Forty-four men have been ordered executed by the Illinois Supreme Court in the last six years, despite the fact that a majority of the court believed that the state statute providing for the death penalty was unconstitutional.

Hard to understand? Well, it's this kind of paradox that makes some people shake their heads and wonder whether our criminal justice system really is just. But wait. There's an explanation.

The explanation is that three of the four justices who thought the law was no good nevertheless felt bound by a previous decision of the court upholding the law. They were applying the legal doctrine of stare decisis, which means "to stand by things that have been settled." Whether or not the application of the doctrine is correct has been the subject of bitter debate on the court since 1981.

This strange situation — Justice Seymour Simon, the court's lone dissenter on the issue, calls it "remarkable in the history of American jurisprudence" — had its origins in the court's 1979 decision in the case of People ex rel. Carey v. Cousins, upholding a law enacted by the legislature in 1977 providing for the death penalty. It was a 4-3 decision. The statute, unique in the nation, provides that after a defendant is found guilty of a capital crime, it is up to the state's attorney to decide whether to ask for the death penalty. The three dissenters, Justices Joseph H. Goldenhersh, Howard C. Ryan and William G. Clark, contended that it was a violation of both the federal and state constitutions to grant the prosecutor sole discretion to seek the death sentence. They also objected to the fact that the defendant has no idea during the course of his trial whether he faces the possibility of a death sentence, and they pointed out that there are no standards in the law to guide the prosecutor in making the decision.

The dissenters argued that sentencing is a judicial function and that the statute, in allowing prosecutors to choose whether to seek a death sentence, violates the state constitutional provision that no branch of government may exercise powers belonging to another branch. They also found the law in violation of the federal constitutional prohibition against cruel and unusual punishment because it lacks standards guiding prosecutors. And they said defendants are deprived of due process because they are not notified prior to conviction whether or not a death sentence will be sought. But the majority upheld the law; with regard to the discretion issue, they argued that it was no different from allowing a prosecutor to try juveniles as adults, thus subjecting them to more serious penalties.

One of the four members of the majority, Justice Thomas Kluczynski, had been appointed to fill a vacancy on the court. One year after the decision, Simon was elected to replace him, and death penalty opponents were hopeful that Simon would join with the dissenters to form a new majority on the issue. But, alas, that didn't happen. Instead, when the issue next came before the court in 1981 in a case involving Cornelius Lewis, convicted of killing a Decatur bank guard during a robbery, the decision was 6-1 to uphold the law. Explaining his position, Ryan said, "If the law were to change with each change in the makeup of the court, then the concept that ours is a government of law and not of men would be nothing more than a pious cliche."

Simon conceded that ideally, the law shouldn't shift with each change of a court's personnel, but he contended that the issue of capital punishment presents a special circumstance. "A person should not be put to death in order to perpetuate the doctrine of stare decisis," he said.

Since the Lewis decision, Simon has dissented in every penalty case. The other six justices have upheld the law. (Goldenhersh resigned from the court in September and was replaced by Circuit Judge Joseph F. Cunningham of Belleville. The court has not heard a death penalty case since then.) In 1984, Ryan suggested in a court opinion "that we get on with the business of this court and review the cases before us without needlessly cluttering up the opinions with dissents that do nothing more than chide three members of this court for following the law as announced by the majority in Cousins." Simon responded that Ryan had implied "that ours is a system of footrace justice in which the first opinion entered prevails simply because it is first in time, and not necessarily because it is correct. . . . If a correct constitutional position were rendered forever incorrect merely because four judges once said it was, then our system of justice would not be one of laws, but one of men; not one of principle, but one of chance."

One of Simon's principal arguments is that stare decisis is repeatedly ignored by the U.S. Supreme Court and other courts and is a flexible doctrine, not a binding rule.

The doctrine of stare decisis, dictating that courts should generally adhere to precedent, is deeply rooted in the law, dating back to the 13th century in England. But in the U.S. it is not an absolute rule; the decision whether to follow precedent is always at a court's discretion. If a prior decision is clearly erroneous or unjust, most courts don't hesitate to overrule it. In fact, Simon says, researchers have found that the U.S. Supreme Court has overruled or qualified prior constitutional decisions nearly 100 times. The Illinois Supreme Court itself, seven months before the Lewis decision, said in a case involving the doctrine of contributory negligence in tort law, "The tenets of stare decisis cannot be so rigid as to incapacitate a court in its duty to develop the law."

The principal purposes of stare decisis are to provide predictability, uniformity and stability to the legal system. But there are times when these concerns are outweighed by the need to protect a fundamental right or to correct an injustice. Simon and others argue that capital punishment is an area unsuited to the typical kind of analysis involving the purposes of stare decisis:

• "We are not dealing with an area in which the practicing bar requires predictability,'' he said in the Lewis dissent. ''What lawyer advises his client to commit murder on the ground that the death penalty is unconstitutional? Conversely, what lawyer advises his clients not to commit murder solely on the ground that it is not?"

• The argument that stare decisis guarantees uniformity is weakened by the fact that under the present law, there is no uniformity whatsoever in decisions by Illinois' 102 state's attorneys as to whether to seek the death penalty. A survey of state's attorneys by the Chicago Lawyer revealed wide variations in their approach to capital punishment. Sixty-nine of the 91state's attorneys who responded said they had no formal policies or guidelines. Prosecutors in some counties, such as Champaign, seek the death penalty every time they have the opportunity. Others, like the Sangamon County state's attorney, never do so. Others look to sections of the statute for guidance. Still others say they ignore those same sections and "look beyond the statute."

The Cousins dissenters furthered stability in the law with their decision in Lewis, but it is argued that the Cousins case did not produce a settled rule on the death penalty law because it was a narrow decision with a strong dissent.

Attorneys for Lewis are now going through the federal courts in an effort to get him off death row. U.S. District Judge Harold A. Baker of Danville vacated Lewis' sentence in January on grounds other than the issue of prosecutorial discretion. But he expressed "grave doubts" about the discretion, suggesting that it may violate U.S. Supreme Court standards barring executions that are found to be arbitrary and capricious. (The state has appealed the vacating of the sentence to the U.S. Circuit Court of Appeals.) Baker also rejected the position of Justice Goldenhersh that the Illinois court should wait for the U.S. Supreme Court to rule on the statute. "Illinois is far better equipped than a federal court to resolve its own troublesome social questions," Baker said.

One attorney representing a death row defendant has suggested that the family of a person executed unnder the current law might sue the state. "If the state doesn't have the authority to take a life and does so, it exposes itself to a claim of wrongful death," said David Bradford, chief trial counsel of the MacArthur Justice Center, a public-interest law group "The taxpayers should be concerned about that."

In the opinion of some lawyers, there is one remarkable aspect to the position of the court majority in the Cousins case. That is the fact that they have cited virtually no legal authority to support the position that they are bound by stare decisis. It's ironic that when discussing a doctrine dealing with the force of precedent, the justices have come up with so little precedent themselves to bolster their argument. Goldenhersh cited no authority whatsoever in his concurring opinion in the Lewis case.

Ryan cited no cases but pointed to the court's "Standards for Judicial Conduct," which state that "ours is a goverment of law and not of men." Clark cited a 1957 law review article by Justice Roger Traynor of California stating that once a judge has dissented, he is obligated to follow the law as pronounced. However, Simon pointed out that eight years after the article, Traynor quoted with approval another judge (Jerome Frank of the 2nd Circuit U.S. Court of Appeals) who said, "In criminal actions, where life or liberty is at stake, courts should not adhere to precedents unjust to the accused. It is never late to mend."

The supreme courts of many states have commented negatively over the years about taking advantage of a change in court personnel to overrule a decision. (The U.S. Supreme Court has not spoken on the issue.) As in so much of law, rules and doctrines are twisted to fit what the judges feel like doing. Frequently, if a court doesn't want to depart from precedent, it will cite stare decisis, but if it does want to depart, it will simply ignore stare decisis and find some way to justify its action.

Chief Justice William Rehnquist, undoubtedly confident that there soon would be changes in the makeup of the U.S. Supreme Court, said in a 1985 case: "I do not think it incumbent on those of us in dissent to spell out further the fine points of a principle that will, I am confident, in time again command the support of a majority of this court."

Indeed, the U.S. Supreme Court once made a rather blatant switch as the result of the retirement of a justice. The court in 1942, in a 5-4 decision, had upheld the constitutionality of three municipal ordinances aimed at preventing Jehovah's Witnesses from selling books door-to-door. The Witnesses asked for a rehearing.

Eight months later, a member of the five-man majority, Justice James Byrnes, retired, and he was replaced by Wiley Rutledge. On the very day that Rutledge assumed his seat, the court granted the rehearing, and Rutledge subsequently joined with the four dissenters in the original decision to declare the ordinances unconstitutional. Interestingly, there is no record of any objection being registered by the other members of the court.

Simon contends that courts usually give the doctrine of stare decisis less weight in constitutional cases. The same point was made last year by Margaret S. Hewing, a member of the staff of the University of Illinois Law Review, in an article analyzing the court's handling of the Illinois death penalty law. One reason is that since judges swear to defend the federal and state constitutions to the best of their ability, blindly following past decisions in the constitutional area may be considered a shirking of that duty. Another reason is the difficulty legislatures have in correcting an erroneous ruling by the court on a constitutional issue. In a nonconstitutional case, if the court refuses to overrule a prior decision, the legislature can simply pass a new law. But in a constitutional case, the only way to effect change is to go through the cumbersome process of amending the Constitution.

Simon and Hewing contend that a death penalty case is an extreme example of the kind of case in which the special considerations of constitutional cases should be applied. And they say the value of human life outweighs the interests of stability, uniformity and predictability of the law.

Yet, as persuasive as their arguments are, there is a nagging doubt in the minds of even some lawyers who personally oppose capital punishment. Neither Simon nor Hewing has been able to cite a case in which a court has gone as far as they wanted to go: to declare unconstitutional a statute which was upheld only two years earlier, when there had been no change in the statute or the circumstances or the arguments, but simply a single change in court personnel.

Skeptics point to another troubling aspect of the issue — that the court might keep flip-flopping with every personnel change. If the Cousins dissenters had joined Simon to declare the law unconstitutional, the decision might not have lasted long. If Goldenhersh's replacement had a different point of view, the legislature could change the statute to give the state's attorneys discretion again and the court could uphold it.

At present, there are 108 men (no women) on Illinois' two death rows — at the Pontiac and Menard prisons. The death penalty can be imposed in Illinois on defendants 18 and over who are convicted of the murder of more than one person; a police officer, jail guard or firefighter; a prison inmate; a child; or a court witness. A defendant also can be executed for killing under a murder contract or during commission of a hijacking or another felony such as robbery, burglary, rape or arson. Although the lengthy appeal process has not been completed on any of the convictions handed down since the law went into effect 10 years ago, one defendant is rapidly approaching execution. He is Charles Walker, sentenced in 1983 for the murder of a southern Illinois couple. Walker has asked that his appeal be dropped.

Meanwhile, attorneys for some of the defendants who have completed their state appeals are moving inexorably through the federal court system, and they are contending, as Cornelius Lewis did before Judge Baker, that the Illinois Supreme Court's stare decisis position violated their right to due process of law. Terence M. Madsen, chief of criminal appeals in Atty. Gen. Neil F. Hartigan's office, is heading the opposition. In an interview he rejected this argument out of hand. "The mere fact that it's a death case isn't sufficient to warrant giving a case special emphasis," he said. "If every time there's a change in the court there's a change in what the Constitution means, it would be impossible to enforce any laws."

But attorney Bradford expresses confidence that a federal court will declare the law unconstitutional — before Charles Walker can be executed, he hopes. "The very idea that someone's life could be taken under a law that a majority of the court recognizes is unconstitutional and invalid should undermine the public's confidence in the whole administration of justice, said in August. "The courts have said that society has to have a compelling interest to take a life. To serve the purposes of judicial consistency, however important, is not sufficient. The decision to take a life is irrevocable and the usual rules can't apply. If the law is changed, people can't come back from grave and say, 'Apply it to me.' "

Ed McManus is an assistant metropolitan editor at The Chicago Tribune, a contributing editor for Illinois Issues, and a student at Institute of Technology's Chicago-Kent College of Law.