dissenting:
I take this opportunity to speak out once again on the mistake of inflexibly applying the doctrine of stare decisis to constitutional decisions, particularly those involving the constitutionality of our death penalty statute. The court insists on enslaving itself to stare decisis in upholding death sentences even though it has acknowledged in areas of less pressing concern that “[t]he tenets of stare decisis cannot be so rigid as to incapacitate a court in its duty to develop the law. [Citation.] 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.) Last year in People v. Kohrig (1986), 113 Ill. 2d 384, this court upheld a mandatory seat-belt law against a due process challenge, even though doing so required us expressly to overrule People v. Fries (1969), 42 Ill. 2d 446, which had struck down a constitutionally indistinguishable law requiring motorcyclists to wear helmets.
In death penalty cases, however, this court has inexplicably regarded stare decisis as superior to the commands of the Constitution itself. As I noted in a former opinion involving this defendant (People v. Silagy (1981), 101 Ill. 2d 147, 184 (Simon, J., concurring in part and dissenting in part)), this attitude is badly out of step with the United States Supreme Court’s approach to stare decisis in constitutional cases. The Supreme Court has repeatedly demonstrated its willingness to reevaluate and overrule prior constitutional decisions. (See Note, Stare Decisis and the Illinois Death Penalty, 1986 U. Ill. L. Rev. 177; Note, The Power That Shall Be Vested In A Precedent: Stare Decisis, The Constitution and the Supreme Court, 66 B.U.L. Rev. 345 (1986).) In his dissenting opinion in Burnet v. Coronado Oil & Gas Co. (1932), 285 U.S. 393, 407-11, 76 L. Ed. 815, 823-27, 52 S. Ct. 443, 447-49, Justice Brandéis cited 28 cases in which the court qualified or overruled a prior constitutional ruling. Justice Douglas identified another 21 reversals in constitutional cases between 1937 and 1949. (Douglas, Stare Decisis, 49 Colum. L. Rev. 735, 743 (1949).) By 1958, two commentators were able to point to a total of 60 cases in which the court had reversed itself on constitutional issues (see Blaustein and Field, “Overruling” Opinions in the Supreme Court, 57 Mich. L. Rev. 151, 167 (1958)), and the court overruled constitutional decisions 47 more times between 1960 and 1980 (Maltz, Some Thoughts on the Death of Stare Decisis in Constitutional Law, 1980 Wis. L. Rev. 467). See generally, Stare Decisis and the Illinois Death Penalty, 1986 U. Ill. L. Rev. 177, 186.
For the reasons more fully stated in my separate opinions in People v. Lewis (1981), 88 Ill. 2d 129, 179 (Simon, J., dissenting), in People v. Silagy (1984), 101 Ill. 2d 147, 184 (Simon, J., concurring in part and dissenting in part), and in People v. Albanese (1984), 104 Ill. 2d 504, 549 (Simon, J., concurring in part and dissenting in part), I believe we should follow the Supreme Court’s lead. I urge the court to discontinue affirming sentences of death on the ground of stare decisis and instead to reconsider the constitutionality of the statute on its merits. Since the Illinois death penalty statute is — in my view-unconstitutional, I would vacate the death sentence in this case.