dissenting:
I respectfully dissent from the court’s decision to overrule Brandon and its progeny.
Prior to today, our case law had been settled as to what remedy would be afforded to a defendant who was entitled, under section 104 — 21(a) (Ill. Rev. Stat. 1989, ch. 38, par. 104 — 21(a)), to a fitness hearing, but who did not receive one. Specifically, that case law dictated that the failure to hold the hearing necessitated reversal of the defendant’s convictions and remandment for further proceedings, unless it could be established that defendant did not suffer mental impairment as a result of his ingestion of psychotropic medication. People v. Neal, 179 Ill. 2d 541 (1997); People v. Burgess, 176 Ill. 2d 289 (1997) (modifying People v. Brandon, 162 Ill. 2d 450 (1994)). This rule applied to cases on direct appeal as well as to those on collateral review. Neal, 179 Ill. 2d at 549 (modifying People v. Nitz, 173 Ill. 2d 151 (1996)). Indeed, the parties in this appeal have framed their contentions regarding this issue in light of the principles set forth in these cases. Neither defendant nor the State has, in this appeal, requested that this court revisit the Brandon/ Burgess rationale. The State only asks that this court consider the retroactivity of the above rule in light of the retroactivity test announced by the United States Supreme Court in Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989), and adopted by this court in People v. Flowers, 138 Ill. 2d 218 (1990). The court, however, states that it “need not address this issue, however, [because] the dismissal of defendant’s psychotropic medication claims was proper for other reasons.” 189 Ill. 2d at 325. The “other reasons” alluded to in this sentence eventually reveal themselves to be nothing other than the court’s disregard of the doctrine of stare decisis. Contrary to the views expressed in today’s opinion, no legitimate reason exists in this case that warrants a departure from stare decisis. I, therefore, believe that this court should continue to adhere to its established precedent in this area.
I
The term stare decisis is derived from the Latin phrase stare decisis et non quieta moevre, which translates “ ‘to stand by matters that have been decided and not to disturb what is tranquil.’ ” J. Wallace, Stare Decisis and the Rehnquist Court: The Collision of Activism, Passivism and Politics in Casey, 42 Buff. L. Rev. 187, 189 (1994), quoting Dictionary of Foreign Phrases and Abbreviations 187 (K. Guinach trans., 3d ed. 1983). This principle was engrafted in English jurisprudence, having been recognized by Sir William Blackstone, who acknowledged that “ ‘precedents and rules must be followed, unless flatly absurd or unjust.’ ” J. Stein, The Hobgoblin Doctrine: Identifying “Foolish” Consistency in the Law, 29 Tex. Tech. L. Rev. 1017, 1019 (1998) quoting 1 W. Blackstone, Commentaries *70. In American jurisprudence, stare decisis reflects a “ ‘policy judgment that “in most matters it is more important that the applicable rule of law be settled than that it be settled right.” ’ ” State Oil Co. v. Khan, 522 U.S. 3, 20, 139 L. Ed. 2d 199, 212-13, 118 S. Ct. 275, 284 (1997), quoting Agostini v. Felton, 521 U.S. 203, 235, 138 L. Ed. 2d 391, 422, 117 S. Ct. 1997, 2016 (1997), quoting Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406, 76 L. Ed. 815, 823, 52 S. Ct. 443, 447 (1932) (Brandéis, J., dissenting, joined by Roberts and Cardozo, JJ.). As the United States Supreme Court has observed, the judiciary prefers this doctrine because it “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee, 501 U.S. 808, 827, 115 L. Ed. 2d 720, 737, 111 S. Ct. 2597, 2609 (1991).
This court, too, has voiced similar sentiments. Long ago in Frail v. Burckhartt, the court observed that the rule of stare decisis
“is founded largely on considerations of expediency and sound principles of public policy, it being indispensable to the due administration of justice, especially by a court of last resort, that a question once deliberately examined and decided should be considered as settled and closed to further argument, and the courts are slow to interfere with the principle announced by the decision and it may be upheld even though they would decide otherwise were the question a new one.” Prall v. Burckhartt, 299 Ill. 19, 41 (1921).
In light of the foregoing, this court has recognized that the doctrine, while not inviolable, demands that it be overturned “only on the showing of good cause.” Heimgaertner v. Benjamin Electric Manufacturing Co., 6 Ill. 2d 152, 167 (1955). In my view, my colleagues have not shown any cause, let alone good cause, for their actions today.
Purporting to appreciate the considerations noted above, the court states that “normally” it “would continue to adhere to *** established precedent, even if certain members of this court disagreed with it.” 189 Ill. 2d at 338. Nevertheless, the court explains that “[i]n this case, however, we deem it appropriate to depart from stare decisis [because] *** [n]o reasonable observer of this court’s jurisprudence could argue that the law in this area has been developing in a principled and intelligible fashion.” 189 Ill. 2d at 338. I take this statement to refer to this court’s decision, in People v. Burgess, 176 Ill. 2d 289 (1977), to change from a bright line, automatic rule of reversal to a case-specific approach. I cannot fathom how Justice Miller can join in an opinion that characterizes this change as unprincipled and unintelligible because Justice Miller himself authored Burgess. The case law that the court today characterizes as “erratic and confused” is, in reality, neither. None of the parties in this case appear to be confused; rather, both defendant and the State have presented cogent arguments grounded in the law as it existed up until today. Likewise, the various districts of our appellate court have rendered opinions in this area that do not exhibit any degree of chaos with respect to this issue. The only people who are “confused” by this case law are those members of this court who do not like it and have resisted its consistent application as the law of this state.
Although I acknowledge that stare decisis is applied less rigidly in constitutional cases (see Patterson v. McLean Credit Union, 491 U.S. 164, 172-73, 105 L. Ed. 2d 132, 148, 109 S. Ct. 2363, 2370 (1989)), the United States Supreme Court has noted that the doctrine is so persuasive that, even in constitutional cases, the Court has required a departure from precedent to be supported by some “special justification.” Arizona v. Rumsey, 467 U.S. 203, 212, 81 L. Ed. 2d 164, 172, 104 S. Ct. 2305, 2311 (1984). I must point out that our prior case law in this area did not produce an “unworkable” or problematic application of the law to defendants. See Payne v. Tennessee, 501 U.S. 808, 842-43, 115 L. Ed. 2d 720, 746-47, 111 S. Ct. 2597, 2617-18 (1991) (Sauter, J., concurring, joined by Kennedy, J.) (recognizing that constitutional error in past decisions alone is not reason to override stare decisis, but rather needs “special justification”). My review of the appellate court decisions that have cited to Brandon and Burgess reveals that the lower courts have not had any difficulty in applying the case-specific approach established in Burgess and utilized by this court in our decisions which postdate it.
In order to understand how our case law has evolved since the time Brandon was announced, a complete review of the history of this court’s psychotropic drug jurisprudence is necessary. This review will illustrate that nothing has changed from the time that Brandon was modified by the court’s decision in Burgess, except for the fact that one member of the court that decided Brandon has retired. However, the circumstances that warrant changes in the law do not include changes in personnel of the court. As Justice Ryan once eloquently stated, “[i]f the law were to change with each change in the makeup of the court, then the concept that ours is a government of law and not of men would be nothing more than a pious cliche.” People v. Lewis, 88 Ill. 2d 129, 167 (1981) (Ryan, J., concurring).
A
One of the most basic tenets of our criminal justice system is the recognition that the conviction of an incompetent defendant violates that defendant’s fundamental right to due process. Pate v. Robinson, 383 U.S. 375, 378, 15 L. Ed. 2d 815, 818, 86 S. Ct. 836, 838 (1966); People v. Barkan, 45 Ill. 2d 261, 263 (1970); People v. Burson, 11 Ill. 2d 360, 368 (1957) (and cases cited therein). The constitutional right derives from the notion, recognized at common law, that no person should be compelled to stand trial while insane. People v. Gavrilovich, 265 Ill. 11 (1914). As this court has recognized, the need for inquiry into fitness at the time of trial stems from concerns that an incompetent defendant may be disabled from making a rational defense and may be incapable “of co-operating with his counsel to the end that any available defenses may be interposed.” Burson, 11 Ill. 2d at 369. Moreover, in the Code of Criminal Procedure of 1963, the Illinois General Assembly has expressly prohibited the trial, adjudication, sentence, or execution of persons charged with a criminal offense while insane. See 725 ILCS 5/104 — 10 et seq. (West 1996). The statute, however, does not, and was not intended to, abrogate the common law rule. Burson, 11 Ill. 2d at 368.
The Code of Criminal Procedure provides that the issue of a defendant’s fitness to stand trial, to plead, or to be sentenced may be raised by the defense, the State or the court at any appropriate time before a plea is entered or before, during, or after trial. 725 ILCS 5/104 — 11(a) (West 1996). Prior to December 28, 1979, our criminal code provided that, when a bona fide doubt of a defendant’s fitness has been raised, the court shall order a determination of the issue before proceeding further. 725 ILCS 5/104 — 11(a) (West 1996). This court strictly construed these statutory provisions to mean that whenever the court becomes aware of facts that raise a bona fide doubt as to sanity, the court becomes duty-bound to “cause a sanity hearing to be held as provided by law.” Burson, 11 Ill. 2d at 370.
The failure to hold a fitness hearing once a bona fide doubt as to competence has been raised has long been deemed reversible error. See Burson, 11 Ill. 2d at 370. The failure to make the requisite inquiry has been regarded as so fundamental to the right to a fair criminal trial that it can be raised as an issue on appeal despite a defendant’s failure to properly preserve it. This court’s decision in Burson is illustrative in this respect. The court there reversed a criminal conviction because the trial court did not hold the sanity hearing that was required by the criminal code. The court did so even though the defendant
“did not present or argue this point; and that the general rule is that where a question is not raised or reserved in the trial court, or where, though raised in the lower court, it is not urged or argued on appeal, it will not be considered and will be deemed to have been waived. However, this is a rule of administration and not of jurisdiction or power, and it will not operate to deprive an accused of his constitutional rights of due process. ‘The court may, as a matter of grace, in a case involving deprivation of life or liberty, take notice of errors appearing upon the record which deprived the accused of substantial means of enjoying a fair and impartial trial, although no exceptions were preserved or the question is imperfectly presented.’ ” Burson, 11 Ill. 2d at 370-71, quoting 3 Am. Jur. Appeal & Error § 248, at 33 (1937).5
In view of the foregoing, it is clear that this court has long acknowledged that the deprivation of the sanity hearing required by the statute was, in essence, a violation of constitutional due process. See also Riggins v. Nevada, 504 U.S. 127, 140, 118 L. Ed. 2d 479, 492, 112 S. Ct. 1810, 1817-18 (1992) (Kenne'dy, J., concurring) (noting that a defendant’s waiver of the right to be tried while competent would not withstand scrutiny under the Due Process Clause and casts doubt on his or her exercise or waiver of all subsequent rights and privileges through the whole course of the trial). Moreover, this court has held that such a claim is cognizable on collateral review. See People v. Smith, 44 Ill. 2d 82, 85 (1969) (noting that successful petition must allege facts which “demonstrate that such a hearing should have been had”).
On December 28, 1979, the General Assembly amended the Code of Criminal Procedure to address the issue of psychotropic drugs. Such drugs, also known as antipsychotic drugs, were first introduced in the 1950s and have since gained wide acceptance in the psychiatric community as treatment for psychotic thought disorders. See Riggins, 504 U.S. at 141, 118 L. Ed. 2d at 493, 112 S. Ct. at 1818 (Kennedy, J., concurring). Although these drugs worked to restore normal thought processes by clearing hallucinations and delusions, they also had unwanted side effects, namely, slowed physical and mental functioning. These side effects are severe enough to have caused one member of the United States Supreme Court to acknowledge that ingestion of the drugs by a criminal defendant can cause prejudice to that defendant by rendering him or her unable or unwilling to assist counsel. See Riggins, 504 U.S. at 141-42, 118 L. Ed. 2d at 493-94, 112 S. Ct. at 1818-19 (Kennedy, J., concurring). Our General Assembly recognized the adverse effect these types of drugs could have on the competency of an accused and amended the criminal code to provide that
“[a] defendant who is receiving psychotropic drugs or other medications under medical direction is entitled to a hearing on the issue of his fitness while under medication.” 725 ILCS 5/104 — 21(a) (West 1992).
The first reported Illinois decision that addressed this amendment was People v. Tilson, 108 Ill. App. 3d 973 (1982). There, defendant Tilson contended that his conviction must be reversed because the circuit court failed to hold the hearing provided for in section 104— 21(a) despite the fact that defendant was taking a psychotropic drug under medical direction at the time of his trial. The appellate court rejected Tilson’s challenge, noting that the word “entitled” did not necessitate an obligation to hold the hearing. Further, the court did not view the statute as being indicative of an intent by the legislature to “remove the right of a trial judge to exercise all discretion when he is possessed of sufficient information to assure that the particular defendant is fit to stand trial and to be sentenced.” Tilson, 108 Ill. App. 3d at 978. For this reason, the court concluded that the circuit court did not abuse its discretion in failing to hold the fitness hearing, sua sponte, and affirmed the conviction. The holding in Tilson was followed in several other appellate court decisions, culminating in the general rule that a defendant’s ingestion of psychotropic medication was, in effect, but one factor in determining whether a bona fide doubt of a defendant’s competence exists. See, e.g., People v. Lopez, 216 Ill. App. 3d 83, 87-88 (1991); People v. Balfour, 148 Ill. App. 3d 215, 226 (1986).
Such was the state of Illinois’ decisional law on this issue when defendant Tyrone Brandon directly appealed his first degree murder conviction and death sentence to this court. People v. Brandon, 162 Ill. 2d 450 (1994). In that appeal, this court was presented, for the first time, with a challenge to the trial court’s failure to hold a fitness hearing under section 104 — 21(a). In contrast to the appellate court decisions on this subject, the court concluded that section 104 — 21(a) “evinces a recognition by the General Assembly that psychotropic medication is an important signal that a defendant may not be competent to stand trial.” Brandon, 162 Ill. 2d at 457. The court further concluded that Brandon’s trial attorney was ineffective for failing to point out to the trial court that Brandon was entitled to the hearing under section 104 — 21(a) and that the resulting prejudice was “manifest.” Brandon, 162 Ill. 2d at 459. In so holding, four members of this court explicitly rejected the notion, first developed in Tilson, that the fitness hearing described in section 104 — 21(a) was a matter of discretion with the trial court. Brandon, 162 Ill. 2d at 459, citing Pate v. Robinson, 383 U.S. 375, 386, 15 L. Ed. 2d 815, 822, 86 S. Ct. 836, 842 (1966). The court interpreted the word “entitled” to mean just that — if facts are brought to the court’s attention that indicate that defendant is taking psychotropic drugs under medical direction, then the court does not have the discretion to not hold the required hearing. Brandon, 162 Ill. 2d at 459.
Justice Miller, joined by Justices Bilandic and Heiple, dissented in Brandon. Although the dissenting justices acknowledged that it was “true that the defendant was entitled to a fitness hearing under [section 104 — 21(a)],” they disputed whether defendant had established the requisite prejudice under Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Brandon, 162 Ill. 2d at 461-63 (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple, J.).6 According to the dissent, defendant Brandon could not establish prejudice for counsel’s failure to request a hearing under section 104 — 21(a) because defendant could not show that he was unfit. In other words, the dissent took the view that the hearing, had it been ordered, would have resulted in a finding that Brandon was fit for trial. Brandon, 162 Ill. 2d at 461-63 (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple, J.).
This court’s decision in Brandon marked a departure, in several critical respects, from the previous reported appellate court decisions concerning the effect of a trial court’s failure to hold a fitness hearing pursuant to section 104 — 21(a). First, all seven members of the court embraced the notion that a defendant who is taking psychotropic drugs under medical direction is entitled to a hearing, for even the dissent conceded that proposition. Second, a majority of the court deviated from the appellate court’s holding that the decision to hold a fitness hearing pursuant to the statute rests within the discretion of the trial court.
Inexplicably, the court today holds that the word “entitle” does not mean what most people of average intelligence believe it to mean, namely, “to furnish with a right.” Indeed, the court goes to great lengths to explain that the word “entitle” does not mean that a court must make a “further inquiry” when certain facts are brought to the court’s attention. See 189 Ill. 2d at 331. I know of no rule of statutory construction which supports such a reading of this statute. The language of section 104 — 21(a) is exactingly clear: a defendant who is taking psychotropic drugs under medical direction at the time of trial has the right to have an inquiry into the issue of fitness. Under this statute, once a defendant is being treated with psychotropic drugs, he or she need not raise a bona fide doubt as to fitness in order to receive a hearing. The hearing is automatic. The statute does not say that the trial judge has discretion to hold such a hearing when a defendant is taking psychotropic drugs under medical direction. Nor does the statute limit such hearings to only those who “timely” request them. In fact, the Code of Criminal Procedure expressly allows for a post-trial inquiry into fitness. See 725 ILCS 5/104— 11(a) (West 1996). Thus, section 104 — 21(a) was not couched in terms which would limit the circuit court’s ability to hold such a hearing, as today’s opinion suggests. If psychotropic drugs were being administered, a fitness hearing was to be held. The court in Brandon did not erroneously construe section 104 — 21(a).
After Brandon was announced, this court next addressed section 104 — 21(a) in People v. Gevas, 166 Ill. 2d 461 (1995). Defendant Gevas appealed his conviction and death sentence to this court, arguing, among other things, that the trial court erred by not ordering a fitness hearing after learning that defendant was taking psychotropic drugs under medical direction. Relying on the decision in Brandon, the court concluded that the trial court’s failure to hold the hearing necessitated reversal of the convictions and a new trial. The court held that, by enacting section 104 — 21(a), the General Assembly had “equated the administering of psychotropic medication to a defendant with a bona fide doubt as to fitness to stand trial.” Gevas, 166 Ill. 2d at 469. In so holding, the court noted that the legislature’s concern in this area was substantial not only because such drugs signal that a defendant may not be competent to stand trial, but because these types of drugs can also “have severe side effects which can affect a defendant during criminal proceedings.” Gevas, 166 Ill. 2d at 470. In support of this statement, the court cited Justice Kennedy’s concurrence in Riggins v. Nevada, 504 U.S. 127, 144, 118 L. Ed. 2d 479, 495, 112 S. Ct. 1810, 1820 (1992), in which he pointed out that “[t]he side effects of antipsychotic drugs can hamper the attorney-client relation *** rendering the defendant less able or willing to take part in his defense [and] ‘can also lead to the defendant’s loss of self-determination undermining the desire for self-preservation which is necessary to engage the defendant in his own defense in preparation for his trial.’ ” Finally, the court concluded that remanding the matter for a retrospective fitness hearing would be inherently difficult. Therefore, the only proper remedy was a new trial. Gevas, 166 Ill. 2d at 471.
Once again, Justice Miller, joined by Justices Bilandic and Heiple, dissented, this time on the basis that defense counsel’s failure to inform the trial judge sooner in the proceedings of defendant’s ingestion of psychotropic drugs was a matter of trial strategy. According to the dissent, the trial judge in the case “was warranted in concluding that the defendant was fit and was justified in refusing counsel’s untimely request for a hearing.” Gevas, 166 Ill. 2d at 473 (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple, J.). Moreover, the dissenting justices stated the following:
“If, as the majority insists, section 104 — 21(a) is to be applied in this case, then the proper course would be to remand for an evidentiary hearing to determine whether the defendant was still receiving drugs at the time of the plea hearing.” Gevas, 166 Ill. 2d at 474 (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple, J.).
It was for these reasons that the dissenting justices believed that the court’s decision to grant defendant Gevas a new trial was erroneous.
This court was next presented with the psychotropic drug issue in Kinkead I, 168 Ill. 2d 394, another capital case. Defendant Kinkead claimed that he was not afforded a fitness hearing despite the fact that he was taking psychotropic drugs at the time of the proceedings against him. The court began its analysis by reaffirming the principles established in both Brandon and Gevas. Moreover, the court again rejected any notion that the ingestion of psychotropic medication was, in effect, but one factor in the trial court’s bona fide doubt analysis. Kinkead I, 168 Ill. 2d at 409. The court specifically noted that the appellate court decisions relied upon by the State were all decided prior to Brandon. The court further rejected the State’s contention that the trial court’s “observations of defendant’s demeanor during the proceedings [were] dispositive of the fitness issue in the case at bar.” Kinkead I, 168 Ill. 2d at 409-10. In reaching this conclusion, the court specifically stated:
“We believe that the legislature intended, through the plain language of the statute, to remove the determination of a defendant’s fitness from the subjectivity of personal observation and place the question in the formal context of a fitness hearing. Psychotropic medications are potent drugs and their effect on the mind and behavior of an accused may not be easily determined or fully understood, particularly by nonmedical personnel. A fitness hearing provides the vehicle by which the court may ascertain whether the drugs are influencing the defendant’s subjective decision regarding the pursuit of available defenses.” Kinkead I, 168 Ill. 2d at 410.
Nevertheless, the court noted that Kinkead’s situation was slightly different from that of the defendants in Brandon and Gevas because the record on appeal was inadequate — the court could not “determine whether the administration of the Thorazine was proximate enough in time to defendant’s guilty plea and sentencing to trigger the right to a full fitness hearing pursuant to section 104 — 21(a).” Kinkead I, 168 Ill. 2d at 414. The matter was therefore remanded with directions that the circuit court conduct an inquiry into the factual circumstances surrounding defendant’s asserted use of psychotropic medication. Kinkead 7, 168 Ill. 2d at 417.
Again, Justice Miller, joined by Justices Bilandic and Heiple, dissented. Contrary to the view expressed in their Gevas dissent, the dissenting justices now took issue with remanding the matter for the factual inquiry. Compare Kinkead 7, 168 Ill. 2d at 418 (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple, J.), with Gevas, 166 Ill. 2d at 474 (Miller, J, dissenting, joined by Bilandic, C.J., and Heiple, J.). Moreover, the dissenting justices disagreed with the conclusion that the legislature, through section 104 — 21(a), essentially equated the use of psychotropic drugs with the presence of a bona fide doubt concerning fitness. According to the dissent, a defendant may be entitled to a fitness hearing under the provision, but such a defendant must invoke the statute in “a timely manner.” Kinkead I, 168 Ill. 2d at 419 (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple, J.).
The court next addressed the same issue in yet another capital case, People v. Birdsall, 172 Ill. 2d 464 (1996). Defendant Birdsall contended, inter alia, that he was denied due process of law and effective assistance of counsel because he was not afforded the competency hearing to which defendants are entitled by section 104— 21(a) if they are taking psychotropic medication under medical direction at or near the time of trial or sentencing. The court noted that under long-established principles of due process, an accused may not be prosecuted or validly convicted if he or she is unfit to stand trial. Birdsall, 172 Ill. 2d at 474-75. Moreover, to secure this due process protection, Illinois statutory and case law require a trial court to hold a competency hearing if there is a bona fide doubt concerning the defendant’s mental fitness to understand the nature and purpose of the proceedings and to assist in his or her defense. Citing the Gevas decision, the court noted that the legislature indicated through the plain language of section 104— 21(a) that it had “equated the administering of psychotropic medication to a defendant with a bona fide doubt as to fitness to stand trial.” Birdsall, 172 Ill2d at 475.7 After a thorough review of Illinois law, the court concluded that Birdsall was entitled to relief based on the denial of his right to a fitness hearing, and a new trial was ordered. Birdsall, 172 Ill. 2d at 475-77. Moreover, the court rejected the State’s explicit request that the court “repudiate” its holdings in Brandon, Gevas, and Kinkead I. In place of the automatic reversal rule enunciated in Brandon and Gevas, the State urged this court to adopt a totality of the circumstances test in which the court could assess whether the psychotropic drugs had impaired defendant’s fitness to understand and assist in his defense. The court declined the State’s request, noting that the State did not point to anything in the record on appeal that contained any evidence of a medical nature respecting the influence the drugs may have had on Birdsall. Birdsall, 172 Ill. 2d at 477-79.
Justice Miller, again with Justices Bilandic and Heiple joining, dissented. Once more, the dissenting justices charged that the court was mistakenly equating the statutory entitlement to a fitness hearing found in section 104 — 21(a) with a bona fide doubt of the defendant’s fitness. The dissent also believed that the court had confused “defendant’s failure to assert the procedures it believes are designed to secure due process with a denial of due process itself.” Birdsall, 172 Ill. 2d at 482 (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple, J.). According to the dissent, section 104 — 21(a) “grants to a defendant an entitlement to a fitness hearing in cases in which the constitutional right is not at all implicated.” Birdsall, 172 Ill. 2d at 482 (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple, J.). The dissenting justices also maintained that “[rjather than being a question of due process, the issue is properly analyzed in terms of ineffective assistance of counsel.” Birdsall, 172 Ill. 2d at 482 (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple, J.). In order to establish prejudice, a defendant must show not only that a fitness hearing would have been conducted if requested, but defendant must also demonstrate that the outcome of the hearing would have been favorable to him.
Up until Birdsall, all of this court’s decisions which had addressed the psychotropic drug issue had done so in the context of a direct appeal .from trial. In People v. Nitz, 173 Ill. 2d 151 (1996), the court faced the same question in the context of collateral review. Defendant Nitz sought relief under the Post-Conviction Hearing Act, asserting that his murder convictions and death sentence were obtained in violation of his federal and state constitutional rights. Nitz contended that he was entitled to a new trial because the State withheld information that it was administering psychotropic medication to him throughout the course of his trial and sentencing. According to Nitz, the State’s failure to disclose the information deprived him of his constitutional due process right to a fitness or competency hearing. The court began its analysis of defendant’s contention by examining the nature and scope of the due process right in the context of an accused’s competency to stand trial, noting that the failure to observe procedures adequate to protect a defendant’s right not to be tried while unfit deprived the defendant of due process. Nitz, 173 Ill. 2d at 156. The court then cited several cases, decided before the enactment of section 104 — 21(a), that held that if facts existed at the time of defendant’s trial which, if presented to the trial court, would have raised a bona fide doubt as to defendant’s sanity, the accused would have had a right to have a hearing and that such a claim could be heard on collateral review. See Nitz, 173 Ill. 2d at 157 (citing People v. Smith, 44 Ill. 2d 82 (1969), People v. McLain, 37 Ill. 2d 173 (1967), and People v. Harris, 113 Ill. App. 3d 663 (1983)). Recognizing the due process implications of Nitz’s claim, the court went on to evaluate it in light of Brandon and its progeny. Although the court noted that the procedures contained in the Code of Criminal Procedure regarding fitness were purely statutory, the court held that the right to inquiry established in the Code, be it through bona fide doubt or be it through the ingestion of psychotropic drugs, flows from the due process guarantee that an accused who is unfit will not be tried. Nitz, 173 Ill. 2d at 160-61. Moreover, the court rejected the State’s contention that Nitz’s demeanor at trial was dispositive of the issue, noting that the court had previously rejected similar arguments in Brandon, Gevas, and Kinkead I. The court also rejected the State’s invitation to overturn the “automatic reversal” rule enunciated in Brandon and the cases which followed it. Nitz, 173 Ill. 2d at 163. Noting that an “automatic reversal” has always been the appropriate remedy where a requisite statutory fitness hearing was not provided, the court concluded that Nitz was entitled to a new trial. Nitz, 173 Ill. 2d at 164. In other words, the court in Nitz held that the failure to hold the required hearing under section 104 — 21(a) necessitated the same type of relief .as did the failure to hold a hearing under section 104 — 11(a).
Justice Miller, joined by Justices Bilandic and Heiple, again dissented. The dissenting justices continued to adhere to the notion that the right to the hearing established in section 104 — 21(a) could not be equated with a bona fide doubt of fitness. In addition, the dissent believed that the right provided in section 104 — 21(a) was statutory as opposed to constitutional and, therefore, was not cognizable under the Post-Conviction Hearing Act. Nitz, 173 Ill. 2d at 165 (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple, J.).
Nitz and the cases decided before it firmly established that due process considerations were at play in those cases in which a defendant was entitled to, but did not receive, a hearing under section 104 — 21(a) at the time of trial or sentencing. Under the guise of “correcting” “erroneous” precedent, the court today deprecates the constitutional right to be fit when tried. For example, the court insists that the failure to hold a section 104 — 21(a) hearing is merely a violation of a statute, stating that “[statutes do not confer constitutional rights, and the allegation of a deprivation of a statutory right is not a proper claim under the Act.” 189 Ill. 2d at 329. The court ignores the reality, just as the dissenters did in Nitz, that the statutory provisions concerning fitness contained in our Code of Criminal Procedure implicate the fundamental constitutional right to be competent while tried. The court seems incapable of understanding that these psychotropic drug cases present, at root, the question of whether defendants were unfit when tried. If the answer to this question is yes, the conviction cannot stand because the “conviction of an accused person while he is legally incompetent violates due process.” Pate, 383 U.S. at 378, 15 L. Ed. 2d at 318, 86 S. Ct. at 838. The purpose of the post-conviction remedy is to provide a mechanism by which convicted persons could raise “the question of whether they were denied due process of law” at their original trials. People v. Dale, 406 Ill. 238, 243 (1950). Our Post-Conviction Hearing Act was specifically designed to vindicate those constitutional rights that were not and could not have been raised at the time of trial. In the psychotropic drug cases, the defendants are presenting evidence, which if known at the time of trial, would have necessitated that an inquiry be made into the issue of fitness. No inquiry was made in these cases; therefore, a possibility exists that the drugs that were being administered may have rendered some unfit. As noted, an accused who is unfit to be tried and is nevertheless convicted has been denied due process. That four members of this court fail to see the due process implications in such cases is incredible.
Moreover, the court today mischaracterizes the facts in Nitz. It must be remembered that, in that case, defendant Nitz alleged in his post-conviction petition that the State withheld from both defendant and his attorney the psychotropic nature of the drugs that were administered to defendant Nitz at the time of the trial. Clearly, had those facts been known to either defense counsel or the trial judge, the court would have been duty-bound to hold the hearing mandated by the statute. Therefore, the post-conviction act provided the only means by which defendant could vindicate his constitutional right to inquiry surrounding his competence. See People v. Smith, 44 Ill. 2d 82 (1969) (acknowledging the .cognizability on post-conviction of a claim regarding the failure of a court to hold a bona fide doubt hearing); J. Decker, “Last Chance” State Judicial Review in Criminal Cases — Illinois’ Collateral Attack Remedies: A Call For Principled Jurisprudence, 38 DePaul L. Rev. 201, 271 (1988) (noting that competency to stand trial or to enter a plea is of constitutional magnitude and is an issue cognizable under the Illinois Post-Conviction Hearing Act).
After Nitz was announced, the court next addressed section 104 — 21(a) in People v. Britz, 174 Ill. 2d 163 (1996), which, like Nitz, was a post-conviction challenge to a death sentence. Defendant Britz argued, inter alla, that he was on “medication” pursuant to medical orders during his trial proceedings. Britz maintained that, under section 104 — 21(a), the trial court should have held a fitness hearing. The court began its analysis by citing Brandon, Gevas, Kinkead I, and Nitz for the proposition that when psychotropic drugs are prescribed to an accused pursuant to medical direction and no fitness hearing is held, either a new trial is necessary or a remand is required in order to establish if the drugs were administered at the time of the proceedings so as to trigger the statute’s application. Britz, 174 Ill. 2d at 195-96. The court determined, however, that Britz did not come within the purview of section 104 — 21(a) because the medications that he was given were not psychotropic in nature and that the legislature intended to address only psychotropic drugs or their equivalent in the statute. Britz, 174 Ill. 2d at 196-98. The court reached this conclusion because the legislature was concerned with protecting against medications “capable of interfering with [the ability to understand the nature and purpose of the proceedings against him or assist in his defense].” Britz, 174 Ill. 2d at 197. For these reasons, the court concluded that Britz had not been entitled to a fitness hearing on the basis of the medications he had ingested. Britz, 174 Ill. 2d at 198. The court, therefore, affirmed the circuit court’s dismissal of Britz’s post-conviction petition.
Given their previous dissent in Nitz, one would have expected Justices Miller, Bilandic, and Heiple to have concurred only in the judgment of the court, explaining that they did so only because they believed that Britz’s section 104 — 21(a) claim was not cognizable under the Post-Conviction Hearing Act due to its statutory nature. See Nitz, 173 Ill. 2d at 165 (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple, J.). Moreover, none of these justices registered any disagreement with the premise of the court’s opinion, i.e., that had the drugs Britz ingested been psychotropic (or the equivalent) then a fitness hearing would have been required pursuant to Brandon and its progeny. Notwithstanding the views expressed in their previous dissents, each of the three justices joined fully in the court’s decision.
Section 104 — 21(a) next came before the court in People v. Kidd, 175 Ill. 2d 1 (1996), a direct capital appeal. Defendant Kidd contended that he was entitled to a fitness hearing under Brandon because he was taking the drugs Dilantin, Tegretol, and Elavil at the time of the proceedings against him. Despite his consistent dissenting view on the psychotropic drug issue, Justice Miller authored the court’s decision. The court noted that the record on appeal established that Kidd was receiving only Dilantin at the time relevant to the proceedings. Kidd, 175 Ill. 2d at 17. Citing to Britz, the court concluded that Dilantin was not a psychotropic drug or its equivalent; therefore, Kidd “was not entitled to a fitness hearing under section 104 — 21(a) [and] defense counsel could not have been ineffective for failing to seek one pursuant to that provision.” Kidd, 175 Ill. 2d at 19.
Neither Justice Bilandic nor Justice Heiple filed a separate opinion in Kidd. As in Britz, the three original Brandon dissenters joined fully in the court’s opinion, without specifically registering their continued disagreement with the court’s interpretation of section 104— 21(a). Surprisingly, these three justices joined in an analysis concerning whether the “other medications” referred to in section 104 — 21(a) were the equivalent of psychotropic , drugs — given their previous dissents, these three justices could have taken the position that, even if Kidd had been taking psychotropic drugs as he alleged on appeal, he would not be entitled to a new trial for the reasons previously cited in their dissenting opinions in Brandon, Gevas, Kinkead I, and Birdsall.
Such was the state of this court’s psychotropic drug jurisprudence when Raymond Burgess appealed his conviction and death sentence directly to this court. People v. Burgess, 176 Ill. 2d 289 (1997). I note that today’s decision is remarkable in failing to discuss or even cite the Burgess decision. Defendant Burgess argued that he was entitled to a fitness hearing under section 104 — 21(a) because he was taking psychotropic medication at the time of his trial. Following the submission of his initial brief, however, defendant filed a motion in this court requesting a limited hearing pursuant to our decision in Kinkead I. The court granted the motion without recorded dissent, remanding the cause for a hearing for the “ ‘limited purpose of determining whether defendant ingested psychotropic medication at or near the time of his trial and sentencing.’ ”8 Burgess, 176 Ill. 2d at 299. After the conclusion of the hearing, the parties submitted briefs to this court on the issues raised by the remand proceedings. Defendant contended that he was entitled to a new trial under Brandon and its progeny because the evidence adduced at the hearing established that he was receiving psychotropic drugs at the time of his trial, but had not received the requisite fitness hearing. In response, the State argued that a new trial was not necessary because the medical evidence adduced at the limited hearing established that defendant was not impaired by the ingestion of the drugs.
Justice Miller, writing for the court, began the analysis of the issue by stating the following:
“The State acknowledges that under our decisions in People v. Brandon, 162 Ill. 2d 450 (1994); People v. Gevas, 166 Ill. 2d 461 (1995), People v. Birdsall, 172 Ill. 2d 464 (1996), and People v. Nitz, 173 Ill. 2d 151 (1996), this court could simply grant the present defendant a new trial, without regard to his actual condition at the time of the proceedings below, given his ingestion of psychotropic drugs during the trial and sentencing hearing. The State argues, however, that we should not invoke the practice of automatic reversal in this case, in light of the evidence revealed at the special supplemental hearing.
We agree with the State that a rule of automatic reversal is not always appropriate. As this case demonstrates, there will be some circumstances in which it can be said that the use of psychotropic medication did not affect the defendant’s mental functioning in such a way that relief would be appropriate. We are aware that we have previously declined to make use of retrospective fitness hearings, noting the difficulty in determining, long after the conclusion of the underlying proceedings, the degree of mental functioning enjoyed then by the defendant. See People v. Birdsall, 172 Ill. 2d 464, 476 (1996) (citing Brandon and Gevas). Nonétheless, we believe that, at least in the present case, there are sufficient reasons to depart from our previous practice of automatic reversal and to make a case-specific inquiry into the psychotropic drugs administered to this particular defendant.” Burgess, 176 Ill. 2d at 303.
The court went on to conclude that defendant’s own expert witness did not believe that the psychotropic drugs administered to Burgess could have had any effect on Burgess. According to the court, the testimony of defendant’s expert “demonstrates [that] we should not automatically assume that every psychotropic drug will inevitably render the person taking it unfit for purposes of trial or sentencing, and we therefore conclude that retrospective hearings are sometimes proper.” Burgess, 176 Ill. 2d at 304. The court affirmed Burgess’ conviction and sentence.
Justice Harrison dissented, and I joined in his dissent. The dissenting justices questioned why Burgess should be treated differently from the defendants in the other cases which had preceded his. Burgess, 176 Ill. 2d at 325 (Harrison, J., dissenting, joined by Freeman, J.). According to the dissent, the court in Burgess’ case was making the same after-the-fact assessment of fitness that had been repeatedly and consistently rejected in Geuas and Birdsall. Burgess, 176 Ill. 2d at 325 (Harrison, J., dissenting, joined by Freeman, J.).
The decision in Burgess is notable because of the position taken in it by the three original Brandon dissenters, three justices who today comprise 75% of the majority. Recall that none of these three justices believed that due process concerns were implicated by the failure to hold the hearing required under section 104 — 21(a). Contrary to their previously expressed views, they held, in Burgess, that there could be “some circumstances in which it can be said that the use of psychotropic medication did not affect the defendant’s mental functioning in such a way that relief would be appropriate.” Burgess, 176 Ill. 2d at 303. The converse of such a statement is, of course, that there could be some circumstances in which it cannot be said that the use of psychotropic medication did not affect a defendant’s mental functioning. If, as the three dissenters had maintained prior to Burgess, the failure to hold the hearing required under section 104— 21(a) did not implicate due process, why then did Justice Miller construct the Burgess analysis and why did Justices Bilandic and Heiple concur in it? Burgess did not explicitly overrule Brandon or any of the cases that had adhered to the rule of automatic reversal enunciated in it. Rather, Burgess merely modified the type of relief that would be afforded to defendants who had failed to receive the requisite fitness hearing at the time of the proceedings against them. Brandon and the cases which followed it had held that due process required that a new trial be ordered in all such cases because of the inherent unreliability of retrospective fitness hearings. Burgess changed the rule in that if it could be later established that the medications did not impair defendant’s ability to participate and assist in his defense, due process did not require that a new trial be ordered. If the original Brandon/Nitz dissenters were correct in their legal analyses, as the court today insists that they were, then they should not have joined in a decision which still left the basic premise of Brandon intact — that some inquiry must be undertaken in order to evaluate the effect, if any, the psychotropic drugs had on a defendant’s fitness to be tried and sentenced.9 Given their views in Brandon, Gevas, Bird-sail, Kinkead I, and Nitz, the three dissenters could have chosen to continue to dissent in Burgess. One would certainly not expect Justice Miller, the author of all of these dissents, to author an opinion which was grounded in principles first recognized in Brandon. The Brandon/ Nitz dissenters cannot have it both ways.
After the Burgess opinion was announced, the court next addressed section 104 — 21(a) in People v. Neal, 179 Ill. 2d 541 (1997), a capital post-conviction proceeding. Defendant Neal filed a post-conviction petition, his third, in which he alleged that he should have received a fitness hearing pursuant to section 104 — 21(a) because of his ingestion of psychotropic drugs. The State filed a motion in the circuit court seeking dismissal of the petition, but the circuit court denied the motion. An evidentiary hearing was held at the conclusion of which the circuit court denied post-conviction relief. This court affirmed the denial of relief without dissent. The court held that
“retrospective fitness determinations will normally be inadequate to protect a defendant’s due process rights when more than a year has passed since the original trial and sentencing. In exceptional cases, however, circumstances may be such that the issue of defendant’s fitness or lack of fitness at the time of trial may be fairly and accurately determined long after the fact. In such cases, Burgess will apply, and a defendant will not automatically be entitled to have his original conviction and sentence automatically set aside for a new trial.” Neal, 179 Ill. 2d at 554.
The court considered Neal’s case to be such an “exceptional” case based on the evidence adduced at the post-conviction evidentiary hearing. See Neal, 179 Ill. 2d at 554 (finding situation at bar “directly analogous to that present in Burgess”). The court further held that although the court in Burgess was able to assess the evidence “closer in time to the original proceeding,” that fact, in and of itself, was “of no consequence.” Neal, 179 Ill. 2d at 554. The court explained why this was so:
“If the chemical properties of medication are such that their effects could accurately be assessed in light of a defendant’s known medical history, as was the case here, it would not matter whether the evaluation followed the original trial and sentencing by 15 days or 15 years. The result would be the same.” Neal, 179 Ill. 2d at 554.
Therefore, Neal stands for the proposition that in some, but not all, cases, circumstances may be such that the issue of defendant’s fitness or lack of fitness may be fairly and accurately determined long after the fact. Neal, 179 Ill. 2d at 554. In such cases, a new trial would not be the appropriate remedy for the failure to hold a fitness hearing under section 104 — 21(a).
The decision in Neal was issued without any dissent. None of the three original Brandon dissenters filed separate opinions in the case. This was somewhat surprising because all three previously had noted that post-conviction relief could not be obtained on the basis of the statutory right. See Nitz, 173 Ill. 2d at 165-66 (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple, J.). Despite their votes in Neal, Justices Miller, Bilandic, and Heiple appear to have now returned to their pre-Neal view that such a claim is not cognizable in post-conviction cases. Moreover, not one member of the court questioned why res judicata did not bar defendant’s petition since Neal’s petition was his third such pleading under the Act. The failure of Justices Miller, Bilandic, and Heiple in Neal to note any of these procedural points seemed to indicate that they had acquiesced in the Brandon holding as it was modified by Burgess. Moreover, the two dissenting justices in Burgess also fully joined in Neal. Thus, it appeared that all seven members of the court had reached a compromise and had settled upon a rule that each could apply. Such an assumption would only be strengthened when the court issued its next opinion in this area, People v. Cortes, 181 Ill. 2d 249 (1998), a direct capital appeal.
Defendant Cortes argued that he was entitled to a new trial because of his ingestion of psychotropic drugs at the time of the proceedings against him. Cortes’ trial had been conducted between October 24 and November 4, 1994, and the sentencing hearing was held from November 9 to November 10, 1994. During the post-trial motions, defense counsel presented the circuit court with a copy of this court’s decision in Brandon and the appellate court’s decision in People v. Guttierez, 271 Ill. App. 3d 301 (1995), in which the appellate court ordered a new trial for defendant based upon this court’s holding in Brandon. Defense counsel also alerted the circuit court to the fact that several doctors had declared Cortes fit to stand trial under medication. Because it was unclear whether the medication was psychotropic in nature, the trial court ordered a behavioral clinical examination of Cortes and instructed defense counsel to determine the particulars of Cortes’ use of medication. Eventually, the trial court held a fitness hearing on the question of Cortes’ competence. Defense counsel objected, noting that a retrospective fitness hearing was inappropriate and that the only proper remedy was to order a new trial. After receiving evidence at the hearing, the trial court denied Cortes’ motion for a new trial.
In a decision issued without dissent, this court affirmed the trial court’s decision. We began our analysis by noting the development of our case law from the time that Brandon was decided. We further noted that the General Assembly had amended section 104 — 21(a) subsequent to Brandon, but that the new amendment could not be applied to Cortes’ case retroactively. Cortes, 181 Ill. 2d at 275 n.2. The court found that Burgess controlled Cortes’ case because Cortes’ fitness “could be fairly and accurately determined after the fact because, as in Burgess, the evidence showed that the medication ingested by [Cortes] did not have any affect on his fitness.” Cortes, 181 Ill. 2d at 276 (citing Burgess, 176 Ill. 2d at 303-04, and Neal, 179 Ill. 2d at 554).
Thus, Burgess, Neal, and Cortes unequivocally illustrate that the seven members of this court had reached common ground over the question of how to handle the psychotropic drug issue. The original dissenters had fully joined in decisions that recognized the right to raise the issue, whether it be on direct or collateral review, in cases where a defendant had been deprived of the section 104 — 21(a) fitness hearing at the time of trial. In addition, the two dissenting justices in Burgess had joined in the post -Burgess decisions which held that in exceptional cases retrospective fitness determinations could resolve the psychotropic issue.
Our most recent published opinion that addressed section 104 — 21(a) was Kinkead II, 182 Ill. 2d 316, the appeal from the remand hearing ordered in Kinkead I. Applying the case-specific approach of Burgess, Neal, and Cortes, the court determined that
“the remand hearing conducted in the case at bar gives rise to a significantly greater concern than existed in Burgess, Neal or Cortes, that the defendant’s ingestion of anti-psychotic drugs during the plea and sentencing proceedings influenced his decision-making abilities. Therefore, our conclusion that the defendants in those cases were not entitled to a new trial does not compel a similar conclusion [here]. Indeed, in this case much of the evidence appears to favor defendant’s argument that the Thorazine he took may have influenced his ability to make a reasoned decision to plead guilty to greater charges and seek a sentence of death.” Kinkead II, 182 Ill. 2d at 347.
The court therefore concluded that Kinkead should receive a new trial.
The three original Brandon dissenters disagreed, this time with Justice Heiple writing for them. The dissenting justices took issue with two specific aspects of the court’s decision. The first centered on the retroactive effect of the amended section 104 — 21(a). Despite the fact that in Cortes all three justices had joined in an opinion which explicitly rejected the notion that the new amendment was retroactive (see Cortes, 181 Ill. 2d at 275 n.2), the dissent now believed that retroactivity was in order. Kinkead II, 182 Ill. 2d at 351 (Heiple, J., dissenting, joined by Miller and Bilandic, JJ.), citing First of America Trust Co. v. Armstead, 171 Ill. 2d 282, 290 (1996) (applying vested rights doctrine). Notwithstanding the alleged retroactivity of the amended section 104 — 21(a), the three dissenters disagreed with the court’s view of the evidence adduced at the hearing on remand. It is significant to note that the dissenters did not disavow Burgess or the views expressed in that decision. In fact, their reasoning was based on the recognition in Burgess that evidence adduced at a later proceeding could establish definitively that the psychotropic drugs did not impair a defendant’s ability to participate and assist in his defense. According to the dissent, the evidence adduced at the hearing “fully comports with the trial court’s conclusion that defendant’s use of Thorazine *** was not medically significant with regard to his fitness to stand trial.” Kinkead II, 182 Ill. 2d at 358 (Heiple, J., dissenting, joined by Miller and Bilandic, JJ.). For these reasons, the dissenting justices did not believe that Kinkead was entitled to a new trial.
The foregoing review of this court’s psychotropic drug case law affirmatively belies today’s assertion that our case law in this area has developed in an unprincipled and unintelligible fashion. See 189 Ill. 2d at 338. To the contrary, my review demonstrates that the three original BrandonINitz dissenters joined in decisions which recognized the right to make an inquiry, be it an after-the-fact inquiry. Nevertheless, these three justices now believe that applying our current case law to this defendant is unnecessary because that case law is “erroneous.” As I stated at the outset of this dissent, neither of the parties have asked this court to revisit the arguments made in Brandon and Nitz. The only reason those arguments have been resurrected in this case is because the three dissenters now have a fourth vote to achieve that which they could not achieve on the day Gevas, Kinkead I and II, Birdsall, Nitz, Burgess, Neal, and Cortes were issued — to overrule Brandon. Today’s decision merely reiterates, this time with the approval of four justices as opposed to three, the same arguments made by Justice Miller in his initial dissents. While my colleagues are quick to point out the alleged deficiencies in the legal analyses contained in Brandon, Gevas, Kinkead I and II, and Nitz, they are utterly silent as to the fact that these decisions were modified by Burgess and that for the past two years, this court, up until today, had been content to follow the approach that Justice Miller himself had constructed in Burgess.10 What the three dissenters have failed to explain today is why defendant Mitchell in this case cannot have the opportunity to establish that the antipsychotic drugs he ingested may have affected him in a way that did not affect defendant Burgess. If, as Justice Miller clearly stated in Burgess, there might be some circumstances that would not necessitate a new trial, then why does he refuse to apply his own analysis to the case at bar? Since the time that Brandon was issued, Justices Miller, Bilandic, and Heiple have concurred in subsequent decisions which hold that some sort of after-the-fact inquiry is necessary in cases such as this. Thus, I believe that the opportunity to overrule Brandon and its progeny has long passed. In several of our earlier decisions on this issue, the State specifically asked the court to repudiate the Brandon rule, and we explicitly declined to do so. In the interim, we have issued opinions approving of a defendant’s right to inquire if the psychotropic drugs affected fitness. Although the court has changed its view as to how that inquiry is to be made, the court has consistently recognized a defendant’s ability to raise the issue and the court has consistently, in every case since Brandon was decided, resolved the issue on its merits. Our previous opinions represented this court’s best effort to deal with the critical questions raised by the failure to have held the hearing required by section 104 — 21(a). I must remind my colleagues those opinions represent the law and as such are relied upon by the judiciary, prosecutors, criminal defendants, as well as the citizens of this state.11 For the three original Brandon dissenters to shift gears now, after having participated in and authored opinions in other cases in which psychotropic drugs were in issue, is, with all due respect, inconsistent and without principle.
As I noted earlier, the court contends that stare decisis need not be applied in this case because “[n]o reasonable observer of this court’s jurisprudence could argue that the law in this area has been developing in a principled and intelligible fashion.” 189 Ill. 2d at 338. The court points out that, although in 1995 this court rejected any notion of retrospective fitness hearings as being reliable, two years later in 1997, “we saw no problem with a retrospective fitness hearing conducted 15 years after defendant’s trial and sentencing.” 189 Ill. 2d at 338, citing Neal, 179 Ill. 2d at 553-56. The court then states that “[i]n 1998, we held that the automatic reversal rule of Brandon had been replaced by the ‘case-by-case’ approach and that a defendant could no longer prevail on a request for a new trial simply by showing that he had been taking psychotropic medications at the relevant time.” 189 Ill. 2d at 338-39, citing Kinkead II, 182 Ill. 2d at 340. I have already demonstrated how the court today has manipulated our jurisprudence in this area by conveniently omitting the role Burgess played in this history and the hand that the original Brandon/Nitz dissenters had in creating Burgess. While Justice Rathje, who was not a member of this court at the times those cases were decided, is entitled to the view that such a development is unprincipled and unintelligible, I find it beyond belief that Justices Miller, Bilandic, and Heiple could share in that view. After all, it was Justice Miller, writing for the court in Burgess, who opened the door for the retrospective fitness hearings. See Burgess, 176 Ill. 2d at 303. Had Justices Miller, Bilandic, and Heiple been concerned with the propriety of such a volte face, they should not have been willing to adopt Burgess and should not have added their imprimatur to the decisions in Neal and Cortes — two cases which followed the approach endorsed by them in Burgess. Moreover, to cite Kinkead II as an example of unprincipled jurisprudence is to mischaracterize the decision — the court in Kinkead II merely followed the precedent of the court as established in Burgess and applied in Neal and Cortes. Under the case law set forth in those decisions, the court concluded that defendant Kinkead was entitled to a new trial.
In addition, the court’s decision in Burgess to change from a bright line rule announced in Brandon to a case-specific approach, though criticized at the time by two members of the court, is hardly the type of change in circumstance that warrants the overturn of stare decisis. As noted in Kinkead II, the case-by-case approach comports with due process and ensures that those defendants who were ingesting psychotropic drugs were not impaired by them to the extent that their ability to participate in the defense was hampered. Under today’s decision, such similarly situated defendants now have no recourse whatsoever. I do not believe that the doctrine of stare decisis should be overturned when to do so produces such an unjust result. I must point out that, when this issue arises in the context of a capital case, as all of our cases have been, the need to ensure, as the statute then required, that antipsychotic drugs did not impair or hamper the defendant’s ability to assist in his or her defense becomes all the more important. This last point should not be overlooked for it leads to another disturbing aspect of today’s decision. All of our psychotropic drug cases have been capital appeals, either direct appeals from trial or appeals from post-conviction proceedings. Although this court is a court of permissive review, capital appeals come to us directly. See Ill. Const. 1970, art. VI, § 4(b); 134 Ill. 2d Rs. 603, 609(a), 651(a). As a result, this court is frequently presented with the same arguments in case after case, in term after term. Once a legal question has been settled and closed to further argument, I, for one, cannot emphasize enough the need for its consistent application in similar cases. The law of this court cannot be seen by the bar and the public to be one that is constantly “in flux,” changing from opinion to opinion, particularly in capital cases. Both the State and the appellate defense bar should be entitled to view a decision of this court on a given issue as static once that issue has been settled. Both this case and the Palmer case (see 189 Ill. 2d at 393 (Freeman, J., dissenting, joined by Harrison, C.J., and McMorrow, J.)) all too sadly demonstrate that it is the arbitrary hand of fate, as opposed to the established rule of law, that will mean the difference between life and death. In my view, the court today fails to recognize the important need for following stare decisis in capital cases.
B
In light of the above, I believe that the circuit court in this case erred by dismissing defendant’s psychotropic drug claim without an evidentiary hearing. Defendant’s petition alleged that he was taking two psychotropic medications at the time of his trial. Had defense counsel requested a fitness hearing at that time, the circuit court would have been required by statute to hold the hearing. Therefore, I would instruct the circuit court to conduct an evidentiary hearing in order to establish what effect, if any, those drugs had on defendant’s fitness during the proceedings. As this court, acknowledged in Neal, in certain cases, “circumstances may be such that the issue of defendant’s fitness or lack of fitness at the time *** may be fairly and accurately determined long after the fact. In such cases, Burgess will apply.” Neal, 179 Ill. 2d at 554. I, therefore, would instruct the court to follow the precedents of this court as set forth in Burgess, Neal, Cortes, and Kinkead II.
II
Today’s result sends the unfortunate message to the bench, the bar, and the public 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.” People v. Lewis, 88 Ill. 2d 129, 170 (1981) (Clark, J., concurring). In this respect, Justice Clark’s sentiments, expressed almost two decades ago, have resonance today:
“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 *** 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 changes are present, I will vigorously vote to change the law.
*** [0]nce a judge has expressed a differing view from the majority, and has then acquiesced in the majority view, to the point of writing an opinion which accords the majority’s view its rightful place as the controlling law on the matter, due regard for the consistency of the court’s opinions leads a judge to continue to follow the majority’s view.” People v. Lewis, 88 Ill. 2d 129, 169-71 (1981) (Clark, J., concurring).
Moreover, Justice Clark’s view of stare decisis is not at all novel. This court, in a per curiam opinion, observed just five years ago that:
“The doctrine of stare decisis is the means by which courts ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion. Stare decisis permits society to presume that fundamental principles are established in the law rather than in the proclivities of individuals.” Chicago Bar Ass’n v. Illinois State Board of Elections, 161 Ill. 2d 502, 510 (1994).
See also People v. Fuller, 187 Ill. 2d 1, 23 (1999) (Bilandic, J., dissenting) (noting that stare decisis “should not be disregarded simply because some members of the court disagree or have changed their minds”). By joining in Burgess, Neal, and Cortes, Justices Miller, Bilandic, and Heiple ceased to voice their spirited dissents on this issue and to challenge the legal analyses contained in Brandon and its progeny. The three dissenters, in those cases, did not question, as they do today, the legal underpinnings of the earlier decisions. To the contrary, they merely changed the remedy for the alleged violation — from automatic reversal to an after-the-fact, case-specific inquiry. Therefore, I respectfully disagree that the doctrine of stare decisis must be overridden today on the basis that our case law in this area was incorrect. Although the three original Brandon dissenters consistently voted against the automatic reversal rule created in Brandon, they were instrumental in creating the retrospective approach they now criticize as “confused and erratic.” Had they indeed felt that way, they should never have voted to adopt Burgess in the first place.
As I have endeavored to show by my review of our precedent, not one circumstance has changed in our psychotropic drug jurisprudence since this court announced its decision in Burgess. All of the legal arguments set forth in today’s opinion are the same arguments that were made and considered at the time Brandon and Nitz were decided. These same arguments were in existence when the court issued Burgess. The only “circumstance” that has changed since this court announced Burgess is that Justice John Nickels, who joined in Brandon, authored Gevas, joined in Kinkead I and II, and joined in Birdsall, Nitz, Britz, Kidd, Burgess, Neal, and Cortes, has retired, and Justice Rathje has been appointed to fill the vacancy created by the retirement. I submit that this type of “circumstance” does not rise to the level necessary to overturn the doctrine of stare decisis.
Unfortunately, today’s decision demonstrates that “[pjower, not reason, is the new currency of this [cjourt’s decisionmaking.” Payne v. Tennessee, 501 U.S. 808, 844, 115 L. Ed. 2d 720, 748, 111 S. Ct. 2597, 2619 (1991) (Marshall, J., dissenting, joined by Blackmun, J.). As noted throughout this dissent, neither the law nor the facts supporting the Brandon/Burgess rule underwent any change since the time that this court issued its last psychotropic drug case, Kinkead II, in 1998. Only the personnel of this court did. One must now wonder how many other of our previous decisions, decided by 4-3 margins, will be similarly overruled on the basis of a change in court personnel. I must stress again that neither party in this case asked this court to revisit Brandon and its progeny. The court acts today sua sponte. If this court can so cavalierly disregard its own precedent, we surely cannot expect others to follow it nor can we justly criticize those who do not. Today’s imprudent action invites nothing but open defiance of our precedent and seriously undermines this court’s legitimacy. Clearly, there is no genuine reason not to apply Burgess to the present case, and the court’s attempt to style its decision as one made to restore “some stability and reason to this area” (189 Ill. 2d at 339) is beyond credulity. It is obvious to me, at least, that four members of this court are willing to discard any principle of constitutional law that, in the past, was recognized over the votes of three dissenting justices and with which four justices currently disagree. This does not bode well for the future. At the end of this current year, the makeup of this court will undergo some change because four justices by virtue of election or retention may not return. While I am not clairvoyant, I do know that when the court reconvenes in January 2001, the current makeup of the court will have changed. It is my sincere hope that this case will not serve as a model for future courts to follow.
CHIEF JUSTICE HARRISON and JUSTICE McMORROW join in this dissent.
Dissenting Opinion Upon Denial of Rehearing
The court in Burson did not evaluate the procedural default in terms of our plain error rule. Nevertheless, the court’s recognition that error was of constitutional magnitude comports with the second prong of the plain error rule, i.e., that the error affected a substantial right. See 134 Ill. 2d R. 615(a); People v. Vargas, 174 Ill. 2d 355, 363 (1996).
Justices Miller, Bilandic, and Heiple apparently now believe differently and challenge the definition of the word “entitle.” See 189 Ill. 2d at 331.
The court noted that the General Assembly had, during the pendency of Birdsall’s appeal, amended section 104 — 21(a). The amendment provided that, effective December 13, 1995, the granting of a fitness hearing based on the defendant’s treatment with psychotropic drugs is not required unless the court finds there is a bona fide doubt of the defendant’s fitness. The court held that the amendment did not apply to Birdsall’s case and expressed no opinion regarding the amendment’s effect on future cases after the effective date of the amendment. Birdsall, 172 Ill. 2d at 475 n.1.
The fact that Justices Miller, Bilandic, and Heiple concurred in the order was surprising given the fact that in Kinkead I they specifically took issue with the need to remand the case for a limited hearing. According to their dissent in Kinkead 1, the lack of the evidentiary basis for the claim in the record on appeal established that Kinkead did not seek in “a timely manner” the hearing to which he was entitled. See Kinkead I, 168 Ill. 2d at 419 (Miller, J., dissenting, joined by Bilandic, C.J., and Heiple, J.).
I, along with Chief Justice Harrison and Justice McMorrow, am not alone in my interpretation of the Burgess decision. Various panels of the appellate court have taken the view that “while Burgess represents a departure from the rule of automatic reversal, it is still entirely consistent with the fundamental underpinning of Brandon — to protect the due process rights of a defendant who ingested psychotropic medication.” People v. Flynn, 291 Ill. App. 3d 512, 520 (1997) (reversing conviction and remanding for a new trial pursuant to Burgess). See also People v. Jamerson, 292 Ill. App. 3d 944, 951 (1997) (remanding matter for a limited hearing pursuant to Burgess); People v. Abraham, 293 Ill. App. 3d 801, 804-05 (1997) (same).
Following the issuance of Burgess, this court remanded to the appellate court those cases which had been decided under the automatic reversal rulé enunciated in Brandon. See, e.g., People v. Johns, 173 Ill. 2d 535 (1997) (directing appellate court to reconsider its holding in light of Burgess).
An example of such reliance can be found in the case of another death row inmate, Leslie Palmer. On June 1, 1998, Palmer filed a post-conviction petition in which he alleged, inter alla, that he was denied a section 104 — 21(a) fitness hearing at the time of his capital sentencing hearing. The State confessed error on the psychotropic drug claim, agreeing that a new sentencing hearing was required. The parties eventually reached an agreement in which defendant would forgo all future appeals in exchange for a 65-year prison sentence. The circuit court approved the agreement, and this court closed defendant’s supreme court file on September 17, 1999. Clearly, the State confessed error in reliance on our previous psychotropic drug decisions. Had the State’s Attorney of Mason County, who prosecuted Palmer, chosen not to confess error on the psychotropic drug issue, Palmer would still be on death row today.