*1 court, court, trial all of which and a new trial in the this as a needless waste avoided. We view have been might has However, the failure to time. since object court, we need not the State in this not been raised by voiced. the observations consider this matter just beyond above, reasons For the judgment given court is affirmed. appellate
Judgment affirmed. (No. 51659 . CAREY, ex rel. Attor-
THE PEOPLE BERNARD State’s COUSINS, Petitioner, v. WILLIAM JR., Judge, ney, al., et Respondents.
Opinion November 1979. filed *2 RYAN, GOLDENHERSH, J„ C.J., CLARK, J„ and dissenting. Bernard State’s Carey, of Attorney, Chicago (Marcia B. Orr and Sholder, Iris E. Assistant State’s Attorneys, of counsel), petitioner. Ruebner of
Ralph Reid, H. Chicago, of John Vernon, Defenders, Davison, Mt. E. and Robert Deputy of Martin Carlson and Richard E. Springfield, Cunning- ham, Meinz, Ottawa, of Verlin M. of Charles Chicago, Schiedel, Schuster, and Mark Springfield Elgin, Defenders, Assistant for William Appellate respondent Cousins, Jr. Toole,
Cornelius E. for Chicago, respondent Ronald Brown. Defender, Public Doherty, Chicago (Robert James J. Isaacson, P. Aaron L. Moran, Thomas Meyers, John Defenders,
Assistant Public amicus curiae. counsel), Gursel, Roosevelt Thomas and Akim Chicago, amicus curiae Cook Bar Association. County MR. WARD delivered the opinion JUSTICE court:
An information was filed in the circuit court of Cook Ronald E. murder, Brown with County charging *3 and armed of aggravated Charles H. kidnapping, robbery McGee. After a Cousins, bench trial before William a Jr., court, of the defendant was found judge on all guiltv The that a charges. People requested convened to jury conduct a to determine whether the death proceeding should be on the murder, conviction as section provided by of the Criminal Code of 1(d) 9— Rev. Stat. par. 1(d)). 9— defendant, to a motion court, the response the trial on 29, 1979, denied the and January entered an order request section unconstitutional. holding 1(d) 9— The State filed a motion before us for leave to file a for a writ of mandamus petition directing respondent Cousins to his order and to conduct a expunge and the motion was allowed. proceeding, The defender of Cook public and the Cook County Bar Association were each County leave to file granted amicus curiae. Their briefs briefs respondents. support filed in the record of the trial court The proceedings complete. It includes the criminal action is not present invalid, section information and the order 1(d) holding 9— or motions or contain but does not any pretrial post-trial trial, made, at the testimony given rulings conviction, for a or the of request petitioner’s judgments sentencing hearing. section for the trial court’s
The basis 1(d) holding 9— invalid, was that the section “vests as stated in its opinion, discretion to with unlimited trigger prosecution the death and sentence thereby permits proceedings,” For this to be “wantonly freakishly imposed.” due the section was viewed reason contravening clause, and unusual of cruel prohibition process found amendment eighth punishments and the the United States Constitution separation II, of the Constitu- article provision powers tion Illinois.
Section 1(d) provides: State, the court shall requested by the
“Where to determine separate sentencing proceeding conduct (b) forth in Subsection of factors set the existence indicated or factors as aggravating mitigating consider shall be conducted: (c). proceeding in Subsection defend- determined the jury 1. before guilt; ant’s or for the jury impanelled purpose before a
2. if: proceeding plea defendant was convicted A. the guilty; or after a trial was convicted the defendant B. jury; or without sitting the court before discharges shown good the court for cause C. guilt; the defendant’s jury determined *4 if the defendant waives the court alone 3. before separate proceeding.” jury for the case, are in this we a bench trial there was Since 9—1 concerned here section and only (d)(2)(B) if the section the latter applicable 1(d)(3), being 9— defendant should waive jury. of an act which Section is 1(d) part amendatory 9— sec.
became effective in 1977 Laws (1977 1), ex rel. Rice v. this court’s holding following 61 Ill. which invalidated Cunningham (1975), earlier the death provisions imposition relating Rev. Stat. penalty (Ill. par. 8—1A). 1005— Section 9—1 establishes pro- separate sentencing which must be before a death sentence employed ceeding For it is not may imposed. present purposes necessary to set its out detail. section provisions general, be, that the or as the case 1(d) provides jury, may judge 9— shall factors, consider evidence of which are aggravating factors, enumerated and five 1(b), mitigating 9— of which are enumerated in section Subsections 1(c). 9— that the death (g) (h) provide penalty may if or be, case only finds that jury judge, may there were one or more factors and no aggravating factors sufficient of a mitigating preclude imposition death. sentence of We turn first to the claim that section violates 1(d) of the Constitution of separation powers provision prosecutor
Illinois in that the is to exercise a given part of the which should be a sentencing process, properly function. It which to form theory appears the basis of the trial court’s and it is advanced here ruling, amici, one of the although respondents, was not it included in the defendant’s motion although before the Cousins. respondent of course does not himself impose sentence, death nor he can that it be for require imposed, conclude that judge sentencing jury conditions statutory specified imposition have not been met. The present argument *5 536
focuses the fact be rather on that no sentence may without a and that at all sentencing proceeding, a cannot take unless it is such requested proceeding place If the in which it becomes case mandatory. by prosecutor, the fails to a he prosecutor request hearing, sentence, a death and thus has the of precluded imposition sense, in has in the that it he participated argued, sentencing process. decisions this court to
We find no in the of authority and it as the role that we view theory, support ignoring the State’s for one the counsel the Attorney litigants, in trial of a are countless occasions the There People. where that is adverse criminal a judicial ruling proceeding the the outcome to defendant affect ultimate not, cannot, be made the will and ordinarily prosecution a the has been the unless made by request ruling from the jurors Examples prosecution. range challenge sua the of instructions. sponte to rulings tendering Judicial and it been are the has never supposed exception, or tender the instruction to make the failing challenge a function. was usurping 17, Ill. v. v. Bombacino 2d People People (1972), 229, 51 Ill. Sprinkle 2d Handley (1972), 935, 257, cert. denied (1974), Ed. 94 S. a view of 41 L. Ct. embody of the Constitution op separation powers provision here. Bombacino involved a provision posed urged Act Rev. Stat. of the Court par. Juvenile authorized the State’s which Attorney 7(3)) 702 — to a transfer a juvenile delinquency proceeding against thus juvenile court and criminal permit pro as an adult under ceeded provisions against on in this case Criminal Code of charge homicide. State’s Attorney power By giving should be which court determine juvenile prose to increase cuted, token it him same gave of the sanction which visited the severity might he the defendant for the offense with which was charged. The State’s decision was Attorney’s subject being circuit, the chief but overruled only judge event court to the juvenile objected judge Bombacino such had removal. In no been made. objection due The defendant contended that process required court to hold a on the removal juvenile judge court, This Illinois act petition. contrasting District of Columbia statute with the same dealing subject *6 matter, that in the claim rejected language: following Kent, however,
“The statute in involved vested the discretion waive the minor over jurisdiction in the court. The Illinois statute does not juvenile the same discretion to the court. Rather the give State’s in Illinois is vested with the Attorney discretion to determine whether or not to pro ceed offender, sub criminally juvenile against of the the ject in the only right judge presiding division to in which event the juvenile object, matter referred to the the chief of circuit judge court for his decision.” Ill. (51 While the constitutional involved in provision immediately Bombacino was due rather than of process separation the decision that the powers, necessarily presupposes determination made the is not aas act. regarded
The removal of a from court for trial juvenile juvenile court, murder, in in criminal this case on a of was charge the also v. subject People Handley. other Among made of the against arguments constitutionality section of the Court Act this proce- authorizing Juvenile dure, defendant, one contention as described court, that was discretion in the State’s “vesting Attorney decide whether not to remove a from the juvenile court without jurisdiction juvenile providing to limit his discretion defend standards deprives juvenile under law.” due ants of process equal protection Bombacino, in court Ill. 2d (51 232.) Following on this as follows: commented claim Handley of the State’s the office “Historically, Attorney measure of involved the exercise of has large in in areas which State’s discretion the many their must act the performance Attorneys We do duties in administration justice. it find constitutionally objectionable fit discretion has seen to grant legislature under matters State’s removal Attorney Act, in view Court particularly Juvenile the Act as set forth in fact purposes Rev. the Act Stat. section 1—2 of conclude, ***. as we We further 2) par. 701 — Bombacino, due did in process hearing in Kent is not at required stage prescribed court.” 51 Ill. in the juvenile proceedings 229, 233. were each cited Handley
Bombacino and conviction of two indicted where the juveniles Sprinkle, was sustained and deviate sexual assault murder against This court stated: constitutional objection. same *7 hold, therefore, the Illinois “We legisla the State’s vest in ture Attorney may reasonably whether juvenile discretion of deciding as an adult juvenile shall be prosecuted found of offender. The guaranty of fifth amendment clause due-process had been traditionally United States Constitution limited proceedings. quasi-judicial of held It never been process has applicable held, If so it were decision making. prosecutorial im would be function vitally the prosecutorial 257, Ill. 2d (56 paired.”
539 Court been Act has amended so subsequently Juvenile as to reduce the of discretion. degree prosecutorial (See v. People Taylor Ill. That 2d (1979), 298-99.) not, course, does of disturb the conclusion development reached in and its with Sprinkle precursors respect of issue. separation powers v. Montana 380 Ill. cited
People (1942), amicus, is not inconsistent the decisions referred to above. was ex rel. v. As out in Scott Israel pointed aspect 190, 194, Ill. the distinctive (1977), Montana was an administrative was agency given power to judgment already disregard pronounced by court as to minimum and maximum term impri sonment. That is not the situation At here. most presented the role State’s under section 9—1 could Attorney be characterized as his consent the court before requiring with the In proceed procedure sentencing. this sense the situation resembles that v. People Phillips 66 Ill. case 2d 412. we sustained a (1977), Abuse Act Rev. Stat. provision Dangerous Drug 91½, which the consent of a par. 120.8) required defendant’s officer before the defendant could probation be allowed to avoid a criminal pending proceeding charging the unlawful of a controlled substance. See possession 416.
The cases referred to just largely dispose further claim that the respondents’ the State’s to determine whether or not Attorney sentencing hearing shall be is left discretion,” held to his “unbridled and that thus due violates As the decisions 1(d) process. show, of this court the State’s has Attorney always a wide discretion in both the initiation enjoyed of criminal That discretion includes management litigation. all, decision whether initiate at any prosecution well as to choose which several shall be charges brought. v. Rhodes See People Ill. 2d 396;People *8 540 dismissed 440, 57 Ill.
McCollough appeal 2d (1974), 637, 614; 1043, 419 L. Ed. Ct. U.S. 95 S. 42 2d (1974), v. Brooks v. 343, 349; People 65 2d (1976), Golz cert. denied 654, 658, 659, 53 Ill. 3d (1977), App. 905, 1134, 3091; 437 U.S. 57 L. Ed. S. Ct. 98 2d (1978), Woodard v. see also Cir. 556 Wainwright F.2d (5th 1977), cert. 784, denied 781, 1088, U.S. 55 434 L. Ed. (1978), 794, 98 S. Ct. 2d 1285. also must 1(d) respondents urge to violate the amendment considered eighth in Furman under the decision
United States Constitution v. L. Ed. S. U.S. 33 92 Georgia (1972), element of is that same Ct. Their 2726. position in the arbitrariness and capriciousness sentencing potential unconstitu- which led the Court hold process Supreme before the court in that case tional statute Georgia to determine whether to set infects prosecutor’s power motion. in procedure sentencing and Gregg was made rejected A similar argument Ed. Ct. 49 L. S. Georgia under the amended in which a conviction Georgia Mr. was Both statute opinion upheld. Justice Mr. Stewart, Powell Mr. joined by Justice Justice White, Mr. Stevens, and the separate opinion Justice Mr. joined, which the Chief Rehnquist Justice Justice the view that the requirements imposed upon express to decisions are not applicable body the issue as Stewart addressed Mr. prosecutor. Jústice follows: on the
“First, focuses opportu- petitioner are action that inherent nities for discretionary case under murder Georgia processing has the state law. He notes to select those persons unfettered authority offense whom he wishes to capital prosecute Further, at with them. and to plea bargain trial the choose to convict a defendant jury may *9 of a lesser included offense rather than find him aof crime death, guilty even if the punishable by evidence would verdict. And support capital a defendant who is convicted finally, and sen- tenced to die have his sentence may commuted the Governor of the State and by the Georgia Board of Pardons and Paroles.
The existence of these discretionary stages not determinative of the issues before us. At each of these an actor in the criminal stages justice makes a system decision which remove a defendant from consideration as a candidate for Furman, the death contrast, dealt penalty.
the decision to the death sentence on a impose individual who had been specific convicted of a offense. capital of our cases Nothing any that the decision to suggests afford an individual defendant violates the Constitution. Fur- mercy man that, held in order to minimize the only risk the death would be on a selected capriciously offenders, group decision to it had to be impose guided by standards so that the would sentencing authority focus on the particularized circumstances of the crime and the defendant.” 153, 199, (428 L. 859, 889, Ed. 2d 96 S. Ct.
Mr. White reached the conclusion, same as shown Justice by from his following excerpt opinion:
“Petitioner’s be- argument prosecutors have in a standardless fashion in which deciding cases to try felonies is capital unsupported by facts. Petitioner any asserts that since simply capital have the prosecutors not to power charge felonies will exercise that they in a standardless fashion. This is untenable. Absent
facts to it cannot assumed contrary, in their will motivated prosecutors charging decision factors other than by strength that a would their case and the likelihood jury if it Unless the death convicts. impose in their are prosecutors incompetent judgments, decide the standards which whether they those will be the same as felony charge capital which the will decide the jury questions will and sentence. Thus defendants escape guilt the death penalty prosecutorial charging through offense suffi- decisions because the is not only serious; or is insuf- because ciently proof This does not cause the ficiently system strong. more than the decision be standardless jury’s *10 on a defendant to life impose imprisonment or its whose is deemed serious crime insufficiently who is decision to someone acquit probably a established but whose is not beyond guilty guilt reasonable doubt. Thus the prosecutor’s charging the have removed from decisions are to unlikely the Su- cases considered by sample Georgia If the Court which are ‘similar.’ truly preme it is relevant cases were ‘similar’ in respects, really fail to that would unlikely prosecute prosecutors cases; I to and am them unwilling capital 153, 225, 49 L. assume the contrary.” 859, 903, 96 S. Ed. Ct. 2949. a that
The out correctly prosecu- respondents point to a whether tor’s discretion in request deciding sentencing since under the was involved in Gregg, Georgia hearing offense a whenever a is capital statute mandatory to the thus the discretion been and only given has charged, such offense. The an is whether charge be must read the assert Gregg opinions respondents At as limited to stage, stage proceedings. moreover, to the discretion is not according respondents, is since it limited definition by statutory unguided, contrast, runs, offense. capital only argument standard contained in 9—1 section is enumeration of factors, a standard which is aggravating mitigating directed to the solely body. sentencing
The distinction drawn strikes us as respondents Under unsound. Georgia procedure prosecutor’s is, course, offense confined power charge capital definition of that offense. His decision statutory whether to exercise that remains discretionary, however, and that decision will his estimate depend upon of what and other will evidence testimony available its effect. persuasive
The same situation arises under section Unless 1(d). the State’s believes that there will be Attorney testimony which will that the persuade elements jury requisite a death exist, sentence he is unlikely request hearing. moreover, His will be better informed than judgment, it can under the for he need not make Georgia procedure, his final decision until after conclusion of trial, when will he have evaluated and other evidence testimony which inwas fact presented. also section 9—1 respondents on the challenge additional the information does not
following grounds: factors enumerated in allege any aggravating not told what it is 1(b); body sentencing weight 9— to factors; the various give is not body make as which factors were required relied findings *11 on; the is to the recommendation of judge required accept the the State is not to jury; the required notify defendant in advance of trial of its to intention seek the death or of the on factors particular aggravating which it will rely.
These contentions are not for decision in appropriate the one to present qualification Subject proceeding. contention, all these claims are the final prema
regarding not been held ture, has yet since the sentencing hearing be, been, and never has not the defendant yet v. Wills death sentence. 61 Ill. 2d (1975), given 105, cert. denied 999, 46 Ed. L. (1975), S. Ct. 430. is that unless the last contention it claimed As to the will of trial whether the State in advance defendant knows unable to make an he will be seek death penalty enter into a he should decision as whether intelligent his he waive whether should right plea guilty, negotiated On he should take the stand. trial, and whether to a jury and the out State it was oral brought argument were made what defendant representations disagree An action of the State as original penalty. mandamus for not in this court appropriate v. State Touhy (Cf. of fact. determination questions Moreover, Board Elections earlier, us does not contain record before as noted or the trial itself. Since either proceedings pretrial be resolved without contention cannot respondents’ record is on which the of factual matters determination no silent, basis that contention denying provides writ. mandamus herein, a writ of stated
For the reasons Cousins expunge issue the respondent shall directing 29, 1979, hold a and to order entered January on should be death sentence whether a determine Brown. respondent awarded. Writ MR. RYAN, dissenting: JUSTICE I have no argument concept prosecutorial discretion as discussed and I do majority opinion, with the cases cited therein quarrel thereof. support However, consideration, in the statute under the prose- *12 outer’s discretion is into the injected stage sentencing which, later, as indicated has proceedings, consistently Furthermore, held to be a been function. is judicial which, in the as indicated cases stage proceedings below, cited has Court not Supreme permitted exercise of discretion. In statute arbitrary my opinion, contains no to exercise of guidelines arbitrary prevent discretion I the State’s which to Attorney, perceive Florida, constitute an amendment violation. The eighth and Texas statutes discussed in this did dissent not Georgia in the to place discretion determine prosecutor whether or not should I be held. penalty hearing therefore find the in the quotations from majority opinion 153, 859, 49 L. Ed. Gregg Georgia 96 S. Ct. which discusses discretion at prosecutorial other than the to be of little I will stage, help. discuss the amendment issue later in this dissent. eighth The crucial of section part Criminal 1(d) 9— Code of 1961 Rev. Stat. par. 1(d)) provides: State, requested
“Where by the the court shall separate conduct a sentencing proceeding determine the existence of set forth (b) factors subsection consider aggravating mitigating factors as indicated ***” (c). (Emphasis Subsection added.) It is contended this court Brown respondent in the of the discretion vesting prosecutor conduct or conduct a sentencing hearing determine if the death shall be confers to exercise power judicial This, function. it constitutes a violation of argued, section 1 of II article of the Illinois Constitution which provides:
“THE OF POWERS THE STATE 1. Section OF SEPARATION POWERS legislative, judicial The executive branches are powers properly separate. No branch shall exercise be- longing to another.” VI, of the Illinois Constitution
Article provides: 1.
“Section COURTS Court, Supreme is vested in a an *13 Appellate Court and Circuit Courts.” would hold that section I with this contention agree the discretion which confers the prosecutor 1(d), upon 9— to or not a shall be determine whether hearing sentencing II, held, violates Illinois Constitu- article not, this should for tion of 1970. The judge respondent reason, conduct a sentencing hearing compelled of 1961. under section of the Criminal Code 1(d) 9— in The statute creates a bifurcated Illinois procedure in which and sentence are determined separate guilt ch. Rev. Stat. pars. 1(a) proceedings. an The is first tried under defendant (h).) through is then the State for murder. If he found indictment guilty, a death the court to conduct penalty hearing request If the finds before the authority jury. sentencing judge one of seven a reasonable doubt beyond exists, must find factors then it unanimously aggravating there factors “sufficient are no pre mitigating in order clude” capital impose punishment a it is If is made sentence. the determination jury, sentence is on Once the judge. imposed, binding Ill. Rev. Stat. reviewable in court. automatically 9—1 par. (i). statute, is Under the Illinois the prosecutor given a whether discretion in unlimited determining There no should be conducted. authority hearing a and there is for court call for such statute hearing, a statute such no making provision addition, under set of facts. In under mandatory any given the court has no of the statute authority language for such a the State’s hearing. decline request finds, and the that a The State has majority argued, discretion in exercise of determining prosecutorial pretrial for a crime based whether to prosecute particular is no different than definitions post-convic statutory whether or not a decision State tion determining should be conducted. The majority opin penalty hearing ion, in of its relies on position, heavily previous support decisions of this exercise of court prose involving cutorial discretion in whether should be juvenile deciding as an adult or as a offender. I have no juvenile prosecuted with those cases. The discretion considered there quarrel was exercised at stage proceedings traditionally considered not to be reserved as a function. This judicial distinction was v. Phillips noted 66 Ill. 412, which is cited in also It is majority opinion. to exercise discretion perfectly proper to the as a prior stage proceeding designated function. to define the conduct which constitutes
criminal offense and to fix the for such punishment conduct is vested in v. Williams legislature. (People 179, 186; 66 Ill. ex rel. (1977), 2d Kubala v. People 491, Kinney 492-93; Ill. 25 2d v. (1962), People Burnett 420, However, 394 Ill. (1946), 425.) imposition sentence within the limits is prescribed by legislature function. v. judicial People Montana purely 380 (1942), 596, 608; Ill. see State v. also Leonardis 73 (1977), N.J. 360, 370, 607, 612; 375 State v. A.2d Leggeadrini (1977), 150, 1116; 158-59, 1112, 75 380 A.2d State v. Spinks N.J. 568, 575, 26; 66 23, 334 (1975), A.2d v. N.J. Jackson 7, 15; United States 338 F. 5 (D.N.J. 1971), Supp. Illinois Criminal Procedure sec. Callaghan’s 38.20 (1971). Montana, In v. a 1941 People amendment to the act 1941, 38, Rev. Stat. ch. et 801 parole (Ill. par. seq.), to Division Corrections set the allowing actual 548 recommendation,
sentence a defendant after a judge’s was ruled invalid as an delegation improper 412, In v. 66 Ill. 2d People Phillips power. (1977), Abuse Act Rev. Stat. 8(e) Drug Dangerous 1973, 9114, was as constitut par. 120.8(e)) challenged an on the to sentence. The judicial power ing infringement Act that a on provided person probation charged into another crime could not be diverted a drug-treatment of his officer. This without the consent probation program held to the court that “the authority probation granted treatment under the Act officer deny persons with, but not convicted a criminal offense does of, charged constitutional the court’s impose infringe upon right v. sentence.” 66 Phillips (People (Emphasis added.) (1977), 412, Ill. cites Phillips 415-16.) majority Although of its that case does not condone the support position, exercise of at the discretion prosecutorial sentencing stage, but in fact it is the court’s constitutional recognizes sentence, free interference from right duty impose ex rel. Martin v. Mallary In People prosecutor. 582, held the General 195 Ill. the court (1902), branch of the could not confer on executive Assembly to send to the State the authority penitentiary government who had been committed for a breach of discipline persons to a “We are of the that such power reformatory. opinion is to the General more than one denied Assembly by so the constitution. attempted provision be conferred and not executive or adminis judicial, ex rel. Martin v. Ill. Mallary trative.” (1902), (People v. also ex rel. Murphy 593. See People Johnson 566; ex rel. Fullenwider v. Ill. People (1913), 38; Featherstone v. People Ill. (1926), Jenkins Weeks 194 Ill. (1976), the court abused its it was contended App. *15 in so “that discretion in guilty plea, failing accept its function the court exceeded plea by bargaining doing its discretion for that of the State’s Attorney. substituting The law clear Illinois that is a judicial function, and it remains so in plea negotiations. Any at most are recommenda agreements plea negotiations tions and the sentence to be is for the court and Weeks the court alone.” 37 Ill. App. 41, 44. of a criminal sentence is a
Clearly, imposition function. The authorize the court judicial may legislature to exercise broad discretion in the of sentences imposition for the of sentences within by providing fixing prescribed minimum and Or maximum years. legislature may restrict the exercise of discretion in judicial sentencing, However, such as sentences. by mandatory providing once the has for a legislature presribed punishment offense it cannot condition the particular imposition the sentence the court upon prior approval Section 5—5—3 of the Unified Code prosecutor. Corrections Rev. Stat. par. 5—3) the various sentences that provides imposed upon convicted of an offense. Death is one of the person sentences if a is convicted of murder. If provided person condition the of the death legislature may imposition then the upon prior approval prosecutor, could condition the legislature imposition authorized the statute dispositions prior consent of the states: prosecutor. majority opinion “At most the role of the State’s under section Attorney 9—1 could be characterized as his consent before requiring the court with the for death sen may proceed procedure This, course, at means tencing.” (77 function of the death sentence judicial can imposing carried out unless the State’s Attorney permits to be If the conducted. can sentencing hearing legislature function, so condition the of this it performance that, State, could also “where provide requested by *16 550 whether or not to determine
court shall conduct a an Such be sentenced a defendant probation.” may restriction could undesirable conceivably imposed by to the by expressed response indignation legislature of a court in the media at an decision unpopular granting of such a case. The in a possibility probation particular could curtailment of the courts’ severely hamper powers function in a manner of the judicial performance VI, 1, constitution. section of our mandated article by on a limitation The prosecutor’s powers separation three recent function is illustrated exercise of a by judicial State, In that Court. California decisions of the Supreme the California of its constitutional reason history, held: Court Supreme has been
“When the decision prosecute made, or to which leads acquittal process ” in nature. judicial fundamentally 89, 94,473 3 Cal. 3d v. Tenorio (People (1970), 249, 993, 996, 89 Cal. 252.) P.2d Rptr. Tenorio, court, held that a statutory provision certain under to dismiss charges
denying judge right Code without Health and prior approval Safety to vest in the an constituted prose- attempt prosecutor of an the exercise admittedly to foreclose cutor v. officer. an judicial appropriate judicial power 996, 993, 89 89, 94, 473 3d Tenorio Cal. P.2d (1970), 249, Cal. 252. Rptr. 119, 5 Cal. v. Court Esteybar Municipal (1971), Court of 95 Cal. Supreme P.2d Rptr. stated:
California again be vested “Since a of a exercise judicial to foreclose the authority his we have concluded requiring power, offense is a misde- that an to determine consent doctrine of meanor violates separation Municipal Court ***.” (Esteybar powers 119, 122,485 1140, 1141, 5 Cal. P.2d 95 Cal. Rptr. III,
Article section section of the California (now 3), Constitution, II, that of similar to article language Illinois Constitution provided:
“The are powers government legislative, state executive, judicial. Persons with the exercise charged power may one not exercise either of others except permitted by this Constitution.” Esteybar The California court held in that the exercise of function cannot be conditioned upon approval *17 of either the or executive the branches of legislative case, In as in our it was Esteybar, contended government. the State that the discretion under by attack prosecutor’s was but an extension of the discretion prosecutorial in exercised what crime is to be or if determining charged crime is be to The court stated any that the charged. overlooks the fact that the court’s determination argument the district to decision attorney’s prosecute. Citing follows Tenorio, the court the above quoted that quoted language the which leads to or process is acquittal sentencing in nature. fundamentally judicial v. Superior 59, Court Cal. P.2d 113 Cal. involved the of a Rptr. validity statute similar to that this considered court in Phillips. That statute to the district the to veto gave attorney a decision of the trial to order a defendant who was judge with a narcotic charged offense to diverted into a treatment pretrial Court of Cali- program. Supreme fornia, Tenorio, on Esteybar and held that the relying awas disposition function and the judicial charge statute violated the separation powers provision California Constitution.
The three California cases cited demonstrate that func- wherever the line between executive judicial drawn, tions it is constitutionally may impermissible exercise the to authorize the prosecutor legislature the with or foreclose function or to interfere judicial need not in this We exercise of a judicial power. proper function ceases case at what decide point prosecutorial commences. Wherever that and the function judicial be, have established decisions of this court the previous sentence, determination -that of a following imposition function. attempt Any guilt, purely judicial to confer authority upon prosecutor legislature function sentencing exercise part with, limit, or to condition interfere authority function request by exercise is a of the doctrine of violation separation prosecutor II, of the Illinois as contained article powers of 1970. Constitution dissent, I also consider noted
As early the unlimited discretion vesting the court to conduct a death request to the constitutes a violation amendment eighth Federal Constitution. 238, 33 Ed.
Furman v. 408 U. S. L. Georgia (1972), S. Ct. rendered invalid most State death Furman, Court had statutes. Prior Supreme discretion in offended intimated case, Constitution. two justices (Brennan *18 that amendment concluded prohibited Marshall) eighth Three were of the death justices penalty. imposition se unconstitu the death per hold penalty unwilling invalid, hold statute However, voted to tional. they that unguided discretionary sentencing, concluding standards, violated the amend defined eighth legislatively discretion found that such permitted ment. unguided They and freakishly. to be wantonly the death penalty in the judgment supporting variety opinions in order what was confusion as to required Furman caused with the in accord eighth death penalty impose
553 586, amendment. Lockett v. Ohio 438 U.S. (See (1978), 599, 2954, 973, 986, 57 L. Ed. 98 2d S. Ct. Nonetheless, States reenacted death statutes many penalty what to be the containing they perceived necessary the freakish and discrimi procedural against safeguards of the In this our State natory imposition penalty. a death statute legislature responded by enacting penalty 1973, 38, Rev. Stat. which this par. 8—1A), court held invalid as our State both Constitution violating and the Federal Constitution. ex rel. Rice v. 61 Ill. 353. Cunningham 2d (1975), Ohio, In Lockett v. Mr. Chief after Burger, Justice Furman, in summarizing holdings opinions on decisions, commented -Furman post noting court had considered the amendment issues eighth posed five of the -Furman death statutes. post (Gregg v. 153, Georgia 859, U.S. 49 L. 428 Ed. S. 2d (1976), 2909; Ct. 242, Florida 428 U.S. 49 L. (1976), Proffitt 2960; Ed. 913, 96 S. 2d Ct. v. Texas (1976), Jurek 262, 2950; U.S. 49 L. Ed. S. 96 Ct. Woodson v. 2d North Carolina U.S. 49 L. Ed. (1976), 2978; 96 S. Ct. Roberts v. Louisiana 49 L. Ed. 96 S. Ct. A the court 3001.) majority first three of the cited cases found the statutes valid, while a found court majority of the statutes in the two last cited cases did not provisions amendment In these comply eighth requirements. cases, four took the justices all five of the position statutes with the Constitution. complied Two justices, Furman, held that the se per violated the amendment. The eighth of each of the five disposition cases varied to the votes of of three according plurality who delivered a in each justices joint case opinion of the statutes of upholding constitutionality Georgia, Florida and Texas and the statutes in North holding Thus, Carolina and Louisiana invalid. Chief Justice, *19 554 Ohio, in Lockett v. to the of
his looked opinion reasoning filed in these five cases. opinions plurality not, have that he from this Court Noting signals “[t] v. Ohio however, to been (Lockett always easy decipher” 586, 602, 973, 988, Ed. 438 U.S. 57 L. 98 S. 2d (1978), he to reconcile Ct. attempted previously 2963), the States the clearest views in order give differing court that could provide. guidance Lockett the nest of cases distilled from opinion is a difference between the there idea qualitative in cases. Al- penalty punishment noncapital how much free decide remain though legislatures in in jury discretion should judge reposed cases, are satisfied qualitative noncapital “[w]e other calls for a difference death and between penalties the death sentence is when of reliability degree greater Ohio 586, 604, Lockett v. U.S. 57 438 (1978), imposed.” 973, 989, Ed. S. Ct. L. 2964. 2d is from other Death different punishments, kind of is, fact, a different but it punishment. degree, of of its of the life one The action the State taking other from form differs any citizens dramatically of view of the action. From the State point legitimate its defendant, different in both is finality penalty It therefore vital its importance severity. be, be, and the death appear decision impose or emotion. (Gardner reason rather than based on caprice 349, 357-58, L. Ed. v. Florida (1977), 430 U.S. difference has 401-02, This drastic 97 S. Ct. that “in Court conclude capital caused Supreme for humanity underlying the fundamental cases respect consideration Amendment [citation], requires Eighth and the the individual offender and record of character offense as a constitu circumstances particular inflicting part process tionally indispensable v. North Carolina Woodson of death.” 280, 304, 944, 961, 49 L. Ed. 96 S. Ct. 2991.
In the in five the considering plurality opinions above, cited cases it can be concluded that post-Furman the se death not violative of the per penalty eighth amendment, but the outlined in the statutes procedures for be such as to imposition penalty may permit such an that the statute imposition arbitrary penalty is rendered invalid as violative amendment eighth rights. Furman, that, The cases reasoned sen- comply should not create a substantial risk procedures that tencing the death will be inflicted an in or penalty arbitrary view, manner. In the Furman capricious does plurality’s that all discretion be eliminated but require sentencing that it be directed and limited so that only the death would in be a more consistent penalty imposed manner, rational and so there be that would a meaningful basis for the cases in which it is distinguishing imposed from those in which it is Lockett v. not. Ohio (See 586, 600-01, 438 U.S. Ed. 973, 987-88, 57 L. S. 98 Ct. and drastic nature of 2963.) unique light the death this court must scrutinize the carefully vested in the discretionary authority prosecutor by of section of the Criminal Code of provisions 1(d) 9— 1961, which provides: State, requested by “Where court shall conduct separate sentencing proceeding ***.” Ill. Rev. Stat. 38, par. 1(d). It should be noted in that the statutes of Georgia, Texas, Florida and Court in the approved by Supreme above, cases cited no discretion was vested in the prose- cutor as to whether not a would be held to hearing determine if should The imposed. statutes such the event of provided hearing our conviction felonies. Under statute a specified is neither after certain convic- sentencing required to when to seek the directed as tions, nor is the prosecutor discretion, has unlimited The death penalty. prosecutor directives, in the created per unaided by legislatively sentencing formance indispensable part - to be This would clearly contrary function. appear in our case its Furman and majority opinion progeny. v. was rejected Gregg that a similar states argument case, of that joined Georgia, opinions noting White, Powell, Stevens, Stewart, Rehnquist, Mr. Justices the view require and the Chief Justice, “express are not body applicable ments sentencing imposed at Any to decisions (77 prosecutor.” has no in Gregg Georgia application such expression in that case here, under the statute because I maintain function. in the did not participate if a sentenc can if a death sentence only *21 the exer the has been requested by prosecutor, ing hearing or not of discretion in requesting cise him requesting by and freakish lead to the can arbitrary appli such hearing the which was condemned by of the cation penalty the this discretion by The exercise of Court. Supreme the therefore be require must governed prosecutor the the Supreme body ments upon sentencing Court. find seems to the adequate majority opinion
Although discretion of the direct exercise of the the guidelines where these are found it does not State’s Attorney, specify the states: “Unless are. The or what they opinion simply will be that there State’s believes testimony Attorney elements for the that the which will requisite jury persuade exist, he is a death sentence request hearing.” unlikely The I cannot at With this statement agree. 543.) (77 factors, in section contains both statute aggravating At no factors, in section 1(c). and mitigating 1(b), 9— 9— the factors are for that these state does the statute place are these factors statute In the of the prosecutor. guidance of the court the consideration to be for stated specifically and in whether the death should jury determining penalty is It obvious that were not intended they imposed. be for the some of the because guidance prosecutor factors of not section become mitigating 1(c) may 9— known until the has been held. It penalty the true some decision prosecutors, making whether or not will request sentencing hearing, consider both and offender, the offense the to the extent that such It is information available. much more likely, however, that if the considered, of factors are will consider of factors only aggravating no consideration bewill 1(b), given the individual offender in the decision. In non- making cases rests on sound capital individualizing penalty and does not assume constitutional sentencing policy However, dimensions. because of the difference qualitative of the death amendment penalty, eighth requires offense, consideration of but also only offender —“consideration of the character and record of the individual offender the circumstances offense as a particular constitutionally indispensable part process death.” inflicting v. North Carolina (Woodson
L. Ed. 96 S. Ct. prosecutor, is neces- sentencing requesting hearing, involved function; is, sarily process of death. inflicting discretion, the effect of the appraising prosecutor’s it must be remembered that the statute confers this individual, discretion not one but the State’s upon *22 of each counties in this State. Attorney In view of the absence of directives to the statutory prosecutor, each State’s is free to establish his own Attorney policy to when will Some sentencing hearings requested. look to sections for prosecutors and may 1(b) 1(c) 9— 9— Others consider some of listed guidance. factors may and while others controlling disregard remaining, discretion will these sections. Such unguided totally ignore lead to an application arbitrary capricious inevitably Furman. death that condemned similar penalty of- this statute some doubt that under There can no death for the candidates will be chosen as penalty fenders similar with while other offenders quali- one prosecutor, but a result of not as mercy, will be fications spared, due to the law uneven because application will There to the direction prosecutor. lack of statutory will be no reasonable where there be cases inevitably on one whom basis for the distinction between penalty who is over. and another of death passed (See imposed 586, 600-01, 57 L. Ed. v. Ohio Lockett 438 U.S. no 973, 987-88, 98 S. There will be Ct. for the distinction between the two reasonable explanation that, convicted offenders because except personal one belief or office of one State’s Attorney, policy was a candidate for the offender chosen as penalty death, whereas reasons another similar personal an offender was spared. prosecutor, equally culpable under risk of action arbitrary capricious the case is most demonstrated vividly 1(d) Greer, which was Docket No. only before this court. In that case recently argued and the penalty hearing, requested was the defendant. At oral argu- penalty upon court, General confessed ment before this the Attorney in which the death error this is not a case and stated Furthermore, court was should be imposed. who the State’s informed oral Attorney argument his no in office and that the case is had longer prosecuted case General. Greer’s successor Attorney agrees the lack shows that because adequate clearly the decision request request guidelines will, to a depend degree, great Without legislatively whim of individual prosecutor. *23 the differences in enacted though prosecutors, guidelines, beliefs, lead to will be sincere in their inevitably they this court is and action. Fortunately, arbitrary capricious unauthorized in a to correct an imposition position rendered However, statute well be may death penalty. the fact that in its and by arbitrary application capricious discretion, in the exercise unguided many prosecutors, other whereas a prose- will hearing, request facts, such a cutors, will faced with the same set request and the death imposed. hearing, Mr. stated: Stewart Georgia, Gregg Justice of the death “Because of the uniqueness penalty, could not be under Furman held that it 'that created a substantial sentencing procedures risk it be inflicted in an and that would arbitrary ***. manner capricious
[***] where discretion is Furman mandates that a on a matter so body grave afforded of whether a life determination human be taken discretion should or must be spared, directed and limited so as to minimize suitably the risk of and ac- wholly arbitrary capricious tion.” v. Georgia (Emphasis added.) (Gregg 153, 188-89, L. Ed. 96 S. Ct. Our statute contains no directions or to mini- guidelines the risk of mize action wholly arbitrary capricious by a either prosecutor requesting sentencing hearing in not belief of requesting sentencing hearing. vague the State’s will not majority Attorney request will such unless he believes that there be evidence hearing which will for a that the elements persuade requisite jury belief, death sentence exist is Such although meaningless. the risk sincere, will not “minimize prosecutor may action” unless wholly arbitrary capricious aided, directed of discretion exercise and limited legislature. by guidelines prescribed in the statute which I other infirmities There are of these involves The most serious consider significant. that a will be lack of notice to a defendant penalty hearing defendant, that the at held. There is no requirement to or during stage proceeding prior *24 innocence, notified that the death his be determine guilt If the accused is not notified will be requested. penalty seek the death to trial that the State will ultimately prior sentence, of the factor and if he is not advised aggravating will the accused and which the State or factors rely, upon decisions to make his counsel will be unable intelligent his Such fundamental defense. questions regard trial or the should stand before whether the accused jury own behalf or court, whether he should in his testify fact, should, in for a whether he plea guilty, bargain well be dictated severity may potential penalty. the voir the accused will know
It is that during argued whether or not the death dire examination jury is allowed a defendant will be since sought penalty case. Rev. Stat. in a (Ill. capital peremptory challenges A case is one capital 4(e).) par. 115— but need not which the death necessarily, may, penalty v. Elrod ex rel. Hemingway inflicted. (People the death for which crime penalty Murder 2d 74.) is allowed that an accused inflicted. The fact uncertain and is a unsatisfactory very peremptory challeges will be indicator of what sought, considering based thereon. decisions must be fundamental defense above, I hold that would stated For the reasons of 1961 Rev. of the Criminal Code section 1(d) 9— 1977, ch. is unconstitutional Stat. 1(d)) par. 9— held thereunder. could be no valid sentencing hearing that section confers summary, prosecutor, executive branch of our government, authority exercise, interfere with and limit the function II, violation of article section (a power), the Illinois Constitution of 1970. I would also hold that violates the Federal 1(d) Constitution eighth amendment for the requirements the death imposition as announced in the decisions of the Supreme Also, Court cited herein. I would hold that by failing that notice be require the death given penalty hearing will be the statute denies to a requested, defendant a fundamental element of due process.
GOLDENHERSH, CLARK, C.J., J., join dissent.