dissenting:
For the reasons set forth in my partial concurrence and partial dissent in People v. Bull, 185 Ill. 2d 179 (1998), the Illinois death penalty law violates the eighth and fourteenth amendments to the United States Constitution (U.S. Const., amends. VIII, XIV) and article I, section 2, of the Illinois Constitution (Ill. Const. 1970, art. I, §2). It is therefore void and unenforceable. While a majority of my colleagues continue to dispute this view, enforcement of the law has, in effect, been halted. Defendants are still being sentenced to death, but executions have ceased. An indefinite moratorium has been declared by the Governor. Since Andrew Kokoraleis’ appeal was summarily and illegally dismissed by our court in 1999 (People v. Kokoraleis, 189 Ill. 2d 721 (1999)), no one has actually been put to death by the State.
In an effort to address the fatal defects in Illinois’ system of capital punishment, our court recently promulgated a comprehensive set of new rules governing cases in which the State is seeking the death penalty. Although the procedures contained in the new rules are necessary for an accurate determination of innocence or guilt (People v. Hickey, 204 Ill. 2d 585, 634 (2001) (Harrison, C.J., dissenting)), we have yet to ascertain whether the rules will be sufficient to cure the laws’ constitutional flaws. Until the efficacy of the new rules can be demonstrated, until we are certain that innocent citizens are no longer being convicted of capital offenses, imposition of the death penalty should be prohibited. Accordingly, I would reverse the order of the circuit court and preclude the State from seeking the death penalty when defendant is tried again. I therefore dissent.