concurring in part and dissenting in part:
I concur in the majority’s judgment that the defendant’s convictions of murder should be affirmed, but I dissent from the decision to impose the death penalty. For the reasons set forth in my separate opinions in People v. Lewis (1981), 88 Ill. 2d 129, 179 (Simon, J., dissenting), People v. Silagy (1984), 101 Ill. 2d 147, 184 (Simon, J., concurring in part and dissenting in part), and People v. Albanese (1984), 104 Ill. 2d 504 (Simon, J., concurring in part and dissenting in part), I believe the Illinois death penalty statute is unconstitutional. Even if it were not, the conduct of the prosecutor makes the imposition of the death penalty improper because it violated the defendant’s constitutional rights to be free from cruel and unusual punishment, to a trial by a fair and impartial jury, and to due process of law.
I. A Plea Proposal Conditioned on the Consent of the Victim’s Family is Incompatible with the Defendant’s Right to Punishment Which is Not Cruel And Unusual
In substance the majority opinion holds that a victim’s family may be permitted to veto a prosecutor’s desire to enter into a plea bargain instead of requesting a death sentence. This, however, is unacceptable in light of the eighth amendment’s command that punishments not be “cruel and unusual.” (U.S. Const., amend. VIII.) The eighth amendment requires that these decisions be based on rational factors such as the strength of the case and the likelihood that a jury will impose the penalty. (See Gregg v. Georgia (1976), 428 U.S. 153, 225, 49 L. Ed. 2d 859, 903, 96 S. Ct. 2909, 2949 (White, J., concurring); People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531, 540-43.) Decisions to ask for or impose the penalty which are significantly influenced by the desires of the victim’s family are not included in any list of rational factors envisioned under a reasonable interpretation of the eighth amendment.
“[A]ny decision to impose the death sentence [must not appear to be based on] caprice or emotion.” (Gardner v. Florida (1977), 430 U.S. 349, 358, 51 L. Ed. 2d 393, 402, 97 S. Ct. 1197, 1204.) The import of this language is clear. The process by which a State attempts to impose the death sentence must not be arbitrary, capricious or based primarily on the emotions of those most affected by the results of the crime. Instead, the process must be governed by reason and the sound judgment of the prosecutors. Anything less than this runs afoul of the eighth amendment.
The majority attempts to distinguish Gardner by emphasizing the use of the word “impose.” They maintain that Gardner never reaches the question of whether “the prosecutor’s decision whether to seek the death penalty” may be based solely on the desires of the victim’s family. (105 Ill. 2d at 113.) Instead, the majority reasons, Gregg and Cousins establish the bounds of prosecutorial discretion when deciding whether to seek the death penalty, leaving the prosecutor free to base his decision on an almost unlimited set of factors. The majority concludes that a prosecutor may take into account the desires of the victim’s family.
This reading of Gardner; Gregg and Cousins is unsound. Gardner speaks to the entire process of death sentencing. To place such a narrow meaning on the word “impose” is to invent a distinction where none exists. Instead, the teachings of these cases clearly indicate that the entire death penalty process, as opposed to the different parts of the process (the decision to seek the death penalty as compared with the decision by the trier of fact to impose it), must be governed by reasoned decision making.
Even allowing for the majority’s belief that the prosecutor can consider the desires of the victim’s family, the facts of this case present an impermissible extreme. The defendant offered to plead guilty in exchange for a sentence of natural life imprisonment. The circuit court judge, on the record, noted that “the only impediment to the plea agreement [natural life] was *** the qualification that the family had [to] indicate[ ] a willingness to go along with it.” (105 Ill. 2d at 117.) A fair reading of this record indicates that the wishes of the family were not one of several factors but rather that they were the controlling factor influencing the prosecutor’s decision to seek the death penalty instead of continuing with the plea-bargaining negotiations. The trial judge’s statement in denying the defendant’s motion for a new trial, quoted in the majority opinion, merely states that no unconditional acceptance of an offer had been reached. It does not detract from his statement that the family’s approval was “a condition precedent to any kind of an agreement by the State.” This type of vengeance should not be allowed into a process which already freakishly imposes our State’s cruelest form of punishment.
II. The Use of Peremptory Challenges to Exclude Black People, as a Group,
From Serving on the Jury Denied Defendant the Right to a Trial by Jury
The prosecutor’s systematic exclusion of black people from the sentencing jury deprived the defendant of his right to a jury drawn from a fair cross-section of the community. For the reasons explained in my dissents in People v. Payne (1983), 99 Ill. 2d 135, 140 (Simon, J., dissenting), and People v. Moore (1984), 101 Ill. 2d 549 (Simon, J., dissenting from denial of leave to appeal), I believe that the State’s use of peremptory challenges violates both the defendant’s and prospective juror’s constitutional rights.
The majority suggests that the Chicago Tribune study proves that the use of peremptory challenges has had no effect on the makeup of juries. This analysis fails to take account of all of the findings of the Tribune’s month-long study. The Tribune notes:
“In jury selection for the 31 cases with black defendants, prosecutors exercised 213 peremptory challenges: 145 against blacks and 68 against whites, or 68 percent against blacks.
In comparing the large percentage of blacks excluded with the smaller percentage in the pool of potential jurors, David Draper, a statistics professor at the University of Chicago, said blacks were excluded at ‘well over double the rate you would have expected if the peremptory challenges had been exercised in a color-blind fashion.’ ” (Chicago Tribune, Aug. 5, 1984, sec. 1, at 1,14.)
Certainly in this case, the use of peremptory challenges by the State to exclude 12 black persons from the jury had an effect on the number of black persons who served on the jury. As a result, and as the majority points out, only one black person did serve on the jury.
The majority also suggests that the defendant has failed to establish systematic and purposeful exclusion by merely listing a large number of appeals in which such exclusion was charged. This, of course, places the defendant in an impossible position because the defendant cannot prove systematic exclusion in case after case unless appeals are reviewed as a group. However, this court persists in refusing to examine these cases in that context. Although the majority has never been willing to explore the facts of the individual cases raising this issue, I am satisfied that these numerous appeals evidence the defendant’s allegations.
An example of what has been happening is found in People v. Cobb (1983), 97 Ill. 2d 465. The record there shows that 39 peremptory challenges were used in three trials by the State, 36 of which were directed against qualified black jurors. After two juries failed to reach a verdict, the third jury (and the only all-white jury) convicted Cobb. Although we reversed the conviction on other grounds, this case provides dramatic proof of the realities of jury selection in the criminal courts of Cook County. This exclusion, based solely on race, denies the defendant his right to a jury of his peers and calls into question the integrity of our criminal justice system.
III. Plain Error Resulting in a Denial of the Defendant’s Right to Due Process Occurred When Certain Testimony of the Victim’s Family Was Admitted
The defendant complains that the testimony of the victim’s family deprived him of due process. Statements which compared the death of the victim to the loss of a hand and repeated descriptions of the victim’s surviving children and grandchildren were all admitted without objection. For the reasons set forth in People v. Bernette (1964), 30 Ill. 2d 359, and my separate opinion in People v. Free (1983), 94 Ill. 2d 378, 434 (Simon, J., concurring in part and dissenting in part), I believe that admission of this testimony was plain error and deprived the defendant of his constitutional right of due process.