[7]*7PETERSON, C. J.
In an earlier appeal of this aggravated murder case, this court affirmed the defendant’s death sentence. State v. Wagner, 305 Or 115, 752 P2d 1136 (1988). The defendant petitioned to the Supreme Court of the United States for a writ of certiorari. The Supreme Court vacated the judgment and remanded the case to this court “for further consideration in light of Penry v. Lynaugh, 492 US_(1989).” Wagner v. Oregon, 492 US_, 109 S Ct 3235, 106 L Ed 2d 583 (1989).
As directed by the Supreme Court, we have reconsidered our earlier decision in light of Penry v. Lynaugh, 492 US_, 109 S Ct 2934, 106 L Ed 2d 256 (1989). We are compelled to vacate the judgment that affirmed the sentence of death. We remand the case to the trial court for retrial of the penalty phase only.
Penry concerns the constitutional requirement that a sentencing jury be given an effective opportunity to consider all aspects of a defendant’s life and crime in fixing the appropriate sentence. The first question before us is whether ORS 163.150 (1987 Replacement Part) (in effect for defendant’s trial and later amended as of July 24, 1989) permits the trial judge to submit to the sentencing jury a so-called “fourth question,” Le., a query whether the death penalty is appropriate for this defendant, considering all aspects of his life and crime?1 This is strictly a matter of statutory interpretation. The trial court in this case did not submit a fourth question to the sentencing jury.
Defendants in other death penalty cases before this court have argued that ORS 163.150 both permits a fourth question and is unconstitutional for not permitting one. The state contends, somewhat contrary to its position in State v. Wagner, supra, that the statute permits a fourth question if constitutionally required in an individual case. The point here is not to criticize the parties for their tactical choices in a matter of great seriousness, rather it is to note that both sides have, at one time or another, contended that ORS 163.150 permits a fourth question.
[8]*8If the statute does not permit submission of such an issue, then the statute prior to its amendment is arguably facially unconstitutional and defendants sentenced to death under the statute arguably could not be subject to death on resentencing. The starting point for the statutory analysis is the language of the statute and this court’s prior interpretation of the statute in Wagner.
ORS 163.105(1) provides that a defendant convicted of aggravated murder “shall be sentenced to death or life imprisonment pursuant to ORS 163.150.” ORS 163.150 pertinently provides:
“(l)(a) Upon a finding that the defendant is guilty of aggravated murder, the court, except as otherwise provided in subsection (2) of this section, shall conduct a separate sentencing proceeding to determine whether the defendant shall be sentenced to life imprisonment or death. The proceeding shall be conducted in the trial court before the trial jury as soon as practicable. If the defendant has pleaded guilty, the sentencing proceeding shall be conducted before a jury impaneled for that purpose. In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence; * * *. The state and the defendant or the counsel of the defendant shall be permitted to present arguments for or against a sentence of death.
“(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.
“(c) The state must prove each issue submitted beyond [9]*9a reasonable doubt, and the jury shall return a special verdict of ‘yes’ or ‘no’ on each issue considered.
“(d) The court shall charge the jury that it may not answer any issue ‘yes’ unless it agrees unanimously.
“(e) 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.” (Emphasis added.)
On its face, the statute neither precludes nor permits a general mitigation question. Either rendering, then, of the statute can find support, but we will not allow a question of such importance to turn on simplistic application of maxims of statutory interpretation {e.g., the expression of one thing, i.e., the listed issues, is the exclusion of another); uncritical reliance on the general legislative intent to enact a constitutionally valid death penalty; or resolution of a battle between the injunction to interpret a statute constitutionally if possible, see, e.g., Cooper v. Eugene Sch. Dist. No. 4J, 301 Or 358, 378, 723 P2d 298 (1986), appeal dismissed 480 US 942 (1987) (before invalidating a facially overbroad statute, the court is obliged to try to interpret the statute constitutionally, consistent with its purpose), or the general direction not to add to the terms of a statute, see ORS 174.010. These may be useful tools for decision, but they do not substitute for specific analysis in the first instance.
THE STATUTE DOES NOT PRECLUDE A FOURTH QUESTION
ORS 163.150(1)(b) provides that “the court shall submit the following issues to the jury[.]” The statute then lists one issue, deliberateness; one issue with a mandatory instruction on mitigation, future dangerousness; and one contingent issue, provocation.
The statute does not state that these two issues and one contingent issue are the only issues that may be submitted to the jury. Indeed, although the statute only expressly provides for a mitigation instruction on the second issue, future dangerousness, this court nonetheless has interpreted the statute to require the admission of mitigating evidence on all [10]*10three issues and to allow for mitigation instructions on all three issues. Wagner, 305 Or at 156-57, 161, 167.
The statute states that the prosecution must prove each issue submitted beyond a reasonable doubt and requires the jury to respond “yes” or “no” on each issue considered, with unanimity required for “yes” (death). ORS 163.150(1)(c) and 163.150(1)(d). ORS 163.150(1)(e) is important in the analysis and it is a problem for any contention that the statute permits a general mitigation question. It provides:
“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 * * *.”
This provision is clearly the closest the statute comes to precluding a fourth question, stating as it does that death shall be the sentence if the jury is unanimously affirmative “on each issue considered under this section.” The term “this section” clearly does not refer to subsection (1)(e), which does not otherwise describe the issues or deal with their submission. Just as clearly, it does not by its terms refer exclusively to subsection (1)(b) — the list of issues, instruction, and contingent issue — both because it does not do so expressly and because “this section” cannot by its terms be read to refer exclusively to another subsection. “[T]his section” is, moreover, implicitly defined in subsection (1)(a) of ORS 163.150, which speaks of “subsection (2) of this section,” meaning subsection (2) of ORS 163.150.
Subsection (1)(e), by its reference to issues “considered under this section [i.e., ORS 163.150],” thus clearly includes those issues submitted pursuant to subsection (1)(b), but it does not preclude the submission and consideration of other issues. Indeed, Wagner recognizes that ORS 163.150(1) must permit jury consideration of “ ‘any aspect of the defendant’s character and record or any circumstances of his offense as an independently mitigating factor.’ ” See State v. Wagner, 305 Or at 160. (Emphasis added.)
Justice Linde’s dissent in this case relies very heavily on the neutral Committee Explanation printed in the 1984 Voters’ Pamphlet for the proposition that only if the jury answers the three statutory questions in the affirmative can [11]*11the penalty be death, otherwise the sentence is life imprisonment. In fact, however, the Committee Explanation provides arguably greater support to the contrary proposition that a fourth question is not precluded.
In addition to the language relied on by the dissent, the Explanation states that the statutes would
“require that persons convicted of any type of aggravated murder be sentenced either to death by lethal injection or to life in prison * * *. [The measure] also provides that after someone is unanimously convicted of aggravated murder, the jury shall decide the sentence in a separate proceeding.” 1984 General Election Voters’ Pamphlet at 33.
The dissent’s rendering of the statute to preclude a fourth question robs the measure of its primary stated intents, which are to subject those convicted of aggravated murder to the possibility of a capital sentence and to have the jury decide the appropriate sentence, death or life imprisonment, in a separate proceeding. The addition of a fourth question fulfills and furthers both purposes by preserving the possibility of a death sentence for convicted aggravated murderers and by permitting a jury to decide between life imprisonment and death.
To conclude that the statute does not facially preclude a fourth question does not, however, yet address whether it permits one.
THE STATUTE PERMITS INTRODUCTION OF ALL CONSTITUTIONALLY RELEVANT MITIGATION EVIDENCE
This court in Wagner held:
“We construe the statute [ORS 163.150] to mean that a defendant shall be permitted to introduce any competent evidence relevant to mitigation on any of the three issues.” 305 Or at 156-57.
The focus of that holding is plainly on the range of mitigation evidence to be permitted; it is not on whether a fourth issue can or should be submitted to the jury. This is evident not only from the statement of the holding, but from the fact that the court focused on interpreting the statutory provision that “evidence may be presented as to any matter that the court deems relevant to sentence.” 305 Or at 156. (Emphasis added.) The court thereby held that mitigation evidence shall be [12]*12admissible on all three statutory issues, not just the second, and that it would be preferred practice to instruct on mitigation on all three statutory issues, not just the second. 305 Or at 156-67.
The statute provides that the court shall conduct a separate proceeding to determine life imprisonment or death. ORS 163.150(1)(a). The statute allows at that proceeding evidence of any matter “that the court deems relevant to sentence,” and further provides that each side “shall be permitted to present arguments for or against a sentence of death.” Id. Thus far, the terms of the statute support a contention that the trial court has the authority to admit the broadest range of mitigating evidence and that a defendant may argue to the jury, based on that evidence, for a life sentence. These provisions do not, however, on their face, translate into a defendant’s right to have a fourth, general mitigation question submitted to the jury.
The textual interpretation of ORS 163.150(1) (a) proffered above is fully supported by the holding of the court in Wagner. There the court held that “[u]nder ORS 163.150(1), the jury may consider all mitigating factors or circumstances that are shown by the evidence.” 305 Or at 160. This holding interpreting the statute was both immediately preceded and followed by the court’s recognition that the United States Supreme Court would presumably deem the Oregon statute unconstitutional if it “ ‘prevented] the sentencer from considering any aspect of the defendant’s character and record or any circumstances of his offense as an independently mitigating factor.’ ” 305 Or at 160 (quoting Lockett v. Ohio, 438 US 586, 607, 98 S Ct 2954, 57 L Ed 2d 973 (1978)). (Emphasis added.) Justice Linde in dissent in Wagner relied on United States Supreme Court precedent “to show the decisive point that the sentencer must not merely admit evidence but consider ‘nonstatutory mitigating circumstances.’ ” 305 Or at 204. The court responded expressly to this point by holding, “We have no quarrel with that rule, and we conclude the Oregon scheme is not to the contrary.” 305 Or at 161.
In interpreting and applying the statutory requirement that evidence may be presented as to any matter “the court deems relevant to sentence,” the court in Wagner relied [13]*13on its interpretation of the then current federal precedents to conclude that jury consideration of mitigating evidence relevant to the three statutory issues was sufficient to satisfy federal constitutional mandates. Evidence “relevant to sentence” was thus defined in constitutional terms, and was then deemed to be limited to evidence relevant to the three statutory issues. The statute on its face, as we have seen, does not require more, and the court in Wagner did not feel compelled to construe it to permit more, i.e., submission of a fourth question.
One year after Wagner, it can be seen that the dissents in Wagner read the federal precedents more insightfully than did the court and that Justice Gillette’s dissent accurately concluded that the federal constitution could indeed require something more, some avenue for the sentencing jury to give meaningful effect to mitigating evidence relevant outside or beyond the statutory issues. See 305 Or at 219-32.2 In June 1989, the United States Supreme Court so held in Penry, a case involving the Texas statute in which the Oregon statute has its roots. In Penry, the Supreme Court appears to have put its imprimatur on a fourth question as one mechanism for the sentencing jury to give meaningful effect to its consideration of the entire range of possible mitigating evidence and to provide a “reasoned moral response” to the ultimate question of whether the defendant should live or die. Penry v. Lynaugh, supra, 492 US at_,_, 109 S Ct at 2947, 2951, 106 L Ed 2d at 279, 284.
Justice Gillette’s dissent in Wagner states:
“None of the foregoing [discussion of the federal precedents] necessarily requires holding that the Oregon statutory scheme is unconstitutional on its face. This court could so construe the statute as to permit the admission of all mitigating evidence and to require an instruction to the jury delineating the scope of the jury’s authority to reprieve an otherwise death-eligible defendant on the basis of that evidence.
“I do not here propose any particular solution. One solution perhaps would be to instruct the jury that, even if it concludes that all three statutory questions should be [14]*14answered ‘yes,’ it nonetheless should answer one of them ‘no’ unless it unanimously concludes that the mitigating evidence does not call for a lesser penalty. A second alternative might have the jury answer a fourth, constitutionally-required question after the three statutory ones: After considering all the mitigating evidence, does the jury still unanimously conclude that the prisoner should be put to death, rather than spared? But the majority has offered no suggestion or language that would be consistent both with the statute and with the constitutional requirements.
“It is true, as the majority doubtless recognizes, that to give the statute some construction such as the ones I have described probably would require that the sentence in this case be vacated and the matter be remanded for resentencing. That appears to me to be a small price to pay for establishing a set of statutory and constitutional directives to permit trial courts in the future to conduct constitutionally adequate sentencing proceedings that would avoid future case-by-case evaluations as to which piece of evidence satisfied which statutory and/or constitutional criteria. If the people of this state are to receive reliable enforcement of the death penalty, they deserve to have this aspect of the statutory scheme fully explored and its constitutional limitations declared now.” 305 Or at 232-33 (Gillette, J., dissenting). (Emphasis added.)
In view of what we have learned from Penry, it is now clear that mitigating evidence beyond the scope of the statutory issues is indeed constitutionally “relevant to sentence” and, accordingly, statutorily admissible. See State v. Wagner, 305 Or at 156-67; ORS 163.150(1)(a). The step from admissibility of such evidence to meaningful consideration by the jury, suggested by Justice Gillette as a possibility of statutory construction in Wagner3 and required by the Supreme Court in Penry for a constitutionally valid death sentence, is the step we now take.
ORS 163.150 PERMITS A GENERAL MITIGATION QUESTION
The source of the trial court’s authority and responsibility to charge the jury is statutory. ORCP 58B(6) and 59B, applicable to criminal proceedings pursuant to ORS 136.330, respectively provide in relevant part:
“The court * * * shall charge the jury.”
[15]*15“In charging the jury, the court shall state to them all matters of law necessary for their information in giving their verdict.”
This source of authority and responsibility traces back in all essential particulars to the 19th century Civil Code in Oregon. See, e.g., Smith v. Shattuck, 12 Or 362, 369, 7 P 335 (1885).
Hand in hand with the trial court’s responsibility to instruct the jury on “all [necessary] matters of law” is the “well-established rule in this state that a party litigant is entitled to have the court instruct the jury upon his theory of the case as formulated in properly requested instructions which correctly state the law, and which are founded upon the pleadings and the proof in the case.” Denton v. Arnstein, 197 Or 28, 46, 250 P2d 407 (1952). (Emphasis added.)
In State v. Farrar, 309 Or 132, 786 P2d 161 (1990), for example, the defendant correctly contended, and submitted instructions accordingly, that he cannot constitutionally be sentenced to death unless the jury is instructed that it may spare his life if the jury believes, under all the circumstances, that it is appropriate to do so. See State v. Wagner, supra, 305 Or at 161 (agreeing that the jury must be permitted to “consider ‘non statutory mitigating circumstances’ ”). In this case, the pro se defendant at trial did not submit properly requested instructions on general mitigation, although on appeal defendant asserts that evidence was received that required the submission of a fourth question and that “[defendant was entitled to additional jury instructions under Penry.”
For purposes of this inquiry into the application of ORS 163.150 and because the ruling in this case has general applicability to each of the death penalty verdicts rendered before the July 24, 1989, amendment of ORS 163.150, some of which cases expressly raised the issue at trial, the considerations expressed in Denton v. Arnstein, supra, which are equally applicable in the criminal sentencing context, apply in our analysis in this case.
We are thus left with circumstances in which (1) the federal constitution requires admission of all mitigating evidence; (2) the statute permits admission of such evidence; (3) the federal constitution requires a mechanism for meaningful consideration of all mitigating evidence, including evidence [16]*16beyond the scope of the statutory questions; (4) the statute permits arguments by defendant for life based on all mitigating evidence; (5) the trial court is obliged to instruct the sentencing jury on all necessary matters of law; and (6) defendant is entitled to an instruction that, notwithstanding an affirmative answer to the statutory questions, the jury may conclude that mitigating evidence justifies imposition of a life sentence.4
We hold that, in such circumstances, the trial court has the statutory authority under ORS 163.150(1), (and the constitutional responsibility if the facts require it), to submit to the sentencing jury a fourth question, in response to which the sentencing jury may spare a defendant from the death penalty, notwithstanding an affirmative finding on the issues listed in subsection (l)(b) of the statute.
Our conclusion is further supported by the fact that the United States Supreme Court has held that the capital-sentencing procedures of Texas, which are substantially identical to those in Oregon, are not facially unconstitutional in their treatment of mitigating evidence. See Jurek v. Texas, 428 US 262, 276, 96 S Ct 2950, 49 L Ed 2d 929 (1976) (“We conclude that Texas’ capital-sentencing procedures, like those of Georgia and Florida, do not violate the Eighth and Fourteenth Amendments”). This court made a similar determination regarding the Oregon capital sentencing procedures under the state and federal constitutions in Wagner.
The United States Supreme Court did not reconsider the facial constitutionality of the Texas statute in its Penry decision. That court also remanded Wagner to this court for reconsideration in light of Penry. In neither instance did it overrule Jurek. If the United States Supreme Court wishes to overrule Jurek, that is its responsibility, not ours. This court has determined that the statute is facially constitutional in Wagner and now on reconsideration in light of Henry we adhere to that decision.
[17]*17PROCEDURAL APPLICATIONS
The Penry decision was issued by the United States Supreme Court on June 26,1989. Immediately thereafter, the 1989 Legislative Assembly initiated and passed legislation amending ORS 163.150. The amended statute provides, in part:
“(5) Notwithstanding paragraph (a) of subsection (1) of this section, the following shall apply:
“(a) If a reviewing court finds prejudicial error in the sentencing proceeding only, the court may set aside the sentence of death and remand the case to the trial court. No error in the sentencing proceeding shall result in reversal of the defendant’s conviction for aggravated murder. Upon remand and at the election of the state, the trial court shall either:
“(A) Sentence the defendant to imprisonment for life in the custody of the Department of Corrections as provided in ORS 163.105(l)(c); or
“(B) Impanel a new sentencing jury for the purpose of conducting a new sentencing proceeding.
“(b) The new sentencing proceeding shall be governed by the provisions of subsections (1) and (2) of this section. A transcript of all testimony and all exhibits and other evidence properly admitted in the prior trial and sentencing proceeding shall be admissible in the new sentencing proceeding. Either party may recall any witness who testified at the prior trial or sentencing proceeding and may present additional relevant evidence.
“(c) The provisions of this section are procedural and shall apply to any defendant sentenced to death after December 6,1984.”
Accordingly, pursuant to ORS 163.150(5) (1989), the appropriate remedy in this case is a remand for resentencing. See also State v. Wagner, 305 Or at 233 (Gillette, J., dissenting).
We do not agree with defendant’s contention that the requirement of ORS 163.150(1)(a) that the sentencing proceeding “shall be conducted * * * before the trial jury as soon as practicable” has any implications in the case of a remand for resentencing. (Emphasis added.) That provision is nothing more than the procedural directive to the trial court in the [18]*18ordinary course of events. There is no statutory or constitutional requirement, or persuasive jurisprudential rationale, to compel a resentencing before the original trial jury (to the contrary, the new statute requires a new jury) or to require a new guilt trial or default sentencing to something less than death simply because the original guilt phase jury has been discharged. If the state elects to pursue the death penalty, the new sentencing jury shall be selected in the same manner that the trial jury in a capital case is selected.
In accordance with subsection (1)(e) of ORS 163.150 (1989), th e jury must answer the fourth question unanimously in the affirmative as a prerequisite to a death sentence. The state must prove each of the first three statutory issues submitted beyond a reasonable doubt; but that requirement does not apply to the fourth question. ORS 163.150(1)(d) (1989). There is no burden of proof on the fourth question because it does not present an issue subject to proof in the traditional sense, rather it frames a discretionary determination for the jury.
ORS 163.150(1)(b)(D) (1989), the new statutory statement of the fourth issue, made applicable to this resentencing proceeding pursuant to ORS 163.150(5)(b) (1989), provides:
“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.”
We, frankly, have been unable to understand this provision grammatically, and we are extremely conscious of the need for clear direction from the legislature and the courts on the statutory and constitutional mandates of the death penalty sentencing procedures. The lack of grammatical clarity in the statutory statement of the issue must translate into an intelligible instruction to a jury for the sentencing process to be effective. Accordingly, consistent with ORS 163.150(1)(b)(D) (1989) and the guidelines of Penry, if constitutionally required in a particular case, the trial court must instruct each juror on the fourth issue, which instruction may (but need not) be the following:
[19]*19“Should defendant receive a death sentence? You should answer this question ‘no’ if you find that there is any aspect of defendant’s character or background, or any circumstances of the offense, that you believe would justify a sentence less than death.”
If any juror votes “no” on this or any of the four questions, the death penalty may not be imposed, because a sentence of death by a jury must be unanimous.
Additionally, the court must also instruct on the other issues set forth in ORS 163.150(1)(b) (1989). The instructions may (but need not) be the following:
1. Was the conduct of the defendant that caused the death of the deceased committed deliberately and with the reasonable expectation that death of the deceased or another would result?
2. Is there a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society? In determining this issue, you shall 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.
(If raised by the evidence) 3. Was the conduct of the defendant in killing the deceased unreasonable in response to the provocation, if any, by the deceased?
We reject the state’s dual contentions that mitigating evidence is limited under former or current ORS 163.150 to evidence causally related to the offense and that mitigating evidence may be constitutionally so limited. We do not believe that mitigation evidence can be practicably limited to items ‘causally related’ to the crime and we conclude that all aspects of a defendant’s character and background are “relevant to sentence,” i.e., the jury’s exercise of a reasoned moral response to the question “should defendant receive a death sentence?” See State v. Wagner, supra, 305 Or at 160 (the jury must be able to consider “any aspect of the defendant’s character and record or any circumstances of his offense as an independently mitigating factor”). (Emphasis added.) Penry, 492 US at_, 109 S Ct at 2947-52, 106 L Ed 2d at 278-84; Franklin v. Lynaugh, 147 US 164, 108 S Ct 2320, 101 L Ed 2d 155 (1988).
[20]*20In the fourth question proposed above, we are asking the jury, in making its finding, to consider any mitigating aspect of defendant’s life, alone or in combination, not necessarily related causally to the offense. This does no more than to provide the sentencing jury with the data traditionally available to the sentencing judge under the discretionary sentencing model for criminal cases. Acceptable instructions relating to evidence and proof of mitigating circumstances are set out in State v. Farrar, supra (decided this date).
The judgment is affirmed as to the guilt phase and reversed as to the penalty phase. The case is remanded to the circuit court for resentencing for the reasons stated in this opinion and in accordance with the procedures outlined herein.