In this past legislative session Governor George Ryan initiated and obtained funding for a Task Force on Simplifying the Criminal Code and the Code of Corrections. Since passage of former Governor James Thompson’s change to determinate sentencing effective in 1978 (P.A. 80-1099), the criminal code and code of corrections have undergone 20-plus years of new layers of roofing shingles — amendments expanded coverage of felony enhancement statutes, repeat offender extended-term statutes, consecutive sentencing statutes, weapon-enhancement statutes, gang sentencing statutes, drug-delivery penalty enhancement, and expansion of death-penalty qualifying aggravating factors, only to be followed by "Safe Zone" sentencing enhancements [crimes near schools, parks, public housing, rest areas and truck stops]. Then came "truth-in-sentencing" for some offenses. See Gregory W. O’Reilly, Truth-in-Sentencing: Illinois Adds Yet Another Layer of "Reform" to Its Complicated. Code of Corrections, 27 Loy.U.Chi., L.J. 985 (1996).
The inevitable result in criminal practice is the incomprehensible inconsistencies of statutes, rendering the original purpose of the individual amendment compromised. Sections of the roofing are falling off. The below analysis of the Armed Violence statute is but one example.
The history of the armed violence statute is replete with constitutional challenges. The challenges are, for the most part, of two types: the due process [double-enhancement] provision of Ill. Const. 1970, Art. I, Sec. 2, and the proportionate penalties provision of Ill. Const. 1970, Art. I, Sec. 11.
The Illinois Supreme Court defers to the legislature in "measuring the seriousness of various offenses," People v. Koppa, 184 Ill.2d 202, 703 N.E.2d 91 (1998). If "different purpose" offenses are had, different factors in establishing the penalties are presumed. It also recognizes the "availability of different punishments for separate offenses based on the same acts does not offend due process." People v. Hickman, 163 Ill.2d 250,260, 644 N.E.2d 147 (1994). "A penalty prescribed for a certain offense satisfies the requirements of due process so long as it is ‘reasonably designed to remedy the evils that the legislature has determined to be a threat to the public health, safety, and general welfare.’" [citation omitted] People v. Lombardi, 184 Ill.2d 462, 705 N.E.2d 91 at 96. Thus, due process challenges generally fail, unless a double enhancement use of the presence of a weapon is had. See cited cases below.
A challenge under the "proportionate penalties clause" can employ three different analyses:
i) Is the penalty "cruel . . . degrading . . . wholly disproportionate to the offense committed as to shock the moral sense of the community"? [citation omitted] Lombardi, 705 N.E.2d at 98.
ii) [Similar offense] . . . "Conduct that creates a less serious threat to the public health and safety is punished more severely." [citations omitted] Id.
And, iii) "When identical offenses are given different sentences." [citations omitted] Id.
It is the second analysis method that may spell the demise of the armed violence statute (720 ILCS 5/33-A-3 (West 1996)) in the wake of Governor George Ryan’s 15-20-25 to life "add on" sentencing proposal discussed below. The "similar offense" argument is limited, though, in application because the cross-comparison analysis of the statute involves a two-step inquiry, and you only get to the second issue if you satisfy the first. See People v. Davis, 177 Ill.2d 495, 687 N.E.2d 24 (1992). 1) Are the purposes of the compared offenses distinct? If so, the analysis ends. 2) If the purposes are related, is the offense with the harsher penalty more or less serious than the offense with the less severe penalty?
C. SELECTED CASE LAW
The following offenses cannot be used as predicate felonies for armed violence:
1. Attempt armed robbery — Use of this offense violates the prohibition against double enhancement. The presence of a weapon cannot be used once to enhance attempt robbery to attempted armed robbery and then again to enhance the offense to armed violence. People v. DelPercio, 105 Ill.2d 372, 475 N.E.2d 528 (1985).
2. Voluntary manslaughter — Use of this offense is outside the legislative intent in enacting the armed violence statute. The purpose of the armed violence statute is to deter those who contemplate committing a felony from carrying a weapon, and voluntary manslaughter does not require any previous criminal intent. People v. Alejos, 97 Ill.2d 502, 455 N.E.2d 48 (1983).
3. Involuntary manslaughter — The legislature did not intend the Class X consequences of armed violence to apply to a nondeliberate act. People v. Fernetti, 104 Ill.2d 19, 470 N.E.2d 501 (1984).
4. Unlawful restraint — Allowing armed violence to be based upon unlawful restraint would transform a Class 4 felony, with possession of a firearm, to a Class X felony (armed violence); however, possession of the same weapon during the more serious offense of kidnaping (Class 2) elevates the offense to aggravated kidnaping (Class 1). The lesser offense of unlawful restraint should not thereby become a more serious offense than kidnaping. People v. Wisslead, 94 Ill.2d 190, 446 N.E.2d 512 (1983).
5. Kidnaping with a Category I weapon — The commission of kidnaping while armed with a knife with a blade of 3 inches constitutes both the offense of aggravated kidnaping (Class 1) and armed violence (Class X), which violates the proportionate penalties clause. People v. Christy, 139 Ill.2d 172, 564 N.E.2d 770 (1990).
6. Aggravated battery (based on use of deadly weapon) — Possession of a gun cannot be used twice to result in an armed violence conviction (improper double enhancement). People v. Hanson, 138 Ill.App.3d 530, 485 N.E.2d 1144 (5th Dist. 1985).
7. First degree murder — Armed violence cannot be predicated on any offense which necessarily carries a greater sentence than armed violence. People v. Hobbs, 249 Ill.App.3d 679, 619 N.E.2d 258 (5th Dist. 1993).
8. Armed robbery with a Category I weapon — The elements of armed violence and this predicate offense are substantially identical, but armed robbery carries a minimum 6-year sentence, while armed violence carries a minimum 15-year sentence, thus violating the proportionate penalties clause. People v. Lewis, 175 Ill.2d 412, 677 N.E.2d 830 (1996).
9. Armed robbery and aggravated vehicular hijacking — The elements of armed violence and these predicate offense are identical, but armed violence carries a much higher sentence, violating the proportionate penalties clause. People v. Beard, 287 Ill.App.3d 935, 679 N.E.2d 456 (1st Dist. 1997).
10. Residential burglary while armed with a Category I weapon — Using "similar offense" analysis, the Court concluded that both home invasion and armed violence predicated on residential burglary have related purposes, yet home invasion is a more serious offense. The penalty for armed violence predicated on residential burglary while armed with a Category I weapon therefore violates the proportionate penalties clause. People v. Lombardi, op. cit.
The following offenses can be used as predicate felonies for armed violence:1
1. Aggravated battery (based on public place) — Penalty for armed violence based on battery on or about a place of public accommodation is not so disproportionate to the offense that it shocks the moral sense of community nor is cruel or degrading and therefore does not violate the proportionate penalties clause of Illinois Constitution, Ill. Const. 1970, Art. I, Section 11; the conviction of armed violence was not based on impermissible double enhancement; aggravated battery with a firearm is not the identical offense, as here there was more danger to the public. Also, the Court reiterated a conviction for possession of a firearm without a FOID card had to be reversed in that the penalty for violations of 430 ILCS 65/2(a)(1) (West 1994) violates the proportionate penalties clause when compared to the penalty for unlawful use of a weapon by a felon. People v. Garza, 298 Ill.App.3d 452, 699 N.E.2d 181 (2d Dist. 1998); People v. Espinoza, 184 Ill.2d 252, 702 N.E.2d 1275 (1998).
2. Aggravated battery (great bodily harm) — Penalty for armed violence with this predicate is likewise constitutional. Aggravated battery with a firearm is a different offense as it only requires "injury," so they are not identical offenses. People v. Shields, 298 Ill.App.3d 943, 700 N.E.2d 168 (1st Dist. 1998); People v. Powell, 299 Ill.App.3d 92, 701 N.E.2d 68 (1st Dist. 1998); People v. Miller, 284 Ill.App.3d 16, 671 N.E.2d 376 (2d Dist. 1991).
3. Aggravated criminal sexual abuse charges (bodily harm enhancement) and aggravated kidnaping (identity concealed enhancement) charges can be predicate felonies to armed violence as each would contain an additional element of proof. Application of the armed violence statute did not violate the proportionate penalties provision of the Illinois Constitution, nor did double enhancement occur. People v. Koppa, op. cit.
4. Possession of controlled substance while armed with a Category I weapon — Held not to be disproportionate when compared to aggravated battery with a firearm or aggravated criminal sexual assault, or when compared to armed violence predicated on other controlled substance offenses, as different societal problems are addressed. People v. Lombardi, op. cit.
With Lombardi having stood the armed violence statute’s purpose on its head, is it time to repeal the statute and start from scratch? Some quotations come to mind: Ulysses S. Grant once said, "I know no method to secure the repeal of bad or obnoxious laws so effective as their stringent execution." The Greek statesman Solon was sometimes right when he said, "Laws are like spiders’ webs which, if anything small falls into them they ensnare it, but large things break through and escape."
E. THE BEAT GOES ON
Senate Bill 1112 in this 91st General Assembly [P.A. 91-404, eff. 1-1-2000] makes three changes to the Criminal Code and the Unified Code of Corrections, which are as follows:
i. The penalty for specified felonies is subject to an "add-on" penalty for gun possession, discharge of a gun, and great bodily harm inflicted by the gunshot — 15, 20, 25 to life. An accountability exemption appears to exist. This enhancement scheme applies to the following felonies: attempt first degree murder, intentional homicide of an unborn child, aggravated kidnaping, aggravated battery of a child, home invasion, aggravated criminal sexual assault, predatory criminal sexual assault of a child, armed robbery, and aggravated vehicular hijacking. Why just these? Due process double-enhancement problems may exist for some offenses which include in their definition possession of a weapon.
ii. The armed violence statute is further complicated by specifying that certain predicate felony sentences must be served consecutive to the armed violence sentence. This may be in violation of the "one-act/one-crime" rule of People v. Payne, 98 Ill.2d 45, 456 N.E.2d 44 (1983), although that case hinged on statutory interpretation, not a due process analysis. The specified felonies under this section are different: solicitation of murder, solicitation of murder for hire, heinous battery, aggravated battery of a senior citizen [which one, 720 ILCS 5/12-4(b)(10) or 5/12-4.6?], criminal sexual assault, Class X cannabis and controlled substance deliveries and some trafficking offenses, calculated criminal drug conspiracy, and streetgang criminal drug conspiracy.
iii. The Code of Corrections amendments are less than clear in their application. 730 ILCS 5/5-8-1 appears to mandate 15, 20, 25 to life enhancements for all felonies, yet 730 ILCS 5/5-8-4 is consistent with the armed violence changes.
Perhaps the Governor’s Task Force on Simplifying the Criminal Code and the Code of Corrections can begin with P.A. 91-404.
The single-subject rule of the Illinois Constitution, Ill.Const., Art. IV, §8(d), might also provide a basis to challenge some newer armed violence sentences. In People v. Dainty, 299 Ill.App.3d 235, 701 N.E.2d 118 (3d Dist. 1998), the Court held that the enactment of Public Act 88-680 violated the single-subject rule. One of the provisions of P.A. 88-680 increased the minimum sentence for armed violence with a Category I weapon from six to fifteen years. 720 ILCS 5/33A-3(a)(1995) (effective Jan. 1, 1995). Petition for leave to appeal was granted.
People v. Wiggins, 298 Ill.App.3d 766, 700 N.E.2d 119 (1st Dist. 1998) held the opposite view. A petition for leave to appeal is pending.
Stephen W. Baker, J.D. received his Undergraduate Degree from Western Illinois University and his Law Degree from Loyola University. Since 1987, he has been a Public Defender with the DuPage County Public Defender’s Office, Wheaton, IL.
Paul J. Glaser, J.D. is a graduate of Loyola University of Chicago School of Law. Since 1977, he has been an Assistant Defender with the Office of the State Appellate Defender, Elgin, Illinois.