Judicial Rulings
Illinois Supreme Court

Death penalty upheld in split decision

IN A 4-3 decision November 21, the Illinois Supreme Court upheld the constitutionality of the state's 1977 death penalty law which gives elected state's attorneys the sole power to seek the death penalty. Dissenting justices, however, argued that a lack of standards for seeking the death penalty gives prosecutors an arbitrary power and that the statute violates separation of powers.

The case, The People, ex rel. Bernard Carey, Cook County state's attorney, v. William Cousins Jr., a Cook County Circuit Court judge, stems from the 1978 conviction of a Chicago man of murder, aggravated kidnapping and armed robbery. Carey, seeking the death penalty, requested a sentencing hearing, as prescribed by the death penalty law. Cousins denied the motion on the grounds that the hearing provision was unconstitutional. Carey sought a writ of mandamus from the high court ordering Cousins to expunge the denial motion from the record and hold the sentencing hearing.

Under the hearing provision, the judge or jury may consider aggravating factors or mitigating factors, but they may impose the death penalty only if they find evidence of one or more aggravating factors and no mitigating factors.

Cousins argued that the provision "vests the prosecution with unlimited discretion to trigger death sentence proceedings." Without such limits or standards, he said, there is a possibility the death penalty can be "wantonly and freakishly imposed." It was precisely to avoid that possibility, Cousins argued, that the U.S. Supreme Court, in a landmark decision in 1972, struck down several state death penalty laws.

In the majority opinion, Justice Daniel P. Ward said discretionary power does not result in arbitrary sentencing, or more severe punishment for some than others. Rather, he said, discretionary power ties the death penalty to the strength of the conviction: prosecutors seek it only when they believe they can get it. Thus each gets the most severe punishment the "people" will sanction.

But it's not a question of whether prosecutors should have the sole right to seek the death penalty, but what standards such a call must meet, argued Justice Howard C. Ryan in the dissenting opinion. Ryan said that the U.S. Supreme Court, in its landmark death penalty decision, " does not require that all sentencing discretion be eliminated but only that it be directed and limited so that the death penalty would be imposed in a more consistent and rational manner, and so that there would be a meaningful basis for distinguishing the cases in which it is imposed from those in which it is not."

Citing a 1976 U.S. Supreme Court death penalty case, Ward maintained there is little room for difference of opinion on whether to seek the death penalty: "Unless prosecutors are incompetent in their judgments, the standards by which they decide whether to charge a capital felony will be the same as those by which the jury will decide the questions of guilt and sentence. Thus defendants will escape the death penalty through prosecutorial charging decisions only because the offense is not sufficiently serious; or because the proof is insufficiently strong. This does not cause the system to be standardless any more than the jury's decision to impose life imprisonment on a defendant whose crime is deemed insufficiently serious or its decision to acquit someone who is probably guilty but whose guilt is not established beyond a reasonable doubt."

Ward also said, "His [the prosecutor's] judgment, moreover, will be better informed ... for he need not make his final decision until after conclusion of the trial, when he will have evaluated the testimony and other evidence which was in fact presented."

But without limits or standards, that judgment on whether to seek the death penalty will vary from prosecutor to prosecutor, Ryan argued. It is that variance that creates the possibility of arbitrary sentencing.

Ward said the prosecutorial discretion stemmed from long-standing precedent and does not violate separation of powers.

But Ryan argued it's a clear question of constitutionality rather than precedent:

"[O]nce the legislature has prescribed the punishment for a particular offense it cannot condition the imposition of the sentence by the court upon the prior approval of the prosecutor. ... If the legislature may condition the imposition of the death penalty upon the prior approval of the prosecutor, then the legislature could condition the imposition of any of the dispositions authorized by the statute upon the prior consent of the prosecutor. . . ."

"Any attempt by the legislature to confer upon the prosecutor authority to exercise any part of the sentencing function or the authority to limit, interfere with, or to condition the exercise of the judicial function upon a request by the prosecutor is a violation of the doctrine of separation of powers. . . ."

Bad check does not cancel insurance premium

Insurance companies cannot drop policies if checks for premiums are not good unless such a warning is writien into the policies, the Illinois Supreme Court ruled December 3.

The case, Thomas D. Cullotta, v. Kemper Corporation, et al, stemmed from an insurance claim Cullotta filed when his car was stolen and later destroyed by fire in January 1976. The high court reversed the ruling of the McHenry County Circuit Court and the Second District Appellate Court and ruled that Cullotta's coverage with Kemper was in effect when he filed the claim even though his check for the premium payment was not good.

The question was one of contract law, Justice Thomas J. Moran said in delivering the high court's opinion.

"[A]bsent fraud on the part of the insured, once the insurer accepts the check without evidencing an intent to do so conditionally, it can no longer exercise its right to declare the policy lapsed due to nonpayment, even though the check is later dishonored," Moran said.

"Insurance, and particularly automobile coverage, now plays a critical role in society," Moran said. "Countless numbers of persons who have been injured in collisions would be dependent upon public aid were it not for the financial protection afforded by the insurance industry. Therefore, '[f]orfeiture of an insurance contract for nonpayment of premium is not favored in the law, and courts are prompt to seize upon circumstances which indicate a waiver of forfeiture' (Van Hulle v. State Farm, 1969)."

Attorney disciplined

The Illinois Supreme Court November 21 suspended Chicago attorney Charles C. Porcelli from practicing law for one year for bribing a police officer with $300 to ensure a favorable report in a drunk driving case.

The attorney disciplinary case against Porcelli stemmed from Porcelli's indictment for bribery in a 1972 drunk driving case in which Porcelli had agreed to investigate the severity of charges against the driver. The driver had, however, hired another attorney to represent him in court.

Although Porcelli was found not guilty in a trial court in 1975, the Attorney Registration and Disciplinary Commission in 1978 charged him with unethical conduct and recommended he be suspended until reinstated by the trial court.

Porcelli, who had been practicing 27 years, argued that the arrest constituted entrapment. But Justice Thomas J. Moran in delivering the high court's opinion said, "Attorneys are versed in the law and should be keenly aware of what activities constitute a breach of the law. This knowledge is inconsistent with the central premise of entrapment, i.e., an implantation of criminal intent in the mind of an innocent person. "

February 1980/Illinois Issues/27