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. The Blinois death penalty statute is unconstitutional, and even if it were not, a new death penalty hearing is required in this case because the trial court should have ordered the defendant’s standby counsel to address the jury on the mitigating factors in the defendant’s case when the defendant, acting as his own counsel, refused to do so. In addition, statements made by the defendant to court-appointed psychiatrists should have been excluded from the death penalty proceeding.
I. The Illinois Death Penalty Statute is Unconstitutional
The situation in Illinois concerning the constitutionality of our death penalty statute is an anomaly. A majority of four of the present justices have said and continue to adhere to the view that they believe the statute is unconstitutional because it allows prosecutors too much discretion in choosing whether to seek the death penalty and that this may result in arbitrary application of the statute. (See People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531, 544 (Ryan, J., Goldenhersh, C.J., and Clark, J., dissenting); People v. Lewis (1981), 88 Ill. 2d 129, 179 (Simon, J., dissenting).) Three of these justices, however, relying on the doctrine of stare decisis, have refused to follow their previously dissenting viewpoint after four other members of the court, one of whom (Justice Thomas E. Kluczynski) is no longer a member, ruled in favor of the constitutionality of the statute. (See People v. Lewis (1981), 88 Ill. 2d 129, 165 (Goldenhersh, C.J., concurring), 166 (Ryan, J., concurring), 167 (Clark, J., concurring).) This situation involving, as its does, both a constitutional question and the death penalty, is remarkable in the history of American jurisprudence.
In Lewis I expressed my views on the proper application of stare decisis in cases involving the Constitution and the death penalty. Justices of courts of last resort traditionally have adhered to their positions on important issues of constitutional interpretation even though the court has previously resolved the issue to the contrary; a change in the membership of a supreme court has often permitted the court to reverse a prior constitutional construction. I believe that these traditions are fundamental to the American system of justice, and that the application of stare decisis in this posture violates due process of law guaranteed by the State and Federal constitutions (Ill. Const. 1970, art. I, sec. 2; U.S. Const., amend. XIV, sec. 1). A person should not be put to death in order to perpetuate the doctrine of stare decisis.
The practice and experience of the United States Supreme Court in addition to those of this court I referred to in my dissent in Lewis illustrate these traditions. In Smith v. Allwright (1944), 321 U.S. 649, 665, 88 L. Ed. 987, 998, 64 S. Ct. 757, 765, Justice Reed wrote in the majority opinion:
“[W]e are not unmindful of the desirability of continuity of decision in constitutional questions. However, when convinced of former error, this Court has never felt constrained to follow precedent. In constitutional questions, where correction depends upon amendment and not upon legislative action this Court throughout its history has freely exercised its power to reexamine the basis of its constitutional decisions. This has long been accepted practice, and this practice has continued to this day.” (Footnotes omitted.)
A footnote to this passage cites a long list of United States Supreme Court decisions that had been overruled.
In West Virginia State Board of Education v. Barnette (1943), 319 U.S. 624, 87 L. Ed. 1628, 63 S. Ct. 1178, the court overruled Minersville School District v. Gobitis (1940), 310 U.S. 586, 84 L. Ed. 1375, 60 S. Ct. 1010, a case decided only three years before. In Barnette the new majority was made when two new justices, Jackson and Murphy, joined the court, and two justices, Black and Douglas, changed their minds. Chief Justice Stone, who had dissented in Gobitis, adhered to his position in Barnette, allowing his interpretation of the Constitution to prevail.
In Erie R.R. Co. v. Tompkins (1938), 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817, the United States Supreme Court overruled Swift v. Tyson (1842), 41 U.S. (16 Pet.) 1, 10 L. Ed. 865, and abolished the Federal common law in diversity actions. Writing for the court, Justice Brandéis recognized the special problem in applying stare decisis to constitutional questions:
“If only a question of statutory construction were involved, we should not be prepared to abandon a doctrine so widely applied throughout nearly a century. But the unconstitutionality of the course pursued has now been made clear and compels us to do so.” 304 U.S. 64, 77-78, 82 L. Ed. 1188,1194, 58 S. Ct. 817, 822.
In Harper v. Virginia State Board of Elections (1966), 383 U.S. 663, 16 L. Ed. 2d 169, 86 S. Ct. 1079, Justice Douglas wrote the majority opinion striking down the Virginia poll tax under the equal protection clause even though the same Virginia tax had been upheld in Butler v. Thompson (1951), 341 U.S. 937, 95 L. Ed. 1365, 71 S. Ct. 1002, over Justice Douglas’ dissent. In Harper there was a strong dissent by Justice Black, who noted that he was a member of the majority in Butler. The main argument in his dissent, however, speaks to the merits of the constitutional issue, and not to Justice Douglas’ adherence to his position on an important issue of constitutional interpretation. See also United States v. Darby (1941), 312 U.S. 100, 115, 85 L. Ed. 609, 618, 61 S. Ct. 451, 458 (overruling Hammer v. Dagenhart (1918), 247 U.S. 251, 62 L. Ed. 1101, 38 S. Ct. 529, and adopting the view of “the powerful and now classic dissent [in that case] of Mr. Justice Holmes”).
The predominant view on the proper role of stare decisis in constitutional interpretation is expressed by the younger Justice Harlan in his separate opinion in Oregon v. Mitchell (1970), 400 U.S. 112, 152, 27 L. Ed. 2d 272, 297, 91 S. Ct. 260, 279 (Harlan, J., concurring in part and dissenting in part), a case involving the constitutionality of congressional legislation reducing the voting age and residency requirements for State and Federal elections:
“The consideration that has troubled me most in deciding that the 18-year-old and residency pro-visions of this legislation should be held unconstitutional is whether I ought to regard the doctrine of stare decisis as preventing me from arriving at that result. ***
After much reflection I have reached the conclusion that I ought not to allow stare decisis to stand in the way of casting my vote in accordance with what I am deeply convinced the Constitution demands. *** Concluding, as I have, that such decisions cannot withstand constitutional scrutiny, I think it is my duty to depart from them, rather than to lend my support to perpetuating their constitutional error in the name of stare decisis.” (400 U.S. 112, 218-19, 27 L. Ed. 2d 272, 334-35, 91 S. Ct. 260, 311-12.)
Justice Harlan had dissented in the case he refused to follow in Oregon v. Mitchell. Cf. Baldwin v. New York (1970), 399 U.S. 66, 118, 26 L. Ed. 2d 437, 464, 90 S. Ct. 1886, 1915 (Harlan, J., dissenting) (“I cannot, in a matter that goes to the very pulse of sound constitutional adjudication, consider myself constricted by stare decisis”).
The experience of the United States Supreme Court in applying stare decisis reflects the predominant tradition in American jurisprudence that precedent is neither controlling on nor compelling to the justices of a supreme court when the questions to be decided are constitutional. This tradition should be especially relevant in the context of the death penalty, which is the most extreme and irreversible punishment that western civilization can impose. The situation we face is that, as recently as two years ago, four justices of this court acknowledged their belief that the Illinois death penalty statute is unconstitutional. (See People v. Lewis (1981), 88 Ill. 2d 129, 165-67.) I believe it is a violation of due process to execute a person on the basis of a statute that a majority of this court currently believes is unconstitutional, but that three justices making up that majority support only because of the doctrine of stare decisis.
II. The Trial Court Should Have Requested the Defendant’s Standby Counsel to Present and Argue Mitigating Evidence to the Sentencing Jury
The defendant’s preference for the death penalty is not a relevant concern in deciding whether he should be put to death for the brutal murders he committed. Even though the defendant waived the right to counsel at his sentencing proceeding, the trial court should have requested the defendant’s standby counsel to present and argue the mitigating evidence to the jury when it became apparent that the defendant would not do so.
The proper and orderly consideration of mitigating evidence is crucial to the death penalty proceeding because it allows the jury to make an individualized assessment of the propriety of the death penalty in each case. Besides, it ensures that the death penalty will not be imposed in cases where circumstances indicate that a less severe penalty is warranted. (Cf. Lockett v. Ohio (1978), 438 U.S. 586, 57 L. Ed. 2d 973, 98 S. Ct. 2954; Roberts v. Louisiana (1977), 431 U.S. 633, 52 L. Ed. 2d 637, 97 S. Ct. 1993.) The Illinois death penalty statute accordingly requires that “[t]he court shall consider or shall instruct the jury to consider any *** mitigating factors which are relevant to the imposition of the death penalty.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(c).) This cannot occur when the defendant prevents the sentencing body from receiving evidence relevant to the issue. In such cases there are no safeguards to prevent arbitrary application of the death penalty.
When a defendant in a capital case assumes his own defense in his sentencing hearing so that he can seek the death penalty, he also deprives this court of its crucial role in promoting “the evenhanded, rational, and consistent imposition of death sentences under law.” (Jurek v. Texas (1976), 428 U.S. 262, 276, 49 L. Ed. 2d 929, 941, 96 S. Ct. 2950, 2958.) Section 9 — l(i) of the Criminal Code of 1961 provides that “[t]he conviction and sentence of death shall be subject to automatic review by the Supreme Court.” (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 38, par. 9 — l(i).) In People v. Brownell (1980), 79 Ill. 2d 508, 541, this court held that the automatic-appeal provision was sufficient “to prevent the arbitrary imposition of the death penalty.” The refusal by the defendant to make any record in the sentencing hearing that can provide a basis for his automatic appeal denies this court any meaningful role in the State’s decision to impose the death penalty and turns our reviewing role into a sham. In requiring an automatic appeal of a death sentence, the legislature undoubtedly decided that this procedure was essential to the fairness and rationality of the death sentencing process, and it cannot be waived. In order to give effect to this decision we should not allow capital defendants to represent themselves in their sentencing hearing when they elect to seek their own execution.
In this case the defendant was twice allowed to address the jury in the sentencing hearing, first as a sworn witness and then in his closing statement. Each time he emphasized that he had been in prison before and did not wish to return. He noted that he had “brutally caused the death of two young ladies.” He told the jury, “I do want the death penalty; and I will go to any lengths to have it served upon me”; and he urged the jury, to “[Bjring back the death penalty. Make me feel very good.” In addressing the jury in his closing statement the prosecutor only reinforced the defendant’s plea.
In asking for the death penalty the defendant appropriated to himself a judgment that only society can properly make. When the defendant refused to present or argue any mitigating factors to the jury, the trial court should have ordered the defendant’s standby counsel to do so.
The majority claims that this procedure would have violated the defendant’s right to represent himself in criminal proceedings which is protected by the sixth amendment. (Faretta v. California (1975), 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525.) However, the right to self-representation recognized in Faretta is not unlimited. Surely we may deny a capital defendant the opportunity to argue himself the merits of his case before this court. (Cf. Jones v. Barnes (1983), 463 U.S. 745, 77 L. Ed. 2d 987, 103 S. Ct. 3308 (A criminal defendant has no constitutional right to compel his appointed counsel to argue nonfrivolous issues which counsel has decided to waive in the exercise of his professional judgment).) “Moreover, the trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct *** [and] a State may — even over objection by the accused — appoint a ‘standby counsel’ to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of the defendant’s self-representation is necessary.” (Faretta v. California (1975), 422 U.S. 806, 834-35 n.46, 45 L. Ed. 2d 562, 581 n.46, 95 S. Ct. 2525, 2541 n.46.) In any event, nothing in Faretta or any other United States Supreme Court case suggests that the defendant may use his right of self-representation to make a mockery of his death penalty hearing by refusing to argue whether special circumstances exist which prohibit imposition of the death penalty in a civilized society.
In People v. Burson (1957), 11 Ill. 2d 360, this court explicitly recognized that under limited circumstances the State does have the power to compel the defendant to accept counsel for his defense:
“[T]he defendant, upon the waiver of counsel, had the right to defend himself, subject to the constant duty of the court to protect the judicial process from deterioration occasioned by improper or inadequate conduct of the defense. In such situation the court possesses broad discretion in relation to the appointment of counsel for advisory or other limited purposes, or to supersede the defendant in the conduct of the defense. Continuous supervision of the trial is required in order to maintain proper judicial decorum, to the end that defendant may receive a fair trial.” (Emphasis added.) (11 Ill. 2d 360, 373.)
In the present case the trial court should have exercised this power.
The majority offers no explanation for its holding that the defendant’s right to represent himself is greater than society’s interest in ensuring that the death penalty is only imposed rationally and consistent with our values and traditions. Indeed, the predominant weight of authority from other States is to the contrary. E.g., People v. Chadd (1981), 28 Cal. 3d 739, 751, 621 P.2d 837, 844, 170 Cal. Rptr. 798, 805 (“Nothing in Faretta, either expressly or impliedly, deprives the state of the right to conclude that the danger of erroneously imposing a death sentence outweighs the minor infringement of the right of self-representation resulting when defendant’s right to plead guilty in capital cases is subjected to the requirement of his counsel’s consent”).
In Commonwealth v. McKenna (1978), 476 Pa. 428, 383 A.2d 174, the Pennsylvania Supreme Court held that defendants sentenced to death could not waive the automatic-appeal provision in the Pennsylvania death penalty statute:
“[Wjhile a defendant may normally make an informed and voluntary waiver of rights personal to himself, his freedom to do so must give way where a substantial public policy is involved; ***.
*** It is evident from the record that Gerard Mc-Kenna personally prefers death to spending the remainder of his life in prison. While this may be a genuine conviction on his part, the waiver concept was never intended as a means of allowing a criminal defendant to choose his own sentence. Especially is this so where, as here, to do so would result in state aided suicide. The waiver rule cannot be exalted to a position so lofty as to require this court to blind itself to the real issue — the propriety of allowing the state to conduct an illegal execution of a citizen.” 476 Pa. 428, 440-41, 383 A.2d 174,181.
This court implicitly adopted the same position when we denied the defendant’s motion in this case to discharge his appointed counsel and to dismiss his appeal, and I believe that the conclusion it reaches in this case is inconsistent with that position. (Accord, People v. Stanworth (1969), 71 Cal. 2d 820, 834, 80 Cal. Rptr. 49, 58-59, 457 P.2d 889, 898-99 (“ ‘Although a defendant may waive rights which exist for his own benefit, he may not waive those which belong to the public generally,’ ” quoting People v. Werwee (1952), 112 Cal. App. 2d 494, 500, 246 P.2d 704, 708).) Is it not anomalous for this court to approve of the defendant’s appearance before the sentencing court without the advice of counsel, when it required the defendant, over his objection, to have counsel in his appeal to this court?
The courts of this State should not permit a defendant in a capital case to represent himself when his only purpose is to seek his own conviction and a sentence of death, and his conduct, if permitted to represent himself, should not be regarded as a waiver of rights. I believe the majority erred in holding that the defendant in this case could waive proper process in the sentencing hearing. See The Death Row Right to Die: Suicide or Intimate Decision? 54 S. Cal. L. Rev. 575, 628 n.334 (1981).
In State v. Shank (La. 1982), 410 So. 2d 232, the Louisiana Supreme Court held that under circumstances similar to this case trial counsel should be appointed over the defendant’s objections and that this procedure would not violate the defendant’s right to self-representation:
“A defendant has a federal constitutional right of self-representation and may proceed to defend himself without counsel when he voluntarily and intelligently elects to do so. Faretta v. California (1975), 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525. In the present case, however, unlike Faretta, the defendant has no complaint about the competence, diligence or workload of his two court appointed attorneys. Instead, his motivation for electing to represent himself is that he wishes to be found guilty of first degree murder and sentenced to death. In effect, he requests that he be allowed to defend himself because he fears that the lawyers appointed to represent him will be effective advocates and obtain an acquittal or a sentence of less than death ***.
When an accused manages his own defense, he relinquishes many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must ‘knowingly and intelligently’ forego those relinquished benefits. Faretta v. California, supra; Johnson v. Zerbst (1938), 304 U.S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019 ***. [A] defendant’s election to represent himself for the purpose of acquiescing in his conviction of a capital offense and in his death sentence cannot be sanctioned as an intelligent choice.” (410 So.2d 232, 233.)
This position comports with the procedures established by the Illinois death penalty statute; the majority’s failure to adopt it renders the application of the death penalty in this case arbitrary, irrational and in violation of the eighth amendment to the United States Constitution.
III. The Defendant’s Statements to Court-Appointed Psychiatrists Should Have Been Excluded at the Death Penalty Hearing
When circumstances indicate that a defendant may rely on a defense of insanity, the Code of Criminal Procedure of 1963 provides that the trial court may order the defendant to submit to examination by a court-appointed psychiatrist. The Code, however, also provides that statements made by the defendant to the court-appointed psychiatrists “shall not be admissible against the defendant unless he raises the defense of insanity *** in which case they shall be admissible only on the issue of whether he was insane ***.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 38, par. 115— 6.) This limitation obviously is designed to protect the defendant against compelled self-incrimination and to encourage him to communicate freely with the court-appointed psychiatrist.
In this case the defendant made various statements to three court-appointed psychiatrists which were admitted at the death penalty hearing. The prosecution relied on them, not to prove the defendant’s sanity, but to show among other things that he is “an incredibly violent man who has a very, very bad temper.” Under section 115 — 6, these statements should have been excluded at his death penalty hearing, even though they were admitted at his trial. The failure to exclude them requires that we vacate the death penalty and remand for a new sentencing hearing.
The majority avoids this result by relying on section 9— 1(e) of the Criminal Code of 1961, which provides that during the sentencing hearing “any information relevant to any *** aggravating factors or any mitigating factors *** may be presented by the State or defendant regardless of its admissibility under the rules governing the admission of evidence at criminal trials.” (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1(e).) This provision, however, was primarily designed to ensure that evidence of the defendant’s character is admissible in the death penalty hearing. Such evidence, although ordinarily inadmissible at a criminal trial, is relevant to the sentencing decision. Section 9 — 1(e) should not be read, however, to abrogate evidentiary privileges like section 115 — 6, which are designed to foster free and open communication by ensuring the confidentiality of the communication or by limiting uses of the communication that are adverse to the defendant’s interest. Certainly no one would contend that section 9 — 1(e) overrides the attorney-client privilege, the physician-patient privilege or the spousal communication privilege.