¶1dissenting:
¶2The murder for which defendant was convicted took place over 15 years ago. During the decade and a half between then and now, the State has repeatedly attempted to have defendant sentenced to death. Its efforts have repeatedly failed. Although death sentences have been imposed, our court has had to set them aside based on trial error. People v. Simms, 121 Ill. 2d 259 (1988) (Simms I); People v. Simms, 143 Ill. 2d 154 (1991) (Simms II). Depending on what the evidentiary hearing discloses on remand, our court may have to do so again. If the State’s witnesses lied, as defendant alleges, defendant’s present death sentence is invalid and cannot be allowed to stand.
¶3The process which has brought this case to where it is today has been extraordinarily protracted. Defendant was first convicted and sentenced to death in late 1985. He was placed on death row and remains there today, a decade and a half later. By the standards in effect when the United States Constitution was ratified, such a delay would have been rare, if not unheard of. See Lackey v. Texas, 514 U.S. 1045, 131 L. Ed. 2d 304, 115 S. Ct. 1421 (1995) (Stevens, J., mem. op. on denial of cert.); Elledge v. Florida, 525 U.S. 944, 142 L. Ed. 2d 303, 119 S. Ct. 366 (1998) (Breyer, J., dissenting). Even by contemporary norms, the delay is exceptional. According to the most recent bulletin published by the United States Department of Justice’s Bureau of Justice Statistics, the average elapsed time from sentence to execution for defendants of all races between 1977 and 1998 was 113 months. U.S. Department of Justice, Bureau of Justice Statistics Bulletin, Capital Punishment 1998, at 12 (December 1999). With a death row tenure of approximately 175 months, the defendant in this case has been facing the executioner for nearly 50% longer.
¶4The courts of the British Commonwealth have ruled that imposition of capital punishment would be cruel and unusual punishment where the defendants have sat on death row for only a fraction of the time that this defendant has. Similarly, the European Court of Human Rights has held that holding an inmate on death row for six to eight years would contravene article 3 of the European Convention on Human Rights, which provides that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Chambers v. Bowesox, 157 F.3d 560, 570 (8th Cir. 1998).
¶5I am unpersuaded by the suggestion that United States courts must tolerate greater delays than the courts of Europe because the American judicial system is more concerned with addressing meritorious claims and achieving correct results. In Illinois at least, the system for handling capital offenses has become notoriously unreliable. After matters degenerated to the point where our court no longer felt any compunction about illegally dismissing a death row inmate’s appeal and having him summarily put to death (People v. Kokoraleis, M.R. 15833, Official Reports Advance Sheet No. 11, at 4-7 (June 2, 1999)), the Governor was forced to invoke his constitutional authority to grant reprieves (Ill. Const. 1970, art. V, § 12) and declared an indefinite moratorium on future executions. The moratorium remains in effect today.
¶6I am likewise unpersuaded by the argument that capital defendants must suffer inordinate delays because it is they who initiate the legal proceedings which postpone their executions. Such an argument may carry some force where a defendant’s claims are frivolous and initiated solely for purposes of delay, but few, if any, of the capital cases coming before us are subject to that criticism. In nearly every instance where an execution remains to be carried out after a decade or more, the additional litigation has been necessary to address errors occasioned by the prosecution or attributable to incompetent representation. It has not been the fault of the defendant.
¶7So long as double jeopardy principles are not violated, the State must normally be given the opportunity to correct its mistakes and retry a defendant whose trial was found to be flawed. There must be a point, however, at which the court steps in and says enough is enough. Beyond a certain number of years and a certain number of failed attempts by the State to secure a constitutionally valid sentence of death, the litigation becomes a form of torture in and of itself. It is as if the State were holding a defective pistol to the defendant’s head day and night for years on end and the weapon kept misfiring. It may eventually go off, but then again, it may not, and the defendant has no way to be sure.
¶8As the United States Supreme Court recognized more than a century ago, the suffering inherent in a prolonged and uncertain wait for execution is undeniable. See In re Medley, 134 U.S. 160, 172, 33 L. Ed. 835, 840, 10 S. Ct. 384, 388 (1890) (“when a prisoner sentenced by a court to death is confined in the penitentiary awaiting the execution of the sentence, one of the most horrible feelings to which he can be subjected during that time is the uncertainty during the whole of it”). It is a dehumanizing experience known to precipitate mental illness and even suicide. See Knight v. Florida, 528 U.S. 990, 994, 145 L. Ed. 2d 370, 373, 120 S. Ct. 459, 462 (1999) (Breyer, J., dissenting); Lackey, 514 U.S. at 1045-46, 131 L. Ed. 2d at 305, 115 S. Ct. at 1421-22 (Stevens, J., mem. op. on denial of cert.). While some may find this just and fitting, I consider it to be inconsistent with “the evolving standards of decency” which inform eighth amendment jurisprudence. See Trop v. Dulles, 356 U.S. 86, 101, 2 L. Ed. 2d 630, 642, 78 S. Ct. 590, 598 (1958).
¶9In my view, any delay of the magnitude present here caused by trial error for which defendant is not responsible raises compelling eighth amendment concerns. What makes this case particularly abhorrent, and what sets it apart from Chambers v. Bowesox, 157 F.3d 560 (8th Cir. 1998), cited by the majority, is the possibility of deliberate wrongdoing by the government. If defendant’s charges are true, as we presume them to be for purposes of the present proceeding, the State responded to its previous failures to secure a valid death sentence by knowingly employing perjured testimony. By so doing, the prosecution and the prosecution alone condemned defendant to untold additional time on death row. At a minimum, additional .time will be needed to conduct the hearing ordered by our court today. If defendant’s allegations prove meritorious, the entire sentencing process will have to begin again. Defendant’s case will then be no closer to resolution that it was when he was first sentenced in 1985.
¶10No reasonable claim can be made that such a delay is an inherent and inevitable byproduct of our capital justice system. Nothing in our system of capital punishment requires the knowing use of perjured testimony by the State. That decision was the responsibility of the State and the State alone. Its unilateral act of. wrongdoing cannot be allowed to serve as the predicate for exacerbating defendant’s death watch.
¶11With each attempt by the State to secure defendant’s death, the integrity of the process degrades. The passage of time brings an ever-greater likelihood that witnesses will disappear, memories will fade, and evidence will be lost. Retribution and deterrence, the two principal social purposes of capital punishment, carry less and less force. See Lackey, 514 U.S. at 1045-46, 131 L. Ed. 2d at 304-05, 115 S. Ct. at 1421-22 (Stevens, J., mem. op. on denial of cert.). Eventually, “an execution may well cease to serve the legitimate penological purposes that otherwise provide a necessary justification for the death penalty.” Elledge, 525 U.S. at 945, 142 L. Ed. 2d at 303, 119 S. Ct. at 367 (Breyer, J., dissenting). By the time these proceedings are concluded, that point will have been reached here.
¶12I continue to adhere to the view set forth in my partial concurrence and partial dissent in People v. Bull, 185 Ill. 2d 179 (1998), that the Illinois death penalty law violates the eighth and fourteenth amendments to the United States Constitution (U.S. Const., amends. VIII, XTV) and article I, section 2, of the Illinois Constitution (Ill. Const. 1970, art. I, § 2). The result in every death case in Illinois is suspect, and no sentence of death should be allowed to stand. People v. Davis, 185 Ill. 2d 317, 353 (1998) (Harrison, J., concurring in part and dissenting in part). Even if the law were not otherwise invalid, however, I would nevertheless hold, for the reasons set forth above, that enforcement of the death penalty under the facts of this case would violate the eighth amendment’s proscription against cruel and unusual punishment. Defendant’s sentence of death should therefore be vacated, and the matter should be remanded for imposition of a term of imprisonment. Ill. Rev. Stat. 1985, ch. 38, par. 9 — l(j).
¶13Even if the death penalty were constitutional and could be applied here without violating the eighth amendment, I still could not concur in this court’s judgment. Although my colleagues are correct in concluding that the circuit court committed reversible error when it dismissed defendant’s post-conviction claims of perjury without an evidentiary hearing, I believe that this case presents an even more fundamental problem. Under the constitution, it is “impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” Caldwell v. Mississippi, 472 U.S. 320, 328-29, 86 L. Ed. 2d 231, 239, 105 S. Ct. 2633, 2639 (1985). This is precisely what happened here.
¶14A majority of the jurors in the case before us were misled regarding their responsibility for defendant’s death sentence. As the majority points out, the trial judge told them during voir dire that their role was to “recommend” whether defendant should be sentenced to death. Any reasonable juror would understand this instruction to mean that the jury’s decision to impose the death sentence would not be binding and that ultimate responsibility for imposing capital punishment would rest with the trial judge. Such is not the case. Under section 9 — 1(g) of the Criminal Code of 1961, when a capital sentencing jury returns a sentence of death, the trial court is required to follow the decision of the jury and impose a death sentence. Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1(g).
¶15Because responsibility for imposing the death penalty rests solely with the jury, any implication that the responsibility is shared by, or delegated to, the trial court is improper. People v. Johnson, 146 Ill. 2d 109, 147 (1991). The majority’s attempt to mollify the effects of the trial judge’s remarks is unpersuasive. Rather than revealing statements taken out of context, the quoted colloquy between the trial judge and juror Slager corroborates defendant’s claim.
¶16Defendant’s claim is further supported by the affidavit of the defense investigator, who stated under oath that juror Jekkel had told him that she believed that she was merely making a recommendation to the trial judge regarding imposition of the death penalty. Contrary to the majority’s analysis, the investigator’s statements do not constitute an improper attempt to impeach the jury’s verdict. Rather, they provide direct corroboration that the harm addressed by Caldwell v. Mississippi was present in this case.
¶17Defendant’s attorneys were ineffective for failing to raise this claim. At a minimum, the matter should therefore be remanded to the trial court for a new sentencing hearing. Accordingly, I respectfully dissent.