history of psychological illness, and his jury found the c(5)(d) (diminished capacity) mitigating factor. However, no juror in Edwards's case found the c(5)(a) (extreme emotional disturbance) mitigating factor. In contrast to defendant, Edwards was only eighteen years old and had no prior criminal record. Those factors render defendant more deathworthy than Edwards.
    James Henderson and Gary Lippen caused extraordinary victimization. Henderson raped the victim while Lippen held her down, and Lippen may have also raped her. They crushed her throat with a stick, and Henderson stabbed her several times and broke her legs. Henderson had a history of mental illness. There is no indication that Henderson had an abusive childhood or that he expressed remorse for what he had done. Henderson's case included mitigating evidence not present in defendant's case: Henderson was illiterate, and apparently had only one drug conviction in his prior record. Henderson also did not kill to escape detection for the rape. Moreover, the seventeen-year-old victim in that case was not nearly as vulnerable as Megan; however, Henderson and Lippen neutralized the victim's ability to resist the rape when Lippen held her down while Henderson raped her. Overall, Henderson and defendant are similarly deathworthy.
    In contrast, Lippen is less culpable than defendant. Lippen claimed that his participation in the murder was due to his fear of Henderson. That situation is distinct from Morton II, in which we held that a defendant's culpability “should not be diminished” because a co-defendant primarily planned the crime when the defendant “willingly participated.” Morton II, supra, 165 N.J. at 252. Lippen's allegation was that he participated in the crime because he feared Henderson. He did not “willingly” participate, contrary to the dissent's suggestion. Post at __ (slip op. at 19-20). In addition, Lippen may have been intoxicated, did not kill to escape detection, had no prior convictions, and was only nineteen years old. Although he did not have a history of mental illness, Lippen is less deathworthy than defendant.
    Michael Manfredonia inflicted gratuitous pain on his fourteen-year-old victim whom he stabbed twenty-six times and sexually assaulted. The victimization in Manfredonia's case was substantial, as his victim suffered more than Megan. The c(5)(d) (diminished capacity) mitigating factor was not present in Manfredonia's case. Like defendant, Manfredonia was extremely emotionally disturbed and had borderline intelligence. In addition, he was nineteen years old and suicidal, had no prior record except for a disorderly persons theft offense, and allegedly felt provoked by the victim's verbal insults. Also, the victim was seven years older than Megan. Manfredonia's and defendant's culpability are comparable.
    The similarities between the rape-murders Rasheed Muhammad and defendant committed are striking. They both kidnapped, sexually assaulted, and lethally strangled young girls. As children, both Muhammad and defendant were physically and sexually abused, neglected, and raised in homes replete with violence. Muhammad did not attempt to establish the c(5)(a) (extreme emotional disturbance) and c(5)(d) (diminished capacity) mitigating factors; however, pursuant to the c(5)(h) (catchall) factor, the jury found that Muhammad was emotionally unstable and had twice attempted suicide. Muhammad's jury rejected the c(4)(f) (escape detection) aggravating factor. Muhammad's prior record included property-crime convictions, but no sexual or other violent offenses. Furthermore, it appears that Muhammad confessed without attempting to outwit the police and the victim's family by giving a false statement to the police or feigning assistance with searching for the victim. Therefore, defendant is slightly more deathworthy than Muhammad.
    Defendant is also more culpable than Frederick Ritchie. Evidence of Ritchie's intent to kill his twelve-year-old victim was disputed; no direct evidence contradicted Ritchie's claim that the drunken victim accidentally fell into a washing machine and walked into a tree a