dissenting:
The precise issue raised here — whether the Illinois death penalty statute (Ill. Rev. Stat. 1977, ch. 38, par. 9—1 et seq.) violates the separation of powers provisions of the Illinois Constitution of 1970 (Ill. Const. 1970, art. II, sec. 1)—was presented to this court in People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531. A majority of the justices who served on the court at that time concluded that the statute was not unconstitutional. But three of the judges who continue to sit on this court expressed the opposite view. Their reasoning and the added observations set forth below lead me to the same conclusion. The fact that these three judges do not now join in the views I express here should not, in my judgment, deter me from stating my opinion in this case either because I was not a member of this court when oral argument took place in this case or because of the principle of stare decisis.
To avoid a deadlocked court and at the urging of my fellow justices, I have already participated in one capital case argued before I took my place on the court. (People v. Walker (1981), 84 Ill. 2d 512.) If I refrain from participating in this case, the infirmities I find in the statute would not disappear. The same problem would be presented again in the next case in which the death penalty was adjudged. In the meantime the fate of Cornelius Lewis might be affected. The Governor’s decision if Lewis seeks clemency or the consideration which might be given this case by Federal courts could be colored by what appears to be the Illinois Supreme Court’s sanguine acceptance of the constitutionality of the death penalty statute. In fact, a deep rift exists among the justices. The false appearance would, of course, eventually be exposed, for in the next capital case raising the issue it would be my obligation to participate. I would then file the same opinion I do here, but no one can predict what might happen to Cornelius Lewis in the meantime.
It would be blatant folly for this court to acquiesce in the execution of Cornelius Lewis without disclosing that four of the judges comprising the present court, either now or in the past two years, have viewed the death penalty statute as unconstitutional. How much confidence can any member of the judiciary, any State official or any member of the General Assembly have that this statute will continue to be viewed as constitutional?
I agree that the law should be stable; ideally it should not shift with each change of personnel on a reviewing court. This is particularly true of principles of common law, constitutional interpretation or statutory application, especially when those principles have been adhered to for a long time. The concept of stare decisis is an accepted and appropriate legal tool. It is especially useful in many aspects of civil law. Lawyers relying on stare decisis are able to inform their clients with some degree of confidence how factual situations are likely to be decided on the basis of existing precedent. Where issues are close there is value in sacrificing individual views to the interests of uniformity, consistency and predictability.
But capital punishment is an area unsuited to that kind of analysis. (See, generally Douglas, Stare Decisis, 49 Colum. L. Rev. 735, 736-37 (1949).) In considering the death penalty’s constitutionality we are not dealing with an area in which the practicing bar requires predictability. What lawyer advises his client to commit murder on the ground that the death penalty is unconstitutional? Conversely, what lawyer advises his clients not to commit murder solely on the ground that it is not?
In addition, a firm foundation for the constitutionality of the death penalty has not yet been established. The past decade has seen but one involuntary execution in the entire country (and none in Illinois) as the courts have wrestled with the validity of various types of death penalty statutes. Two Illinois statutes have been struck down, one on Federal grounds (Moore v. Illinois (1972), 408 U.S. 786, 800, 33 L. Ed. 2d 706, 716, 92 S. Ct. 2562, 2570), another on State grounds (People ex rel. Rice v. Cunningham (1975), 61 Ill. 2d 353). The present statute has been the subject of litigation in this court for only two years, and a glance at our docket reveals a wealth of issues yet to be decided. The time has not yet come when the issue can be considered completely settled.
Most importantly, because of the nature of the death penalty I do not believe that any judge should be expected to stifle his own viewpoint in the interest of uniformity. To follow the dictates of stare decisis in a case like this is to allow the conclusions of the past to be stamped indelibly upon the law without opportunity for correction. As the late Mr. Justice Douglas put it, “It is, I think, a healthy practice (too infrequently followed), for a court to reexamine its own doctrine.” (Douglas, Stare Decisis, 49 Colum. L. Rev. 735, 746 (1949).) “[T]he mere fact that an error has been committed is no reason or even apology for repeating it, much less perpetuating it.” (Hart v. Burnett (1860), 15 Cal. 530, 600.) We have recently said: “The tenets of stare decisis cannot be so rigid as to incapacitate a court in its duty to develop the law. *** Clearly, the need for stability in law must not be allowed *** to veil the injustice resulting from a doctrine in need of reevaluation.” (Alvis v. Ribar (1981), 85 Ill. 2d 1, 24.)
Recently and prior to Alvis, in People v. Banks (1979), 75 Ill. 2d 383, 392, this court expressly overruled People v. White (1977), 67 Ill. 2d 107, which it had decided two years earlier. In fact, this court has often overruled precedent. See Illinois Central Gulf R.R. Co. v. Sankey Brothers, Inc. (1979), 78 Ill. 2d 56, overruling Illinois Central R.R. Co. v. Seitz (1905), 214 Ill. 350; People v. Harris (1978), 72 Ill. 2d 16, overruling People v. Muir (1977), 67 Ill. 2d 86; Hanley v. Kusper (1975), 61 Ill. 2d 452, 463, overruling in part Lake Shore Auto Parts Co. v. Korzen (1973), 54 Ill. 2d 237; People v. Gregory (1974), 59 Ill. 2d Ill, overruling People ex rel. Ledford v. Brantley (1970), 46 Ill. 2d 419; People v. McNeil (1972), 53 Ill. 2d 187, overruling People v. De Filippis (1966), 34 Ill. 2d 129; Pulliam, v. Industrial Com. (1969), 43 Ill. 2d 364, overruling Hochspeier, Inc. v. Industrial Board (1917), 278 Ill. 523; Thorpe v. Mahin (1969), 43 Ill. 2d 36, overruling a line of cases, including Friedrich v. Wright (1944), 386 Ill. 229; Lorton v. Brown County Community Unit School District No. 1 (1966), 35 Ill. 2d 362, overruling Erford v. City of Peoria (1907), 229 Ill. 546; McDaniel v. Bullard (1966), 34 Ill. 2d 487, overruling Wilcox v. Bierd (1928), 330 Ill. 571; Republic Steel Corp. v. Industrial Com. (1964), 30 Ill. 2d 311, overruling Village of Glencoe v. Industrial Com. (1933), 354 Ill. 190.
When the passage of time brings new judges to the bench, the doctrine of stare decisis does not obstruct a change from precedent, even though the identical question has recently been decided. Recent Illinois examples are: The seating of three new judges between 1970 and 1973 resulted in the decision in People v. Nunn (1973), 55 Ill. 2d 344, a criminal case, which overruled People v. Koshiol (1970), 45 Ill. 2d 573, decided three years earlier without dissent. The swing vote in Nunn was provided by a justice who participated in Koshiol without noting any dissent. Similarly, the question of comparative negligence addressed in Alvis had been settled, with the opposite conclusion, in Maki v. Frelk (1968), 40 Ill. 2d 193. But five of the seven justices who participated in Alvis had not participated in Maki. They were able to bring their fresh perspective to bear on the case, while the two justices left from the Maki court remained consistent in their views of the law. As a result, the Alvis majority reached a conclusion different from the Maki majority. If the same thing happened here, a new majority, different from that in Cousins, would be formed. The stakes are too high in a capital case to affirm a sentence merely for the sake of decisional stability when a newly seated judge of the highest reviewing court disagrees with some of his colleagues.
Justice Roger Traynor of California spoke nearly 25 years ago of the duties of a reviewing court judge in words which should be considered here. He thought that, once a dissent is registered, the dissenter should join the rest of the court in subsequent cases presenting the same issue “abiding the time when he may win over the majority.” (Traynor, Some Open Questions on the Work of State Appellate Courts, 24 U. Chi. L. Rev. 211, 219 (1957).) Should a new member of the court also stifle his views and silently join the rest of the court, never revealing his understanding of the question? Mr. Justice Traynor does not say, but I infer from his words that he would think not:
“Something is lost to the judicial process if judges fail to exert full responsibility for their decisions. Such responsibility imposes its own discipline. As they analyze issues that have been disputed every inch of the way, they learn to guard against premature judgment. Entrusted with decisions, bound to hurt one litigant or the other, they come to understand the court’s responsibility in terms not of power but of obligation. The danger is not that they will exceed their power, but that they will fall short of their obligation.” 24 U. Chi. L. Rev. 2ll, 224 (1957).
Eight years after publishing that article, Justice Traynor noted an earlier admonition of Judge Jerome Frank:
“‘[I]n criminal actions, where life or liberty is at stake, courts should not adhere to precedents unjust to the accused. It is never too late to mend.’” (People v. Aranda (1965), 63 Cal. 2d 518, 530, 407 P.2d 265, 272, 47 Cal. Rptr. 353, 360, quoting United States v. Delli Paoli (2d Cir. 1956), 229 F.2d 319, 323 (Frank, J., dissenting).)
Judge Frank also had occasion to discuss the strictures of stare decisis in United States ex rel. Fong Foo v. Shaughnessy (2d Cir. 1955), 234 F.2d 715, 718, where he said:
“For stare decisis should not govern in a case like this where a man’s life is involved. Noteworthy here is Rex v. Taylor (1950) 2 K.B. 368, 371, where the English Court of Criminal Appeals overruled its own recent decision in Rex v. Turner, (1939) 1 All E.R. 330. The Court, after noting that the Court of Appeals in civil suits feels bound by its own earlier decisions as precedents in ‘order to preserve the rule of stare decisis,’ went on to say, ‘This court, however, has to deal with questions involving the liberty of the subject,’ and therefore felt free to overrule an unfortunate decision which favored the prosecution. Surely that should be the attitude of our courts which are much less bound by their own precedents than English courts have been traditionally.”
Over 100 years ago this court observed:
“[C]ases will sometimes occur in the decision of the most enlightened judges where the settled rules and reasons of the law have been departed from, and, in such cases, it becomes the duty of the court, before the error has been sanctioned by repeated decisions, to embrace the first opportunity to pronounce the law as it is. A solitary decision of recent date has never been held to change the law in any case; and especially should it not have that effect, where to adhere to it would be fraught with far greater public injustice than could possibly arise from overruling it in the particular case.” Frank v. Darst (1853), 14 Ill. 304, 310.
So we are faced with the strange spectacle of this court still adhering to the Cousins decision although a majority of its judges have stated that it does not represent the correct conclusion. Whether this court acknowledges it, the Cousins dissent set forth the proper statement of the law. I believe that, with this dissent, I am upholding the law and pointing out the error that was made in Cousins. If the three judges who dissented in Cousins were joining me now, a new majority would be formed and the Illinois death penalty statute would be held unconstitutional. This clearly visible paradox cannot be camouflaged by the often quoted but academic assertion that this is a government of law and not of men. Upholding the death penalty statute, with the standardless and unguided discretion granted to the 102 prosecutors who each hold the death penalty in their hands, is what makes for a government of men instead of law.
The Illinois death penalty statute (Ill. Rev. Stat. 1979, ch. 38, par. 9—1 et seq.) violates the system of separated powers set up by the Illinois Constitution of 1970. The constitution provides that no branch of government may exercise powers entrusted to another (Ill. Const. 1970, art. II, sec. 1), but the death penalty statute injects the prosecutor into the exclusively judicial province of sentencing.
The statute provides that in a murder prosecution the court, “where requested by the State,” shall conduct a sentencing hearing to determine if the death penalty should be imposed. (Ill. Rev. Stat. 1979, ch. 38, par. 9—1(d).) The prosecutor has the sole, unlimited discretion to call for a death penalty hearing; that decision is the sine qua non of the death penalty. The statute places the first round of decision in the hands of the prosecutor. Is that constitutional?
For a discussion of the basis for the holding that it is not, the dissent in People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531, 544-61, cannot be surpassed. I wholeheartedly endorse its reasoning and adopt it as part of this dissent. It is incorporated as an appendix hereto. See also Note, The Prosecutor’s Discretionary Power to Initiate the Death Sentencing Hearing — People ex rel. Carey v. Cousins, 29 DePaul L. Rev. 1097 (1980).) The imposition of a criminal sentence is a judicial function, to be exercised within the range of penalties authorized by the legislature. To allow a prosecutor a veto in each case in which the legislature has said that death may be imposed as a penalty is to curtail the power and function of the judicial branch. This violates the principle of separation of powers.
Let me add these thoughts. First, the constitutional convention considered the imposition of criminal sentences to be a purely judicial function. In debates over whether judges should be required to state upon the record the reasons for imposing the criminal sentence they chose, the delegates made it clear that they had in mind a pattern of criminal sentencing: The legislature picks a range of possible penalties, and the judge, after considering the particulars of the crime and the record of the defendant, chooses a sentence within that range. (See 3 Record of Proceedings, Sixth Illinois Constitutional Convention 1381 (hereinafter cited as Proceedings).) There was no room for the prosecutor in that pattern.
The pattern comports with the requirements of due process under the Federal Constitution. The eighth and fourteenth amendments do not allow the arbitrary or capricious imposition of the death penalty—like cases cannot be treated differently. (Furman v. Georgia (1972), 408 U.S. 238, 309-10, 33 L. Ed. 2d 346, 390, 92 S. Ct. 2726, 2762 (Stewart, J., concurring); People v. Gleckler (1980), 82 Ill. 2d 145, 171.) There must be clear factors guiding and justifying the decision to impose capital punishment, and these factors must be plainly stated in advance by statute. (Gregg v. Georgia (1976), 428 U.S. 153, 206, 49 L. Ed. 2d 859, 893, 96 S. Ct. 2909, 2940 (opinion of Stewart, J., joined by Powell and Stevens, JJ.); 428 U.S. 153, 222, 49 L. Ed. 2d 859, 901-02, 96 S. Ct. 2909, 2947-48 (White, J., concurring).) In keeping with this requirement, the Illinois statute sets out a number of aggravating factors. (Ill. Rev. Stat. 1977, ch. 38, par. 9—1(b).) Yet, at the same time, death, like any other sentence, cannot be imposed rigidly in all cases — different cases cannot be treated alike. (Roberts v. Louisiana (1976), 428 U.S. 325, 333, 49 L. Ed. 2d 974, 981-82, 96 S. Ct. 3001, 3006 (opinion of Stewart, J., joined by Powell and Stevens, JJ.).) Thus, the sentencer must consider whatever mitigating factors the defendant might present to allay the imposition of the maximum penalty. (Woodson v. North Carolina (1976), 428 U.S. 280, 304, 49 L. Ed. 2d 944, 961, 96 S. Ct. 2978, 2991 (opinion of Stewart, J., joined by Powell and Stevens, JJ.); Lockett v. Ohio (1978), 438 U.S. 586, 604, 57 L. Ed. 2d 973, 989-90, 98 S. Ct. 2954, 2964-65 (opinion of Burger, C.J., joined by Stewart, Powell and Stevens, JJ.).) In keeping with this requirement, the Illinois statute sets out a number of mitigating factors to be considered. Ill. Rev. Stat. 1977, ch. 38, par. 9—1(c).
The procedures set forth for the death penalty are more explicit than those for other criminal sentences, and that is not surprising, given the nature of the punishment. Except for the veto given to the prosecutor, the procedures are similar to those in sentencing in the more ordinary criminal cases. The procedure is always the same in convictions for theft, burglary, battery, possession of drugs, robbery, conspiracy, solicitation, kidnaping, or attempted murder. The legislature sets forth a range of penalties, and, after hearing evidence in aggravation and mitigation, the judge chooses an appropriate sentence for the individual defendant.
The normal sentencing procedures are the same regardless of the rationale behind the sentence. Whether the motivation is rehabilitation (as section 11 of the Illinois bill of rights (Ill. Const. 1970, art. I, sec. 11) provides) or something else, under the Code of Criminal Procedure of 1963 the sentence appropriate to the crime and the criminal is always determined in the same way. And nowhere in these procedures, aside from presenting the evidence in aggravation, is the prosecutor given authority over what sentence shall be imposed for a specific crime. Even in plea bargaining, where the defendant agrees to plead guilty upon the recommendation of a certain sentence from the prosecutor, the judge is not bound by the prosecutor’s agreement. (73 Ill. 2d R. 402(d).) When it comes to sentencing, the discretion lies solely in the judiciary.
The infirmity of the death penalty statute is that it puts the prosecutor in a place where he has no business. The harshness of capital punishment is no excuse for relaxing the normal pattern of sentencing. Would there be any question that a statute would be unconstitutional if it allowed the prosecutor, on his own and with no standards to guide his judgment, to seek, say, Glass X punishment for some burglaries instead of the usual Class 2 penalties?
This is not the first time the legislature has tried to create special procedures for capital punishment. A prior statute was struck down when it too abandoned the normal sentencing procedures and created a streamlined three-judge court to impose the death penalty. (People ex rel. Rice v. Cunningham (1975), 61 Ill. 2d 353.) If the legislature wishes to enact a death penalty for certain crimes, it must do so within the normal strictures of the State and Federal constitutions.
Second, the Cousins majority cited a string of cases (People v. Bombacino (1972), 51 Ill. 2d 17; People v. Handley (1972), 51 Ill. 2d 229; People v. Sprinkle (1974), 56 Ill. 2d 257) as examples of discretion granted to the prosecutor without violating the separation of powers doctrine. These cases held that the prosecutor was properly given the discretion to decide whether a juvenile could be prosecuted as an adult. (56 Ill. 2d 257, 261.) But what the majority did not mention was that this line of cases was abandoned in People v. Rahn (1974), 59 Ill. 2d 302. Rather than perpetuating the mistaken notion that the prosecutor could unilaterally make a judicial decision, the court in Rahn wisely reinterpreted section 2—7 of the Juvenile Court Act in effect at the time (Ill. Rev. Stat. 1971, ch. 37, par. 702—7) to hold that the final decision was the court’s. Under Rahn, it was clear that the statute never gave the prosecutor the authority the majority in Cousins relied upon. Rahn held that the legislature’s intention was that the ultimate determination be a judicial one. (59 Ill. 2d 302, 304-05.) Thus, the Cousins holding that the prosecutor may be given a veto over the sentencing decision stands bereft of any viable authority to support it.
Third, the State argues that the discretion afforded to the prosecutor is acceptable; that in reality it is no different than the discretion granted to the prosecutor when deciding initially whether to prosecute at all. The State claims that since nothing hinders a prosecutor from declining to prosecute, thus eliminating the possibility of the death penalty, nothing should hinder the much more limited decision to prosecute but without the possibility of the death sentence. The State asks: If a prosecutor can decide to prosecute without invading the judiciary’s province, cannot a prosecutor decide whether to seek a death penalty hearing without invading the judiciary’s province?
The most persuasive answer to the question is set forth in the Cousins dissent — the Federal Constitution prohibits standardless exercises of discretion, and no standards are provided in the statute for the decision to seek the death penalty. Without standards, the prosecutor’s decision to seek a death sentence hearing could be motivated by legally improper considerations. For example, in People v. Walker (1981), 84 Ill. 2d 512, a divided majority reversed a death penalty imposed after a defendant first withdrew his negotiated guilty plea (for which he had received 60 years’ imprisonment), then entered an unnegotiated plea of guilty. Mr. Justice Ryan’s concurring opinion expressed the view that the State’s Attorney’s vacillation over what was the appropriate penalty for the defendant’s offenses violated the eighth and fourteenth amendments’ requirement that any decision to impose the death penalty be, and appear to be, based on reason rather than caprice, emotion or mistake. See also Gardner v. Florida (1977), 430 U.S. 349, 51 L. Ed. 2d 393, 97 S. Ct. 1197.
The plurality opinion in Walker, written by Mr. Justice Clark, argued that due process requires that, in death cases where the prosecutor’s change of mind results in a different sentence without any material change of facts, the State must show objective facts to justify the change of mind and thus dispel the appearance of vindictiveness. What is so obvious that it hardly needs pointing out is that neither problem would ever arise if there were objective standards guiding the exercise of a prosecutor’s discretion to seek the death penalty, standards to which the State’s Attorney’s decision to seek death could be compared to see if the decision was a product of caprice, emotion, mistake or vindictiveness. Even if the present arrangement comported with the Illinois constitutional doctrine of separation of powers, the lack of standards to guide the prosecutor’s discretion would be fatal to the statute.
A further answer to the State’s argument that the discretion afforded the prosecutor here is no different than the unlimited discretion given the prosecutor to initiate prosecutions is that the argument is based upon a faulty premise. The discretion given the prosecutor to commence a prosecution is not unbridled but is sharply limited by the State Constitution. The grand jury and the preliminary judicial hearing to determine probable cause are established by section 7 of the Illinois bill of rights (Ill. Const. 1970, art. I, sec. 7). They are provided by section 7 for the purpose of guiding and channeling the prosecutor’s decision to prosecute.
The debates of the constitutional convention made it quite clear that the requirements of section 7 were regarded as checks on the decision to prosecute. As Delegate Weisberg said of the preliminary hearing:
[T]he two basic characteristics are that the decision of whether or not to commence a prosecution is made by the prosecutor. It is his responsibility, and there is, I believe invariably coupled with that, a requirement that a court make a preliminary determination that there is some fair basis for that decision to make the defendant stand trial. (3 Proceedings 1437.)
While the check exercised by the judge finding probable cause to proceed in a preliminary hearing was clear, some delegates doubted whether the grand jury could effectively review the decision to prosecute. A common figure bandied about in discussion was that 95% of the cases presented to a grand jury by the State’s Attorney resulted in prosecution. Some thought the grand jury was a rubber stamp. To this Delegate Borek replied, on the basis of personal experience upon a grand jury, “We deliberated on there as strongly as we did here and really attempted to find whether this person had reason to be indicted or not.” In the case of that grand jury, 41 of the 385 prosecutions that were sought by the State’s Attorney were denied. (3 Proceedings 1440.) Delegate Hutmacher pointed out that even if the 95% figure were correct that still meant that in 5% of the cases the grand jury was protecting persons from groundless prosecution. 3 Proceedings 1448.
Delegate Arthur Lennon summarized the rationale behind sections 7 and 8 of the Illinois bill of rights:
“Before a man stands trial out in the open, before a jury, should there be anything given to him which would give him a little protection to make sure that he isn’t indiscriminately tried? And I think it’s fair to say that all members of the committee felt that that is a valuable safeguard ***.” 3 Proceedings 1441.
Thus, in the area of commencing prosecutions, the prosecutor does not act with unbridled discretion. No prosecution can go ahead on the whim of the prosecutor. Similarly, no death penalty hearing should depend solely on the whim of the prosecutor, as the statute now provides.
The unbridled discretion given to the State’s Attorney by the current statute encourages unequal application of the death penalty. The 102 counties in Illinois potentially present 102 different death penalty policies. Executions cannot depend on geography. There can be but one death penalty policy in this State, the one properly adopted by the legislature. Only one branch may properly impose it— the judiciary.
Finally, I am concerned by the inadequacy of notice to the defendant the death statute provides. I agree, as pointed out by the dissenting justices in Cousins, that the greater number of peremptory challenges allowed a defendant in a capital case is an uncertain and unsatisfactory indicator of whether the death penalty will be sought. But beyond that deficiency, even the “notice” the defendant receives when the prosecutor announces that the peremptory challenges for a capital case should be allowed is not enough. That “notice” comes only on the morning the jury is selected. Although the indictment may hint that the defendant is eligible for the death penalty, he is not actually faced with that prospect until the prosecutor actively seeks that penalty. Significant decisions must be made before that time. How can a defendant decide between a guilty plea or a trial; or, if a trial, between a bench trial and a jury trial, without knowing the stakes of a conviction? The current death penalty statute denies defendants the information needed to make the intelligent choices necessary for an effective defense.
I dissent from the sentence commanding the death of Cornelius Lewis. I would reverse that sentence and remand the cause to the circuit court for resentencing.
APPENDIX TO DISSENTING OPINION OF JUSTICE SIMON
544 People ex rel. Carey v. Cousins 77 Ill. 2d 531
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