People v. Mertz11/17/2005
boundary separating "procedure" and "substance" is not always clear, "procedure" generally prescribes the means for enforcing rights or receiving remedies through a lawsuit. Atkins, slip op. at 5, quoting Rivard v. Chicago Fire Fighters Union, Local No. 2, 122 Ill. 2d 303, 310-11 (1988). Procedure encompasses " ` "pleading, evidence and practice. Practice means those legal rules which direct the course of proceedings to bring parties into court and the course of the court after they are brought in." [Citation.]' " Atkins, slip op. at 5, quoting Rivard, 122 Ill. 2d at 310-11. In contrast, "substantive law" involves the rights underlying the lawsuit. Atkins, slip op. at 5, quoting Rivard, 122 Ill. 2d at 310-11.
Here, the three remaining legislative protections cited by defendant are purely procedural in nature, concerning: (1) the contents of the jury instructions on mitigation (720 ILCS 5/9-1(c)(6) (West 2004)); (2) the jury's standard for reviewing the factors offered in aggravation and mitigation (720 ILCS 5/9-1(g) (West 2004)); and (3) this court's authority to vacate a particular death sentence and impose a term of years if the death sentence is "fundamentally unjust" (720 ILCS 5/9-1(i) (West 2004)). These matters focus on "the course of the court" after the start of the proceedings, not on the rights underlying those proceedings. Therefore, under this court's analysis in Caveney, these legislative safeguards are subject to retroactive application.
I also find it telling that in enacting its death penalty reforms, the legislature did, in fact, choose to limit the new requirement of jailhouse informant reliability hearings to future cases. Even though the other provisions at issue in this appeal were enacted as part of the same package of reforms in the same public act, they did not bear the same temporal limitation. Given the immense gravity of capital proceedings, I believe fundamental fairness and the reliability of the capital punishment system require us to apply these other legislative protections retroactively. See Hickey, 204 Ill. 2d at 639 (Kilbride, J., dissenting) (asserting that " f we are to err, we should err on the side of caution").
"The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result. And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision." Texas v. Johnson, 491 U.S. 397, 420-21, 105 L.Ed. 2d 342, 364, 109 S.Ct. 2533, 2548 (1989) (Kennedy, J., concurring). Here, despite the despicable nature of the crime committed, this court must apply our retroactivity precedent evenhandedly. The same body of law protects both the innocent and the guilty from manifest injustice. To optimize the overall reliability of the capital punishment system in this state, this court should implement the latest legislative reforms retroactively in all applicable cases, including the one currently before us. Accordingly, I would remand this cause for a new sentencing hearing incorporating these protections. For these reasons, I respectfully dissent from the majority opinion.
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