dissenting:
I would vacate the sentence of death rendered against the defendant and remand for a new sentencing hearing because the Illinois death penally statute is unconstitutional and because of prejudicial remarks made by the prosecutor at the death penally hearing.
I continue to adhere to the position that I stated in People v. Lewis (1981), 88 Ill. 2d 129, 179 (Simon, J., dissenting). The Illinois death penalty statute is unconstitutional because it “contains no directions or guidelines to minimize the risk of wholly arbitrary and capricious action by the prosecutor in either requesting a sentencing hearing or in not requesting a sentencing hearing.” (People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531, 559 (Ryan, J., Goldenhersh, C.J., and Clark, J., dissenting).) A majority of the justices presently sitting on this court has, at one time or another, and most recently on November 13, 1981, when People v. Lewis was filed, recognized that the statute is unconstitutional. I believe that the importance of the issue to the public and to the defendant requires that I adhere to the beliefs I expressed in Lewis and refuse to follow the doctrine of stare decisis in this matter as my colleagues did in that case.
For this reason, I would declare the statute unconstitutional, vacate the sentence of death, and remand for the imposition of an alternative sentence.
Even if the statute were constitutional, the prosecutor’s prejudicial remarks about the possibility of parole at the defendant’s death sentencing hearing require that we vacate the sentence of death and remand for a new hearing. This court allowed the prosecutor to argue, over objection, that the defendant, if given life imprisonment without parole, would “find a way to get a parole and *** be out on the street again and he’ll kill again.”
We have held that the prosecutor must not interject extraneous issues into the death penalty hearing which, through prejudice or confusion, divert the jury’s attention from a careful consideration and weighing of the aggravating and mitigating factors in the defendant’s case. People v. Szabo (1983), 94 Ill. 2d 327, 363-67; People v. Walker (1982), 91 Ill. 2d 502, 513; see also People v. Davis (1983), 95 Ill. 2d 1, 62-63 (Simon, J., dissenting).
In Szabo we vacated the sentence of death because the prosecutor referred to the possibility of parole in his closing argument. (94 Ill. 2d 327, 365-67.) The prosecutor made comparable comments in this case, but the majority, holds that the comments were invited by defense counsel’s reference to the option of a life sentence without possibility of parole. Yet in Szabo we held that precisely the same type of reference to sentencing options did not warrant the prosecutor’s prejudicial and inflammatory reference to the possibility of parole:
“The possible terms of parole should not have been interjected by either counsel in informing the jury of the sentencing alternatives available to the court. However, the State’s Attorney could not use defense counsel’s statements as a convenient springboard to suggest to the jury that a possible decision 'made by some bureaucrat with very little standards’ could allow Szabo to be free again some day in the future. The comments of the State’s Attorney were not invited by defense counsel’s reference to the court’s sentencing alternatives. Such highly prejudicial remarks on the part of the prosecuting attorney inevitably diverted the jury’s attention from considering the aggravating and/or mitigating factors as they properly reviewed the character and record of the defendant and the facts and circumstances surrounding the offense.” (94 Ill. 2d 327, 366.)
The majority offers no explanation for its retreat from Szabo and the decision we made there to clearly limit prejudicial rhetoric in penalty hearings.
I believe all judges appreciate the seriousness of a death sentencing hearing. It “is not intended to provide a soap box on which counsel can prey upon the fears of the jurors that the the defendant may soon walk the streets again in search of another victim.” (People v. Szabo (1983), 94 Ill. 2d 327, 367.) I see no reason why this court should not continue to heed the warning it gave in Szabo concerning the limits of rhetoric in death penally hearings.