at the sentencing hearing. People v. Johnson, 114 Ill. 2d 170, 207, 499 N.E.2d 1355, 1372, 102 Ill. Dec. 342 (1986), cert. denied, 480 U.S. 951, 107 S. Ct. 1618, 94 L. Ed. 2d 802 (1987).
A. Williams' Challenges to the Aggravation/Mitigation Phase
In Williams' view, the following standards govern the aggravation/mitigation phase of the capital sentencing hearing: the jury must impose a death sentence even if one juror believes the aggravating factors are insufficient to support the death penalty; the defendant bears the burden of overcoming a presumption that death is the appropriate punishment; the jury deliberates under vague guidelines; and appellate review is inadequate to assure that the jury did not consider impermissible aggravating factors. Williams contends that by virtue of these features, the Illinois sentencing scheme prevents the jury from making the individualized determination required by the Eighth Amendment and creates an impermissible risk that the death sentence is imposed arbitrarily and capriciously.
The Supreme Court's primary concern in reviewing a capital sentencing scheme under the Eighth Amendment is that the scheme satisfactorily limits the sentencing authority's discretion in order to assure that the death penalty is not imposed arbitrarily and capriciously. Godfrey v. Georgia, 446 U.S. 420, 428, 100 S. Ct. 1759, 1764-65, 64 L. Ed. 2d 398 (1980); Gregg v. Georgia, 428 U.S. 153, 189, 96 S. Ct. 2909, 2932, 49 L. Ed. 2d 859 (1976). The state must provide a "meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not." Furman, 408 U.S. at 313, 92 S. Ct. at 2764 (White, J., concurring). However, that discretion cannot be so limited as to preclude the sentencing authority from making an individualized determination in each case; that is, the scheme must allow the sentencer to consider, " as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death," Lockett, 438 U.S. at 604, 98 S. Ct. at 2965, and to give to each mitigating factor any weight and effect that it deems appropriate. Franklin v. Lynaugh, 487 U.S. 164, 108 S. Ct. 2320 at 2333, 101 L. Ed. 2d 155 (1988) (O'Connor, J., concurring); Lockett, 438 U.S. at 605, 98 S. Ct. at 2965. See also Hitchcock v. Dugger, 481 U.S. 393, 107 S. Ct. 1821, 95 L. Ed. 2d 347 (1987).
There is necessarily some tension between the demand for guidelines limiting the sentencer's discretion on the one hand and the need to allow the sentencer unlimited discretion in hearing and assessing all relevant mitigating factors on the other. Franklin, 108 S. Ct. at 2331. See also Penry, 109 S. Ct. at 2941-44. A scheme may admirably satisfy one dictate but run afoul of the other. For example, a scheme that mandates a death sentence either for a specific crime, see, e.g., Roberts v. Louisiana, 428 U.S. 325, 96 S. Ct. 3001, 49 L. Ed. 2d 974 (1976), or when the sentencer finds the existence of specified aggravating factors and the absence of specified mitigating circumstances, see, e.g., Lockett, while surely reigning in jury discretion, impermissibly limits the jury's ability to consider the moral culpability of the defendant and the circumstances of the crime. The Supreme Court has declined to require that any specific feature accompany all capital sentencing schemes and instead has left it to each state to fashion a scheme that serves its own criminal justice interests while properly accommodating these Eighth Amendment concerns. Accordingly, in assessing the constitutionality of a particular capital sentencing scheme, we are admonished to view the scheme as a whole in order to assure that it neither creates an impermissible risk that the death sentence will be arbitrarily imposed nor diminishes the jury's power to spare the defendant's life on any mitigating factor. Gregg, 428 U.S. at 195, 96 S. Ct. at 2935.
We find that the Illinois death penalty statute properly guides the jury's discretion without preventing its consideration of any mitigating factors. At the outset, the eligibility phase narrows the imposition of the death penalty to those cases in which one of seven specified aggravating factors accompanied the murder. In the second phase, the jury considers all aggravating and mitigating factors. The wide range of potential nonstatutory aggravating factors that the prosecution may present is constitutionally permissible:
Statutory aggravating circumstances play a constitutionally necessary function at the stage of legislative definition: they circumscribe the class of persons eligible for the death penalty. But the Constitution does not require the jury to ignore other possible aggravating factors in the process of selecting, from among that class, those defendants who will actually be sentenced to death. What is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime.
Zant v. Stephens, 462 U.S. 862, 878-79, 103 S. Ct. 2733, 2743-44, 77 L. Ed. 2d 235 (1983). Similarly, the defendant may present any evidence or argument as to the defendant's moral culpability or the circumstances of the crime that may militate against the death penalty.
Williams' challenges for the most part read features into the Illinois death penalty statute that simply are not there. Our consideration of these challenges must be guided by the recent decision of Seventh Circuit in Silagy v. Peters, 905 F.2d 986 (7th Cir. 1990), which has ruled upon several of Williams' claims. First, the court in Silagy specifically rejected the claim that the Illinois statutory scheme imposes a burden on the defendant to overcome a presumption that death is the appropriate sentence and thereby obstructs the jurors' authority to weigh any mitigating factors as they see fit.
Id. at 997-98. The court concluded that the statute "simply guides the jury (or judge) in determining under what circumstances the death penalty should be imposed," providing for a weighing of factors that presupposes the absence of any burdens of persuasion.
Id. at 997. Thus, the jury's discretion is properly channeled into a weighing process in which presumptions and burdens of proof have very little meaning.
Drawing upon this holding, we further reject Williams' argument that the failure of the Illinois sentencing scheme to assign a specific standard of proof renders the scheme unconstitutional. The Eighth Amendment does not require that the state prove the appropriateness of the death sentence beyond a reasonable doubt. Sentencing, capital or otherwise, is fundamentally different from the guilt-finding function of a trial: "Sentencing decisions rest on a far-reaching inquiry into countless facts and circumstances and not on the type of proof of particular elements that returning a conviction does." Zant, 462 U.S. at 902, 103 S. Ct. at 2756 (Rehnquist, J., concurring). Illinois has structured the aggravation/mitigation phase of the sentencing hearing not like a trial but more like the traditional sentencing scheme in which the sentencing authority considers and weighs all relevant factors to determine the appropriate sentence (subject to the limitations on its discretion as discussed earlier in this opinion). In such a case the standard of proof that the state must meet in a trial is not constitutionally essential. Cf. Bullington v. Missouri, 451 U.S. 430, 101 S. Ct. 1852, 68 L. Ed. 2d 270 (1981) (finding that double jeopardy applies in a sentencing hearing to which the state has in its discretion given certain "hallmarks" of the innocence/guilt determination -- notably that the state must prove beyond a reasonable doubt that aggravating factors outweigh mitigating factors).
Williams next contends that the statutory language does not guide the jury with sufficient clarity, thereby creating the impermissible risk that the death sentence will be imposed arbitrarily and capriciously. We see no reason to doubt that sentencing juries properly interpret the statute as we have: the jurors are to weigh the aggravating and mitigating factors and may not sentence the defendant to death unless there is unanimous agreement that the mitigating factors are insufficient to justify sparing the defendant's life. The isolated phrase "sufficient to preclude the imposition of the death sentence" is not vague. It directs the jurors to consider all of the factors presented and to give each factor whatever weight they deem appropriate. The Eighth Amendment insists rather than frowns upon that kind of direction.
Returning to Silagy, the Seventh Circuit also rejected a closely related argument that the "impact of the statute is to preclude the sentencer from determining, based on the individual characteristics of the defendant and the unique circumstances of the crime, whether death is the appropriate penalty." Id. at 999. Williams version of this claim is essentially identical to the one rejected in Silagy. Williams' interprets the following Illinois Supreme Court language as preventing the jury from sparing the defendant's life when there are no mitigating factors but the jury believes that mercy or the nonseverity of the aggravating factors militate against the death sentence:
When there is no mitigating factor for the [jury] to weigh against an aggravating factor that has been found to exist beyond a reasonable doubt, the statute obligates the [jury] to impose the death sentence.
This argument, like the one raised in Silagy, fails under the recent Supreme Court decisions in Blystone v. Pennsylvania, 494 U.S. 299, 110 S. Ct. 1078, 108 L. Ed. 2d 255 (1990) and Boyde v. California, 494 U.S. 370, 110 S. Ct. 1190, 108 L. Ed. 2d 316 (1990), both of which rejected similar statutory challenges. The Illinois statute, like the ones at issue in both Blystone and Boyde, allows that mitigating factors include any reason not to impose the death sentence relating to the characteristics of the defendant or the circumstances of the crime. Silagy, 101 Ill.2d at 164, 461 N.E.2d at 423. Reservations that a juror may have that are founded on general feelings of mercy or on a belief that the aggravating factors are insufficient to warrant a death sentence fall within this generous definition. See generally Caldwell v. Mississippi, 472 U.S. 320, 331, 105 S. Ct. 2633, 2640-41, 86 L. Ed. 2d 231 (1985); Spivey v. Zant, 661 F.2d 464, 471 n. 8 (5th Cir. 1981).
Finally, Williams sees an unconstitutional risk that the jury might impose the death sentence on an impermissible aggravating factor, such as the race of the defendant or the impact of the crimes on the victim's family. Williams points to the following features (or lack thereof) of the Illinois capital sentencing scheme: the statute does not define or limit aggravating factors, the jury need not expressly identify the aggravating factors that led to its decision, and there is no provision for proportionality review. In Silagy, the Seventh Circuit summarily rejected these arguments as "merit[ing] little discussion by this court."
First, the court rejected outright the argument that proportionality review is constitutionally required. Id. at 1000. In addition, the court found that the Illinois scheme adequately ensures that all aggravating circumstances relied upon by the sentencer are relevant or constitutionally permissible. Id. at 1000. With respect to aggravating factors not specified by the statute, the court cited to Section 9-1(c) of the Illinois statute, which provides:
The court shall consider, or shall instruct the jury to consider any aggravating and any mitigating factors which are relevant to the imposition of the death penalty. Aggravating factors may include but need not be limited to [the statutory aggravating factors] set forth in subsection (b). (emphasis added).
Id. at 1000. The court concluded that under this provision "the jury's discretion at the selection stage of the sentencing hearing is focused on that which is "relevant" to the task at hand."
In sum, the Illinois death penalty statute properly and clearly guides the sentencing jury to narrow the risk of arbitrariness without preventing the jury from considering and giving effect to any relevant mitigating circumstances, including a juror's personal reservations. The statute does not place a burden on the defendant to overcome a presumption that death is the appropriate sentence once statutory aggravating factors have been found. Appellate review assures, to an extent that satisfies constitutional muster, that impermissible considerations did not infect the jury's decision.
B. Challenges to the Prosecution's Power to Request A Sentencing Hearing
The statute gives the prosecution sole discretion to determine after a defendant is convicted at trial or on a plea whether to pursue the death sentence in a capital sentencing hearing. Williams challenges this discretion on two grounds: (1) the discretion to seek the death penalty is unbridled and it vests in the prosecutor the judicial function of determining the appropriate sentence, and (2) the discretion to wait until after a conviction or guilty plea before formally requesting a capital sentencing hearing implicates arbitrariness concerns under the Eighth and Fourteenth Amendments. Both of these claims, however, have been expressly rejected by the Seventh Circuit in Silagy, 905 F.2d at 990-994.
Williams also contends that the Illinois scheme gives the prosecution certain incentives to request a capital sentencing hearing instead of the more traditional noncapital hearing before the judge because the defendant has no right of allocution or to a presentence investigation in a death penalty hearing. People v. Gaines, 88 Ill. 2d 342, 373-78, 430 N.E.2d 1046, 1062-64, 58 Ill. Dec. 795 (1981), cert. denied, 456 U.S. 1001, 102 S. Ct. 2285, 73 L. Ed. 2d 1295 (1982). We do not consider these benefits to the prosecution as so critical as to impact the prosecutor's post-conviction decisions in any constitutionally significant manner. Moreover, any advantages these features offer are certainly offset by the added burden on the prosecution in the eligibility phase to prove a statutory aggravating factor beyond a reasonable doubt. The prosecution does not carry that burden in a noncapital hearing. Ill.Rev.Stat. ch. 38, para. 1005-8-1(1)(b).
It cannot be seriously disputed that an Illinois prosecutor's decision to pursue the death sentence may in some cases be founded not only on the strength of existing proof that the death penalty is appropriate but also on undetectable personal and institutional considerations. As Williams points out, emotions generated during a particularly heated trial may carry over into the post-conviction phase. Indeed, risks of inconsistency accompany even decisions based solely on the merits of the case. See People ex rel. Carey v. Cousins, 77 Ill.2d 531, 559, 397 N.E.2d 809, 824, 34 Ill. Dec. 137 (1979) (Ryan, J., dissenting), cert. denied, 445 U.S. 953, 100 S. Ct. 1603, 63 L. Ed. 2d 788 (1980). However, "absent facts to the contrary, it cannot be assumed that prosecutors will be motivated in their charging decision by factors other than the strength of their case and the likelihood that a jury would impose the death penalty if it convicts." Gregg, 428 U.S. at 225, 96 S. Ct. at 2949 (White, J., concurring). And as long as the United States Constitution accepts that presumption in the context of the decision to charge with a capital offense, there is no principled reason to require a state to put reigns on prosecutorial discretion merely because the decision to subject a defendant to a capital sentencing hearing is made after trial or a plea.
C. Illinois Supreme Court's Upholding the Statute on Stare Decisis Grounds
By the time the Illinois Supreme Court decided Williams' direct appeal, four (i.e., a majority) of the Justices had concluded in earlier decisions that the Illinois death penalty statute is unconstitutional. Carey, 77 Ill.2d at 544-61, 397 N.E.2d at 816-24 (1979) (Ryan, J., Goldenhersh, C.J., Clark, J., dissenting); People v. Lewis, 88 Ill. 2d 129, 179-93, 430 N.E.2d 1346, 1370-77, 58 Ill. Dec. 895 (1981) (Simon, J., dissenting). Three of those Justices later indicated that since they were unable to muster a majority to strike down the statute in Carey, they would uphold the statute in later decisions under the doctrine of stare decisis. Id. at 165-71, 430 N.E.2d at 1363-66 (Goldenhersh, C.J., Ryan, J., Clark, J., concurring). Presumably, they followed this position in Williams.
Williams now contends that their upholding the statute on those grounds violates due process in that stare decisis is applied arbitrarily and violates both the Eighth Amendment, in that it allows for the execution of defendants under an unconstitutional statute merely to serve the interests of stability and predictability in the law, and the supremacy clause, U.S. Const. art. VI, cl. 2, in that those Justices elevated a state judicial doctrine above the United States Constitution. While there may be some merit to the notion that the Justices of the State's highest courts should not put considerations of legal predictability and consistency ahead of their own views on the constitutionality of a capital sentencing scheme, from a practical standpoint, the notion is of no import because a defendant is ordinarily able to challenge the scheme in federal court. Further, we would be hard-pressed to strike down the statute because a majority of Illinois Justices at one time considered the statute unconstitutional on grounds with which we disagree. Unlike those four Justices, we do not find post-conviction prosecutorial discretion fatal to the scheme. Finally, and in any event, Williams has waived this claim by failing even to attempt to raise it in a supplemental brief on direct appeal or in his post-conviction petition.
Williams has presented no constitutional basis for vacating his guilty plea or overturning his death sentence. Accordingly, the habeas petition is denied. Pursuant to Fed.R.App.P. 22(b), we hereby issue a certificate of probable cause. It is so ordered.