specially concurring:
My colleague, Justice Simon, in three capital cases, has emphasized that three members of this court, Justice Clark, Justice Goldenhersh and I, originally dissented from the holding of the majority in People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531, which case upheld the constitutionality of our death penalty statute. Justice Simon made this point in People v. Lewis (1981), 88 Ill. 2d 129, 185 (Simon, J., dissenting), People v. Silagy (1984) , 101 Ill. 2d 147, 185 (Simon, J., concurring in part and dissenting in part), and now in this case, People v. Albanese (Simon, J., concurring in part and dissenting in part). It is, apparently, my colleague’s position that his vote against our death penalty statute, added to that of the three who dissented in Cousins, means that a majority of this court, as now constituted, is now of the opinion that our death penalty statute is not valid. In these cases, my colleague has chided the three dissenters in Cousins for continuing to adhere to the holding of the majority in that case despite our “belief that the death penalty statute is unconstitutional.”
My colleague errs when he asserts that I now believe that our death penalty statute is unconstitutional. That was my opinion at the time the opinion in Cousins was adopted. I stated in my dissent the reason for my belief. Four members of this court did not agree with my reasoning and held that the statute was constitutional. I must accept the fact that my opinion was wrong because four members of this court said it was wrong. In reality, the judicial process does not deal in abstract propositions of right and wrong. The decision of the majority in Cousins is binding not because of the concept that it is right or correct as a proposition of law, but because it is the final statement on that issue made by the highest judicial tribunal that has considered it. That is the nature of the appellate process. That is the manner in which cases and issues are decided. Simply because I dissent in a case does not mean that I must forever insist that I was right and the majority was wrong, or that “everyone was out of step except me.”
The holding in Cousins is the law of this State unless it is reversed by a United States Supreme Court holding that our statute is unconstitutional. As noted in the quotation from Justice Traynor’s article in Justice Clark’s concurrence in this case, having noted my dissent, I must yield to the obligation that is upon me to live with the law as it has been stated. I therefore accept the law as stated in Cousins. It is therefore inaccurate to say that I now believe that our death penalty statute is unconstitutional. Since the decision in Cousins, I have authored several opinions upholding our death penalty statute, citing the decision of this court in Cousins as authority for so doing. Also, I have concurred in the holdings of several opinions of my colleagues which have done likewise.
I am just as anxious as my colleague to have the Supreme Court pass on the constitutionality of our statute. I would have liked to have had our decision in Cousins reviewed by that court. Again, in People v. Lewis, we thoroughly discussed all of the issues that had been raised challenging the validity of our statute and, in a sense, invited the Supreme Court to review the. case. To date, the Supreme Court has not seen fit to grant certiorari in any of the cases in which this court has upheld the imposition of the death penalty. I am sure that at some time in the future our statute will be reviewed, and a determination at that time will be made as to its validity.
There are 39 capital cases now pending in this court. We cannot wait until the Supreme Court finally passes on our statute before reviewing these cases. This would create an unmanageable backlog of death penalty cases in this court. We have reviewed 37 capital cases since the Cousins decision prior to this term of court. If we would have reviewed no capital cases after Lewis, the first case in which the imposition of the death penalty was affirmed, and if we would have waited for a decision of the Supreme Court in that case on the validity of the statute, we would now have a backlog of 75 capital cases. That figure would no doubt exceed 100 before Lewis finally works its way to the Supreme Court by way of habeas corpus.
Besides the judicial-administration consideration of the backlog problem, common decency requires that we review these cases as rapidly as possible. Of the 37 capital cases we have reviewed prior to this term of court, the penalty of death has been vacated in 20 of those cases. Those individuals upon whom the death penalty will not be imposed deserve to know their fate as soon as possible. It would be unconscionable to needlessly subject them to the uncertainty of their fate until the Supreme Court finally passes on the constitutionality of our statute.
Until the Supreme Court does act, we must continue to apply the law as enacted by the legislature and upheld by a majority of this court. Those of us who dissented in Cousins cannot now do as my colleague urges in this case, go back and adopt our original assertion that the statute is invalid. As noted above, we have already reviewed 37 capital cases and upheld the death penalty in 17, applying the law as stated in Cousins. We cannot now flip-flop back to our prior contention that the statute is unconstitutional. The people of this State are entitled to more stability in the law than that.
Even if the three dissenters in Cousins were to join my colleague and declare our death penalty statute unconstitutional, that would not end the controversy. My colleague is philosophically opposed to the death penalty. If our legislature were to reenact a death penalty statute which could be subject to no possible constitutional challenge, I am sure my colleague would not vote to apply it. In the 37 capital cases we have so far reviewed, he has not voted to impose the death penalty in a single case in which he has participated. In the 17 cases in which the death penalty has been upheld, he has not voted in favor of the penalty in a single case in which he has participated. His dissent has not always been on constitutional grounds. In People v. Free (1983), 94 Ill. 2d 378, 434, People v. Kubat (1983), 94 Ill. 2d 437, 513, People v. Davis (1983), 95 Ill. 2d 1, 54, and People v. Stewart (1984), 101 Ill. 2d 470, 499, my colleague did not mention in his dissents any objection to the constitutionality of the statute, but argued that the penalty should be set aside on other grounds.
I therefore suggest that we get on with the business of this court and review the cases before us without needlessly cluttering up the opinions with dissents that do nothing more than chide three members of this court for following the law as announced by the majority in Cousins. If my colleague wishes to adhere to his position that the statute is unconstitutional, he may do so by simply noting his dissent for the reasons stated in Lewis without continuing to remind three members of this court that they have at one time held a similar belief. This is all that his dissent in this case accomplishes. •
When the Supreme Court passes on the validity of our statute, I will be very pleased, whatever the decision may be, because the issue will then be settled. I will naturally follow that holding as the final statement of the law on the question of the validity of our statute, as I have followed the holding of the majority in Cousins, which is now the final statement of the law on that question. However, if the Supreme Court upholds the validity of our statute, in view of his philosophical opposition to the death penalty, I wonder if my colleague will continue to insist that our statute is unconstitutional.