People v. Rizzo

2016 IL 118599

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 118599)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.

VINCENT RIZZO, Appellee.

Opinion filed June 16, 2016.

JUSTICE KARMEIER delivered the judgment of the court, with opinion.

Chief Justice Garman and Justices Thomas, Kilbride, and Theis concurred in

the judgment and opinion.

Justice Burke specially concurred, with opinion, joined by Justice Freeman.

OPINION

¶1 At issue in this case is the constitutionality of the 2012 version of section

5-6-1(p) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5-6-1(p)

(West 2012)), which, in pertinent part, precluded a disposition of supervision for

those who have violated the speed parameters of section 11-601.5 of the Illinois

Vehicle Code (625 ILCS 5/11-601.5 (West 2012)). 1 Defendant was charged with,

1

Effective January 1, 2016, section 5-6-1 was amended to narrow the prohibition to violators

previously convicted of a violation of section 11-601.5, those who have previously been placed on

supervision for a violation thereof, or, irrespective of any previous violations, someone who “was

operating a vehicle, in an urban district, at a speed that is 26 miles per hour or more in excess of the

inter alia, a violation of section 11-601.5(b) and moved to dismiss that charge on

constitutional grounds. The circuit court of Cook County ultimately entered an

order concluding that section 5-6-1(p)’s prohibition of supervision as a disposition

in this context is “unconstitutional as violating the proportionate penalties clause,

Article I, Section 11 of the Illinois Constitution.” In Rule 18 findings appended to

the order (see Ill. S. Ct. R. 18 (eff. Sept. 1, 2006)), the court stated that “[t]he

constitutional provisions upon which the finding is based include due process,

equal protection of the law and violation of the proportional [sic] penalties clause.”

The court purported to find the statute “unconstitutional on it[s] face and as applied

to the case sub judice.” The State appealed. Because the circuit court’s judgment

invalidated a statute of the state of Illinois, the appeal was taken directly to this

court pursuant to Illinois Supreme Court Rule 603 (eff. Feb. 6, 2013). We reverse

the judgment of the circuit court and remand for further proceedings.

¶2 BACKGROUND

¶3 On September 17, 2013, defendant, Vincent Rizzo, was charged by uniform

citation and complaint forms with: (1) a violation of section 11-601.5(b) of the

Vehicle Code (625 ILCS 5/11-601.5(b) (West 2012) (“A person who drives a

vehicle *** at a speed that is 40 miles per hour or more in excess of the applicable

maximum speed limit *** commits a Class A misdemeanor.”)) 2 in that he allegedly

drove his vehicle 100 miles per hour in a 55-mile-per-hour speed zone and (2) a

violation of section 11-709 of the Vehicle Code (625 ILCS 5/11-709(a) (West

2012) (improper lane usage)) in that he allegedly “cut in between two semi-trucks

at [a] high rate of speed.”

¶4 Defendant, through counsel, filed a motion to dismiss the section 11-601.5(b)

charge on constitutional grounds. Although defendant’s arguments therein are at

times confusing and ill-defined, defendant presented discernible arguments that:

(1) the 2012 version of section 5-6-1(p) of the Unified Code violates principles of

due process and the Illinois Constitution’s proportionate penalties clause (Ill.

applicable maximum speed limit.” Pub. Act 99-212, § 5 (eff. Jan. 1, 2016) (amending 730 ILCS

5/5-6-1(p), (q) (West 2014)).

2

The statutory threshold for subsection (b) was subsequently lowered to 35 miles per hour over

the posted speed limit. See Pub. Act 98-511, § 5 (eff. Jan. 1, 2014).

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Const. 1970, art. I, § 11), 3 insofar as that section precludes entry of an order for

court supervision where a defendant, as here, is charged with violating section

11-601.5(b) of the Vehicle Code (see 730 ILCS 5/5-6-1(c), (p) (West 2012)); and

(2) the legislature’s classification of said violation as a Class A misdemeanor,

subject to strict liability, contravenes the same constitutional provisions. In an

argument heading, defendant also suggested a violation of equal protection;

however, there appears to be no correlative argument or supporting citations in the

body of his motion.

¶5 Though defendant did not specify whether his constitutional challenges were

facial, as applied, or both, the body of his motion offered only hypothetical

situations wherein defense counsel believed the statutes might violate

constitutional rights, and there was no attempt to show how the statutes would

operate unconstitutionally in defendant’s circumstances. No hearing was ever held

to adduce facts specific to the disposition or penalty that might reasonably be

imposed upon this particular defendant.

¶6 In its response, the State argued that: (1) “a defendant’s eligibility—or lack

therefore [sic]—for supervision is not constitutionally significant”; (2) the statutory

elements of “aggravated speeding” and reckless driving are not, as defendant

argued, identical for purposes of proportionate penalty analysis; and (3) the

statutory preclusion of supervision as a disposition for section 11-601.5 violations

is neither “so wholly disproportionate to the offense as to shock the moral sense of

the community”—for purposes of proportionate penalty analysis—nor does it lack

a “reasonable relationship between the legislature’s purpose and the statute”—for

purposes of due process.

¶7 With respect to due process, the State concluded, “increasing a criminal

penalty” for a violation of section 11-601.5, via mandatory misdemeanor

conviction, “bears a rational relationship to the government’s purpose,” in that it

“decreases the likelihood people will take certain actions (here speed).” With

respect to the proportionate penalties clause, the State noted that “the actual,

statutory elements” of reckless driving and “aggravated speeding” are not identical

and submitted:

3

Although the parties sporadically referenced the eighth amendment to the United States

Constitution (U.S. Const., amend. VIII), because their principal arguments pertain to the Illinois

Constitution’s proportionate penalties clause, and this court has interpreted the scope of the latter to

be more expansive than the former (see People v. Clemons, 2012 IL 107821, ¶ 40), we will not treat

the eighth amendment separately herein.

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“[Defendant] can’t show that denying supervision to aggravated speeders

‘shocks the moral sense of the community’ or that reckless driving and

aggravated speeding are identical crimes. Put bluntly, the Defendant’s

invocation of a constitutional provision that deals with sentences of death,

torture, and life imprisonment, an invocation made without a single case

suggesting that the ability to receive supervision is constitutionally significant,

trivializes the Constitution.”

¶8 Defendant filed a reply insisting, inter alia, that aggravated speeding and

reckless driving share identical elements. Therefore, defendant reasoned the

divergent dispositional range, i.e., the preclusion of supervision as a dispositional

option for a violation of section 11-601.5, violates the proportionate penalties

clause.

¶9 Following hearings on the matter, the court filed a memorandum opinion and

order on August 12, 2014. Therein, the circuit court declared section 5-6-1(p) of the

Unified Code unconstitutional insofar as it “denies supervision to offenders of 625

ILCS 5/11-601.5.” The court specified: “This finding is limited to the denial of

supervision. It does not affect the validity of the crime of Aggravated Speeding as

either an [sic] Class B or A misdemeanor.”

¶ 10 En route to its conclusion, the court determined: “Given the serious problems

individuals operating a vehicle at an excessive speed can cause, Illinois had a

legitimate interest in enacting legislation defining and criminalizing excessive

speeding. There is no violation of either Due Process or Equal Protection in

designating excessive speeding as a misdemeanor.”

¶ 11 Turning to defendant’s proportionate penalties claim, the court first found no

violation via application of the identical elements approach. The court rejected

defendant’s contention that the offenses of reckless driving, for which supervision

is an authorized disposition, and aggravated speeding, for which it was prohibited,

share identical elements. The court observed that reckless driving requires the

driver to act with a willful and wanton disregard for the safety of persons or

property and, to so act, the driver must be proven to have consciously disregarded a

substantial and unjustifiable risk in that regard. The court further noted that the

legislature had considered making driving 40 miles per hour or more over the speed

limit prima facie evidence of reckless driving but had ultimately declined to do so.

The court observed:

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“The speed of a vehicle may be evidence of willful and wanton conduct but it is

not an element of the charge [of reckless driving] and need not be proven.

Aggravated Speeding requires proof of the specific speed the vehicle was

going. There is no need to show willful or wanton conduct on the part of the

driver. The elements in the two statutes are different so they may not be

considered identical for purposes of the proportionate penalties clause.”

¶ 12 However, the court went on to find that denying the dispositional option of

court supervision where a defendant has exceeded the speed limit by 40 miles per

hour or more—here, allegedly, 100 miles per hour in a 55-mile-per-hour zone—is

indeed “cruel and degrading punishment.” In arriving at that conclusion, the court

compared aggravated speeding to other misdemeanors for which supervision is

precluded—misdemeanors that the court deemed more serious because of elements

of bodily injury or physical harm to property—and offenses like driving while

license revoked or suspended, driving under the influence, driving without

insurance, and theft, for which first-offense supervision is allowed. The court

remarked on hypothetical collateral consequences attendant to a misdemeanor

conviction. The judge also suggested that the legislature should have “given us

their reasons for denying supervision to anyone convicted of Aggravated

Speeding” and should “have *** informed us as to whether they were attempting to

Prevent, Restrain, Rehabilitate, Deter, Educate or require Retribution.” Although

the court acknowledged that “excessive speeding has the potential of creating grave

injury to the public,” it again compared the legislature’s dispositional

determination here to those for other offenses, where different elements are

concerned: “The sentencing provision here, unlike many others in the criminal and

motor vehicle codes does not differentiate between first offenders[,] circumstances

surrounding the crime (injury or property damage)[,] or other aggravating factors

found in the elements of other misdemeanors where there is mandatory denial of

supervision.”

¶ 13 Citing dictionary definitions of “cruel”—“to inflict pain or suffering”—and

“degrading”—“to reduce in grade, status; *** to expose to contempt, dishonor or

disgrace”—the court concluded that denying the option of supervision where a

defendant is guilty of driving 40 miles per hour over the speed limit qualifies as

“cruel and degrading punishment.” The gist of the court’s reasoning is summarized

in the following excerpt, which seemingly melds various constitutional standards

and concerns—such as proportionate penalties, due process, and separation of

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powers—in order to strike down the statute under the guise of proportionate

penalty review:

“Mandating a conviction for a first offender for speeding where they [sic] may

or may not have been mitigating factors, with no showing of physical harm, no

showing of property damage, no showing of an intentional act or a showing of

any surrounding circumstances is cruel and degrading. This is seen when the

ramifications of a conviction are considered as well as the crime itself. There

does not appear to be a relationship between the penalty and the crime alleged.

The legislature has not given nor does there appear to be a rational basis for

removing judicial discretion concerning sentencing for at least first time

offenders. Clearly absent some serious repercussion from excessive speeding

judges must be able to decide the appropriate sentence on a case by case basis.”

¶ 14 In Rule 18 findings appended to the court’s opinion and order, the court stated:

“The only portion of this statute that is unconstitutional is the denial of supervision

to first offenders. The statute may stand as creating different levels of

misdemeanors for individuals speeding in excess of specific amounts over posted

speed limits.” Although the court’s declaration of unconstitutionality in the body of

its order was premised solely upon a violation of the proportionate penalties clause,

in its Rule 18 findings the court indicated “[t]he constitutional provisions upon

which [the declaration] is based include due process of law, equal protection of the

law and violation of the proportional [sic] penalties clause.” The court found the

pertinent portion of the statute “unconstitutional on it [sic] face and as applied to

the case sub judice.” The court averred that the statute cannot reasonably be

construed in a manner that would preserve its validity, opining: “A mandatory

conviction for any violation of Aggravated Speeding without review of specifics of

the facts or of the defendant’s background is not reasonably designed to remedy of

[sic] the particular evil the legislature was targeting.”

¶ 15 The State filed a motion to reconsider, raising three main points in support

thereof: (1) a recent opinion from this court, In re Derrico G., 2014 IL 114463,

wherein this court affirmed, as constitutional, limitations on a trial court’s ability to

order a disposition of supervision; (2) “the possibility that this case could have been

decided on non-constitutional grounds”; and (3) lack of case law supporting the

court’s finding.

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¶ 16 With respect to its first point, the State noted that this court in In re Derrico G.

addressed the constitutionality of a statute (705 ILCS 405/5-615(1), (2) (West

2010)) which, at the time, effectively allowed supervision in certain juvenile cases

only with the consent of the State’s Attorney. The circuit court ruled the statute

unconstitutional, and this court reversed. The State, in this case, admitted that the

contexts “are not identical” but maintained that Derrico G. offered additional

support for the State’s contention that no Illinois court of review “has ever so much

as hinted that a defendant’s ineligibility for supervision is unconstitutional.” The

State suggested “if a statute giving the State’s Attorney veto power over

supervision is constitutional, it is hard to see how a statute barring all offenders

from supervision is unconstitutional.”

¶ 17 With respect to its second point, the State averred that the court had found the

pertinent portion of the statute would be unconstitutional as applied to first

offenders, and the court had suggested there are constitutional implications in

denying a circuit court the ability to consider a defendant’s background in the

dispositional phase of proceedings; however, the State observed, “there is no

evidence in the record to suggest that the Defendant is a first offender,” and “[i]f the

Defendant’s background and the facts of the case were such that the Court would

not give him supervision, the Court’s decision could ‘rest on an alternative ground’

under Rule 18(c)(1).” (Emphases in original.)

¶ 18 In support of its argument, the State attached, as an exhibit, defendant’s

certified driving abstract. As the State noted, the abstract showed, before his arrest

in this case, the defendant had two prior convictions and four prior dispositions of

supervision for moving violations. Defendant had prior convictions for driving on

the left side of the road where prohibited and disregarding a stop/yield sign at an

intersection. He had been afforded the consideration of supervision four times:

twice for driving 15-25 miles per hour over the speed limit, once for disregarding a

stop/yield sign, and once for driving the wrong way on a one-way street or

highway.

¶ 19 For its third point, the State observed that the court had not offered any case law

in support of its key propositions. Quoting our decision in People v. Sharpe, 216 Ill.

2d 481, 487 (2005), the State noted that courts “generally defer to the legislature in

the sentencing arena because the legislature is institutionally better equipped to

gauge the seriousness of various offenses and to fashion sentences accordingly.”

The State took issue with the court’s reliance upon “the various unpleasant

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consequences of a misdemeanor conviction,” pointing out that case law holds the

proportionate penalties clause and the eighth amendment are concerned only with

“direct action by the government to inflict punishment” (emphasis in original), and

the “collateral consequences by some other actor,” upon which the court relied, are

simply irrelevant. Finally, the State observed that the court, in its Rule 18 findings,

stated that the statute violates the constitutional principles of due process and equal

protection; however, “the opinion lacks any analysis or case law explaining, for

instance, what exact legislative classification is being made, what test that

classification is subject to, any [sic] why that classification is unconstitutional.”

¶ 20 Defense counsel filed a response to the State’s motion, arguing that the motion

to reconsider was “improper” in that, according to defense counsel, the “motion

does not inform the trial court of newly discovered evidence that was unavailable at

the time of the original hearing, does not alert the court to changes in the law, and

does not apprise the court of any errors it made in its application of existing law.”

¶ 21 After a brief hearing, the circuit court denied the State’s motion without further

comment. The State filed a timely notice of appeal.

¶ 22 ANALYSIS

¶ 23 We begin with applicable standards, which favor upholding the

constitutionality of a challenged statute. As this court has often emphasized,

“Constitutional challenges carry the heavy burden of successfully rebutting the

strong judicial presumption that statutes are constitutional.” People v. Patterson,

2014 IL 115102, ¶ 90. That presumption applies with equal force to legislative

enactments that declare and define conduct constituting a crime and determine the

penalties imposed for such conduct. People v. Dunigan, 165 Ill. 2d 235, 244 (1995).

“To overcome this presumption, the party challenging the statute must clearly

establish that it violates the constitution.” Sharpe, 216 Ill. 2d at 487. Courts have a

duty to uphold the constitutionality of a statute whenever reasonably possible,

resolving any doubts in favor of the statute’s validity. Patterson, 2014 IL 115102,

¶ 90. The constitutionality of a statute is a matter of law, and accordingly we review

the circuit court’s conclusion de novo. Sharpe, 216 Ill. 2d at 486-87.

¶ 24 This court has recently reiterated that facial and as-applied challenges are not

interchangeable, and there are fundamental distinctions between them. People v.

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Thompson, 2015 IL 118151, ¶ 36. “An as-applied challenge requires a showing that

the statute violates the constitution as it applies to the facts and circumstances of the

challenging party. [Citation.] In contrast, a facial challenge requires a showing that

the statute is unconstitutional under any set of facts, i.e., the specific facts related to

the challenging party are irrelevant.” Id. The burden on the challenger is

particularly heavy when a facial constitutional challenge is presented. Bartlow v.

Costigan, 2014 IL 115152, ¶ 18. “The fact that the statute might operate

unconstitutionally under some conceivable set of circumstances is insufficient to

render it wholly invalid.” Hope Clinic for Women, Ltd. v. Flores, 2013 IL 112673,

¶ 33. So long as there exists a situation in which the statute could be validly applied,

a facial challenge must fail. People v. Davis, 2014 IL 115595, ¶ 25; Hill v. Cowan,

202 Ill. 2d 151, 157 (2002).

¶ 25 In this case, the circuit court stated, in its Rule 18 findings, that it was holding

the statute unconstitutional facially and as applied; however, in the latter regard,

prior to the court’s ruling, there was no evidence adduced as to the “facts and

circumstances” of the defendant or any discussion of how the statute would

adversely affect defendant specifically. Nor does the court’s opinion and order

contain any discussion or analysis of this defendant’s circumstances, i.e., his

relevant background or the circumstances of the alleged offense, though the circuit

court bemoaned the statutory impediment to consideration of those very factors.

¶ 26 As we recently reiterated in People v. Mosley, 2015 IL 115872:

“ ‘A court is not capable of making an ‘as applied’ determination of

unconstitutionality when there has been no evidentiary hearing and no findings

of fact. [Citation.] Without an evidentiary record, any finding that a statute is

unconstitutional ‘as applied’ is premature.’ ” Mosley, 2015 IL 115872, ¶ 47

(quoting In re Parentage of John M., 212 Ill. 2d 253, 268 (2004)).

Because there was no evidentiary hearing and there were no findings of fact, the

circuit court could not have made a separate as-applied finding. “When there has

been no evidentiary hearing and no findings of fact, the constitutional challenge

must be facial.” Mosley, 2015 IL 115872, ¶ 49. In any event, the court’s as-applied

finding would be irrelevant in light of its finding that the statutory provision was

facially unconstitutional, since “a facial challenge requires a showing that the

statute is unconstitutional under any set of facts.” (Emphasis added.) People v.

Thompson, 2015 IL 118151, ¶ 36.

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¶ 27 We note, at the outset, that the circuit court’s opinion and order contains an

ambiguous analysis and ill-defined concerns en route to its conclusion that section

5-6-1(p) is unconstitutional. The final paragraph of the order appears to identify

only a violation of the proportionate penalties clause; however, the court’s

references in its Rule 18 findings to due process and equal protection concerns

muddy the waters in that regard. We nonetheless believe the court’s finding of

unconstitutionality is grounded upon a perceived violation of the proportionate

penalties clause—because the court says so in the concluding paragraph of its order

proper—and we will proceed principally on that basis. However, because the

circuit court used due process terminology in portions of the order ostensibly

dealing with proportionate penalty concerns, we will briefly address aspects of due

process. We will not address equal protection at all, as defendant did not present

any argument in that regard, and the circuit court’s order is bereft of any equal

protection analysis. Simply saying, in Rule 18 findings, that a finding of

unconstitutionality is based upon equal protection does not make it so. With those

qualifications, we address the proportionate penalty issue.

¶ 28 As this court recently observed in People v. Williams, 2015 IL 117470, ¶ 9, a

proportionality challenge derives from article I, section 11, of the Illinois

Constitution of 1970. Section 11, commonly referred to as the proportionate

penalties clause, provides that “[a]ll penalties shall be determined both according to

the seriousness of the offense and with the objective of restoring the offender to

useful citizenship.” Ill. Const. 1970, art. I, § 11. After our decision in

Sharpe—jettisoning the “problematic and unworkable” cross-comparison

approach to proportionate penalties review (Sharpe, 216 Ill. 2d at 519)—two bases

remain for mounting a proportionate penalties challenge. A defendant can argue

that the “penalty for a particular offense is too severe under the ‘cruel or degrading’

standard or that the penalty is harsher than the penalty for a different offense that

contains identical elements.” (Emphasis added.) Williams, 2015 IL 117470, ¶ 9.

Defendant in this case tried both approaches.

¶ 29 The circuit court rejected the latter, noting that the crime of reckless

driving—the offense with which defendant compared aggravated speeding, for

purposes of the identical elements test—“requires the driver to act with a willful

and wanton disregard for the safety of persons and property,” which, the court aptly

observed, “is clearly not an element of Aggravated Speeding.” Conversely, the

court noted: “Aggravated Speeding requires proof of the specific speed the vehicle

was going. There is no need to show willful and wanton conduct on the part of the

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driver. The elements in the two statutes are different so they may not be considered

identical for purposes of the proportionate penalties clause.” In its opinion and

order, the court also specifically referenced the legislature’s decision to treat the

two offenses separately. We find the circuit court’s identical elements analysis

sound.

¶ 30 Not so with respect to the remainder of the court’s proportionate penalty

analysis. The circuit court commences that discussion with the question: “Is the

penalty such that is [sic] cruel and degrading?” The court then cites our decision in

Sharpe for the proposition that a penalty violates the proportionate penalties clause

when “the greater penalty [is] so disproportionate that it shock[s] the moral sense of

the community or [is] cruel and degrading.” What follows is a proportionate

penalty analysis that, first, attempts to compare section 11-601.5(b) violations to

other traffic offenses, misdemeanors, and felonies for which a disposition of

supervision is prohibited, or for which supervision is allowed for a first offense,

then suggests—without any meaningful discussion—that aggravated speeding

poses a lesser threat to public health or safety:

“Unlike many of the other misdemeanors precluded from receiving a

sentence of supervision[,] here bodily injury is not an element in Aggravated

Speeding. There is not an element of physical harm to property. Many of the

statutes listed allow supervision if it is the first offense, such as Driving on

Revoked or Suspended License; Driving Under the Influence; Driving Without

Insurance; or Theft.”

¶ 31 The circuit court then goes on to cite possible, collateral consequences of

conviction as relevant to its finding: “It will be a misdemeanor conviction that

would need to be disclosed on job applications and loan applications. It could be a

basis for denial of a mortgage, student loan or employment.” In the same

paragraph, the court references undeveloped concerns over mandatory sentencing

and possible separation-of-power considerations: “It should be noted the denial of

supervision for Aggravated Speeding does not consider the prior driving history of

the offender *** [n]or does the mandatory conviction requirement allow the judge

to consider the circumstances of the speeding in the case before them.”

¶ 32 In the midst of what is represented to be a proportionate penalty analysis, the

court states that “[s]ubstantive due process requires the sentence be related to an

injury to the Public.” In that paragraph, the court suggests that the legislature is

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required to furnish a statement as to the goal of this legislation, noting that the

“legislature has not given us their reasons for denying supervision to anyone

convicted of Aggravated Speeding, nor have they informed us as to whether they

were attempting to Prevent, Restrain, Rehabilitate, Deter, Educate or require

Retribution.”

¶ 33 The court does eventually acknowledge that “excessive speeding has the

potential of creating grave injury to the public”—something legislators may have

considered when they assigned the then-extant penalty range—however, the court

immediately observes “[i]t is a potential, not a given, not an absolute.” Again, the

court compares “[t]he sentencing provision here” to “many others in the criminal

and motor vehicle codes” that “differentiate between first offenders” and allow for

consideration of “circumstances surrounding the crime (injury or property

damage).” Reiterating the question posed at the outset of what is represented to be a

proportionate penalty analysis, the court again asks: “[D]oes the denial of

supervision amount to cruel and degrading punishment?” The court’s answer, after

consulting a dictionary of general usage and taking into account all of the foregoing

considerations, is yes.

¶ 34 We note, initially, that the parties dispute, as a threshold matter, whether the

legislature’s exclusion of supervision as an available disposition can run afoul of

the proportionate penalties clause, the State arguing that supervision is neither a

“punishment” nor a sentence, but rather “a statutory deferral of prosecution and

possible avoidance of any judgment of conviction,” and that even “a ‘conviction’

alone cannot be unconstitutionally disproportionate since it is not even a specific

sentence.”

¶ 35 We will assume, solely for purposes of this analysis, that supervision may

constitute a “penalty” that represents the lowest range of a possible dispositional

framework for a misdemeanor. This court has stated: “Viewed realistically,

supervision with conditions attached (reporting, restitution, etc.) involves the

imposition of a penalty despite the fact that defendant has not been found guilty, or

an earlier finding of guilt has been vacated.” People v. Breen, 62 Ill. 2d 323, 326

(1976). However, even assuming that a disposition of supervision can be

considered part of a “penalty” framework for purposes of proportionate penalty

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analysis, legislative restrictions on its availability, or withholding the option

altogether, 4 cannot, under these circumstances, violate constitutional safeguards.

¶ 36 As this court observed in Sharpe:

“We generally defer to the legislature in the sentencing arena because the

legislature is institutionally better equipped to gauge the seriousness of various

offenses and to fashion sentences accordingly. [Citation.] The legislature’s

discretion in setting criminal penalties is broad, and courts generally decline to

overrule legislative determinations in this area unless the challenged penalty is

clearly in excess of the general constitutional limitations on this authority.”

Sharpe, 216 Ill. 2d at 487.

¶ 37 In this context, this court has stated—more than once:

“ ‘When the legislature has authorized a designated punishment for a specified

crime, it must be regarded that its action represents the general moral ideas of

the people, and the courts will not hold the punishment so authorized as either

cruel and unusual, or not proportioned to the nature of the offense, unless it is a

cruel or degrading punishment not known to the common law, or is a degrading

punishment which had become obsolete in the State prior to the adoption of its

constitution, or is so wholly disproportioned to the offense committed as to

shock the moral sense of the community.’ ” (Emphasis added.) People v.

Miller, 202 Ill. 2d 328, 339 (2002) (quoting People ex rel. Bradley v. Illinois

State Reformatory, 148 Ill. 413, 421-22 (1894)).

In other words, the fact that the legislature “has authorized a designated punishment

for a specified crime” itself says something about the “general moral ideas of the

people” with respect thereto, though obviously that designation is not

determinative.

¶ 38 In Miller, this court noted that it has never defined what kind of punishment

qualifies as “cruel” and “degrading” or “so wholly disproportioned to the offense as

to shock the moral sense of the community.” Miller, 202 Ill. 2d at 339. “This is so

because, as our society evolves, so too do our concepts of elemental decency and

fairness which shape the ‘moral sense’ of the community.” Id. Objective evidence

4

In Breen, this court made clear that “absent appropriate legislation, a trial judge is without

authority to place a defendant on supervision.” Breen, 62 Ill. 2d at 328. The disposition of

supervision was not statutorily authorized until 1977.

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may be considered in this inquiry, but it does not wholly determine the controversy,

because, in the end, the constitution contemplates that our own judgment will be

brought to bear on the question. Id. at 339-40. In that endeavor, “[w]e review the

gravity of the defendant’s offense in connection with the severity of the statutorily

mandated sentence within our community’s evolving standard of decency.” Id. at

340.

¶ 39 The mandatory requirement of conviction upon a finding of guilt, as opposed to

the dispositional option of supervision, does not, in itself, violate the proportionate

penalties clause. In Sharpe, for example, we rejected defendant’s contention that,

by setting forth lengthy mandatory minimum sentences for murder involving a

firearm, the legislature had failed to consider the objective of restoring the offender

to useful citizenship, as required by the proportionate penalties clause:

“ ‘Our court has previously rejected claims that the legislature violates

article I, section 11, when it enacts statutes imposing mandatory minimum

sentences. Our decisions have recognized that the legislature’s power

necessarily includes the authority to establish mandatory minimum sentences,

even though such sentences, by definition, restrict the inquiry and function of

the judiciary in imposing sentence.’ ” Sharpe, 216 Ill. 2d at 525 (quoting

Dunigan, 165 Ill. 2d at 245).

In fixing a penalty for an offense, the possibility of rehabilitation is not given

greater weight or consideration than the seriousness of the offense. Sharpe, 216 Ill.

2d at 525 (citing People v. Taylor, 102 Ill. 2d 201, 206 (1984) (upholding, against

proportionate penalty challenge, a statute that mandates a sentence of natural life

for murdering more than one victim)).

¶ 40 In this case, the circuit court did not find the Class A penalty range for a

conviction under section 11-601.5(b)—which included imprisonment of up to a

year in jail—cruel and degrading nor violative of due process; it was only the then-

existing, comprehensive prohibition of the dispositional option of supervision that

was “cruel” and “degrading.” It was only preclusion of the opportunity to come

away with a clean record—after having been apprehended driving more than 40

miles per hour over the speed limit—that the judge considered “cruel” and

“degrading.” Though the judge acknowledged that “excessive speeding has the

potential of creating grave injury to the public,” and she was in fact presiding over a

case in which defendant was alleged to have driven 100 miles per hour in a

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55-mile-per-hour zone, cutting in between semitrucks at a high rate of speed, she

nonetheless determined the “potential” of “grave injury” was insufficient to justify

the legislature’s determination, at that point in time, that supervision was not an

appropriate disposition, under any circumstances. The court considered the flat ban

on supervision, for those who had exposed the public to the potential of “grave

injury,” to be “cruel” and “degrading.”

¶ 41 In our view, the legislature’s prohibition of the dispositional option of

supervision, in this context, does not even approach the “cruel and degrading”

standard requisite for a finding of unconstitutionality. We do not believe our

society has devolved to the permissive point that the legislature is obligated to

provide an escape hatch for those who have shown such a blatant disregard for

posted speed restrictions. We have, in the context of our community’s evolving

standards of decency, reviewed and considered the gravity of defendant’s alleged

offense in connection with the severity of the statutorily mandated sentence then set

by the legislature. Our consciences are not shocked by the prohibition, individually

or collectively. It appears the circuit court reached its result through application of

the proportionate penalty analysis this court rejected in Sharpe.

¶ 42 While discussing what is “cruel” and “degrading,” the analysis actually uses

comparisons of this offense, and its prescribed “penalty” framework, with other

offenses with different elements and the penalties assigned to them. This approach

is precisely what we abandoned in Sharpe. In Sharpe, this court concluded:

“[C]ross-comparison analysis has proved to be nothing but problematic and

unworkable, and *** it needs to be abandoned. Those cases that used such an

analysis to invalidate a penalty are overruled, and this court will no longer use

the proportionate penalties clause to judge a penalty in relation to the penalty

for an offense with different elements.” Sharpe, 216 Ill. 2d at 519.

One of “[t]hose cases that used such an analysis” was People v. Davis, 177 Ill. 2d

495 (1997). In fact, this court noted in Sharpe that Davis “established

cross-comparison analysis in its current form.” Sharpe, 216 Ill. 2d at 505. Davis

was the principal case upon which this defendant relied. At the very outset of this

case, the State advised the circuit court that Davis was no longer good law after

Sharpe. It appears that the circuit court’s analysis effectively resurrects the

cross-comparison analysis under the guise of an inquiry into what is cruel and

degrading. A penalty—or in this case the withdrawal of a dispositional

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option—does not become “cruel” and “degrading” simply because it differs from

the penalty for a different offense with different elements. “Different” is not

consonant with “degrading.” 5

¶ 43 The other error in the circuit court’s analysis lies in its improper consideration

of possible collateral consequences of a misdemeanor conviction, such as a

requirement of disclosure on job or loan applications. Aside from the fact that an

employer, for valid safety concerns, might want to know that a prospective

employee has driven 40 miles per hour over the speed limit, we note that the

collateral consequences of conviction, referenced by the circuit court, do not

qualify as part of the “penalty” for purposes of proportionate penalty analysis. Both

Illinois’s proportionate penalties clause and the federal constitution’s prohibition of

cruel and unusual punishment “apply only to the criminal process involving a direct

action by the government to inflict punishment.” People v. Boeckmann, 238 Ill. 2d

1, 16-17 (2010). This court has held that the Illinois Secretary of State’s suspension

of driving privileges, when a person receives court supervision for unlawful

consumption of alcohol under 21 years of age, “is not a direct action by the

government to inflict punishment.” Id. at 17. More to the point, this court has

consistently held that the requirement of registration, pursuant to the Sex Offender

Registration Act (730 ILCS 150/1 et seq. (West 2004)), is not a direct action by the

State to inflict punishment. People ex rel. Birkett v. Konetski, 233 Ill. 2d 185,

207-08 (2009). In light of those holdings, what reasoning or case law supports the

conclusion that a nongovernmental actor’s requirement of misdemeanor disclosure

5

We acknowledge the contention of amicus curiae in this case—the Illinois Bar Association,

the Illinois Association of Criminal Defense Lawyers Association, and the Du Page County

Criminal Defense Lawyers Association—that “Sharpe does not require the Court to completely

disregard the general penalties that the legislature has set for other acts of misconduct.” We respond

that the legislature has “generally” set consistent penalties for violations of section 11-601.5(b) and

reckless driving, the principal offense with which defendant seeks comparison. They are both Class

A misdemeanors. In Sharpe, we cautioned “that the cross-comparison challenge will not simply

resurface as a due process challenge along the lines of [People v. Wagner, 89 Ill. 2d 308 (1982)],”

where this court “made a subjective determination about the seriousness” of the two offenses there

at issue. Sharpe, 216 Ill. 2d at 522-23. We reiterate that caution in this context, again quoting

Sharpe: “[C]ourts generally decline to overrule legislative determinations in this area unless the

challenged penalty is clearly in excess of the general constitutional limitations on this authority.”

(Emphasis added.) Id. at 487. “Different” simply does not translate into “cruel” or “degrading.”

There must be a disconnect between the gravity of defendant’s offense and the severity of the

statutorily mandated sentence that “shocks the moral sense” or is inconsistent with community

“standard[s] of decency.” See Miller, 202 Ill. 2d at 339.

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is properly considered as part of a pertinent “penalty” in this context? We are aware

of none, and the circuit court cites none.

¶ 44 In sum, we find no basis for the circuit court’s ruling that the prohibition of

supervision, in the 2012 version of section 5-6-1(p) of the Unified Code, violates

the proportionate penalty clause. Although the circuit court purported to hold the

statutory provision unconstitutional only on the basis of a proportionate penalty

violation, in light of the court’s imprecise approach in Rule 18 findings—stating

that the ruling was based on “due process of law” and “equal protection of law” as

well—its use of due process language in the body of its order, and defendant’s

contention that due process was also violated, we will briefly address due process

concerns.

¶ 45 When legislation does not affect a fundamental constitutional right, this court,

in a due process analysis, applies the rational basis test to determine the

legislation’s constitutionality. People v. Wright, 194 Ill. 2d 1, 24 (2000). A statute

attacked on due process grounds will be upheld so long as (1) it bears a reasonable

relationship to the public interest sought to be protected and (2) the means

employed are a reasonable method of achieving the desired objective. People v.

Carpenter, 228 Ill. 2d 250, 267-68 (2008). In order to “pass muster under the due

process clause, a penalty must be reasonably designed to remedy the particular evil

that the legislature was targeting.” Sharpe, 216 Ill. 2d at 531. When applying the

rational basis test, the court is highly deferential to the findings of the legislature.

People v. Johnson, 225 Ill. 2d 573, 585 (2007). If any state of facts can reasonably

be conceived of to justify the enactment, it must be upheld. People v. Alcozer, 241

Ill. 2d 248, 263 (2011); People v. Shephard, 152 Ill. 2d 489, 502 (1992).

¶ 46 In this instance, the legislature was addressing excessive speeding, which the

circuit court acknowledged “has the potential of creating grave injury to the

public.” The legislature initially considered making speeding in excess of 40 miles

per hour over the limit prima facie evidence of reckless driving, then changed

course and made speeding in that range a stand-alone, Class A misdemeanor. The

fact that the legislature saw fit to make aggravated speeding a separate offense, for

which proof of a reckless mental state was not required, suggests the seriousness

with which the legislature regarded this conduct. That it might put restrictions on

the dispositional option of supervision, as is still the case even after the recent

amendment of section 5-6-1, or prohibit it altogether, as was the case with the

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statutory version currently under consideration, is not an unreasonable or arbitrary

means of addressing or deterring the perceived evil.

¶ 47 The circuit court expressed concern that the legislature failed to inform us

“whether they were attempting to Prevent, Restrain, Rehabilitate, Deter, Educate or

require Retribution.” The legislature does not have to offer the judiciary an

obligatory statement of purpose for every penal provision it passes. 6 If one were

required, deterrence would suffice in this instance. The circuit court and the

defendant have already given us examples of how a conviction in and of itself

might have consequences that would deter this type of conduct. In short, we find no

due process violation.

¶ 48 In closing, we wish to again emphasize that one who challenges the

constitutionality of a statutorily mandated “penalty” has the burden of clearly

establishing that the challenged provision is in excess of the general constitutional

limitations on the legislature’s authority. Sharpe, 216 Ill. 2d at 487. The challenger

cannot shift the burden of proof and research to the circuit court—it is his burden

alone to overcome the presumptions of unconstitutionality, which exist for a

reason. For its part, a circuit court contemplating the invalidation of a law enacted

by the representatives of the people should proceed with the utmost caution before

following an attorney’s ill-defined path to a finding of unconstitutionality. Rule 18

requires the court to set forth the specific grounds for the finding of

unconstitutionality, including the constitutional provision(s) upon which the

finding of unconstitutionality is based, and whether the law is being found

unconstitutional on its face or as applied to the case sub judice. At a minimum, that

should include an adequate discussion of relevant case law and should sufficiently

differentiate the various constitutional bases that might bear upon its finding. That

was not done here.

¶ 49 For the foregoing reasons, we reverse the judgment of the circuit court and

remand for further proceedings consistent with this opinion.

¶ 50 Reversed and remanded.

6

Moreover, in this context, where evidence of the legislature’s deliberative process is minimal

at best, we decline to “second-guess the legislature’s judgment” and engage in a Wagner-style due

process analysis that this court roundly criticized in Sharpe. See Sharpe, 216 Ill. 2d at 495-96.

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¶ 51 JUSTICE BURKE, specially concurring:

¶ 52 I agree that the judgment of the circuit court should be reversed. However, my

reasons for reaching that result differ somewhat from the majority. I therefore

specially concur.

¶ 53 The circuit court held that the 2012 version of the aggravated speeding statute

violated the proportionate penalties clause of the Illinois Constitution because

supervision was not a possible disposition for the offense. The difficulty with this

conclusion is that proportionate penalties analysis rests on the actual penalties set

by the legislature and whether those penalties are set according to the seriousness of

the offense. The absence of supervision as a possible disposition is not, itself, a

penalty. Thus, in this case, the only question that need be addressed is whether a

mandatory misdemeanor penalty for the offense of aggravated speeding—the

actual penalty imposed by the General Assembly—is so cruel, degrading or

disproportionate to the offense that it shocks the moral sense of the community and

thereby violates the proportionate penalty clause.

¶ 54 Driving 40 miles per hour over the speed limit is an inherently dangerous

activity that puts the safety of other drivers at risk. It cannot reasonably be said that

making the offense a mandatory misdemeanor is so cruel or degrading a

punishment that the legislature is constitutionally precluded from imposing that

penalty.

¶ 55 Also, in addressing this appeal, the majority is unnecessarily critical of the

circuit court. The primary concern of the circuit court was that, by making

aggravated speeding a mandatory criminal offense, the legislature barred the circuit

courts from ever considering any mitigating circumstances that might accompany

the violation. In other words, a judge could not consider granting supervision if, for

example, the speeding was necessitated by a medical emergency of some kind.

Notably, after the circuit court’s decision in this case, the legislature amended the

relevant statutes to make supervision generally available as a disposition for first

offenders. See Pub. Act 99-212, § 5 (eff. Jan. 1, 2016) (amending 730 ILCS

5/5-6-1(p), (q) (West 2014)). Thus, the circuit court’s concerns in this case were

fully validated by the General Assembly.

¶ 56 For the foregoing reasons, I specially concur.

¶ 57 JUSTICE FREEMAN joins in this special concurrence.

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