specially concurring:
At this time I would like to reiterate my position concerning the constitutionality of the death penalty. I disagree with my colleague, Justice Simon, regarding the applicability of the legal doctrine of stare decisis when a constitutional issue is raised. I joined in 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. 1603, the first case in which this court found our death penalty statute to be constitutional. Since dissenting in that case, there have been numerous cases where I have either participated in, or authored, opinions where the death penalty has been in issue. As I stated in my concurrence in People v. Lewis (1981), 88 Ill. 2d 129, 169-70,
“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 permited 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.”
In December of this year, our distinguished colleague, Justice Underwood, will be retiring from this court. With his leaving, a new justice will be elected to this court. We do not know how the newest member of this court will vote on this or any other issue. Again, I believe that a change in personnel should not be the impetus to change the law.
At this juncture, I feel compelled to again quote an appropriate statement made by Mr. Justice Traynor. In my concurrence in Lewis I stated:
“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 muliple 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).” 88 Ill. 2d 129, 170-71.