July 2013 • Volume 101 • Number 7 • Page 330
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Illinois lawmakers revive overturned armed robbery sentencing enhancement
After the high court held a sentencing enhancement unenforceable because its penalty was tougher than that of a second law with the same elements, lawmakers changed the elements of the second law and thereby revived the first.
In 2007, the Illinois Supreme Court held that a 15-year sentencing enhancement in the armed robbery statute was unenforceable because it imposed a longer prison term than a similar law in the armed violence statute, in violation of the constitution's proportionate penalties clause.
Later that year, the legislature passed Public Act 95-688, which amended the armed violence statute in an attempt to revive the enhancement in the other statute for sentences based on armed robberies in which the weapon used was a firearm.
Since the enhancement in the armed robbery statute was not struck down, but was merely held unenforceable, the Public Act sought to revive the law by changing the elements of the similar crime in the armed violence statute.
This spring, in People v. Blair, 2013 IL 114122, a unanimous supreme court held that the legislative amendments cured the unconstitutionality and successfully revived the enhancement, such that it was proper for the trial judge to sentence the defendant to eight years in prison, plus another 15 years because the robbery was committed with a gun.
Court and legislature: An 'ongoing dialogue' on penalty enhancement
According to the Blair opinion, the sentencing enhancement at issue had been struck down and reenacted several times dating back to 1996. However, the issue in the 2007 case was that the enhancement in the armed robbery statute was improper because it imposed a longer prison term than the similar crime with identical elements in the armed violence statute.
Rather than amend the armed robbery statute, which apparently was worded the way the legislature intended it to be, PA 95-688 eliminated the disproportionate penalties by changing the elements of the similar crime in the armed violence statute.
"[T]he legislature's intent to revive the sentencing enhancement is plain enough, even in the absence of reenactment of that provision," Justice Theis wrote for the court. "As our case law illustrates, this court has had an ongoing dialogue with the legislature concerning the constitutionality of various statutes increasing penalties for certain felonies when the offender possesses or uses a firearm during the commission of the offense."
The court first addressed the armed robbery sentencing enhancement and its relation to the armed violence statute in the 1996 case of People v. Lewis, 175 Ill.2d 412, 677 N.E.2d 830. The court found that the sentencing guidelines for robbery with a firearm under the armed violence statute called for a more severe penalty than the armed robbery statute, yet both crimes involved the same elements.
"Applying the identical elements test for proportionality review [in the Lewis case], we held that the penalty for armed violence predicated on robbery committed with a category I weapon violated the proportionate penalties clause," the court recalled in the Blair opinion. "Accordingly, the State's Attorney had no authority to charge that offense."
Four years later, the General Assembly amended the Criminal Code to create "the so-called '15/20/25-to-life' sentencing enhancements," the Blair court wrote. Those sentencing guidelines mandated that 15, 20, or 25 years to life must be added to the Class X sentence for armed robbery and other offenses where the defendant was armed with a firearm, discharged a firearm, or discharged a firearm and caused great bodily harm or death, respectively.
"As a result of these mandatory add ons, the sentence for armed robbery while armed with a firearm became greater than the sentence for armed violence based on robbery with a category I or II weapon" and thus was unconstitutional, Theis wrote in Blair.
Following more legislative amendments, the court, again, considered the dissimilar sentences for similar crimes in People v. Walden, 199 Ill.2d 392, 769 N.E.2d 928 (2002).
"Utilizing the cross-comparison approach for proportionality review, we determined [in Walden] that armed robbery while in possession of a firearm, and armed violence predicated on aggravated robbery, shared an identical statutory purpose, but that the less serious offense - armed robbery - was punished more severely," the Blair court wrote. "Thus, we held the 15-year enhancement for armed robbery while in possession of a firearm violated the proportionate penalties clause and was 'unenforceable.'"
Three years later, in People v. Sharpe, 216 Ill.2d 481, 839 N.E.2d 492 (2005), the court abandoned the "cross-comparison proportionate penalties analysis" and expressly overruled prior cases that used such an analysis to invalidate sentencing laws. "Walden was no longer good law," the Blair court wrote, because the proper analysis for similar crimes adopted under Sharpe was the "identical elements proportionality test."
Removing judicial discretion
The court's next opportunity to consider the constitutionality of the sentencing enhancement in the armed robbery statute came in the 2007 case of People v. Hauschild, 226 Ill.2d 63, 871 N.E.2d 1. Since the Sharpe court had overruled Walden, the enhancement struck down in Walden had been revived by the court's change of course in Sharpe, and thus was ripe for review yet again.
"We ultimately held, in Hauschild, that the sentence applicable to the defendant for armed robbery while armed with a firearm … violated the proportionate penalties clause because that sentence is more severe than the sentence for the identical offense of armed violence based on robbery with a category I or II weapon," the Blair court wrote. "Thus, the 15-year enhancement for armed robbery that was … held unconstitutional in Walden, and whose constitutionality was revived in Sharpe, was once more unconstitutional."
In the recent Blair decision, following PA 95-688, the court was presented with the unusual question as to whether the 15-year enhancement in the armed robbery statute could be revived by the legislature's amendments to the armed violence statute.
"Ordinarily, when this court declares a statute unconstitutional, or otherwise invalid, the only way in which the legislature may remedy the statute's infirmity is by amending or reenacting that statute," the Blair court wrote. "When a statute is found to violate the proportionate penalties clause under the identical elements test, however, amendment or reenactment of that statute is not the legislature's only recourse. This is so because of the unique nature of an identical elements proportionality violation."
The Blair court found that PA 95-688 changed the elements of the armed violence statute so they were no longer identical to those of the armed robbery crime, and thus the 15-year enhancement is now, finally, constitutional.
"I wasn't surprised by the holding in Blair, even though it took them a lot of time to get there," said Belleville-based criminal-defense attorney James M. Stern, who is vice-chair of the ISBA Criminal Justice Section Council. But agreeing with the legal analysis in Blair does not necessarily mean that judges and lawyers practicing criminal law agree with the underlying mandatory sentencing guidelines.
"I've been on the Criminal Justice Council off and on for about 10 years, and with only one exception we have always opposed mandatory minimums and mandatory sentences," Stern said. "Most of us [on the Council] think it takes discretion out of the hands of judges.…It seems that everybody in the system can recognize this, but on it goes."