By DAVID F. SCHWARTZ Can it pass muster?
Analyzing Class X under the
AFTER intense political wrangling between the governor and legislature (see October and December 1977), House Bill 1500, usually referred to as Class X, became effective February 1. Debate has focused on whether Class X is an effective and appropriate response to violent crime, a debate that cannot be resolved with certainty for years. However, long before its effectiveness can be calculated, Class X will undoubtedly undergo intense constitutional scrutiny in both state and federal courts. Unless Class X can pass muster under both the Illinois and U.S. constitutions, any success it achieves in reducing violent crime may only be temporary. Class X makes several significant changes in the Illinois criminal justice system, the most prominent of which is the creation of a new category of felony offenses. Such crimes as kidnapping, rape and sexual assault, armed robbery or armed violence, treason, and manufacture or sale of narcotics have been designated Class X felonies (murder retains a separate felony designation), and the prison sentences for these offenses have been significantly increased. But the most significant change is the abolition of both indeterminate sentencing and parole. Illinois felons will now be sentenced to a specific number of years in prison, and they will serve the entire term less only specifically calculated time for good behavior. In addition. Class X doubles the normal prison sentence for repeat offenders (those twice convicted of the same Class X felony) and for "heinous" offenders (those whose crime is "accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty"). Habitual criminals (those convicted of three Class X felonies) receive mandatory life sentences. Equal protection To a large extent. Class X remedies some major constitutional problems related to gross disparities in sentencing for similar crimes. Thus far, the U.S. Supreme Court has confronted this problem only with regard to the death penalty. However, there has been a growing recognition that the federal constitutional command of equal protection of the laws requires that defendants who are similarly situated with regard to their backgrounds and crimes should be treated roughly the same; and in Furman v. Ga., (1972), the U.S. Supreme Court struck down a sentence simply because there were no criteria to insure that similar cases would receive similar treatment. Class X addresses this concern by enumerating aggravating and mitigating circumstances that the sentencing judge must consider, requiring written specification of why a particular sentence was imposed, and giving formal legal recognition to the practice of appellate review and modification of disproportionate sentences. While the penalty for a Class X conviction ranges from 6-30 years, the sentencing judge no longer has anything like unbridled discretion in choosing a figure. The most pronounced feature of Class X is its general philosophy of greatly increasing punishment for violent criminals. In the past decade, federal courts have begun to examine the permissible scope of punishment under the Eighth and Fourteenth amendments to the federal constitution, both of which prohibit state and federal governments from inflicting cruel and unusual punishment. In Gregg v. Ga. (1976), the Supreme Court decided that a punishment is cruel and unusual if it: 1) purposefully inflicts pain and suffering; or 2) is grossly disproportionate to the crime for which it is imposed; or 3) has been generally rejected by enlightened society. The question is: How does Class X stack up under these criteria? One would be hard pressed to argue that a sentence of up to 30 years for rape, armed robbery or treason is either grossly disproportionate to those crimes or out of step with what enlightened society considers proper. It is important to note that the second and third Gregg criteria neither ban severe punishment
DAVID F. SCHWARTZ 14/November 1978/Illinois Issues nor require that a state adopt the lowest common denominator. Similarly, both the abolition of parole and the adoption of determinate sentencing seem immune to federal challenge. Parole is a legislatively granted privilege rather than a federal constitutional right so that its total absence cannot logically raise a federal issue. Determinate sentencing actually removes the equal protection problems noted in Furman by placing in the sentencing judge the power and responsibility to insure that both sentencing and time served are uniform. Due process The major federal constitutional problems which are raised by Class X stem from the heinous offender-habitual criminal provisions. It is clearly neither disproportionate nor atypical of national practice to substantially increase penalties for multiple offenders or to recognize that the manner in which a crime is committed is a rational factor in assessing punishment. However, the statute's definition of heinous behavior ("indicative of wanton cruelty") is so vague that one who is adjudged a heinous offender might well be denied liberty without due process of law in violation of the Fourteenth Amendment. At minimum, due process means that a person of common intelligence must be able to understand what conduct is prohibited by a criminal law. This is not to say that a criminal's cruelty may not justify greater punishment; it does, however, suggest that the legislature must specify what conduct indicates wanton cruelty instead of leaving such a determination to the unbridled discretion of a judge or jury.
The mandatory life sentence for habitual criminals seems to contradict recent federal court decisions. Prior criminal activity is surely a legitimate factor in assessing punishment. However, in two decisions (again both dealing with the death penalty), the U.S. Supreme Court ruled mandatory sentencing laws unconstitutional. In Woodson v. N.C. (1976) and Roberts v. La. (1977), the court held that a state could not impose mandatory sentences for first degree murder or for the murder of a peace officer, respectively. Neither decision meant that the death penalty could not be imposed but only that the failure to consider mitigating circumstances was cruel and unusual. The court argued that, regardless of the crime, mitigating circumstances could always exist. To the extent they exist, such circumstances must be considered and alternative punishments must be available. In Carmona v. Ward (l977), a federal district court used this logic to invalidate the mandatory life sentence that was the cornerstone of New York's tough narcotics law. The precedents seem to indicate that while Illinois can make a life sentence a possibility for the habitual criminal, it may not make such a sentence automatic. Moreover, the precedents seem to suggest that the legislature will have to specify mitigating circumstances.
While the federal constitutional analysis of Class X must focus on a rather vague, 187-year-old cruel and unusual punishment provision, the current Illinois Constitution, adopted in 1970, provides the Illinois courts with a more contemporary and seemingly more specific standard. Article I, section 11 requires that "penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship." Illinois courts have consistently interpreted section 11 to require the sentencing judge to balance the "retributive and rehabilitative purposes of punishment." As long as the judge does not "resign to total retribution one who has a chance of future restoration to useful citizenship," he has probably satisfied section 11 (People v. Gibbs, 1974). On this basis, appellate courts have often reduced lengthy sentences that were not sufficiently cognizant of rehabilitative potential. Class X gives the sentencing judge considerable latitude in deciding on punishment. However, in keeping with section 11, Class X lists specific factors that mitigate the crime (indicating the potential for rehabilitation) and factors that aggravate the crime (indicating the degree of retribution). Like the Eighth Amendment, section 11 does not prohibit the imposition of severe punishments as long as the sentence "fits the crime" and the criminal. Clearly, this is not an area of human endeavor susceptible to mathematical precision, and people will differ over whether the balance in a particular case has been correctly drawn. Section 11 requires only that a reasonable attempt is made to strike a balance, and Class X seems to conform to that requirement. Rehabilitation Nothing in the Illinois Constitution affects the legislature's decision to abolish parole and indeterminate sentencing. However, section 11's concern with rehabilitation seems to bar the mandatory life sentence for habitual criminals. While the commission of three Class X felonies might indicate a minimal chance for rehabilitation, section 11 mandates that assessing the chance is the function of the trial judge acting on a case by case basis. Whether Class X really stems the tide of violent crime and whether its passage was worth the tremendous amount of political infighting that preceded it remains to be seen. While the legislature will probably have to write some flexibility into the habitual criminal provision and more precisely define a "heinous" crime, the key provisions of Class X seem clearly constitutional. It is perhaps paradoxical that the "law and order" sentiment that motivated Class X — a sentiment usually associated with political conservatism — arguably makes the Illinois Criminal Code more consistent with federal and state safeguards of the rights of criminal defendants — a tendency usually associated with political liberalism. While one could argue with some justification that lengthier sentences and unrelieved confinement are hardly liberal goals, Class X attacks those capricious sentences and arbitrary paroles which the Supreme Court rejected in Furman. No one yet knows with certainty how to accomplish the "restoration to useful citizenship" that section 11 of the Illinois Constitution mandates. However, Class X seems to make retribution more systematic, more appropriate to the offense and hence, more just. a November 1978/Illinois Issues/15
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