concurring in part and dissenting in part:
I concur in the majority’s judgment that the defendant’s conviction for 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), and in People v. Silagy (1984), 101 Ill. 2d 147, 184 (Simon, J., concurring in part and dissenting in part), I have concluded that the Illinois death penalty statute violates the United States and Hlinois constitutions. In Lewis I expressed the view that the application of stare decisis in cases involving the Constitution and the death penalty is improper. In Silagy I examined the limits of stare decisis as it has been applied by the United States Supreme Court; that court’s practice supports my position regarding the propriety of the doctrine’s application in this context.
In addition to the violation of due process that, as I stated in Silagy, is inherent in the posture of the members of this court who continue to adhere to the majority decision in People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531, despite their belief that the death penalty statute is unconstitutional, other constitutional difficulties result from this application of stare decisis. First, the application of the doctrine violates the supremacy clause of the United States Constitution, which provides:
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const., art. VI, par. 2.
To enforce the Constitution is “imperative upon the state judges in their official *'** capacities. *** They [are] not to decide merely according to the laws or constitution of the state, but according to the constitution, laws and treaties of the United States — ‘the supreme law of the land.’ ” (Martin v. Hunter’s Lessee (1816), 14 U.S. (1 Wheat.) 304, 340-41, 4 L. Ed. 97, 106.) These principles have been settled since Marbury v. Madison (1803), 5 U.S. (1 Cranch) 137, 2 L. Ed. 60. See United States v. Nixon (1974), 418 U.S. 683, 41 L. Ed. 2d 1039, 94 S. Ct. 3090.
The supremacy clause establishes the primacy of the Federal Constitution, the provisions of which override all conflicting law, as well as doctrines having no constitutional basis or significance. Stare decisis is such a doctrine. At present, however, three members of this court, having expressed their belief that the death penalty statute of this State offends the Federal Constitution, refuse because of stare decisis to join me in invalidating that statute. They have thereby exalted stare decisis to a position above the Constitution, and allowed a doctrine having no constitutional basis or significance to override the affirmative constitutional guarantees of due process and protection against cruel and unusual punishment. The result is a clear violation of the supremacy clause.
Second, application of stare decisis in this context violates the State doctrine of constitutional supremacy. Several opinions of this court establish this doctrine in State law. In People ex rel. Miller v. Hotz (1927), 327 Ill. 433, it was argued that awarding a writ of mandamus requiring the county clerk to issue an order appointing a day for the election of a new State’s Attorney as required by the State Constitution was discretionary with the courts. This court said:
“This is an amazing argument ***. The constitution is the supreme law, and every citizen is bound to obey it and every court is bound to enforce its provisions. It is a most extraordinary doctrine that the court has a discretion to enforce or not enforce a provision of the constitution according to its judgment as to its wisdom or whether the public good will be subserved by disregarding it.” 327 Ill. 433, 437.
The position of the members of this court who refuse to invalidate the death penalty statute because of stare decisis is a decision not to enforce the separation-of-powers provision of the State Constitution on the ground that the public good in the form of stability and predictability in the law is served by disregarding that provision — precisely the kind of judgment this court forbade in Hotz. (See also People v. Humphreys (1933), 353 Ill. 340, 342; Coalition For Political Honesty v. State Board of Elections (1976), 65 Ill. 2d 453, 460.) These cases establish that Illinois’ own supremacy doctrine forbids subordinating State constitutional provisions to a doctrine having no State constitutional dimension,
Moreover, this court has specifically acknowledged that the doctrine of stare decisis must yield to State constitutional considerations. In Neff v. George (1936), 364 Ill. 306, this court stated in reference to one of its prior opinions:
“While in arriving at our decision no specific reference was made to [the] doctrine [of stare decisis], we were fully cognizant of it and of the fact that it is not universally applicable to all situations without exception. The doctrine has more or less force, according to the nature of the question decided. *** Stability and uniformity of decisions conduce so much to the public welfare and happiness, that when a rule of law has once been settled, contravening no statute or constitutional principles, it ought to be followed ***.” (Emphasis added.) Neff v. George (1936), 364 Ill. 306, 308-09.
Thus, stare decisis can apply only when State constitutional provisions are not thereby contravened.
I therefore dissent from the decision to impose the death penalty in this case for the reasons stated here as well as those set forth in my separate opinions in Lewis and Silagy.
Addendum
The Chief Justice’s specially concurring opinion was delivered to me only moments before the opinions in this case were made public. Because I was unable to respond to his remarks in the customary manner, I am now filing these additional observations.
The reasons I have set forth in this dissent for declaring our current death penalty statute unconstitutional have not previously been stated in any opinion filed in this court. I regret that instead of addressing these new constitutional arguments, the Chief Justice dismisses them as “needlessly cluttering up” the opinion of the court (104 Ill. 2d at 545 (Ryan, C.J., specially concurring)).
A judge of this court has both the right and the duty to discuss new ideas on issues that are relevant to cases before the court. A dissent is more than a statement of disagreement; it provides an opportunity for the reexamination of troublesome questions. Discreet silence may foster collegiality, but it does not enhance the resolution of difficult problems. Only the continuing and vigorous airing of conflicting viewpoints can assure the correct resolution of such hard questions as the constitutionality of the present death penalty statute.
The primary function of a State supreme court is to declare what is correct as a matter of law, and to reverse prior errors in the interpretation and application of the law, including its own. Public confidence in our judicial system rests in large measure on the expectation that the appellate process will function in this manner. The Chief Justice states, however, that “[t]he decision of the majority in Cousins is binding not became 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.” (Emphasis added.) 104 Ill. 2d at 543 (Eyan, C.J., specially concurring).
This statement implies that ours is a system of footrace justice in which the first opinion entered prevails simply because it is first in time, and not necessarily because it is correct. While reliance on precedent is a useful and important device in our common law system, if a reviewing court fails to correct its own errors, but relies instead on a mechanical application of stare decisis, there can be no justice, for no other institution in our society is empowered to interpret and apply the Constitution to laws that are challenged.
Comins is this court’s final statement on this issue only as long as a majority of the court chooses to so regard it. It is unrealistic to regard such a complex issue as closed while academics and the bar are still developing new approaches to the issue. If this court erred in Com-ins, it is our obligation to correct that error, especially because the death sentence is involved and the United States Supreme Court has thus far refused, to review our death penalty statute.
The Chief Justice also states that it is no longer accurate to say that he believes the statute is unconstitutional. He does not state, however, that he now believes it is constitutional, nor that if given the opportunity of deciding Cousins today, he would uphold the statute. Rather, he says that he accepts the fact that his dissent in Cousins was wrong “because four members of this court said it was wrong.” (104 Ill. 2d at 543.) Apparently he feels compelled to uphold Cousins, not because he believes it was correct, but because he believes that the doctrine of stare decisis requires him to do so. In this classic confrontation between the doctrine of stare decisis and constitutional principles, however, the supremacy clause of the United States Constitution requires that constitutional principles prevail. That is what this dissent says.
It is an extraordinary view of stare decisis that requires a reviewing court to perpetuate a previously announced holding if that holding is wrong. Stare decisis does not require a judge to surrender his belief in a correct legal position for an incorrect one, particularly when the death sentence and essential constitutional principles are at stake. If a correct constitutional position were rendered forever incorrect merely because four judges once said it was, then our system of justice would not be one of laws, but one of men; not one of principle, but one of chance.
Relying upon a law review article published 26 years ago, the Chief Justice declares that I have already had my say on the constitutionality of our death penalty statute, and suggests that I should hereafter limit myself in dissenting to noting my position in Lewis. In response, I point out that Justice Traynor, the author of the frequently quoted law review article, never intended his views on the role of stare decisis to apply to death penalty cases. Eight years after his article was published, Justice Traynor adopted an earlier admonition by Judge Jerome Frank:
“ ‘In 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).
But it is too late to mend when a death sentence has been carried out. For that reason we should heed another of Judge Frank’s admonitions, that “stare decisis should not govern in a case *** where a man’s life is involved.” United States ex rel. Fong Foo v. Shaughnessy (2d Cir. 1955), 234 F.2d 715, 718.
Since I have never proposed that this court postpone review of all death sentences until the United States Supreme Court rules on our death penalty statute, I do not understand the Chief Justice’s judicial administrative backlog discussion. To defer the review of death penalty cases in this court is obviously impractical, and I see no reason to do so. If this court overrules Cousins or the Supreme Court invalidates our statute, the cases in which this court has upheld the death sentence will be remanded to the circuit courts for resentencing. That would hardly create an unmanageable problem. If, as Justice Goldenhersh has observed, the people of Illinois want an effective death penalty (People v. Lewis (1981), 88 Ill. 2d 129, 166 (Goldenhersh, J., concurring)), it is our duty to inform them of the defects in the particular statute passed by the General Assembly. We do a disservice to all if we blind ourselves to the unconstitutional features of our current statute, which may on a later day be struck down.
Finally, the Chief Justice attributes my disagreement with the majority to a “philosophical opposition” to the death penalty and a consequent reluctance on my part to enforce that sentence. However, I have never expressed such a view. The Chief Justice is mistaken in his supposition that I would not uphold the death penalty even if the United States Supreme Court found no constitutional infirmity in the statute. When I took my oath of office, I swore to support the constitutions of the United States and the State of Illinois. I have no intention of departing from that oath.
Death penalty cases are difficult and painful for all of us who sit on this court. Each of us must act as he believes the constitution and his oath of office require.