also concurring:
I concur in the opinion and judgment of the court. Two years ago I joined in Mr. Justice Ryan’s dissent in People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531, 544, cert, denied (1980), 445 U.S. 953, 63 L. Ed. 2d 788, 100 S. Ct. 603. Since then I have participated in and, indeed, have authored opinions in other cases where the death penalty statute was in issue. (See People v. Walker (1981), 84 Ill. 2d 512 (plurality opinion); People v. Gleckler (1980), 82 Ill. 2d 145 (majority opinion); People v. Carlson (1980), 79 Ill. 2d 564 (dissenting opinion); People v. Brownell (1980), 79 Ill. 2d 508 (majority opinion); People v. Greer (1980), 79 Ill. 2d 103 (dissenting in part).) Participation in these cases has given me an invaluable opportunity to consider and reflect upon both the Supreme Court’s pronouncements concerning the death penalty and this court’s opinion on the subject.
Subsequent to this court’s decision and the Supreme Court’s denial of certiorari in People ex rel. Carey v. Cousins, I acquiesced in the majority’s view on the issue of the prosecutor’s ability to request a death sentence hearing. Indeed, in People v. Brownell, where the precise issue decided in People ex rel. Carey v. Cousins was again presented, that being a procedural question, namely the method of the submission of the death penalty hearing to the court, and not the question of the constitutional validity of the death sentence per se, which issue has been decided by the United States Supreme Court, it was said, in an opinion filed without dissent:
“As to the defendant’s other arguments that the prosecutor’s discretion to request a sentencing hearing will lead to cruel and unusual punishment and the arbitrary and capricious imposition of the death penalty in violation of the eighth amendment, we believe those issues were addressed and resolved in our recent decision in People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531. There we held that the discretion vested in the prosecutor pursuant to section 9—1(d) of the murder statute (Ill. Rev. Stat. 1977, ch. 38, par. 9—1(d)) does not offend the eighth amendment because the prosecutor does not act as the sentencing authority. He merely requests a sentencing hearing dependent upon whether the requisite elements for a death sentence exist. Also, we held that the prosecutor’s discretion is sufficiently guided since he will request a sentencing hearing at the conclusion of the trial, after he will have had the opportunity to evaluate evidence to determine whether a sentencing hearing is, indeed, warranted.
The next contention of the defendant — that section 9—1(d) constitutes an improper delegation of legislative authority and an improper grant of judicial sentencing power to the executive branch— was also decided and rejected in People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531. We need not consider it again here.” (79 Ill. 2d 508, 527-28.)
It is my considered opinion that, having once expressed my disagreement with an opinion of the court and then having followed such opinion in a case which was decided shortly after, it would be inconsistent to reverse my position simply because a new justice has joined this court. I agree with the view expressed by my distinguished colleague in his dissent that the doctrine of stare decisis does not mean that the law is immutable and rigid. On the contrary, I am a firm believer in the continuing evolution of our law and of the requirement that it change to meet changing circumstances. I think, however, that the circumstances which warrant changes in the law do not include changes in personnel. Rather, the circumstances I consider significant enough to bring about changes in the law are those which render an existing rule of law impracticable or unjust and which will bring about a sensible and just result. When those circumstances are present, I will vigorously vote to change the law.
I think, however, that a serious mistake would be made if, at this juncture, this court overruled People ex rel. Carey v. Cousins and struck down the death penalty statute. An opportunity to strike down the act was passed up two years ago. In the interim, several other opinions have approved the procedure whereby the prosecutor requests a death sentence hearing. Were we to declare the act void now, those opinions would stand for naught. They were the result of a great deal of deliberation by this court and represent our best efforts to offer lucid instruction on this exceedingly difficult issue. It would be grossly unfair to the citizens of the State and members of the General Assembly that, rather than declare the act unconstitutional when the first opportunity arose in People ex rel. Carey v. Cousins, we permitted prosecutors, the General Assembly, the judiciary, and criminal defendants, as well as the citizens of Illinois, to rely on our pronouncement that the act was constitutional. If we were to decide now, four years after passage of the act, and after so many persons sit on death row, that the act is unconstitutional, a great disservice to the stability of the law would be perpetrated by this court. Such a result would indicate that this court does not decide issues based on the law, but based instead on who happens to be sitting on the court at a particular time.
Secondly, striking down the death penalty statute at this point on the ground that the statute violated the State constitutional separation of powers principle would prevent the United States Supreme Court from considering this case or any other capital case arising in Illinois. Thus, the General Assembly would be forced to continue to speculate as to whether any death penalty statute it might devise could pass the scrutiny of the United States Supreme Court.
Finally, I agree with Mr. Justice Traynor’s statement that once a judge has dissented, he is obligated to follow the law as pronounced. The respected jurist and scholar wrote:
“Paradoxically the well-reasoned dissent, aimed at winning the day in the future, enhances the present certainty of the majority opinion, now imbedded in the concrete of resistance to the published arguments that beat against it. For that very reason the thoughtful dissident does not find it easy to set forth his dissent.
Once he has done so he has had his day. He should yield to the obligation that is upon him to live with the law as it has been stated. He may thereafter properly note that he is concurring under compulsion, abiding the time when he may win over the majority, but he should regard dearly enough the stability of the law that governs all the courts in the state not to renew the rataplan of his dissent. When the trial court properly follows the declared law and is duly affirmed by the intermediate court, he should not vote for a hearing on the basis of his dissent. Conversely, should the trial court be reversed on the basis of his dissent, he should vote for a hearing. When the court has granted a hearing in a case with multiple issues, including the ancient one, and there is a nucleus of dissenters on other issues, he should not cast his vote on the basis solely of his ancient dissent to achieve a reversal or affirmance that would not otherwise have materialized. To do so would only work mischief. The judge’s responsibility to keep the law straight is not less when he is a dissenter. ” Traynor, Some Open Questions on the Work of State Appellate Courts, 24 U. Chi. L. Rev. 211, 218-19 (1957).
I would only add that once a judge has expressed a differing view from the majority, and has then acquiesced in the majority view, to the point of writing an opinion which accords the majority’s view its rightful place as the controlling law on the matter, due regard for the consistency of this court’s opinions leads a judge to continue to follow the majority’s view.