THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. DARRYL DAVIS, Appellee.
No. 81358
Supreme Court of Illinois
October 17, 1997
177 Ill. 2d 495
Choosing to override the clear language of the insurance contract, however, the majority purports to divine the unstated intent of the parties. With this analysis, coverage is found to be provided. What we have here is not a case of contract construction. It is, rather, a case of contract reconstruction. As such, it is thimblerigging pure and simple. It also indicates the depths to which a court will go to achieve a desired result. If any principle can be derived from this ruling, it is that words have no meaning.
Accordingly, I respectfully dissent.
BILANDIC, J., dissenting.
James E. Ryan, Attorney General, of Springfield, and Jack O‘Malley and Richard A. Devine, State‘s Attorneys, of Chicago (Arleen C. Anderson, Assistant Attorney General, of Chicago, and Renee Goldfarb, Susan R. Schierl, Ann L. Benedek and Peter D. Fischer, Assistant State‘s Attorneys, of counsel), for the People.
Robert F. Nemzin, of the Law Offices of Hickey & Nemzin, of Chicago, for appellee.
JUSTICE NICKELS delivered the opinion of the court:
We here decide the constitutionality of the statutory penalty for felons who violate the Firearm Owners Identification Card Act (
BACKGROUND
Defendant, Darryl Davis, was charged by information with two counts of unlawful use of a weapon by a felon (
Prior to trial, defendant filed a motion to dismiss the Firearm Owners Identification Card Act charge. In his motion, defendant noted that possessing a firearm without a firearm owner‘s card is a nonprobationable Class 3 felony that is subject to a minimum two-year prison sentence. See
Defendant also argued that giving the registration offense a more serious penalty violates section 11 of article I of the 1970 Illinois Constitution. This provision, referred to as the proportionate penalties clause or the limitation-of-penalties provision, provides in part:
“All penalties shall be determined *** according to the seriousness of the offense ***.”
Ill. Const. 1970, art. I, § 11 .
Defendant‘s motion alleged that the Firearm Owners Identification Card Act sentencing provision violates this constitutional guarantee by providing a more severe penalty for that offense than for the more serious offense of unlawful use of a weapon by a felon.
Last, defendant‘s motion alleged that the Firearm Owners Identification Card Act charge constituted a double enhancement. Defendant essentially suggested that his status as a felon should not be used twice to enhance the punishment for his criminal conduct. In this regard, defendant noted that because he is a felon he could not obtain a firearm owner‘s card. Defendant therefore reasoned that he cannot commit the lesser punished unlawful use of a weapon by a felon offense without committing the more harshly punished registration offense. Thus, defendant contended that the Firearm Owners Identification Card Act charge constituted a double enhancement based on his status as a felon.
After a hearing, the circuit court granted defendant‘s motion to dismiss the Firearm Owners Identification Card Act charge. The circuit court held that the penalty provision for felons convicted of violating the Firearm Owners Identification Card Act offended both due process and the proportionate penalties clause. The court reasoned that “there is no rational basis for *** making it non-probationable not to have the card and probationable to have the gun that requires you to have the card.” The circuit court rejected defendant‘s contention that
During the briefing of this case, this court decided People v. Lewis, 175 Ill. 2d 412 (1996), which addressed the scope of the proportionate penalties clause. The State repeats here many arguments it made in Lewis. Therefore, we briefly address those arguments prior to turning attention to the merits of the present claim. Furthermore, as we find the proportionate penalties issue dispositive, the following analysis does not address the due process or double enhancement claims.
ANALYSIS
Pretrial Dismissal
The State first argues that the circuit court erred on procedural grounds. The State contends that the circuit court erred in dismissing the Firearm Owners Identification Card Act charge prior to trial because such a ruling is premature and invades prosecutorial discretion concerning what offenses to charge.
This court rejected these exact challenges in People v. Lewis, 175 Ill. 2d 412, 423 (1996). In Lewis, this court observed that proportionate penalty challenges are routinely considered in a pretrial posture. See, e.g., People v. Bailey, 167 Ill. 2d 210, 234-37 (1995); People v. Farmer, 165 Ill. 2d 194, 209-10 (1995); People v. Johns, 153 Ill. 2d 436, 447-49 (1992); People v. Hamm, 149 Ill. 2d 201, 218-20 (1992); People v. Simmons, 145 Ill. 2d 264, 269-72 (1991).
Relying on People v. Christy, 139 Ill. 2d 172 (1990), this court in Lewis also rejected the contention that such a pretrial dismissal improperly usurps prosecutorial discretion. Lewis, 175 Ill. 2d at 417. The court reasoned that where the penalty for a given offense
Proportionate Penalties
In examining the constitutionality of a statute, we are guided by familiar standards. Legislative enactments are presumed to be constitutional and all reasonable doubts must be resolved in favor of upholding their validity. People v. La Pointe, 88 Ill. 2d 482, 499 (1985). For this reason, the party challenging a statute bears the burden of clearly establishing the alleged constitutional violation. Johns, 153 Ill. 2d at 442.
In Lewis, this court addressed the scope of section 11 of article I of the 1970 Illinois Constitution. At issue was whether the statutory penalties for armed robbery (
In addressing this issue, the Lewis court rejected two arguments concerning the proper scope of proportionality review that are repeated in the present appeal. First, the State argued that the proportionate penalties clause was not intended by the drafters of the Illinois Constitution to apply to the legislature. Instead, the State asserted that the true purpose of the provision was to provide a check on judicially imposed sentences. This court rejected that view and held that the proportionate penalties clause restricts the power of the legislature in establishing statutory criminal penalties. Lewis, 175 Ill. 2d at 420.
Second, the State argued in Lewis that, even if the proportionate penalties clause applies to the legislature, it does not provide for the comparison of penalties for
The Lewis court found that review under the proportionate penalties clause is not limited to examining the gravity of a particular offense and the severity of the penalty. Instead, the court determined that comparing different offenses and their penalties is an accepted part of proportionality review. Lewis, 175 Ill. 2d at 420 (citing cases). The court explained that “[t]he comparison of similar statutes and their penalties helps impose a measure of objectivity upon the process of proportionality review which, if restricted to comparing a single offense and its penalty, would otherwise be lacking.” Lewis, 175 Ill. 2d at 421.
Where a comparison of different offenses is at issue, a penalty “violates the proportionate penalties clause where conduct that creates a less serious threat to the public health and safety than other conduct is punished more harshly.” People v. Hickman, 163 Ill. 2d 250, 259 (1994), citing People v. Johns, 153 Ill. 2d 436, 447 (1992); see also People v. Morris, 136 Ill. 2d 157, 168 (1990). However, this court has recognized that, “[t]he legislature, institutionally, is more aware than the courts of the evils confronting our society and, therefore, is more capable of gauging the seriousness of various offenses.” People v. Steppan, 105 Ill. 2d 310, 319 (1985). Thus, courts will generally defer to a legislative judgment
Lewis did not involve the comparison of two different offenses, but instead involved the comparison of the penalties for two identical offenses. The court determined that the different sentencing ranges for the offenses of armed robbery (six-year mandatory minimum) and armed violence predicated on robbery with a category I weapon (15-year mandatory minimum) violated the proportionate penalties clause. Relying on People v. Christy, 139 Ill. 2d 172 (1990), the court held that the proportionate penalties clause is violated where two offenses have identical elements, but are subject to different sentencing ranges. Lewis, 175 Ill. 2d at 423. Thus, the defendant could only be charged with the less severely punished armed robbery offense.
The Lewis court noted that this comparison of identical offenses is “less troublesome than the general cross-comparison type of review” of two different offenses. Lewis, 175 Ill. 2d at 421. Comparison of identical offenses is less troublesome because a court is not forced to make difficult determinations regarding the relative seriousness of the offense or the severity of the penalty. Lewis, 175 Ill. 2d at 421.
Thus, review under the proportionate penalties clause can take three different forms. First, the proportionate penalties clause is violated where the punishment for a particular offense is cruel, degrading, or so wholly disproportionate to the offense as to shock the moral sense of the community. Gonzales, 25 Ill. 2d at 240; Farmer, 165 Ill. 2d at 209-10. Second, the proportionate penalties clause is violated where similar offenses are compared and conduct that creates a less serious threat to the public health and safety is punished more harshly. Hickman, 163 Ill. 2d at 259; Morris, 136 Ill. 2d at 168; Johns, 153 Ill. 2d at 447; People v. Wisslead, 94 Ill. 2d 190, 196-97 (1983). Third, the proportionate penalties clause is violated where identical offenses are given different sentences. Lewis, 175 Ill. 2d 412; Christy, 139 Ill. 2d 172.
Defendant does not suggest that a mandatory prison sentence for a felon who violates the Firearm Owners Identification Card Act is cruel or wholly disproportionate to that offense. Nor could he. However, defendant does argue that the Firearm Owners Identification Card Act offense and the unlawful use of a weapon by a felon offense are identical. Defendant reasons that the offenses are identical because a felon cannot obtain a firearm owner‘s identification card. Thus, a felon carrying a firearm will always violate both provisions. If the offenses are identical, the Firearm Owners Identification Card Act offense violates the proportionate penalties clause because that offense has a more severe sentence, a mandatory prison term.
The State disputes that the offenses are identical. The State notes that the offense of unlawful use of a weapon by a felon requires only the knowing possession of a weapon by a felon. In contrast, the elements of the Firearm Owners Identification Card Act offense are possession of a firearm without proper registration.
Assuming the offenses are not identical, the general cross-comparison analysis applies. Under this analysis, the proportionate penalties clause is violated where different offenses are compared and conduct that creates a less serious threat to the public health and safety is
For example, in People v. Wisslead, 94 Ill. 2d 190 (1983), this court compared the penalties for the offenses of armed violence predicated on unlawful restraint (
In other cases, this court has rejected challenges under the proportionate penalties clause even though the offenses at issue prohibited similar conduct but carried different penalties. In People v. Steppan, 105 Ill. 2d 310 (1985), defendant argued that it was disproportionate to have a more severe punishment for burglary of the contents of a motor vehicle than for the theft of the vehicle and all its contents. This court determined that the burglary of a motor vehicle may be punished more severely than the theft of a vehicle without offending the proportionate penalties clause. The court reasoned that the burglary statute and the theft statute have different purposes and the legislature may have increased the burglary penalty out of a desire to halt the increase of that particular crime. Steppan, 105 Ill. 2d at 320-21; see also Johns, 153 Ill. 2d at 449.
Similarly, in People v. Hickman, 163 Ill. 2d 250 (1994), this court compared the penalties for the offenses of criminal drug conspiracy (
Applying this precedent, we are left with two inquiries. The first inquiry is whether the purposes of the Firearm Owners Identification Card Act offense and the unlawful use of a weapon by a felon offense are distinct such that comparative proportionality review is not appropriate. See Steppan, 105 Ill. 2d at 321-22; Hickman, 163 Ill. 2d at 260. If the purposes are related, the second inquiry is whether the nonprobationable Firearm Owners Identification Card Act offense is more serious than the probationable offense of unlawful use of a weapon by a felon.
We find that comparative proportionality review is appropriate for these offenses. It cannot be seriously contended that the legislature made violations of the Firearm Owners Identification Card Act by felons nonprobationable without intending to prevent the possession of weapons by felons. The purposes of both the Firearm Owners Identification Card Act sentencing provision and the unlawful use of a weapon by a felon offense are the same and Steppan and Hickman are therefore inapposite. Thus, our sole remaining inquiry is whether the nonprobationable Firearm Owners
The State argues that a felon‘s failure to register a firearm is a more serious offense than unlawful use of a weapon by a felon. The State suggests that it is for the legislature to determine the best way to prevent felons from obtaining firearms, and the legislature has determined that the best way to do so is to require registration. Thus, the State reasons that the legislature may treat the failure to register as a more serious offense than the unlawful use of a weapon by a felon.
Defendant responds that where a felon is not involved, the legislature treats the unlawful use of a weapon as a more serious offense and gives that offense a more severe penalty than the failure to have proper registration. Where an individual is not a felon, the unlawful use of a weapon (
We agree with the defendant that the Firearm Owners Identification Card Act offense must be considered a less serious offense than unlawful use of a weapon by a felon. In People v. Morris, 136 Ill. 2d 157 (1990), this court compared the penalty for altering a temporary vehicle registration permit with the penalty for possession of a stolen motor vehicle. The court found that altering the temporary registration on a vehicle which one owns is a less serious offense than possession of a stolen mo-
Similarly, even though both the Firearm Owners Identification Card Act offense and the unlawful use of a weapon by a felon offense are designed to prevent the possession of firearms by felons, a violation of the registration requirement is a less serious offense. The registration requirement is part of a prophylactic administrative scheme designed “to provide a system of identifying persons who are not qualified to acquire or possess firearms.”
CONCLUSION
We find that the penalty for violations of the Firearm Owners Identification Card Act by a felon (
Affirmed and remanded.
The majority finds an unconstitutional disproportionality in the imposition of a stricter penalty for a felon‘s possession of a firearm without proper registration than for the offense of unlawful use of weapons by a felon. I disagree. The two crimes are distinct offenses with different elements, and the legislature is entitled to say that one is more serious than the other. It should be noted that the weapon required for the offense of unlawful use of weapons need not be a firearm, and to that extent the legislature could justifiably conclude that the possession of a firearm without proper registration is the more serious crime. In circumstances in which the conduct underlying the two offenses overlaps—that is, when a firearm is involved—I believe that the prosecutor should be free to decide whether to seek the greater penalty authorized by the more serious charge. I dissented in People v. Lewis, 175 Ill. 2d 412 (1996), and People v. Christy, 139 Ill. 2d 172 (1990), cited by the majority, and I continue to believe that the earlier decisions are in error.
In the present case, the majority acknowledges that the mandatory prison term for a felon who possesses a firearm without proper registration is not disproportionate to the offense. 177 Ill. 2d at 504. That should mark the end, not the beginning, of our inquiry under the proportionate penalties clause, found in article I, section 11, of the Illinois Constitution (
The majority‘s analysis, a wide-ranging comparative proportionality review, conflicts with the legislature‘s power to define offenses and prescribe penalties (People v. Wade, 131 Ill. 2d 370, 379 (1989); People v. Taylor, 102 Ill. 2d 201, 205 (1984)), and diminishes the prosecutor‘s authority to decide which offenses to charge (see United States v. Batchelder, 442 U.S. 114, 123 (1979); People v. McCollough, 57 Ill. 2d 440, 444 (1974)). The court‘s continuing effort to catalog and organize the entire body of our criminal law according to one grand scheme of comparative proportionality review exceeds the mandate of the proportionate penalties clause of our constitution and ultimately threatens to usurp the legislative and prosecutorial functions.
JUSTICE HARRISON joins in this dissent.
JUSTICE BILANDIC, also dissenting:
I respectfully dissent. I agree with my colleagues, Justices Miller and Harrison, that the two offenses at issue are distinct crimes and the legislature is entitled to determine that one is more serious than the other. The legislature must be given great deference in determining the relative seriousness of criminal offenses and this court should be extremely reluctant to second-guess the legislature‘s determination. See People v. Lee, 167 Ill. 2d 140, 144-46 (1995); People v. Hickman, 163 Ill. 2d 250, 259 (1994). I find no reason to second-guess the legislature‘s decision with regard to the offenses at issue in this case. I would find this court‘s decision in People v. Lewis, 175 Ill. 2d 412 (1996), to be distinguishable because that case involved two identical offenses.