Original petition for mandamus.
MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
An information was filed in the circuit court of Cook County charging Ronald E. Brown with the murder, aggravated kidnapping, and armed robbery of Charles H. McGee. After a bench trial before William Cousins, Jr., a judge of that court, the defendant was found guilty on all charges. The People requested that a jury be convened to conduct a proceeding to determine whether the death penalty should be imposed on the conviction for murder, as provided by section 9-1(d) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(d)). In response to a motion by the defendant, the trial court, on January 29, 1979, denied the request and entered an order holding section 9-1(d) unconstitutional.
The State filed a motion before us for leave to file a petition for a writ of mandamus directing the respondent Cousins to expunge his order and to conduct a sentencing proceeding, and the motion was allowed.
The public defender of Cook County and the Cook County Bar Association were each granted leave to file briefs amicus curiae. Their briefs support the respondents.
The record of the trial court proceedings filed in the present action is not complete. It includes the criminal information and the order holding section 9-1(d) invalid, but does not contain any pretrial or post-trial motions or the rulings made, the testimony given at the trial, the judgments of conviction, or the petitioner's request for a sentencing hearing.
The basis for the trial court's holding section 9-1(d) invalid, as stated in its opinion, was that the section "vests the prosecution with unlimited discretion to trigger death sentence proceedings," and thereby permits the death penalty to be "wantonly and freakishly imposed." For this reason the section was viewed as contravening the due process clause, the prohibition of cruel and unusual punishments found in the eighth amendment to the Constitution of the United States and the separation of powers provision of article II, section 1, of the Constitution of Illinois.
"Where requested by the State, the court shall conduct a separate sentencing proceeding to determine the existence of factors set forth in Subsection (b) and to consider any aggravating or mitigating factors as indicated in Subsection (c). The proceeding shall be conducted:
1. before the jury that determined the defendant's guilt; or
2. before a jury impanelled for the purpose of the proceeding if:
A. the defendant was convicted upon a plea of guilty; or
B. the defendant was convicted after a trial before the court sitting without a jury; or
C. the court for good cause shown discharges the jury that determined the defendant's guilt; or
3. before the court alone if the defendant waives a jury for the separate proceeding."
Since there was a bench trial in this case, we are concerned here only with section 9-1(d)(2)(B) and section 9-1(d)(3), the latter being applicable if the defendant should waive a jury.
Section 9-1(d) is part of an amendatory act which became effective in 1977 (1977 Ill. Laws 70, sec. 1), following this court's holding in People ex rel. Rice v. Cunningham (1975), 61 Ill.2d 353, which invalidated earlier provisions relating to the imposition of the death penalty (Ill. Rev. Stat. 1973, ch. 38, par. 1005-8-1A).
Section 9-1 establishes a separate sentencing proceeding which must be employed before a death sentence may be imposed. For present purposes it is not necessary to set out its provisions in detail. In general, section 9-1(d) provides that the judge or jury, as the case may be, shall consider evidence of aggravating factors, which are enumerated in section 9-1(b), and mitigating factors, five of which are enumerated in section 9-1(c). Subsections (g) and (h) provide that the death penalty may be imposed only if the jury or the judge, as the case may be, finds that there were one or more aggravating factors and no mitigating factors sufficient to preclude imposition of a sentence of death.
We turn first to the claim that section 9-1(d) violates the separation of powers provision of the Constitution of Illinois in that the prosecutor is given power to exercise a part of the sentencing process, which should properly be a judicial function. It is this theory which appears to form the basis of the trial court's ruling, and it is advanced here by one of the amici, although not by the respondents, and although it was not included in the defendant's motion before the respondent Cousins.
The prosecutor of course does not himself impose the death sentence, nor can he require that it be imposed, for the judge or sentencing jury may conclude that the statutory conditions specified for the imposition of the death penalty have not been met. The present argument focuses rather on the fact that no death sentence may be imposed at all without a sentencing proceeding, and that such a proceeding cannot take place unless it is requested by the prosecutor, in which case it becomes mandatory. If the prosecutor fails to request a sentencing hearing, he thus has precluded the imposition of a death sentence, and in that sense, it is argued, he has participated in the sentencing process.
We find no authority in the decisions of this court to support that theory, and we view it as ignoring the role of the State's Attorney as counsel for one of the litigants, the People. There are countless occasions in the trial of a criminal proceeding where a judicial ruling that is adverse to the defendant and may affect the ultimate outcome of the prosecution will not, and ordinarily cannot, be made unless a request for the ruling has been made by the prosecution. Examples range from the challenge of jurors to the tendering of instructions. Judicial rulings sua sponte are the exception, and it has never been supposed that in failing to make the challenge or tender the instruction the prosecutor was usurping a judicial function.
People v. Bombacino (1972), 51 Ill.2d 17, People v. Handley (1972), 51 Ill.2d 229, and People v. Sprinkle (1974), 56 Ill.2d 257, cert. denied (1974), 417 U.S. 935, 41 L.Ed.2d 239, 94 S.Ct. 2650, embody a view of the separation of powers provision of the Constitution opposed to that urged here. Bombacino involved a provision of the Juvenile Court Act (Ill. Rev. Stat. 1967, ch. 37, par. 702-7(3)) which authorized the State's Attorney to transfer a delinquency proceeding against a juvenile to a criminal court and thus permit the juvenile to be proceeded against as an adult under the provisions of the Criminal Code of 1961, in this case on a charge of homicide. By giving the State's Attorney the power to determine in which court the juvenile should be prosecuted, it gave him by the same token the power to increase the severity of the sanction which might be visited upon the defendant for the offense with which he was charged.
The State's Attorney's decision was subject to being overruled by the chief judge of the circuit, but only in the event that the juvenile court judge objected to the removal. In Bombacino no such objection had been made. The defendant contended that due process required the juvenile court judge to hold a hearing on the removal petition. This court, contrasting the Illinois act with a District of Columbia statute dealing with the same subject matter, rejected that claim in the following language:
"The statute involved in Kent, however, vested the discretion to waive jurisdiction over the minor in the juvenile court. The Illinois statute does not give the same discretion to the court. Rather the State's Attorney in Illinois is vested with the discretion to determine whether or not to proceed criminally against a juvenile offender, subject only to the right of the judge presiding in the juvenile division to object, in which event the matter is referred to the chief judge of the circuit court for his decision." (51 Ill.2d 17, 20.)
While the constitutional provision immediately involved in Bombacino was due process rather than separation of powers, the decision necessarily presupposes that the determination made by the prosecutor is not to be regarded as a judicial act.
The removal of a juvenile from juvenile court for trial in criminal court, in this case on a charge of murder, was also the subject of People v. Handley. Among other arguments made against the constitutionality of the section of the Juvenile Court Act authorizing this procedure, one contention of the defendant, as described by the court, was that "vesting discretion in the State's Attorney to decide whether or not to remove a juvenile from the jurisdiction of the juvenile court without providing any standards to limit his discretion deprives juvenile defendants of due process and equal protection under the law." (51 Ill.2d 229, 232.) Following Bombacino, the court in Handley commented on this claim as follows:
"Historically, the office of the State's Attorney has involved the exercise of a large measure of discretion in the many areas in which State's Attorneys must act in the performance of their duties in the administration of justice. We do not find it constitutionally objectionable that the legislature has seen fit to grant discretion to the State's Attorney in removal matters under the Juvenile Court Act, particularly in view of the fact that the purposes of the Act as set forth in section 1-2 of the Act (Ill. Rev. Stat. 1969, ch. 37, par. 701-2) * * *. We further conclude, as we did in Bombacino, that the due process hearing prescribed in Kent is not required at this stage of the proceedings in the juvenile court." 51 Ill.2d 229, 233.
Bombacino and Handley were each cited in People v. Sprinkle, where the conviction of two juveniles indicted for murder and deviate sexual assault was sustained against the same constitutional objection. This court stated:
"We hold, therefore, that the Illinois legislature may reasonably vest in the State's Attorney the discretion of deciding whether the juvenile shall be prosecuted as an adult or juvenile offender. The guaranty of hearing found in the due-process clause of the fifth amendment to the United States Constitution had traditionally been limited to judicial and quasi-judicial proceedings. It has never been held applicable to the process of prosecutorial ...