People v. Davis
Annotate this Case
People v. Davis, No. 81358 (10/17/97)
NOTICE: Under Supreme Court Rule 367 a party has
21 days after the filing of the opinion to request
a rehearing. Also, opinions are subject to
modification, correction or withdrawal at anytime
prior to issuance of the mandate by the Clerk of
the Court. Therefore, because the following slip
opinion is being made available prior to the
Court's final action in this matter, it cannot be
considered the final decision of the Court. The
official copy of the following opinion will be
published by the Supreme Court's Reporter of
Decisions in the Official Reports advance sheets
following final action by the Court.
Docket No. 81358--Agenda 7--March 1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
DARRYL DAVIS, Appellee.
Opinion filed October 17, 1997.
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 (430 ILCS 65/0.01 et seq.
(West 1994)). The circuit court of Cook County found
that the statutory penalty for felons in possession of
a firearm without proper registration (730 ILCS 5/5--5--
3(c)(2)(N) (West Supp. 1995)), when compared to the
penalty for the offense of unlawful use of a weapon by
a felon (720 ILCS 5/24--1.1 (West 1994)), is
disproportionate under section 11 of article I of the
1970 Illinois Constitution. The circuit court also found
that the sentencing disparity violated due process under
both the Illinois and United States Constitutions. Ill.
Const. 1970, art. I, sec. 2; U.S. Const., amend. XIV.
The State appealed directly to this court. 134 Ill. 2d
R. 603. For reasons that follow, we agree that the
statutory penalty for felons convicted of failing to
register a firearm pursuant to the Firearm Owners
Identification Card Act violates the Illinois
Constitution. We therefore affirm the trial court.
BACKGROUND
Defendant, Darryl Davis, was charged by information
with two counts of unlawful use of a weapon by a felon
(720 ILCS 5/24--1.1(a) (West 1994) (one count each for
a firearm and ammunition)), one count of unlawful use of
a weapon (720 ILCS 5/24--1(a)(4) (West 1994)), and one
count of failing to have a firearm owner's card in
violation of the Firearm Owners Identification Card Act
(430 ILCS 65/2(a)(1) (West 1994)).
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 730 ILCS 5/5--5--3(c)(2)(N) (West
Supp. 1995). In contrast, the offense of unlawful use of
a weapon by a felon is a probationable Class 3 felony.
See 730 ILCS 5/5--8--1(a)(6) (West 1994). Defendant's
motion alleged that it was irrational to make the
penalty for the registration offense nonprobationable
while the penalty for the offense of unlawful use of a
weapon by a felon is probationable. Thus, defendant
contended that the Firearm Owners Identification Card
Act sentencing provision for felons violated due process
under both the Illinois and United States Constitutions.
See Ill. Const. 1970, art. I, sec. 2; U.S. Const.,
amend. XIV.
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, sec. 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 the Firearm Owners
Identification Card Act penalty provision constituted a
double enhancement. The State then appealed the
dismissal of the Firearm Owners Identification Card Act
charge directly to this court.
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 violates the proportionate penalties clause, the
prosecutor has no discretion to charge that offense.
Lewis, 175 Ill. 2d at 422. Thus, we address the merits
of the proportionate penalties issue.
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 (720 ILCS 5/18--2 (West 1994)) and armed
violence predicated on robbery with a category I weapon
(720 ILCS 5/33A--2 (West 1994)) constituted
proportionate penalties. The two offenses had identical
elements, but were subject to different sentencing
ranges.
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 different offenses. Instead, the State
sought to limit review under the proportionate penalties
clause to an examination of the gravity of a particular
offense with the severity of its sentence. See Lewis,
175 Ill. 2d at 425 (Miller, J., dissenting, joined by
Nickels, J.). Under this review, the proportionate
penalties clause is violated only where a legislative
punishment for a particular offense is cruel, degrading,
or so wholly disproportionate to the offense as to shock
the moral sense of the community. See, e.g., People v.
Gonzales, 25 Ill. 2d 235, 240 (1962); Farmer, 165 Ill. 2d at 209-10.
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 that a particular
offense is more serious than another. See People v. Lee,
167 Ill. 2d 140, 147 (1995).
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
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. 430
ILCS 65/2 (West 1994). The defendant's felony status is
not an element of the Firearm Owners Identification Card
Act offense, but is only a factor relevant to
sentencing. 430 ILCS 65/14(c) (West Supp. 1995). As the
offenses have different elements, the State asserts they
are not identical offenses even though a felon with a
firearm will violate both.
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 punished more harshly. Cf. People v. Bradley,
79 Ill. 2d 410 (1980) (finding a violation of Illinois
due process clause where possession of controlled
substance was punished more severely than delivery);
People v. Wagner, 89 Ill. 2d 308 (1982) (finding a
violation of Illinois due process clause where delivery
of look-alike controlled substance was punished more
severely than delivery of an actual controlled
substance).
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 (Ill. Rev. Stat. 1979, ch. 38, par. 33A--2)
and aggravated kidnapping (Ill. Rev. Stat. 1979, ch. 38,
par. 10--2(a)(5)). The court determined that aggravated
kidnapping is a more serious offense than armed violence
based on unlawful restraint, but the latter was
sentenced more harshly. Thus, the court found that the
armed violence penalty violated the proportionate
penalties clause. Wisslead, 94 Ill. 2d at 195-96.
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 (720 ILCS 570/405.1
(West 1992)) with the offense of calculated criminal
drug conspiracy (720 ILCS 570/405 (West 1992)). This
court determined that each offense targeted a specific
evil and neither offense was "less serious" than the
other. Hickman, 163 Ill. 2d at 260. The criminal drug
conspiracy offense was intended to punish large-scale
traffickers whereas the offense of calculated drug
conspiracy was intended to punish the organizer of the
conspiracy more severely than less culpable members of
the conspiracy. Hickman, 163 Ill. 2d at 260. Therefore,
each offense served a different purpose and each could
be subject to a different sentence. Hickman, 163 Ill. 2d
at 260.
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
Identification Card Act offense is a more serious
offense than the probationable offense of unlawful use
of a weapon by a felon.
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 (720 ILCS 5/24--1(a)(4) (West
1994)) is classified as a Class 4 felony (720 ILCS 5/24-
-1(b) (West 1994)). Where a nonfelon fails to register
a firearm under the Firearm Owners Identification Card
Act, the offense is generally punished as a Class A
misdemeanor. 430 ILCS 65/14 (West Supp. 1995). Defendant
therefore argues that where a felon is involved, the
unlawful use of a weapon must similarly be considered a
more serious offense than having a firearm without
proper registration.
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 motor vehicle. Morris, 136 Ill. 2d at 163-
68. In so finding, the court rejected the State's
argument that, because both provisions were designed to
prevent stolen motor vehicles, both could have the same
penalty. Instead, the court found that treating the
offense of altering one's vehicle registration, which is
a prophylactic offense designed to prevent stolen
vehicles, the same as other theft related offenses
violates the proportionate penalties clause. Morris, 136 Ill. 2d at 163.
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." 430 ILCS 65/1 (West 1994). As stated
by the trial court, it is disproportionate to make the
failure to have the card a more serious offense than
having the firearm that requires you to have the card.
We note that it is the firearm that creates the serious
risk to health and safety. Unlike the firearm, the card
cannot be loaded.
CONCLUSION
We find that the penalty for violations of the
Firearm Owners Identification Card Act by a felon (730
ILCS 5--5--3(c)(2)(N) (West Supp. 1995)) violates
section 11 of article I of the 1970 Illinois
Constitution when compared to the penalty for the
offense of unlawful use of a weapon by a felon.
Accordingly, we affirm the trial court and remand to
that court for further proceedings. The Firearm Owners
Identification Card Act charge is dismissed; on remand,
the State may prosecute the remaining charges.
Affirmed and remanded.
JUSTICE MILLER, dissenting:
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. Slip op. at 6. 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
(Ill. Const. 1970, art. I, sec. 11). See People v.
Farmer, 165 Ill. 2d 194, 209-10 (1995). The propriety of
the penalty for an offense should be assessed in
relation to the conduct underlying that particular
charge, and not in relation to the conduct prohibited by
other offenses.
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, 60 L. Ed. 2d 755, 764, 99 S. Ct. 2198, 2204 (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.
NOTICE: Under Supreme Court Rule 367 a party has
21 days after the filing of the opinion to request
a rehearing. Also, opinions are subject to
modification, correction or withdrawal at anytime
prior to issuance of the mandate by the Clerk of
the Court. Therefore, because the following slip
opinion is being made available prior to the
Court's final action in this matter, it cannot be
considered the final decision of the Court. The
official copy of the following opinion will be
published by the Supreme Court's Reporter of
Decisions in the Official Reports advance sheets
following final action by the Court.
Docket No. 81358--Agenda 7--March 1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
DARRYL DAVIS, Appellee.
Opinion filed October 17, 1997.
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 (430 ILCS 65/0.01 et seq.
(West 1994)). The circuit court of Cook County found
that the statutory penalty for felons in possession of
a firearm without proper registration (730 ILCS 5/5--5--
3(c)(2)(N) (West Supp. 1995)), when compared to the
penalty for the offense of unlawful use of a weapon by
a felon (720 ILCS 5/24--1.1 (West 1994)), is
disproportionate under section 11 of article I of the
1970 Illinois Constitution. The circuit court also found
that the sentencing disparity violated due process under
both the Illinois and United States Constitutions. Ill.
Const. 1970, art. I, sec. 2; U.S. Const., amend. XIV.
The State appealed directly to this court. 134 Ill. 2d
R. 603. For reasons that follow, we agree that the
statutory penalty for felons convicted of failing to
register a firearm pursuant to the Firearm Owners
Identification Card Act violates the Illinois
Constitution. We therefore affirm the trial court.
BACKGROUND
Defendant, Darryl Davis, was charged by information
with two counts of unlawful use of a weapon by a felon
(720 ILCS 5/24--1.1(a) (West 1994) (one count each for
a firearm and ammunition)), one count of unlawful use of
a weapon (720 ILCS 5/24--1(a)(4) (West 1994)), and one
count of failing to have a firearm owner's card in
violation of the Firearm Owners Identification Card Act
(430 ILCS 65/2(a)(1) (West 1994)).
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 730 ILCS 5/5--5--3(c)(2)(N) (West
Supp. 1995). In contrast, the offense of unlawful use of
a weapon by a felon is a probationable Class 3 felony.
See 730 ILCS 5/5--8--1(a)(6) (West 1994). Defendant's
motion alleged that it was irrational to make the
penalty for the registration offense nonprobationable
while the penalty for the offense of unlawful use of a
weapon by a felon is probationable. Thus, defendant
contended that the Firearm Owners Identification Card
Act sentencing provision for felons violated due process
under both the Illinois and United States Constitutions.
See Ill. Const. 1970, art. I, sec. 2; U.S. Const.,
amend. XIV.
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, sec. 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 the Firearm Owners
Identification Card Act penalty provision constituted a
double enhancement. The State then appealed the
dismissal of the Firearm Owners Identification Card Act
charge directly to this court.
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 violates the proportionate penalties clause, the
prosecutor has no discretion to charge that offense.
Lewis, 175 Ill. 2d at 422. Thus, we address the merits
of the proportionate penalties issue.
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 (720 ILCS 5/18--2 (West 1994)) and armed
violence predicated on robbery with a category I weapon
(720 ILCS 5/33A--2 (West 1994)) constituted
proportionate penalties. The two offenses had identical
elements, but were subject to different sentencing
ranges.
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 different offenses. Instead, the State
sought to limit review under the proportionate penalties
clause to an examination of the gravity of a particular
offense with the severity of its sentence. See Lewis,
175 Ill. 2d at 425 (Miller, J., dissenting, joined by
Nickels, J.). Under this review, the proportionate
penalties clause is violated only where a legislative
punishment for a particular offense is cruel, degrading,
or so wholly disproportionate to the offense as to shock
the moral sense of the community. See, e.g., People v.
Gonzales, 25 Ill. 2d 235, 240 (1962); Farmer, 165 Ill. 2d at 209-10.
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 that a particular
offense is more serious than another. See People v. Lee,
167 Ill. 2d 140, 147 (1995).
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
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. 430
ILCS 65/2 (West 1994). The defendant's felony status is
not an element of the Firearm Owners Identification Card
Act offense, but is only a factor relevant to
sentencing. 430 ILCS 65/14(c) (West Supp. 1995). As the
offenses have different elements, the State asserts they
are not identical offenses even though a felon with a
firearm will violate both.
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 punished more harshly. Cf. People v. Bradley,
79 Ill. 2d 410 (1980) (finding a violation of Illinois
due process clause where possession of controlled
substance was punished more severely than delivery);
People v. Wagner, 89 Ill. 2d 308 (1982) (finding a
violation of Illinois due process clause where delivery
of look-alike controlled substance was punished more
severely than delivery of an actual controlled
substance).
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 (Ill. Rev. Stat. 1979, ch. 38, par. 33A--2)
and aggravated kidnapping (Ill. Rev. Stat. 1979, ch. 38,
par. 10--2(a)(5)). The court determined that aggravated
kidnapping is a more serious offense than armed violence
based on unlawful restraint, but the latter was
sentenced more harshly. Thus, the court found that the
armed violence penalty violated the proportionate
penalties clause. Wisslead, 94 Ill. 2d at 195-96.
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 (720 ILCS 570/405.1
(West 1992)) with the offense of calculated criminal
drug conspiracy (720 ILCS 570/405 (West 1992)). This
court determined that each offense targeted a specific
evil and neither offense was "less serious" than the
other. Hickman, 163 Ill. 2d at 260. The criminal drug
conspiracy offense was intended to punish large-scale
traffickers whereas the offense of calculated drug
conspiracy was intended to punish the organizer of the
conspiracy more severely than less culpable members of
the conspiracy. Hickman, 163 Ill. 2d at 260. Therefore,
each offense served a different purpose and each could
be subject to a different sentence. Hickman, 163 Ill. 2d
at 260.
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
Identification Card Act offense is a more serious
offense than the probationable offense of unlawful use
of a weapon by a felon.
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 (720 ILCS 5/24--1(a)(4) (West
1994)) is classified as a Class 4 felony (720 ILCS 5/24-
-1(b) (West 1994)). Where a nonfelon fails to register
a firearm under the Firearm Owners Identification Card
Act, the offense is generally punished as a Class A
misdemeanor. 430 ILCS 65/14 (West Supp. 1995). Defendant
therefore argues that where a felon is involved, the
unlawful use of a weapon must similarly be considered a
more serious offense than having a firearm without
proper registration.
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 motor vehicle. Morris, 136 Ill. 2d at 163-
68. In so finding, the court rejected the State's
argument that, because both provisions were designed to
prevent stolen motor vehicles, both could have the same
penalty. Instead, the court found that treating the
offense of altering one's vehicle registration, which is
a prophylactic offense designed to prevent stolen
vehicles, the same as other theft related offenses
violates the proportionate penalties clause. Morris, 136 Ill. 2d at 163.
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." 430 ILCS 65/1 (West 1994). As stated
by the trial court, it is disproportionate to make the
failure to have the card a more serious offense than
having the firearm that requires you to have the card.
We note that it is the firearm that creates the serious
risk to health and safety. Unlike the firearm, the card
cannot be loaded.
CONCLUSION
We find that the penalty for violations of the
Firearm Owners Identification Card Act by a felon (730
ILCS 5--5--3(c)(2)(N) (West Supp. 1995)) violates
section 11 of article I of the 1970 Illinois
Constitution when compared to the penalty for the
offense of unlawful use of a weapon by a felon.
Accordingly, we affirm the trial court and remand to
that court for further proceedings. The Firearm Owners
Identification Card Act charge is dismissed; on remand,
the State may prosecute the remaining charges.
Affirmed and remanded.
JUSTICE MILLER, dissenting:
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. Slip op. at 6. 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
(Ill. Const. 1970, art. I, sec. 11). See People v.
Farmer, 165 Ill. 2d 194, 209-10 (1995). The propriety of
the penalty for an offense should be assessed in
relation to the conduct underlying that particular
charge, and not in relation to the conduct prohibited by
other offenses.
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, 60 L. Ed. 2d 755, 764, 99 S. Ct. 2198, 2204 (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.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
