dissenting:
As I expressed in my dissent in People v. Hickey, 204 Ill. 2d 585, 637 (2001) (Kilbride, J., dissenting), the State of Illinois has reached a watershed in its approach to criminal procedure in capital cases. First, this court instituted new rules providing much needed procedural safeguards in capital cases to improve the reliability and accuracy of these trials. See 188 Ill. 2d Rs. 43, 411, 412(c), 416, 417, 701(b), 714. Next, the legislature adopted comprehensive statutory protections designed to improve the capital punishment system and reduce errors. These legislative reforms came too late, however, for the defendant in this case, who argues he should have the benefit of four of these new safeguards.
The statutory measures cited by defendant state that: (1) the jury must receive instructions that the mitigating factors to be considered include evidence that “the defendant’s background includes a history of extreme emotional or physical abuse” (720 ILCS 5/9 — 1(c)(6) (West 2004)); (2) the jury must determine unanimously, “after weighing the factors in aggravation and mitigation, that death is the appropriate sentence” before the death penalty may be imposed (720 ILCS 5/9 — 1(g) (West 2004)); (3) the trial court must “conduct a hearing to determine whether the testimony of [a jailhouse] informant is reliable, unless the defendant waives such a hearing” and the prosecution must timely disclose material relevant to the reliability and credibility of the informant’s testimony (725 ILCS 5/115 — 21 (West 2004)); and (4) this court may overturn a death sentence and impose a prison term if it “finds that the death sentence is fundamentally unjust as applied to the particular case” (720 ILCS 5/9 — l(i) (West 2004)).
In this case, none of these measures were available to defendant. First, the jury was not specifically instructed to consider evidence of defendant’s allegedly abusive background as a mitigating factor. The jury’s consideration of this factor was simply relegated to the broad, undefined category of unspecified potential mitigation material. Second, the jury was instructed to apply a different balancing test, whereby the default sentence was death unless the jury determined that the mitigation evidence was sufficiently strong to preclude imposition of the death penalty. Third, defendant did not waive a separate hearing on the reliability of the jailhouse informants’ testimony, and no such hearing was held. Finally, defendant argues that this court is entitled to use its newly acquired statutory authority to overturn his death sentence and impose a prison term based on the fundamental injustice of that sentence due to the prior unavailability of the other legislative reforms.
Defendant asserts that here, unlike Hickey, retroactive application of the additional legislative protections would affect fewer than a handful of cases. He maintains that this court should overturn his death sentence as fundamentally unjust because it was imposed in the absence of the new statutory protections. To address this argument, we must consider whether the measures are to be applied retroactively or only prospectively.
Under the most recent analytical approach adopted by this court on the issue of retroactivity, we must look first to the express temporal reach of the amendment. Caveney v. Bower, 207 Ill. 2d 82, 92 (2003). See also People v. Atkins, 217 Ill. 2d 66, 71 (2005) (restating the Caveney test). Here, only one of the four provisions cited by defendant includes an express statement of its intended temporal reach. Section 115 — 21, requiring a separate hearing on the reliability of jailhouse informant testimony, states: “[t]his Section applies to all death penalty prosecutions initiated on or after the effective date of this amendatory Act of the 93rd General Assembly.” 725 ILCS 5/115 — 21(f) (2004). The effective date of the amendment was November 19, 2003. Thus, under the Caveney test, standing alone, section 115 — 21 is not retroactively applicable to this case. None of the other three cited provisions, however, contain a similar expression of legislative intent. Thus, to determine whether they should be applied retroactively, we must consider whether the amendments are procedural or substantive in nature. If they are procedural, they may be retroactively applied, but if they are substantive, they may not. Caveney, 207 Ill. 2d at 92.
While the boundary separating “procedure” and “substance” is not always clear, “procedure” generally prescribes the means for enforcing rights or receiving remedies through a lawsuit. Atkins, 217 Ill. 2d at 71-72, quoting Rivard v. Chicago Fire Fighters Union, Local No. 2, 122 Ill. 2d 303, 310-11 (1988). Procedure encompasses “ £ “pleading, evidence and practice. Practice means those legal rules which direct the course of proceedings to bring parties into court and the course of the court after they are brought in.” [Citation.]’ ” Atkins, 217 Ill. 2d at 72, quoting Rivard, 122 Ill. 2d at 310-11. In contrast, “substantive law” involves the rights underlying the lawsuit. Atkins, 217 Ill. 2d at 72, quoting Rivard, 122 Ill. 2d at 310-11.
Here, the three remaining legislative protections cited by defendant are purely procedural in nature, concerning: (1) the contents of the jury instructions on mitigation (720 ILCS 5/9 — 1(c)(6) (West 2004)); (2) the jury’s standard for reviewing the factors offered in aggravation and mitigation (720 ILCS 5/9 — 1(g) (West 2004)); and (3) this court’s authority to vacate a particular death sentence and impose a term of years if the death sentence is “fundamentally unjust” (720 ILCS 5/9 — l(i) (West 2004)). These matters focus on “the course of the court” after the start of the proceedings, not on the rights underlying those proceedings. Therefore, under this court’s analysis in Caveney, these legislative safeguards are subject to retroactive application.
I also find it telling that in enacting its death penalty reforms, the legislature did, in fact, choose to limit the new requirement of jailhouse informant reliability hearings to future cases. Even though the other provisions at issue in this appeal were enacted as part of the same package of reforms in the same public act, they did not bear the same temporal limitation. Given the immense gravity of capital proceedings, I believe fundamental fairness and the reliability of the capital punishment system require us to apply these other legislative protections retroactively. See Hickey, 204 Ill. 2d at 639 (Kilbride, J., dissenting) (asserting that “[i]f we are to err, we should err on the side of caution”).
“The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result. And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision.” Texas v. Johnson, 491 U.S. 397, 420-21, 105 L. Ed. 2d 342, 364, 109 S. Ct. 2533, 2548 (1989) (Kennedy, J., concurring). Here, despite the despicable nature of the crime committed, this court must apply our retroactivity precedent evenhandedly. The same body of law protects both the innocent and the guilty from manifest injustice. To optimize the overall reliability of the capital punishment system in this state, this court should implement the latest legislative reforms retroactively in all applicable cases, including the one currently before us. Accordingly, I would remand this cause for a new sentencing hearing incorporating these protections. For these reasons, I respectfully dissent from the majority opinion.