The opinion
PRESIDING JUSTICE REID, specially concurring:
While I concur in the result of this case because of the Illinois Supreme Court’s recent ruling in People v. Bush, 214 Ill. 2d 318 (2005), I am moved to write separately in order to draw attention to a pernicious systemic problem now built in to the system by which we prosecute, convict and sentence certain defendants in these drug cases. In 2003, I wrote for the majority in the case of People v. Cooper, 337 Ill. App. 3d 106 (2003). Bush has now rendered Cooper little more than a footnote in history by specifically refusing to follow it.
Both Bush and Cooper were drug cases involving very small quantities, the sentences for which were based on the defendants’ alleged intent to deliver. In Cooper, “[i]t was stipulated by the parties that[,] if called to testify[,] a forensic chemist would [have testified] that the total estimated weight of the nine packets was 0.6 to 0.7 grams.” Cooper, 337 Ill. App. 3d at 109 . In Bush, the stipulated testimony would have shown that the total weight of the drugs, in that case cocaine, was less than 0.1 grams. Bush, 214 Ill. 2d at 322 . To put that in perspective, a visit to the United States Treasury website (www.usmint.gov) revealed that a standard United States dime weighs 2.268 grams. The point is that the amount of drugs is very small. While that is not meant as an excuse or justification, it is relevant to prosecutions such as Bush and Cooper where the charge is possession of drugs with intent to deliver. “The quantity of a controlled substance that a defendant is charged with possessing is an essential element of the offense of possession with intent to deliver [citation] ***.” People v. Kucharski, 346 Ill. App. 3d 655, 665 (2004), citing 720 ILCS 570/ 401(a)(ll) (West. 2000). In Cooper and in the case sub judice, the State’s case hinged on the testimony of the police as it relates to the actions of an unknown, unnamed other person to the alleged drug transaction, the buyer. In Bush, Cooper and now Jennings, the unknown, unarrested buyer — an essential participant in any transaction between a buyer and a seller — is allowed to go free. As now happens with alarming frequency, the police are present when the transaction takes place. In fact, the police allegedly watch as the entirety of the alleged sale takes place, yet do not detain both the alleged “buyer” and “seller.”
I accept the following statement of the law:
“In assessing the sufficiency of the evidence to sustain a verdict on appeal, a reviewing court’s inquiry is ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ (Emphasis in original.) Jackson v. Virginia, 443 U.S. 307, 318-19 , 61 L. Ed. 2d 560, 573 , 99 S. Ct. 2781, 2788-89 (1979); People v. Collins, 106 Ill. 2d 237, 261 (1985). Under this standard, a reviewing court must allow all reasonable inferences from the record in favor of the prosecution. People v. Cunningham, 212 Ill. 2d 274, 280 (2004). This standard applies in all criminal cases, regardless of the nature of the evidence. Cunningham, 212 Ill. 2d at 279 .” (Emphasis in original.) Bush, 214 Ill. 2d at 326 .
What I do not accept is the notion that when there is a failure of proof we can supply the missing evidence or that only the “seller” needs to be arrested, especially in a case wherein the amount of drugs is small enough that it could have been considered consistent with an amount for personal use and the police officer’s testimony is such that he or she cannot identify what items, if any, were exchanged between the defendant and the person or persons with whom he had contact. The defendants in cases such as these end up with sentences consistent with the mandatory minimum sentencing guidelines for an “intent to deliver.” It raises the question of what makes the alleged buyer so special that he can be involved in a drug transaction, yet not worthy of detention or arrest. I realize I am generalizing to make my point; however, it has never been explained to me how blacks can comprise approximately 10% of the population yet comprise upwards of 90% of the drug arrests in Illinois; and how suburban youth get station adjustments and nolle prosequi while the urban youth do hard time.
This concurrence clearly is obiter dicta as it relates to Jennings, whose conviction and sentence must be affirmed in light of Bush. Nevertheless, I would ask my fellow judges to critically examine this system that seems equitable in the abstract yet comes down hardest on minorities. In a country founded on the notions of due process, equal protection under the law and the presumption of innocence until guilt is proven beyond a reasonable doubt, it should not be sufficient to convict a defendant such as Jennings, Cooper or Bush on a supposition of a sale without at least detaining the buyer in the respective transactions, and upon finding the alleged purchased drugs, charging the buyer with the crime of possession of drugs. In most of these cases, the suburbanite who brought the money into the area is allowed to leave and take the drugs with him.
What we have here is a system that appears fair or just on its face, yet is quite unfair in its application. Selective arrests and prosecutions based solely on race should be declared to be a violation of both the United States and Illinois Constitutions. See Wo v. Hopkins, 118 U.S. 356 , 30 L. Ed. 220 , 6 S. Ct. 1064 (1886). “ ‘[S]elective prosecution requires a showing that the defendant “(1) ... [was] singled out for prosecution while other violators similarly situated were not prosecuted; and (2) the decision to prosecute was based on an arbitrary classification such as race, religion, or the exercise of constitutional rights.” ’ ” People v. Fields, 322 Ill. App. 3d 1029, 1032 (2001), quoting United States v. Monsoor, 77 F.3d 1031, 1034 (7th Cir. 1996), quoting United States v. Cyprian, 23 F.3d 1189, 1195 (7th Cir. 1994). However, because this issue has not been raised in the case at bar, it must be left for another day and another case.