also concurring:
The dissent of my colleague, Mr. Justice Simon, has raised two issues which he believes render the Illinois death penalty statute unconstitutional. The first issue concerns the failure of the statute to set forth “objective standards guiding the exercise of a prosecutor’s discretion to seek the death penalty ***.” (88 Ill. 2d at 190.) The other issue relates to the inadequacy of notice to the defendant as to when the prosecutor will seek the death penalty. I disagree with the conclusions reached on both of these issues and feel compelled to respond in the event further review of this case occurs.
It is not every case of murder that a prosecutor may seek the death penalty. He may do so only when one or more of the seven aggravating factors listed under section 9—1(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 9—1(b)) is present. It is my view that these seven aggravating factors constitute objective standards under which the prosecutor may seek the death penalty. It is totally inaccurate to refer to the prosecutor as the one who imposes the sentence. It is the sentencing body-judge or jury, as the case may be — that imposes the sentence. The prosecutor only triggers the procedure to be followed and then only when the evidence establishes that one or more of the aggravating factors is present.
The issue of prosecutorial discretion in capital cases has been addressed in the plurality and concurring opinions in Gregg v. Georgia (1976), 428 U.S. 153, 49 L. Ed. 2d 859, 96 S. Ct. 2909, Proffitt v. Florida (1976), 428 U.S. 242, 49 L. Ed. 2d 913, 96 S. Ct. 2960, Jurek v. Texas (1976), 428 U.S. 262, 49 L. Ed. 2d 929, 96 S. Ct. 2950, and the dissent of Mr. Justice White in Roberts v. Louisiana (1976), 428 U.S. 325, 337, 49 L. Ed. 2d 974, 984, 96 S. Ct. 3001, 3008 (White, J., Burger, C.J., and Blackmun and Rehnquist, JJ., dissenting).
The plurality opinion of Mr. Justice Stewart in Gregg, joined by Mr. Justice Powell and Mr. Justice Stevens, stated:
“First, the petitioner focuses on the opportunities for discretionary action that are inherent in the processing of any murder case under Georgia law. He notes that the state prosecutor has unfettered authority to select those persons whom he wishes to prosecute for a capital offense and to plea bargain with them. Further, at the trial the jury may choose to convict a defendant of a lesser included offense rather than find him guilty of a crime punishable by death, even if the evidence would support a capital verdict. And finally, a defendant who is convicted and sentenced to die may have his sentence commuted by the Governor of the State and the Georgia Board of Pardons and Paroles.
The existence of these discretionary stages is not determinative of the issues before us. At each of these stages an actor in the criminal justice system makes a decision which may remove a defendant from consideration as a candidate for the death penalty. Furman, in contrast, dealt with the decision to impose the death sentence on a specific individual who had been convicted of a capital offense. Nothing in any of our cases suggests that the decision to afford an individual defendant mercy violates the Constitution. Furman held only that, in order to minimize the risk that the death penalty would be imposed on a capriciously selected group of offenders, the decision to impose it had to be guided by standards so that the sentencing authority would focus on the particularized circumstances of the crime and the defendant.” (Emphasis added.) (428 U.S. 153, 199 & n.50, 49 L. Ed. 2d 859, 889 & n.50, 96 S. Ct. 2909, 2937 & n.50.)
In the same case, the concurring opinion of Mr. Justice White, joined by the Chief Justice and Mr. Justice Rehnquist, stated:
“Petitioner also argues that decisions made by the prosecutor — either in negotiating a plea to some offense lesser than capital murder or in simply declining to charge capital murder — are standardless and will inexorably result in the wanton and freakish imposition of the penalty condemned by the judgment in Furman. I address this point separately because the cases in which no capital offense is charged escape the view of the Georgia Supreme Court and are not considered by it in determining whether a particular sentence is excessive or disproportionate.
Petitioner’s argument that prosecutors behave in a standardless fashion in deciding which cases to try as capital felonies is unsupported by any facts. Petitioner simply asserts that since prosecutors have the power not to charge capital felonies they will exercise that power in a standardless fashion. This is untenable. Absent facts to the contrary, it cannot be assumed that prosecutors will be motivated in their charging decision by factors other than the strength of their case and the likelihood that a jury would impose the death penalty if it convicts. Unless prosecutors are incompetent in their judgments, the standards by which they decide whether to charge a capital felony will be the same as those by which the jury will decide the questions of guilt and sentence. Thus defendants will escape the death penalty through prosecutorial charging decisions only because the offense is not sufficiently serious; or because the proof is insufficiently strong. This does not cause the system to be standardless any more than the jury’s decision to impose life imprisonment on a defendant whose crime is deemed insufficiently serious or its decision to acquit someone who is probably guilty but whose guilt is not established beyond a reasonable doubt. Thus the prosecutor’s charging decisions, are unlikely to have removed from the sample of cases considered by the Georgia Supreme Court any which are truly ‘similar. ’ If the cases really Were ‘similar’ in relevant respects, it is unlikely that prosecutors would fail to prosecute them as capital cases; and I am unwilling to assume the contrary.” (Emphasis added.) 428 U.S. 153, 224-25, 49 L. Ed. 2d 859, 903, 96 S. Ct. 2909, 2949.
The same plurality in Proffitt stated:
“The petitioner first argues that arbitrariness is inherent in the Florida criminal justice system because it allows discretion to be exercised at each stage of a criminal proceeding — the prosecutor’s decision whether to charge a capital offense in the first place, his decision whether to accept a plea to a lesser offense, the jury’s consideration of lesser included offenses, and, after conviction and unsuccessful appeal, the Executive’s decision whether to commute a death sentence. As we noted in Gregg, this argument is based on a fundamental misinterpretation of Furman, and we reject it for the reasons expressed in Gregg. See [428 U.S. 153, 199, 49 L. Ed. 2d 859, 889, 96 S. Ct. 2909, 2937.] ” (428 U.S. 242, 254, 49 L. Ed. 2d 913, 924,96 S. Ct. 2960, 2967.)
And the same concurring justices stated:
“Accordingly, the Florida statutory scheme for imposing the death penalty does not run afoul of this Court’s holding in Furman v. Georgia.
For the reasons set forth in my opinion concurring in the judgment in Gregg v. Georgia [(1976), 428 U.S. 153, 224-25, 49 L. Ed. 2d 859, 902-03, 96 S. Ct. 2909, 2948-49], and my dissenting opinion in Roberts v. Louisiana [(1976), 428 U.S. 325, 348-50, 49 L. Ed. 2d 974, 990-91, 96 S. Ct. 3001, 3013-14], this conclusion is not undercut by the possibility that some murders may escape the death penalty solely through exercise of prosecutorial discretion or executive clemency.” 428 U.S. 242, 261, 49 L. Ed. 2d 913, 928, 96 S. Ct. 2960, 2970.
Again in Jurek, the same plurality stated:
“The petitioner first asserts that arbitrariness still pervades the entire criminal justice system of Texas — from the prosecutor’s decision whether to charge a capital offense in the first place and then whether to engage in plea bargaining, through the jury’s consideration of lesser included offenses, to the Governor’s ultimate power to commute death sentences. This contention fundamentally misinterprets the Furman decision, and we reject it for the reasons set out in our opinion today in Gregg v. Georgia [(1976), 428 U.S. 153, 199, 49 L. Ed. 2d 859, 889, 96 S. Ct. 2909, 2937].” (428 U.S. 262, 274-75, 49 L. Ed. 2d 929, 940, 96 S. Ct. 2950, 2957.)
And the same concurring justices stated:
“I also cannot agree with petitioner’s other major contention that under the new Texas statute and the State’s criminal justice system in general, the criminal jury and other law enforcement officers exercise such a range of discretion that the death penalty will be imposed so seldom, so arbitrarily, and so freakishly that the new statute suffers from the infirmities which Branch v. Texas found in its predecessor.” 428 U.S. 262, 278, 49 L. Ed. 2d 929, 942, 96 S. Ct. 2950, 2959.
While the plurality opinion in Roberts did not address the issue of prosecutorial discretion, the dissent of Mr. Justice White, joined by the Chief Justice, Mr. Justice Blackmun and Mr. Justice Rehnquist, did and stated:
“Nor am I convinced that the Louisiana death penalty for first-degree murder is substantially more vulnerable because the prosecutor is vested with discretion as to the selection and filing of charges, by the practice of plea bargaining or by the power of executive clemency. Petitioner argues that these characteristics of the criminal justice system in Louisiana, combined with the discretion arguably left to the jury as discussed above, insure that the death penalty will be as seldom and arbitrarily applied as it was under the predecessor status. The Louisiana statutes, however, define the elements of first-degree murder, and I cannot accept the assertion that state prosecutors will systematically fail to file first-degree murder charges when the evidence warrants it or to seek convictions for first-degree murder on less than adequate evidence. Of course, someone must exercise discretion and judgment as to what charges are to be filed and against whom; but this essential process is nothing more than the rational enforcement of the State’s criminal law and the sensible operation of the criminal justice system. The discretion with which Louisiana’s prosecutors are invested and which appears to be no more than normal, furnishes no basis for inferring that capital crimes will be prosecuted so arbitrarily and infrequently that the present death penalty statute is invalid under Furman v. Georgia.
I have much the same reaction to plea bargaining and executive clemency. A prosecutor may seek or accept pleas to lesser offenses where he is not confident of his first-degree murder case, but this is merely the proper exercise of the prosecutor’s discretion as I have already discussed. So too, as illustrated by this case and the North Carolina case, Woodson v. North Carolina, ante [(1976), 428 U.S. 280, 49 L. Ed. 2d 944, 96 S. Ct. 2978], some defendants who otherwise would have been tried for first-degree murder, convicted, and sentenced to death are permitted to plead to lesser offenses because they are willing to testify against their codefendants. This is a grisly trade, but it is not irrational; for it is aimed at insuring the successful conclusion of a first-degree murder case against one or more other defendants. Whatever else the practice may be, it is neither inexplicable, freakish, nor violative of the Eighth Amendment. Nor has it been condemned by this Court under other provisions of the Constitution. Santobello v. New York [(1971), 404 U.S. 257, 30 L. Ed. 2d 427, 92 S. Ct. 495]; North Carolina v. Alford [(1970), 400 U.S. 25, 27 L. Ed. 2d 162, 91 S. Ct. 160]; Parker v. North Carolina [(1970), 397 U.S. 790, 25 L. Ed. 2d 785, 90 S. Ct. 1458]; Brady v. United States [(1970), 397 U.S. 742, 25 L. Ed. 2d 747, 90 S. Ct. 1463.] See also Chaffin v. Stynchcombe [(1973), 412 U.S. 17, 30-31, 36 L. Ed. 2d 714, 725-26, 93 S. Ct. 1977, 1984.]” 428 U.S. 325, 348-49, 49 L. Ed. 2d 974, 990-91, 96 S. Ct. 3001, 3013.
While I have overindulged in quoting excerpts from the above opinions, my point is that seven of the justices have addressed a similar issue to that raised in the dissent. Each of the seven justices found the issue to be without merit.
The remaining issue relates to the adequacy of notice to the defendant that the prosecutor intends to seek the death penalty. Mr. Justice Simon concludes “[t] hat ‘notice’ comes only on the morning the jury is selected.” (88 Ill. 2d at 192.) I disagree. Notice to the defendant originates when the indictment is presented to him at the time of his arraignment. (See sections 113—1 and 113—4 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, pars. 113—1, 113—4).) For the prosecutor to seek the death penalty, the indictment, or one of the counts thereof, must charge one or more of the seven aggravating factors listed in section 9—1(b). This places the defendant on notice that the prosecutor intends to seek the death penalty. After an appraisal of the evidence introduced at trial, the fact that the prosecutor decides not to seek such penalty does not invalidate the statute. To quote from Gregg, “Nothing in any of our cases suggests that the decision to afford an individual defendant mercy violates the Constitution.” 428 U.S. 153, 199, 49 L. Ed. 2d 859, 889, 96 S. Ct. 2909, 2937.
I concur in the judgment of affirmance.