Finding Baby Bear’s Bed:

The “Just Right” Alternative to the Illinois Supreme Court’s

Proportionate Penalties Zero-Sum Game in People v. Sharpe

By Joy Leanne Powers

Chicago-Kent School of Law

            On October 6, 2005, the Illinois Supreme Court suddenly declared that “something has gone terribly wrong with this court’s proportionate penalties jurisprudence,”[1] and reversed more than twenty years of precedent by eliminating the cross-comparison proportionality test, changing drastically the Illinois proportionate penalties landscape.   The Illinois Proportionate Penalties clause guarantees that a criminal penalty be determined according to the offense’s seriousness.[2]  According to the Court, applying the existing cross-comparison proportionality test had become too difficult and too unpredictable.[3]  Thus, the Court eliminated the test, disputing its legitimacy, its predictability, and its ultimate reach, and declaring that “judging penalties by a comparison with penalties for offenses with different elements should never have been part of our proportionate penalties jurisprudence.”[4] The Sharpe decision ushered in an era of proportionality review that, like Mama Bear’s bed in the classic Goldilocks story, was “too soft” on disproportionality. 

While the Illinois Supreme Court correctly argues that the cross-comparison test had questionable origins, has spawned inconsistent caselaw, and renders important provisions unconstitutional, the Court’s analysis fails to recognize that the cross-comparison test provided a valuable protection to criminal defendants and internal consistency in the Criminal Code.  This paper thus considers a proposed “Just Right” cross-comparison proportionate penalties test from the perspective of two distinct case-studies:  the 15-20-25 to Life firearm enhancement scheme[5] and attempt second degree murder, arguing that a less-expansive cross-comparison proportionate penalties test should have been embraced in People v. Sharpe. 

Before engaging in a comprehensive analysis of People v. Sharpe, Part I will paint an initial “broad stroke” introduction to the “too hard” proportionate penalties jurisprudence.  Part II will then examine the Sharpe decision itself, critiquing the Illinois Supreme Court’s arguments in favor of eliminating the cross-comparison proportionality test.  Part III will present the most compelling reasons in favor of a cross-comparison test.  In Part IV, this paper will introduce and consider the desirability of a modified, “Just Right” cross-comparison test.  This “Just Right” solution’s utility will be tested by application to two case studies which represent the cross-comparison test’s thorniest applications:  the attempt second degree murder conundrum and the highly disproportionate 15-20-25 to Life firearm enhancement scheme.  Lastly, Part V will conclude that the “Just Right” cross-comparison test is a better solution than either the existing cross-comparison test or the Sharpe solution, and will recommend that either the Illinois Supreme Court reverse its holding in Sharpe or the Illinois legislature adopt a statute incorporating a “Just Right” cross-comparison test into the Illinois Criminal Code.

Part I:  Too Soft

Proportionate Penalty Jurisprudence Before People v. Sharpe

Prior to People v. Sharpe, Illinois proportionate penalties jurisprudence had been

reasonably well settled.  The Proportionate Penalties Clause of the Illinois Constitution requires that “All penalties…be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.”[6]  Prior to Sharpe, whether a penalty had been set “according to the seriousness of the offense” was determined using any one of three different tests:  the “shocks the conscience” test,[7] the “cross-comparison test,” and the “identical elements” test.[8]  Post-Sharpe, a defendant may challenge a penalty’s proportionality using only two tests:  the “shocks the conscience” test and the “identical elements” test.[9]

            A.          The “Shocks the Conscience” Proportionality Test

            First, defendants may contest a penalty’s constitutionality on the basis that it is “cruel, degrading, or so wholly disproportionate to the offense committed as to shock the moral sense of the community.”[10]  In 1926, the Illinois Supreme Court noted that a penalty would violate the proportionate penalties clause under this test only if it was “a cruel or degrading punishment not known to the common law, or a degrading punishment which had become obsolete in the State prior to the adoption of its constitution.”[11]  In People v. Landers, the Court elaborated that “the nature, character and extent of penalties are matters almost wholly legislative, and the courts have jurisdiction to interfere with legislation upon the subject only where the penalty in manifestly in excess of the very broad and general constitutional limitation invoked.”[12]  As such, a penalty viewed by the Court as absurd or unwise will survive constitutional challenge; only a penalty that “shock[s] the conscience of reasonable men” would be outside the parameters of the Proportionate Penalties Clause.[13]  Thus, the “shocks the conscience” test, like the Eighth Amendment, appears to provide protection from only “cruel or degrading” forms of punishment.[14]

            The “shocks the conscience” test has never been evoked to strike a penalty based purely on its sheer length.[15]  Perhaps part of the problem is that there is no articulated benchmark with which to compare challenged punishments.  Illinois courts have not defined what punishments might be cruel, degrading, or morally shocking because the concepts of “elemental decency and fairness which shape the ‘moral sense’ of the community” evolve as society evolves.”[16]  Thus, a court evaluating a punishment under the “shocks the conscience” test must weigh the gravity of the offense against the severity of the penalty “within our community’s evolving standard of decency.”[17]

            B.         The “Cross-Comparison” Proportionality Test

Second, a penalty violated the proportionality clause under the “cross-comparison” test where a suitable comparison offense considered a lesser threat to public health and safety was punished more severely than the charged offense.[18]  A defendant challenging a penalty under the “cross-comparison” test must make three showings:[19] first, that the chosen comparison offense and the defendant’s offense have similar statutory purposes and are therefore appropriate for comparison;[20] second, that the comparison offense is more serious than the defendant’s offense; and third, that the comparison offense is punished less severely than the defendant’s offense.[21]  The first step is a threshold requirement:  courts will not compare offenses if they do not share a common statutory purpose because courts presume that “the legislature considered different factors in establishing the penalties” of offenses with different purposes.[22] 

After establishing similarity of purposes, the defendant must compare the two offenses.[23]  A court considers the factors evaluated by the legislature when setting an offense’s penalty, including the crime’s frequency, its risk of bodily harm, and any recent increase its commission.[24]  Because the legislature is “better equipped than the judiciary to identify and remedy the evils confronting our society, and…more capable of gauging the seriousness of an offense,” courts generally defer to the legislature’s judgment that an offense is more serious than another.[25]  Once a court determines that the comparison offense is more serious than the charged offense, the defendant need only show that the comparison offense is punished less severely and the charged offense is unconstitutionally disproportionate. [26]

For example, in People v. Pizano, the defendant argued that possession of a fraudulent identification card was punished more severely than another offense involving the use of a fraudulent identification card with intent to commit theft, yet was less serious.[27]  Possession of a fraudulent identification card is committed where a person knowingly possesses or displays a fraudulent identification card, and is a Class 4 felony[28] that requires the additional sentence of a $500 fine or fifty hours of community service.[29]  The comparison offense required that the offender possess a fraudulent card with the intent to commit a theft, and is a simple Class 4 felony.[30]  The court found that the two offenses had the same purpose:  the protection against all types of fraudulent conduct that arise from the possession and use of fraudulent identification documents.[31]  After agreeing with the defendant that the comparison offense was more serious (because it required additional intent), the court held that possession of a fraudulent identification card was unconstitutionally disproportionate because it was punished more severely than a similar, more severe offense.[32]

The “cross-comparison” test has proven wildly successful and has been used to declare a wide variety of Illinois criminal offenses unconstitutional; its most comprehensive casualty was the 15-20-25 to Life firearm enhancement scheme.  In People v. Moss, the “cross-comparison” test was used to strike down several provisions of the enhancement scheme;[33] courts and legislators have interpreted Moss to have held entire bill, including thirty-three fifteen, twenty, and twenty-five year enhancements for the use or presence of firearms during the commission of certain specified felonies, to be unconstitutional.[34]  Additionally, “cross-comparison” review has been evoked to strike penalties for armed violence,[35] attempt first degree murder (but only with the 15-20-25 to Life firearm enhancements),[36] indecent solicitation of an adult,[37] possession of a stolen motor vehicle,[38] possession of a fraudulent identification card, [39] and certain violations of the Fish Code.[40]  Unsuccessful defendants have been foiled by the similar statutory purpose requirement[41] and by courts’ reluctance to find a comparison offense more serious than the charged offense.[42] 

            C.        The “Identical Elements” Proportionality Test

Third, the proportionate penalties guaranty is violated if identical offenses warrant different sentences.[43]  Under this test, a defendant compares his offense to a chosen offense with identical elements,[44] demonstrating that his offense is punished more severely.[45]

The “identical elements” test arose initially on the basis of a common sense argument: according to the Illinois Supreme Court, “common sense and sound logic would seemingly dictate that…penalties be identical where offenses are identical.”[46]  When identical offenses receive different penalties, prosecutorial discretion “will effectively nullify” the lesser punished offense, a result that is contrary to the legislature’s intent when it enacted both statutes.[47]  Unlike the first proportionality test, the “identical elements” test provides defendants with more protection than the federal Constitution.[48]  In United States v. Batchelder, the Supreme Court held that permitting prosecutors discretion to choose between two statutes with identical elements did not violate the constitutional guarantees of equal protection or due process.[49]

Defendants have enjoyed some success when challenging sentences using the “identical elements” test.  Specifically, the “identical elements” test has been evoked to strike some 15-20-25 to Life firearm enhancements,[50] as well as armed violence predicated on kidnapping[51] and armed violence as predicated on robbery.[52] The success of the “identical elements” test is limited primarily by the difficulty of finding a suitable identical comparison offense.[53] 

D.                 Limiting Factors on Proportionality Review

Proportionate penalties jurisprudence before Sharpe, although somewhat a boon to

defendants, was not without its limits.  Not only did each test have its own built-in “check,”[54] but two overarching doctrines limit the ability of any form of proportionate penalty review to be used to invalidate penalties.

First, when considering the proportionality of the 15-20-25 to Life enhancements, courts

presume a statute is constitutional and have a duty to construe it in a manner that upholds its validity if this can reasonably be done.[55]  Thus, the burden of demonstrating the unconstitutionality of a statute falls on the party challenging the statute.[56]  The constitutionality of a statute is reviewed de novo by a higher court; thus, a holding deeming a statute unconstitutional may not be upheld on appeal.[57]

Additionally, undue judicial activism in the proportionate penalties context is limited by

the doctrine of standing.[58]  In the proportionate penalties context, a defendant has standing to challenge a penalty only as it applies to him.[59]  As such, a single defendant cannot challenge all 15-20-25 to Life firearm enhancements, but can only challenge the particular enhancement under which he is charged or sentenced.[60]  The standing requirement severely limits the reach of the proportionate penalties clause and the number of frivolous challenges:  a suitable test case must be found for each challenged sentencing provision.  The standing requirement, however, can also lead to anomalous results, as some clearly disproportionate penalties remain on the books for want of a proper test case.[61]

Part II:  Too Hard

A Critique of the Decision that Eviscerated Proportionate Penalty Review

In April 2001, Kenneth Sharpe was changed with first degree murder[62] for the fatal shooting of Bernard Magett.[63]  The charges alleged that Sharpe was armed with a firearm, personally discharged a firearm, or personally discharged a firearm proximately causing death while committing the murder, and therefore included fifteen, twenty, and twenty-five year sentencing enhancements as required by the 15-20-25 to Life firearm sentencing enhancement scheme.[64]  The Sharpe case reached the Illinois Supreme Court after the Circuit Court of Cook County held that the fifteen and twenty year enhancements were unconstitutionally disproportionate.[65]  This case served as the catalyst for the Illinois Supreme Court to dramatically alter proportionate penalties jurisprudence by eliminating cross-comparison review.[66] 

A.     The Sharpe Rationale:  What’s There and What’s Not

Due to the weight of the Sharpe decision and the changes that it wrought in the

proportionate penalties landscape, the Supreme Court’s main arguments will be summarized and critiqued, with special attention paid to considerations that the Supreme Court apparently ignored, under-considered, or cast aside.

1.      Stare Decisis

The Illinois Supreme Court’s two primary arguments against the cross-comparison

test are directed at stare decisis – critiquing the origins and development of the cross-comparison test.[67]  These arguments are addressed separately because they attack different aspects of stare decisis  – first, the cross-comparison test’s inception; and second, the cross-comparison test’s warbling rulification.

a.       A Questionable Cf. Citation

First, the Illinois Supreme Court attacked the cross-comparison test’s inception in 1983’s

People v. Wisslead and grounding in then-existing law.  In order to highlight the test’s questionable initial grounding, the Court began with a concise history of the proportionate penalties clause from its inception in the 1870 Illinois Constitution.[68]  The Court focused on restrictive interpretations of the clause,[69] noting that as late as 1962, all legislatively defined penalties had survived proportionality review with one lone exception: a 1873 case where a railroad forfeited its franchise as a penalty for price discrimination.[70]  This history demonstrated a consistent interpretation of the clause as placing little restraint on the legislature’s power to ascribe criminal penalties.[71]

             The Court, however, believed that the hundred-year period of restraint terminated abruptly with a “dramatically different reading” of the proportionate penalties clause in Wisslead.[72]  There, the defendant argued that the penalty for armed violence predicated on unlawful restraint[73] violated the due process and proportionate penalties clauses because the armed violence offense was less serious, yet punished more severely than the similar offenses of aggravated kidnapping and forcible detention.[74]  The Wisslead Court agreed.[75]  According to Sharpe, Wisslead “simply accepted the defendant’s argument without a discussion of the legal standards applicable.”[76]  Apparently, the Wisslead Court never mentioned the time-honored proportionate penalties challenges standard (the “shocks the conscience” test), never explained where it “derive[ed] the notion that a proportionate penalties challenge could be based on the comparison of the penalty for one offense to the penalty for a different offense,” and gave only a Cf. citation as a basis for its holding that the sentencing discrepancy violated the proportionate penalties clause.[77] 

This Cf. citation particularly enraged the Sharpe majority because it referred to two earlier due process cases, People v. Bradley[78] and People v. Wagner,[79] without explanation.[80]  Both Bradley and Wagner stood for the proposition that the due process clause would invalidate a penalty where a less serious offense was punished more seriously than a more serious offense.[81]  Although the Sharpe Court believed that Wisslead used the Cf. symbol correctly in that Bradley and Wagner stood for a different proposition than that advocated by Wisslead, the Sharpe Court believed that “they were not sufficiently analogous to lend support.”[82]  More importantly, Wisslead never explained why it borrowed from due process jurisprudence to support a proportionate penalties decision.[83]

While the Sharpe court is correct that Wisslead “fundamentally altered…a century’s worth of case law” with little or no analysis, the Court ignores points in favor of Wisslead’s conclusion.  The Sharpe court fails to recognize that no member of the Wisslead court disagreed with the proposition that a less serious, severely punished offense would violate the policy underlying the proportionate penalties clause if a more serious offense punished less severely.[84]  In fact, the Sharpe court acknowledges that Justice Simon’s dissent complains only that the Wisslead majority made an incorrect factual determination by ignoring the fact that an offender committing aggravated kidnapping or forcible detention with a weapon would be charged with armed violence, and therefore artificially reducing the penalties for those offenses.[85]  Justice Simon suggests that the armed violence sentencing scheme is “internally consistent” and states that he does not find the punishment an “unconstitutional disproportion.”[86]  Justice Simon’s dissent thus supports the contention that a less serious crime punished more severely than a similar, more serious crime would be unconstitutionally disproportionate.[87]

Additionally, the Wisslead decision derives significant legitimacy from the fact that no

Illinois Supreme Court majority decision questioned its conclusion for twenty-two years.[88]  Sharpe itself cites to instances where the Court either used the same Cf. citation to support cross-comparison review or supported another conclusion by reference to the cross-comparison test’s established nature.[89]  In People v. Davis,[90] the Court anchored its cross-comparison review with a Cf. citation to Bradley and Wagner rather than to Wisslead or its cross-comparison progeny.[91]  Davis even acknowledged that Bradley and Wagner were due process cases.[92]  In People v. Lewis,[93] the Illinois Supreme Court supported the identical elements test by relying on the fact that “comparing different offenses and their penalties was an accepted part of our proportionate penalties jurisprudence.”[94]  

b.      Warbling, Poorly Articulated Law

The Sharpe Court next attacks the cross-comparison test’s validity by chronicling the cross-comparison test’s “evolution”[95] from its inception in Wisslead to its devastating invocation in Moss.[96]  According to the Sharpe Court, the resulting body of “badly reasoned,” “unworkable,” and “never…settled” law is “good cause to depart from stare decisis,” especially as it threatens to cause “serious detriment prejudicial to public interests.”[97]  Several objectionable evolutionary trends emerge from the Sharpe court’s history of the cross-comparison test; specifically: (1) a movement away from the test’s grounding in the “cruel or degrading” proportionality standard, (2) an attempt to constrain the test by limiting possible comparison offenses, and (3) a movement away from judicial restraint and legislative deference. 

The first trend easily identified from the history of the cross-comparison test is the unexplained movement away from the cross-comparison test’s grounding in the original “cruel or degrading” or “shocks the conscience” proportionality test.[98]  In most early cross-comparison cases, courts compared the penalties of two offenses, but still evaluated the constitutionality of the penalties under the “shocks the conscience” standard.[99]  Specifically, a court would invalidate a penalty only if the “conduct that created a less serious threat to the public health and safety was punished more harshly than conduct that created a more serious threat” and that greater penalty was “so disproportionate to the offense that it shocked the moral sense of the community or was cruel and degrading.”[100]  Later, cross-comparison review became a mathematical equation – if the lesser offense was punished more severely, it simply was disproportionate; a finding that the penalty would shock the conscience was no longer necessary.[101]  Once lost, the “cruel or degrading” standard would pop up once again, without explanation, in conjunction with the cross-comparison test in 2003’s People v. Morgan, and then disappear just as quickly.[102]

Second, the Sharpe court’s history illustrates the movement from a one-step to a two-step process requiring a threshold inquiry as to the suitability of the comparison offense.[103]  Initial cross-comparison review permitted a defendant to compare his offense with any less serious offense.[104]  Where the two offenses did not have related purposes, a court might reject the defendant’s contention that the comparison offense was more serious than the charged offense, but there was no requirement that the offenses have related purposes.[105]  For the first time in People v. Davis, a threshold inquiry of whether the statutes being compared had a related stuatory purpose emerged.[106] 

The Sharpe court, however, was less concerned about the threshold requirement’s inception than with courts’ inability to find a consistent method of comparing the statutory purposes of offenses.[107]  Statutory purposes can be drawn narrowly or broadly – a narrow statutory purpose would preclude comparison with any other offense whereas a board statutory purpose would permit comparison with all other offenses.[108]  Various cases used narrow purposes and others used broad purposes.[109]

The Sharpe Court found the trend away from judicial restraint and legislative deference troubling.[110]  In the first thirteen years of cross-comparison review, the Illinois Supreme Court “rejected almost all of the cross-comparison…arguments brought before the court;” only two defendants successfully argued that the cross-comparison of offenses demonstrated disproportionality.[111]  After the 1997 Davis decision,[112] however, Illinois courts became more proactive and overturned more sentences based on cross-comparison proportionality review.[113]  In just three short years preceding Sharpe, the Illinois Supreme Court invalidated nine penalties.[114]  This trend caused the Sharpe Court to state that “this court was reluctant to invalidate penalties determined by the legislature…[w]e are reluctant no more.”[115] 

For the Sharpe Court, this lack of restraint raises an important constitutional concern – the possibility that cross-comparison review sets “this court on a collision course with separation of powers principles.”[116]  According to the court, continued use of cross-comparison proportionality review as it has evolved leaves the court “free to act as a superior legislative branch, substituting our judgment for the legislature whenever we disagreed with the penalties it set.”[117]  The Court’s analysis, however, stops short of actually stating that cross-comparison review does violate the separation of powers or hazarding a guess at what point it might.[118]  Additionally, the Court fails to recognize that the Illinois Constitution in fact requires that it toe this separation of powers line by mandating that it review the proportionality of legislatively determined sentences.[119]

Sharpe’s history of the cross-comparison test expertly points out that the caselaw has been inconsistent and has thus become difficult to administer.[120]  The court then reasons that this “unworkable,” “badly reasoned” law necessitates the elimination of cross-comparison proportionality review.[121]  Sharpe,  however, fails to contemplate any half-measures that might eliminate these inconsistencies and their resultant difficulties.[122]  The court never considers returning to a cross-comparison review tempered by the “cruel or degrading” standard, adopting a cross-comparison review that lacks the related purposes threshold requirement, or providing new rules governing how narrowly or broadly a statutory purpose ought to be drawn by an evaluating court.[123] 

The court in Sharpe also fails to consider that it could reverse the trend toward unlimited judicial interference with legislative prerogative.  In fact, re-adoption of the initial cross-comparison review tempered by the “cruel or degrading” standard would significantly increase judicial restraint; defendants would have to satisfy this more difficult standard and would have limited caselaw to draw upon.  Without any attempt to engage in such analysis, the court’s jump to elimination of the cross-comparison test appears premature.

2.   A Slippery Slope

A driving factor behind the Court’s decision also appears to have been their perception

that cross-comparison analysis represents a very slippery slope.  While the court never explicitly makes a slippery slope argument, the court’s analysis of cross-comparison’s trajectory betrays a concern about the possible ramifications of its continued use.[124]  As noted above, the court points out that the general trend is a movement away from judicial deference.[125]  Additionally, the court’s analysis of Moss suggests that it is alarmed by the extension of already-decided cross-comparison cases.[126]  Specifically, the court is concerned by the Sharpe trial court’s extension of Moss; there the trial court evoked Moss to invalidate the fifteen and twenty year enhancements in the murder statutes, holding that murder with a firearm is a less serious offense than aggravated battery with a firearm and aggravated discharge with a firearm.[127]  The court finds this conclusion “obviously wrong.”[128] 

Lastly, the court’s passing and unsupported mention of vague separation of powers concerns suggests that the court is alarmed by the possible ramifications of continued lack of judicial restraint.[129]  Interestingly, the court cites no authority regarding the separation of powers claim despite asserting that the problem arises in that the court would “no longer be constrained to serve as a mere check on the legislature…instead, we would be free to act as a superior legislative branch, substituting our judgment for the legislature whenever we disagreed with the penalties it set.”[130]  The court also makes no attempt to distinguish this finding from the separation of powers challenge it rejected involving the identical elements test in People v. Lewis[131] or from dicta indicating that cross-comparison review itself avoids separation of powers problems by constraining itself to comparison of similar offenses.[132]  This lack of analysis suggests that the cross-comparison test does not yet run afoul of proper separation of powers, but that the court is concerned about some undefined future use of the cross-comparison test.

Sharpe’s preoccupation with slippery slope arguments leads to the conclusion that the Court believed it had lost control of the cross-comparison test and that it therefore must go.  As noted above, the Sharpe court declines to even consider and discard possible half-measures that might have allowed it to regain control of the cross-comparison test and avoid future extension and separation of powers problems.  The court’s condemnation of Moss is particularly illustrative here.[133]  Sharpe decried Moss because it adopted People v. Walden’s conception of the related purposes requirement, which considers only the 15-20-25 to Life enhancement’s statutory purpose rather than the purpose of the enhancement and the underlying offense.[134]  This analysis permits the court to compare any 15-20-25 to Life enhanced offense to aggravated discharge of a firearm and aggravated battery with a firearm, and thus effectively extends Moss to strike all 15-20-25 to Life enhancements.[135]  The Court could eliminate this threat by reversing Moss and Walden to the extent that they adopt this particular similarity of purpose analysis,[136] but it instead decides to throw the baby out with the bathwater.

The court also ignores the fact that it could clarify holdings in Moss and Walden to avoid what it perceives to be dangerous extendibility of those decisions.[137]  The Sharpe court perceives an alteration to the cross-comparison analysis in Moss that leads to the “obviously wrong” conclusion reached by the Sharpe trial court.  According to the Sharpe court, Moss and Walden evaluated the seriousness of only certain elements of an offense rather than the offense’s seriousness as a whole.[138]  According to Sharpe, Moss and Walden compared aggravated battery with a firearm and aggravated discharge of a firearm with 15-20-25 to Life enhanced offenses, and found the former more serious because they involved more serious firearm behavior than did the 15-20-25 to Life.[139]  If the Sharpe Court had considered abrogating Moss and Walden to the extent that they stood for the proposition that only firearm conduct could be compared, the Sharpe Court could have avoided the “obviously wrong” conclusion that aggravated battery with a firearm and aggravated discharge of a firearm were more serious than murder with a firearm.[140] 

Part III:  Why Bother with Baby Bear’s Bed?:

Arguments in Favor of Some Form of Cross-Comparison Proportionality Review

Because the Illinois Supreme Court’s reasoning in Sharpe selectively ignored any significant arguments in favor of the cross-comparison test, a short synopsis of these arguments will be provided.  These arguments are primarily policy arguments; specific arguments in response to the Illinois Supreme Court’s stare decisis and slippery slope arguments were provided in Part II.

A.     Comparison of Offenses Permits Objective  Evaluation of Penalties’ Appropriateness

Initial proportionality review was conducted in a vacuum.[141]  When a challenge was

made, a court considered whether an offense’s penalty “shocked the conscience of reasonable men.”[142]  Such analysis is necessarily subjective.  Comparison of offenses, however, introduces a certain amount of objectivity into proportionate penalties jurisprudence, as it permits a benchmark with which to compare a penalty.[143]

            In Sharpe, the Illinois Supreme Court argues that cross-comparison review was “largely subjective” and that attempts to make it less subjective in Davis led only to further problems.[144]  Sharpe never specifies exactly what made the initial formulation of the cross-comparison test subjective – either the determination of which of two offenses is more serious, the “cruel or degrading” standard, or both.[145]  Even if the “cruel or degrading” standard imparts some subjectivity to the cross-comparison test, the comparison of two offenses still provides a touchstone for an evaluating court, and is therefore less subjective than the “cruel or degrading” standard when used without comparison of offenses.  Granted, the determination of which of two offenses is more serious can be subjective; however, courts have laid out a list of appropriate factors to consider:  the crime’s frequency, its risk of bodily harm, and any recent increase its commission.[146]  As such, evaluation of proportionality when coupled with offense comparison is more concrete, and less subjective, than other proportionality review.

B.      Comparison of Different Offenses Is Not Wholly Inappropriate

1.      Identical Elements Analysis Permits the Comparison of Different Offenses

Prior to Sharpe, comparison of different offenses was an accepted part of Illinois

proportionality jurisprudence.[147]  While condemning the cross-comparison test, however, the Sharpe court upheld the identical elements test, which evaluates proportionality by comparing two offenses.[148]  Upholding the identical elements test confirms that comparison of two offenses is not wholly inappropriate.[149]  According to the Court, the identical elements test is appropriate because the comparison of different, but substantively identical, offenses does not require a court to make subjective determinations,[150] force a court to act as a super-legislature, or threaten separation of powers principles.[151]  As such, the Sharpe analysis suggests that if cross-comparison of offenses were sufficiently constrained, it too might be appropriate.

2.   Other States Permit Cross-Comparison of Offenses to Determine Whether Sentences are Constitutional

In addition to being an accepted part of Illinois proportionate penalties jurisprudence, cross-

comparison of offenses has been a part of some other states’ determinations of the constitutionality of sentences.  States that have employed cross-comparison of offenses similar to the Illinois cross-comparison test include Alaska,[152] Kentucky,[153] Massachusetts,[154] North Carolina,[155] and Wisconsin.[156]

C.     Cross-Comparison Review Protects Against Accidental Disproportionality and Helps Move Toward an Internally Consistent Criminal Code

Additionally, cross-comparison review protects against accidental disporportionality

within the Illinois Criminal Code.  A criminal code is not born in its entirety; instead, it grows offense by offense.[157]  Each added offense may not reflect the code that it joins.[158]  While some added offenses plug loopholes in the original code, others are at best duplicative and at worst contradictory and inconsistent.[159]  Driven by constituent concerns and sometimes prompted by high-profile crimes, legislators do not always sufficiently safeguard the proportionality and internal consistency of a criminal code.[160]  The end result is a “hodgepodge,” rather than an integrated, internally consistent criminal code.[161]

            If a criminal code grows into a “hodgepodge,” preserving some form of a cross-comparison test can help to eliminate unintentional disproportionality.  In People v. Bradley,[162] the Illinois Supreme Court encountered an “obvious mistake:”[163] a defendant was punished more severely for possessing a controlled substance than he would have been had he sold it.[164]  After comparing the two offenses, the Bradley court determined that the possession offense’s sentence violated due process because was not “designed to remedy the evil” the legislature targeted.[165]  The Bradley Court’s job was made significantly easier by the fact that the legislature had explicitly stated that “it is not the intent of the General Assembly to threaten the unlawful user or occasional petty distributor of controlled substances with the same severity as the large-scale, unlawful purveyors and traffickers of controlled substances.”[166]  Bradley is relevant here, despite being a due process case, because it was the Bradley court’s comparison of two similar offenses that revealed the possession offense’s sentence to be unconstitutional.[167]   It is doubtful if, viewed in a vacuum, that sentence would have appeared unconstitutional (or illogical or inappropriate) – even with the legislature’s statement on the books.

            Not every inconsistency in the Illinois Criminal Code will be so explicitly highlighted by the legislature, but this does not suggest that proportionality review ought not reach these inconsistencies.  A criminal code should be internally consistent;[168] a code will have difficulty achieving its goals of norm-setting and deterrence if it is not internally consistent, clear, and rational.[169]  Specifically, a code that does not provide a fair sentencing system and is not perceived as internally consistent will not inspire much deterrence.[170]  Thus, although some have argued that the judiciary’s constitutional mandate did not include attempting to organize all criminal law into “one grand scheme of comparative proportionality review,”[171] common sense dictates that courts should have the power to correct “obvious mistakes” as well as less obvious, more pernicious errors.[172]  These pernicious errors, like punishing the concealed carrying of a firearm during the commission of a specified crime more than the discharge of a firearm in the direction of a person (but not in the course of another crime), riddle the Illinois Criminal Code, calling into question its ability to set limits for acceptable behavior and deter criminal action.[173]  As in Bradley, these errors do not necessarily appear to be errors at all when viewed in a vacuum; instead a cross-comparison test is necessary to help a criminal code weighed down by political baggage achieve its goals of norm-setting and deterrence.

D.     Cross-Comparison Review Protects Defendants from Disproportionate Sentences

The elimination of the cross-comparison test leaves criminal defendants without valuable

Constitutional protection from illogical, inconsistent, and unnecessarily harsh penalties and significantly weakens the protections of the Illinois Proportionate Penalties clause.  By eliminating the cross-comparison test in Sharpe, the Illinois Supreme Court significantly weakened the protection from inconsistent punishment the Proportionate Penalties clause provides to defendants.  Granted, the Sharpe decision left intact two proportionate penalties tests – the “shocks the conscience” test and the identical elements test.[174]  As noted in Part I, however, these two tests are of limited use to defendants; no “shocks the conscience” challenge has ever invalidated a sentence based on length alone[175] and an identical elements challenge is necessarily limited to those cases where an offense with identical elements exists within the Illinois Criminal Code.[176]  As such, the Sharpe decision, for all intents and purposes, eliminated meaningful proportionality review for those offenses which cannot be compared to another offense with identical elements. 

            Some might argue that the protections formerly afforded to defendants under the cross-comparison test would be supplemented by the Illinois Due Process clause.  The Illinois Due Process clause requires that a penalty be reasonably designed to remedy the particular evil that the legislature targeted in creating the offense.[177]  Although some due process cases have compared two offenses to determine whether a penalty has been reasonably designed to remedy the harm the legislature was targeting;[178] the cases have long laid dormant and have recently been negatively treated.[179]  In Sharpe, moreover, the court indicated in dicta that “the cross-comparison challenge will not simply resurface as a due process challenge along the lines of Wagner”; indicating that the Due Process clause will not provide the protection defendants lost in Sharpe.[180]

            Additionally, the Eighth Amendment to the Federal Constitution will not supply the protections defendants lost in Sharpe.  The Eighth Amendment prohibits the imposition of cruel and unusual punishments,[181] and was intended to prohibit certain modes or conditions of punishment.[182]  A majority of Supreme Court justices have concluded that the Eighth Amendment provides no guarantee of proportionality between a crime and its sentence’s length[183] or that the Eighth Amendment prohibits only “extreme sentences that are ‘grossly disproportionate’ to the crime.”[184]  As such, the Eighth Amendment arguably provides only as much protection as the “shocks the conscience” proportionality test.[185]

            Because neither Due Process nor the Eighth Amendment provide the protections defendants lost with the elimination of the cross-comparison proportionality test in Sharpe, a defendant’s ability to challenge a sentence’s proportionality is significantly weakened.  Additionally, it could be argued that some defendants have more proportionality protection than others; those defendants who can find an offense with identical elements but a different sentence have a much stronger chance of obtaining meaningful proportionality review than those who cannot.  Thus, not only does the Sharpe decision significantly weaken all defendants’ ability to challenge their sentences on the basis of proportionality, it weakens certain defendants’ ability more than others.

Part IV:  Just Right?:  Testing A “Just Right”

Cross-Comparison Test in the Context of Two Thorny Proportionality Problems

            As demonstrated in Part III, some form of cross-comparison proportionality analysis is appropriate in order to correct accidental disproportionality, move toward an internally consistent Illinois criminal code, and protect defendants.  But simply establishing that a cross-comparison test would be beneficial is not sufficient; a choice must be made regarding the form of cross-comparison analysis that is most appropriate.  This paper proposes that that Illinois Supreme Court adopt a modified form of the cross-comparison test in place prior to Davis, which incorporates the original “cruel or degrading” proportionality review into the comparison of similar offenses.[186]

            The proposed cross-comparison test will require three steps.  First, a court must determine whether two offenses are appropriate for comparison.  This threshold requirement is imported from pre-Sharpe cross-comparison and remains in order to avoid separation of powers problems in the subsequent determinations of the offenses’ seriousness.[187] Offenses will be considered appropriate for comparison if they have related purposes.[188]  Although the Sharpe court argued that the related-purposes inquiry caused significant problems,[189] leaving some “wiggle-room” in the purposes inquiry will permit courts to take a common-sense approach to the inquiry.  While Sharpe suggested that purposes could be drawn so broadly as to permit comparison with any offense (purpose to prevent crime) and so narrowly as to prohibit comparison with any other offense,[190] it seems highly unlikely that any court would seriously entertain these possibilities.  Furthermore, although at time somewhat inconsistent,[191] existing cross-comparison cases provide courts guidance on this point.  Additionally, this paper recommends that the legislature provide statements of legislative purpose to assist courts on this point.[192] 

            Second, a court must determine which of the two offenses is more serious.  As noted above, this inquiry will most likely not run counter to the separation of powers clause as long as the court is comparing two offenses with related purposes.[193]  The test will continue to consider various considerations of seriousness, including the crime’s frequency, its risk of bodily harm, and any recent increase its commission; however, this paper proposes that courts be cautioned to avoid falling into a consideration of only an offense’s contemplated risk of harm.[194]  Additionally, this paper proposes that the Sharpe court’s erroneous reading of Moss and Walden, that a court ought only consider the seriousness of certain elements of the offenses,[195] should be eliminated, and courts should consider the seriousness of offenses in their entirety. 

            Lastly, a court should consider whether the penalties for the offenses are set according to the seriousness of the offense.  Under the proposed cross-comparison test, a penalty has not been set according to the seriousness of the offense if a more serious offense is punished less severely, and this discrepancy is “cruel and degrading” or “shocks the conscience of the community.”[196]  As such, the mere mathematical comparison present under the pre-Sharpe cross-comparison test is eliminated.[197]

            The true test of this proposed “Just Right” cross-comparison test, however, is the following case studies. 

A.     Baby Bear Cross-Comparison and the Attempt Second Degree Murder Conundrum

Before applying the proposed “Just Right” cross-comparison test, it is necessary to make

a short survey of the Illinois attempt second degree murder problem.  In Illinois, attempt is defined an act that “constitutes a substantial step toward the commission of… [an] offense” when coupled with the “intent to commit a specific offense.”[198]  As such, a defendant must intend to effectuate a particular result rather than have a general intent to commit a physical act.[199]  Second degree murder is defined as first degree murder when one of two “mitigating factors” is present at the time of the killing:  either (1) the accused acts “under a sudden and intense passion resulting from serious provocation,” called “provocation second degree murder,” or (2) the accused “believes the circumstances to be such that, if they existed, would justify or exonerate the killing…but his belief was unreasonable,” called “imperfect self-defense second degree murder.”[200]  First degree murder in Illinois is defined as the killing of an individual without lawful justification, if the person committing the killing intends to kill.[201] 

            In People v. Lopez, the Illinois Supreme Court held that attempt second degree murder is a logical impossibility, and thus, does not exist under Illinois law.[202]  The Lopez defendant argued that because the second degree murder statute is essentially first degree murder plus mitigation, it follows that attempt second degree murder requires a substantial step toward the commission of first degree murder and proof of a mitigating circumstance.[203]  Instead, the Illinois Supreme Court drew from decisions interpreting an earlier version of second degree murder (called voluntary manslaughter) that incorporated the mitigating circumstances as elements of the offense,[204] and found that the attempt statute requires that a defendant must specifically intend to commit second degree murder.[205]  Thus, attempt second degree murder requires that a defendant specifically intend to kill without lawful justification and intend to have one of the mitigating circumstances present.[206]  According to the court, however, it is impossible to “intend either a sudden and intense passion due to serious provocation or an unreasonable belief in the need to use deadly force.”[207]  As such, there is no offense of attempt second degree murder in Illinois.[208]  The Lopez decision was accompanied by a significant dissent, written by Justice McMorrow, which described the Lopez result as creating “a void in Illinois criminal law.”[209]  As Justice McMorrow predicted, the result of Lopez is that a defendant who might otherwise have committed attempt second degree murder is now chargeable with attempt first degree murder.[210] 

Filling this void, however, will prove difficult.  As Justice McMorrow recognized, the Illinois General Assembly has already attempted to eliminate this problem once, in the 1986 adoption of the current first and second degree murder statutes.[211]  In People v. Reagan, the Illinois Supreme Court held that because the mitigating circumstances were elements of voluntary manslaughter, a defendant accused of attempted voluntary manslaughter must have possessed the specific intent to kill with an unreasonable belief in the need to use deadly force in self-defense or the specific intent to kill in a sudden and intense passion based on serious provocation, both of which are impossible.[212]  Thus, attempt voluntary manslaughter did not exist.[213]  In response, the legislature rewrote the statutes, eliminating the mitigating circumstances as elements of second degree murder, and thus, potentially putting them out of reach of the attempt provision.[214]  Initial academic response to the revisions suggested that the legislature had succeeded.[215]  However, the appellate courts split over the issue; the second and third districts held that attempt predicated on the new second degree murder statute was possible;[216] the first and fifth districts held that it was not.[217]  The Lopez decision rejected the legislature’s attempted fix, arguing that “our decision is based on the wording of our attempt statute” and that “these arguments [the academic response to the new second degree murder statute] fail to consider the specific language of Illinois’ attempt statute, which plainly requires the intent to commit a specific offense, not simply the intent required to commit the predicate offense.”[218]

Because the Lopez decision focused on the attempt statute, rather than the second degree murder statute, it appears that altering the second degree murder statute will not “fix” the void left by Lopez.  As long as the attempt statute requires that an offender have the specific intent to commit the completed offense, Illinois courts will hold that the specific intent to commit second degree murder includes an intent to have an unreasonable belief in the need for self-defense or a sudden and intense passion based on serious provocation.[219]  Thus, any attempt to re-work second degree murder that does not somehow alter the definition and elements of the attempt statute will necessarily fail.[220]  Changing the definition of attempt, however, is unlikely to occur; not only has the attempt statute remained virtually unchanged since the passage of the 1961 Criminal Code, but the present attempt statute is consistent with the Model Penal Code[221] and the law of other states.[222]  Likely, the best solution would be to amend the attempt statute to include a provision permitting an attempt conviction where the actor has the intent required for the offense,[223] a move that would likely cause more trouble than it would solve.[224]

With a likely unfixable attempt second degree murder problem, Illinois is faced with what Justice McMorrow termed the “illogical and disparate treatment” of defendants who would otherwise be guilty of attempt second degree murder.[225]  To illustrate this “disparate treatment,” Justice McMorrow spins a hypothetical about a bar fight, where Kane strangles his friend, Abel, during a bar fight, and breaks his neck.[226]  While Abel is rushed to the hospital, Kane’s lawyer advises Kane that he clearly acted under a sudden and intense passion resulting from serious provocation, which constitutes second degree murder.[227]  If convicted, Kane faces a maximum sentence of fifteen years.[228]  The next day, however, Kane is dismayed to learn that Abel has survived, and thus, he is charged with attempt first degree murder, punishable by six to thirty years.[229]  Although Justice McMorrow fails to recognize it, this result would initially appear to be contrary to the pre-Sharpe cross-comparison proportionality test; second degree murder is more serious than attempt first degree murder, yet is inexplicably punished less severely.[230]

Interestingly, application of the cross-comparison proportionality test pre-Sharpe did not render the attempt first degree murder statute unconstitutional because it punished attempt second degree murder situations more severely than the more serious offense of second degree murder.[231]  In the only case to directly address this issue, the Illinois Supreme Court in People v. Morgan held that the attempt first degree murder statute does not violate the proportionate penalties clause by being punished more seriously than more serious second degree murder.[232]  Although the court acknowledged that second degree murder is more serious than attempt first degree murder and that second degree murder is punished less severely, the court noted that “the penalty for attempted first degree murder is not so disparate that the statute is rendered unconstitutional by the defendant’s inability to prove the existence of mitigating circumstances.”[233]  When, however, the defendant committed the attempted first degree murder while armed with a firearm or discharging a firearm, and was thus subject to the fifteen, twenty, or twenty-five years to life enhancement, the result was unconstitutionally disproportionate because “persons whose actions are identical may be exposed to vastly disparate sentences depending on whether the victim lives or not.”[234]  (See Table 1).  As such, Morgan incorrectly applied the pre-Sharpe cross-comparison test by refusing to engage in a simple mathematical comparison of the sentences of second degree murder and attempt first degree murder.[235] 

Table 1:  Morgan Cross-Comparison Results

Attempt First Degree Murder Offense (Mitigating Factor Present)	Attempt First Degree Murder Penalty	Second Degree Murder Penalty	Morgan’s Proportionality Determination
Attempt First Degree Murder	Class X Felony; 6 – 30 years imprisonment[236]	Class 1 Felony; 4 – 15 years imprisonment[237]	Proportionate (“not so disparate”)
Attempt First Degree Murder; Armed with Firearm	Enhanced Class X Felony; 21 – 45 years imprisonment	Class 1 Felony; 4 – 15 years imprisonment[238]	Disproportionate (“vastly disparate”)
Attempt First Degree Murder; Discharged Firearm	Enhanced Class X Felony; 26 – 50 years imprisonment	Class 1 Felony; 4 – 15 years imprisonment	Disproportionate (“vastly disparate”)
Attempt First Degree Murder; Discharged Firearm and Proximately Caused Bodily Harm	Enhanced Class X Felony; 31 years – Life Imprisonment	Class 1 Felony; 4 – 15 years imprisonment	Disproportionate (“vastly disparate”)

If Morgan had properly applied the pre-Sharpe test, it would have been forced to come to the conclusion that attempt first degree murder is unconstitutionally disproportionate.[239]  The pre-Sharpe test simply does not give the legislature any wiggle-room; if it a more serious offense is punished less severely, then the less serious offense is unconstitutional.[240]  The result would be bad; for a time, there would be no attempt murder offense at all.  Then, the legislature would effectively be prohibited from replacing attempt murder with an offense punished more severely than second degree murder, a Class 1 felony, [241] unless it could fix the attempt second degree murder problem. 

Although Morgan represented an anomaly under the pre-Sharpe cross-comparison test due to its failure to mathematically compare the sentences of second degree murder and attempt first degree murder, it suggests the possible result of the proposed “Just Right” cross-comparison test.[242]  While the Morgan court does not use the “cruel or degrading” or “shocks the conscience” language, its “vastly disparate” and “not so disparate” language suggests that the court was in fact using the very “Just Right” cross-comparison test proposed by this paper.[243]  Based on Morgan, it appears that the result of a “Just Right” cross-comparison test on the attempt second degree murder problem would be to uphold the use of attempt first degree murder in cases of apparent attempt second degree murder.[244]  As such, the continued use of a “Just Right” cross-comparison analysis would not require the Illinois Supreme to side-step proper cross-comparison analysis in order to preserve the offense of attempt first degree murder.

B.      “Just Right” Comparison Review  and the 15-20-25 to Life Firearm Enhancement Scheme

The true test of a “Just Right” cross-comparison test, however, is its compatibility with

the 15-20-25 to Life firearm enhancement scheme – the bill that produced many of the proportionate penalties decisions deplored by the Sharpe court (Walden, Morgan, and Moss).[245] If the “Just Right” cross-comparison test and a moderately rewritten firearm enhancement scheme can prove compatible, then the “Just Right” cross-comparison test is truly workable.  In order to determine whether this result can be reached, this case study will first summarize the 15-20-25 to Life enhancement scheme as it currently written, then examine the scheme’s pre-Sharpe proportionate penalties problems and how the “Just Right” cross-comparison test would correct the pre-Sharpe problems, and lastly propose a moderately rewritten 15-20-25 to Life enhancement scheme that conforms to both the legislature’s original goals and a “Just Right” cross-comparison test.

1.      The Present 15-20-25 to Life Firearm Enhancement Scheme

As noted before, the 15-20-25 to Life firearm enhancement scheme provides significant sentencing enhancements for the presence or use of a firearm during a felony.[246]  The bill employs two tiers of enhancements based on the severity of the underlying offense: first, significant mandatory sentencing enhancements for the presence or use of a firearm during certain enumerated Class X felonies,[247] and second, modification of an existing felony providing additional liability for the presence of a dangerous weapon during an Illinois felony.[248]  See Table 2.

Table 2:  15-20-25 to Life Sentencing Provisions

Sentencing Scheme (Based on Underlying Felony)		Use of Firearm During Offense
		Armed With	Personal Discharge	Personal Discharge Causing Great Bodily Harm
Enumerated Class X Felony	Penalty for Underlying Felony	6 – 30 years	6 – 30 years	6 – 30 years
	Enhancement	15 years	20 years	25 years to life
	Total	21 – 45 years	26 – 50 years	31 years - life
Armed Violence		Category I Firearm:  15 years minimum Category II Firearm:  10 years minimum	20 years minimum	25 – 45 years minimum

The first tier of enhancements applies to the eleven Class X felonies the legislature perceived to be the most serious:  attempted first degree murder,[249] first degree murder,[250] intentional homicide of an unborn child,[251] aggravated kidnapping,[252] aggravated battery of a child,[253] home invasion,[254] aggravated criminal sexual assault,[255] predatory criminal sexual assault of a child,[256] armed robbery,[257] and aggravated vehicular hijacking.[258]  These “enumerated” felonies are subject to mandatory sentencing enhancements of fifteen, twenty, and twenty-five years to life imprisonment in addition to their “base” sentences of six to thirty years.[259]  Thus, an offender who is "armed with a firearm"[260] while committing an enumerated felony will be sentenced to six to thirty years of imprisonment for the felony[261] and an additional fifteen years for the firearm.[262]  Personally discharging a firearm[263] during an enumerated felony mandates a twenty year enhancement while the personal discharge of a firearm causing great bodily harm, permanent disability, permanent disfigurement, or death must be sentenced to an additional twenty-five years to life.[264]  See Table 2.

The second tier of enhancements utilizes armed violence, 720 Illinois Compiled Statutes 5/33A, to provide lesser enhancements for Illinois felonies perceived to be less serious.[265]  Thus, a felony[266] committed while armed with a Category I firearm[267] is a Class X felony punishable by a minimum fifteen years.[268]  A person who commits a predicate felony while armed with a Category II firearm[269] will receive a minimum sentence of ten years.[270]  A person who personally discharges a Category I or Category II firearm during the commission of an Illinois felony receives a minimum of twenty years.[271]  If the discharge proximately causes great bodily harm, permanent disability, permanent disfigurement, or death, then the offender commits a Class X felony carrying a sentence of twenty-five to forty years of imprisonment.[272]  See Table 2.

2.      The Application of a “Just Right” Cross-Comparison Test to 15-20-25 to Life’s Proportionate Penalties Problems

Under the pre-Sharpe proportionate penalties jurisprudence, some, but not all, of the

firearm enhancements had been declared unconstitutional.[273]  The unconstitutionality of these enhancements stemmed primarily from three sources:  the use of non-uniform definitions of firearm conduct throughout the Illinois Criminal Code, the existence of un-enhanced firearm conduct throughout the Criminal Code, and the Morgan attempt second degree murder problem.  The result of these proportionate penalties problems was a piece-meal enhancement scheme.[274]  Each of these three problems will be addressed and considered from the perspective of the proposed “Just Right” cross-comparison” test[275].

a.        The First Cause of the Proportionality Problems:  The Non-Uniform Definition of Firearm Conduct

The first major constitutional infirmity of 15-20-25 to Life under pre-Sharpe proportionate penalties jurisprudence is the non-uniform definition of firearm conduct throughout the Illinois criminal code.  Specifically, definitions of firearm conduct not used by the 15-20-25 to Life enhancement scheme have the potential to be deemed “more serious” than 15-20-25 to Life firearm conduct, and therefore, trigger cross-comparison difficulties when they are punished less severely than 15-20-25 to Life offenses.[276] 

In Moss, for example, the Illinois Supreme Court determined that aggravated battery with a firearm and aggravated discharge of a firearm were more serious than three 15-20-25 to Life enumerated Class X felonies[277] committed while personally discharging a firearm.[278]  See Table 3.  Specifically, the court noted that aggravated battery with a firearm requires “injury resulting to a person through the…discharge of a firearm,”[279] whereas the 15-20-25 to Life offenses required only that the offender be armed with or personally discharge a firearm.[280]  Additionally, aggravated discharge of a firearm required that the firearm be discharged in the direction of another person whereas the three 15-20-25 to Life offenses required only that the offender personally discharge the firearm.[281]  The court concluded that “the additional elements in aggravated battery with a firearm (injury resulting from the intentional discharge of a firearm) and aggravated discharge of a firearm (discharge of a firearm in the direction of another person) render these offenses a greater ‘threat to the public health and safety.’”[282]  

Table 3:  Moss Proportionality Review (Pre-Sharpe)

Offense	Court’s Determination of Seriousness	Penalty
Twenty Year Enhancement
Aggravated Battery with a Firearm	More serious; requires that injury result	6 – 30 years
Aggravated Discharge of a Firearm	More serious; requires that firearm be discharged in direction of person	4 – 15 years
15-20-25 to Life Enumerated Class X Felony	Less serious; requires only that offender discharge firearm	26 – 50 years

Likewise, in People v. Walden, the Illinois Supreme Court held that armed violence predicated on aggravated robbery was more serious than a 15-20-25 to Life enumerated felony[283] with a fifteen year enhancement because the armed violence offense required “additional elements” of firearm conduct.[284]  Specifically, armed violence predicated on aggravated robbery required that the offender “inform the victim that he or she is presently armed with a firearm,” whereas armed robbery could be committed with a concealed firearm.[285]  See Table 4.  The Walden court reasoned that the armed violence offense was more serious because “the risk of violence is enhanced where the offender’s use or threatened use of force is backed up with the express mention of a firearm.”[286]

Table 4:  Walden Proportionality Review (Pre-Sharpe)

Offense	Courts’ Determination of Seriousness	Penalty
Fifteen Year Enhancement
Armed Violence Predicated on Aggravated Robbery	More serious; requires that offender inform victim he is presently armed	Category 1 Firearm:  15 – 30 years Category 2 Firearm:  10 – 30 year
15-20-25 to Life Enumerated Class X Felony	Less serious; requires only that offender be armed with firearm	21 – 45 years

            The only “additional elements” the Illinois Supreme Court apparently considered relevant to the pre-Sharpe cross-comparison test’s seriousness determination were additional elements of firearm conduct.[287]  In Moss, the state argued that the court should consider other “additional elements”:  the substantive offenses themselves.[288]  The State argued that aggravated battery with a firearm and aggravated discharge of a firearm were less serious because they involve “no additional felonies…[but] focus on the firearm conduct itself.”[289]  The State cited the 15-20-25 to Life Act’s “Legislative findings,” which state that

[the] current law does contain offenses involving the use or discharge of a gun toward or against a person, such as aggravated battery with a firearm, aggravated discharge of a firearm, and reckless discharge of a firearm; however, the General Assembly has legislated greater penalties for the commission of a felony while in possession of a firearm because it deems such acts more serious.[290] 

The Court, however, declined to defer to the legislature’s determination of relative seriousness, and instead based its analysis solely on the “additional elements” of firearm conduct.[291] 

            Non-uniform definition of firearm conduct throughout the Illinois Criminal Code gave rise to the “additional elements” of firearm conduct at issue in Moss and Walden.  If the definitions of firearm conduct were consistent however, the Moss and Walden defendants would have be able to demonstrate, at best, that the comparison offenses are equally serious, thereby failing the second requirement of a successful cross-comparison proportionality review.[292]  Thus, if the legislature prohibited firearm conduct in consistent categories, at least some proportionality problems would have been averted under the pre-Sharpe cross-comparison test. 

            Even if the proposed “Just Right” cross-comparison test were adopted, uniform definition of firearm conduct throughout the Illinois criminal code would be necessary to solve the proportionate penalties problems illuminated by Moss and Walden.[293]  Granted, the “Just Right” cross-comparison test would instruct courts to consider the entirety of an offense when weighing its seriousness, rather than focusing on one component of the offense like firearm conduct.[294]  If courts were to consider the entirety of the offenses compared in Moss, it is possible that the seriousness determination would turn out differently; the 15-20-25 to Life enumerated felonies could be deemed to be equally or more serious because they involve a Class X felony in addition to the firearm conduct, while aggravated battery with a firearm and aggravated discharge of a firearm are essentially firearm conduct alone.[295]  Courts could, however, determine that the discharge of a firearm in the direction of a person or discharge causing injury alone is more serious than the mere discharge of a firearm even in the context of a serious offense.  The Walden seriousness determination is a closer question; both compared offenses (armed violence predicated on aggravated robbery and armed robbery) involved firearm conduct in the course of an otherwise prohibited felony.[296]  Although the legislature perceived the enumerated Class X felonies as the most serious in the Illinois Code, courts might perceive the additional elements of firearm conduct to tip the seriousness determination in favor of the lesser-punished armed violence offense.  Thus, in order to ensure that the “Just Right” cross-comparison test does not cause proportionate penalties difficulties for the 15-20-25 to Life firearm enhancement scheme, uniform definition of firearm conduct throughout the Illinois criminal code would be necessary.

            The additional imposition of the “shocks the conscience” test or the Morgan “not very disparate” / “very disparate” consideration to the cross-comparison would not avoid the Moss and Walden challenges without uniform definition of firearm conduct.  Assuming that the seriousness determinations were unchanged, the two comparison offenses in Moss are punished by twenty years less than the 15-20-25 to Life enumerated felonies.[297]  This disparity would almost certainly “shock the conscience” or be deemed “very disparate.”[298]  Although the disparity in Walden is less drastic, a difference of a minimum of six years (if a Category I firearm is involved) and eleven years (if a Category II firearm is involved) would likely also “shock the conscience.”[299]

b.      The Second Cause of the Proportionality Problems:  Unequal Enhancement of Similar Firearm Conduct

Uniformly defining firearm conduct throughout the Illinois Criminal Code, however, would not have eliminated all pre-Sharpe proportionality problems.  In People v. Baker, a defendant successfully challenged the constitutionality of the fifteen year enhancement as applied to aggravated kidnapping using the “identical elements” test.[300]  The Baker defendant demonstrated that aggravated kidnapping committed while armed with a firearm and armed violence predicated on kidnapping while armed with a Category I firearm had identical elements, yet were punished differently.[301]  Because aggravated kidnapping committed while armed with a firearm is punished more severely, the court found the fifteen year enhancement unconstitutionally disproportionate.[302]  Here, uniform definitions of firearm conduct are not enough to eliminate proportionality challenges.[303]

A similar pre-Sharpe cross-comparison challenge was brought in Moss.  There, the defendants argued that aggravated battery with a firearm and aggravated discharge of a firearm were more serious than three 15-20-25 to Life enumerated felonies committed when armed with a firearm, but were punished less severely.[304]  See Table 5.  The Illinois Supreme Court agreed that aggravated battery with a firearm and aggravated discharge of a firearm were more serious threats to public health and safety because they required the discharge of a firearm.[305]  Although the Court’s reasoning is opaque, the Court appears to base its holding on the fact that the comparison offenses require the discharge of a firearm rather than any “additional elements” of firearm conduct. [306]  Instead, even if the additional firearm conduct were eliminated, aggravated battery with a firearm and aggravated discharge of a firearm would be more serious than the defendants’ offenses, as they require the personal discharge of a firearm while the defendants’ offenses merely required the possession of a firearm.[307] 

Table 5:  Moss Proportionality Problems

Offense	Courts’ Determination of Seriousness	Penalty
Fifteen Year Enhancement
Aggravated Battery with a Firearm	More serious; requires that firearm be discharged	6 – 30 years
Aggravated Discharge of a Firearm	More serious; requires that firearm be discharged	4 – 15 years
15-20-25 to Life Enumerated Class X Felony	Less serious; requires that offender be armed with firearm	21 – 45 years

Moss and Baker together suggested that a pre-Sharpe proportionate firearm enhancement scheme required that equal firearm conduct be equally enhanced in every situation.[308]  The defendants in Moss and Baker compared their offenses to offenses involving firearm conduct receiving either no enhancement at all (Moss)[309] or lesser enhancement (Baker).[310]  Due to the “Just Right” cross-comparison test’s abandonment of the mathematical comparison of sentences, however, some unequal enhancement would be possible if a court would hold that the unequal enhancement was not “very disproportionate” (as in Morgan).  In order to determine which unequal enhancements might survive “Just Right” cross-comparison review, each source of unequal enhancement currently present in the Illinois Criminal Code will be examined.

            Offenses involving firearm conduct are unequally enhanced for three separate reasons: legislative fiat, double enhancement principles, and the 15-20-25 to Life two tier enhancement scheme.  First, some offenses are unenhanced due to legislative fiat.[311]  The 15-20-25 to Life bill exempts certain “stand alone” firearm conduct from enhancement,[312] because the General Assembly deemed these felonies less serious than felonies involving firearm conduct.[313]  Pre-Sharpe, courts did not defer to the General Assembly’s determination of seriousness.[314]  Whether a court would consider more dangerous firearm conduct (like the personal discharge of a firearm) standing alone as equally or less serious than less dangerous firearm conduct in the context of another offense (like the commission of a felony while armed with a firearm) is an open question.  It is possible that a court would be swayed by the increased potential for bodily harm afforded by the firearm conduct and therefore determine the more dangerous firearm conduct, even standing alone, to be more serious.  If determined to be more serious, the comparison of penalties would likely not survive the “shocks the conscience” test, as the difference in sentences is at least six years and as much as twenty-two years.[315]  See Table 6.  As such, even the “Just Right” cross-comparison test would seemingly dictate that those offenses not currently enhanced by legislative fiat be at least somewhat enhanced. 

Table 6:  Legislative Fiat Unenhanced Offenses and 15-20-25 to Life Offenses

Offense	Firearm Conduct	Sentence
Aggravated Discharge of a Firearm	Firearm personally discharged in direction of person (most serious)	Class 1 Felony; 4 – 15 years imprisonment
Enumerated Class X Felony with 15 Year Enhancement	Offender armed with firearm	Class X Felony + 15 year enhancement; 21 – 45 years imprisonment
Enumerated Class X Felony with 20 Year Enhancement	Firearm personally discharged	Class X Felony + 20 year enhancement; 26 – 50 years imprisonment
Armed Violence Offense while Armed with Firearm (Category I)	Offender armed with a firearm (Category I)	15 – 30 years imprisonment
Armed Violence Offense while Armed with Firearm (Category II)	Offender armed with a firearm (Category II)	10 – 30 years imprisonment
Armed Violence Offense; Personal Discharge	Firearm personally discharged	20 – 30 years imprisonment

            Second, some offenses are not enhanced due to double enhancement problems.  Double enhancement occurs where a single factor influences a sentence twice; counting the same factor twice is improper because the legislature considers all elements of an offense when setting a penalty.[316]  Double enhancement principles prevent armed violence from being predicated on an offense already requiring the presence or use of a firearm or dangerous weapon.[317]  Under the “Just Right” cross-comparison test, courts would likely view offenses unenhanceable due to double enhancement concerns to be equally or less serious than 15-20-25 to Life enumerated Class X felonies when the firearm conduct is equal, thereby causing no proportionate penalties difficulties.  The problem, however, arises where a defendant compares an unenhanceable offense involving more dangerous firearm conduct (like the discharge of a firearm) with an enhanced offense involving less dangerous firearm conduct (like carrying a concealed firearm – “armed with a firearm”).  In this case, a court would most likely deem the more dangerous firearm conduct to be more serious – and thus, trigger proportionate penalties problems even under the “Just Right” cross-comparison test.  As before, the minimum disparity between offenses is four years and can be as much as twenty years.[318]  See Table 7.  While the four year disparity will most likely survive “Just Right” challenge, twenty will not.

Table 7:  Double Enhancement Offenses and 15-20-25 to Life Offenses

Offense	Firearm Conduct	Sentence
Aggravated Battery with a Firearm[319]	Discharge of a firearm causing injury (at minimum) (most serious)	Class X Felony; 6 – 30 years imprisonment
Enumerated Class X Felony with 15 Year Enhancement	Offender armed with firearm	Class X Felony + 15 year enhancement; 21 – 45 years imprisonment
Enumerated Class X Felony with 20 Year Enhancement	Firearm personally discharged	Class X Felony + 20 year enhancement; 26 – 50 years imprisonment
Armed Violence Offense while Armed with Firearm (Category I)	Offender armed with a firearm (Category I)	15 – 30 years imprisonment
Armed Violence Offense while Armed with Firearm (Category II)	Offender armed with a firearm (Category II)	10 – 30 years imprisonment
Armed Violence Offense; Personal Discharge	Firearm personally discharged	20 – 30 years imprisonment

Third, firearm conduct is unequally enhanced due to the two tiers of enhancements used in the original 15-20-25 to Life bill.[320]  As noted above, the original 15-20-25 to Life enhancement scheme added fifteen, twenty, and twenty-five year enhancements to enumerated felonies and reworked armed violence to include lesser enhancements.[321]  Additionally, armed violence distinguishes between Category I and Category II firearms.[322]  It is unlikely that the entire scheme would survive cross-comparison analysis if a court determined the armed violence offense to be more serious than an enumerated felony; currently, there are disparities of as many as eleven years between similar firearm conduct.[323]  A two tiered enhancement scheme similar to the one originally advanced by the 15-20-25 to Life scheme could survive “Just Right” cross-comparison review.    Even if a court determined that an armed violence offense was more serious than an enumerated felony, the difference in punishment would not “shock the conscience” and would likely be deemed by a court to be “not very disproportionate.”[324]  See Table 8.

Table 8:  Proposed Armed Violence and Enumerated Felony Comparison

Firearm Conduct	Armed Violence Sentence	Enumerated Felony Sentence	Difference
Armed with a Firearm	15 – 30 years	18 – 30 years	3 years
Used a Firearm	18 – 30 years	21 – 45 years	3 years
Personally Discharged a Firearm	21 – 30 years	26 – 50 years	5 years
Personally Discharged + Great Bodily Harm	26 – 45 years	31 years – Life	5 years

Additionally, Baker points towards one more adjustment that would need to be made to the 15-20-25 to Life scheme in order to provide equal-enough enhancement of all firearm conduct.  Baker was an identical elements proportionate penalties challenge,[325] which remains unaffected by Sharpe.[326]   As such, offenses with identical elements must still receive identical sentences.  Thus, a proportionate 15-20-25 to Life must equally enhance any offenses that might trigger identical elements proportionality review.[327]  

c.       The Third Cause of the Proportionality Problems:  The Morgan Problem

The last proportionality problem facing the 15-20-25 to Life firearm enhancement

scheme under the cross-comparison test was the problem high-lighted in Morgan.  Recall that in Morgan, the Illinois Supreme Court invalidated the 15-20-25 to Life enhancements in the context of attempt first degree murder because they were less serious than second degree murder, yet punished much more severely.[328]  Although it purported to use the pre-Sharpe cross-comparison test, the Morgan court distorted the test in order to uphold attempt first degree murder.[329]  Under the “Just Right” cross-comparison test, attempt first degree murder without the 15-20-25 to Life enhancements is undoubtedly constitutionally proportionate; however, the 15-20-25 to Life enhancements are still constitutionally troubled because the disparity between an enhanced attempt first degree murder sentence and an unenhanced second degree murder sentence is so great.[330]  See Table 9.

Table 9:  Morgan Cross-Comparison Results

Attempt First Degree Murder Offense (Mitigating Factor Present)	Attempt First Degree Murder Penalty	Second Degree Murder Penalty	Morgan’s Proportionality Determination
Attempt First Degree Murder	Class X Felony; 6 – 30 years imprisonment[331]	Class 1 Felony; 4 – 15 years imprisonment[332]	Proportionate (“not so disparate”)
Attempt First Degree Murder; Armed with Firearm	Enhanced Class X Felony; 21 – 45 years imprisonment	Class 1 Felony; 4 – 15 years imprisonment[333]	Disproportionate (“vastly disparate”)
Attempt First Degree Murder; Discharged Firearm	Enhanced Class X Felony; 26 – 50 years imprisonment	Class 1 Felony; 4 – 15 years imprisonment	Disproportionate (“vastly disparate”)
Attempt First Degree Murder; Discharged Firearm and Proximately Caused Bodily Harm	Enhanced Class X Felony; 31 years – Life Imprisonment	Class 1 Felony; 4 – 15 years imprisonment	Disproportionate (“vastly disparate”)

            In order to uphold the enhancements as applied to attempt first degree murder, second degree murder must be similarly enhanced.  Second degree murder is not an enumerated Class X felony, and therefore, any 15-20-25 to Life enhancements must be currently accomplished via armed violence.[334]   Illinois case-law, however, prevents armed violence from being predicated on offenses where courts believe that the deterrent or punitive goals of the armed violence statute.[335]  Predicating armed violence on second degree murder fails to serve the deterrent purpose of armed violence because second degree murder is not intentional and therefore cannot be deterred; to the extent that the offender’s decision to arm himself was intentional, merely being armed with a firearm is not necessarily criminal.[336]  Additionally, predicating armed violence on second degree murder fails to serve the punitive purpose of armed violence because the offender who intended to commit no crime, but committed second degree murder is no more responsible for public danger than a person who arms himself but goes about his business without committing a crime.[337]

            As such, Morgan highlights another situation in which an offense involving firearm conduct remains unenhanced despite 15-20-25 to Life, and can therefore be used as a comparison offense to demonstrate disporportionality as in Baker or Moss.  Thus, in order for the 15-20-25 to Life firearm enhancement scheme to survive proportionality review in its entirety, second degree murder must be somehow enhanced sufficiently to avoid being determined “very disproportionate” when compared to attempt first degree murder.[338]

3.      A Proposal for a “Just Right” Proportionate 15-20-25 to Life Enhancement Scheme

The proposed 15-20-25 to Life firearm enhancement scheme is premised on the theory that all firearms “significantly escalate[] the threat and potential for bodily harm, and…increase[] the potential for harm to more persons”[339] regardless of the felony committed or the type of firearm used.  Therefore, the scheme enhances all felony offenses involving firearm conduct.[340]  The proposal preserves the current two-tier scheme, subject to two caveats.[341]  First, all offenses vulnerable to identical elements proportionality challenges and their identical comparison offenses must be subject to equal enhancements to avoid proportionality problems based on the identical elements test.[342]  Second, the proposed scheme eliminates armed violence’s distinction between Category I and Category II firearms[343] and reduces the disparity between the enhanced sentences of the enumerated offenses and armed violence offenses to a maximum of five years, thereby bringing the two-tier scheme within the bounds of the “shocks the conscience” test.[344]  See Table 10.  Because armed violence cannot be predicated on some offenses, the proposed enhancement scheme modifies these offenses to incorporate similar enhancement provisions in accordance with the legislature’s determination of the seriousness of the underlying offense, thereby eliminating any possible unenhanced comparison offenses.[345]  These ineligible offenses include offenses which criminalize the discharge of various types of firearms and ammunition,[346] offenses rendered ineligible to serve as predicate offenses for armed violence by double enhancement principles,[347] and those felonies upon which armed violence cannot be predicated for policy reasons, including first degree murder[348] and second degree murder.[349]

            Additionally, the proposed enhancement scheme recasts the current enhancement scheme into four, rather than three, categories of firearm conduct in order to facilitate consistent definition of firearm conduct throughout the Criminal Code and eliminate Moss and Walden – esque challenges.  See Table 10.  The proposed scheme breaks firearm usage into four categories, carving a category for the “use” of a firearm[350] between the present categories of “armed with” a firearm and “personal discharge of a firearm.”  This additional category allows Illinois to distinguish between offenders who possess and those who utilize a firearm during a felony.[351]  Additionally, the proposed scheme narrows the “personal discharge” category by requiring that an offender personally discharge the firearm in the direction of a person.[352]  Thus, the proposed 15-20-25 to Life firearm enhancement scheme corrects those proportionality problems that would remain despite the use of a “Just Right” cross-comparison test and therefore would be compatible with such a test.

Table 10:  15-20-25 to Life Enhancement Scheme

as Compared to Proposed Firearm Enhancement Scheme

15-20-25 to Life Enhancements		Proposed Proportionate Scheme
Firearm Use	Sentence	Firearm Use	Sentence
Armed with a Firearm	Armed Violence:  10 or 15 – 30 years Enumerated Felony:  21 – 45 years	Armed with a Firearm	Armed Violence:  15 – 30 years Enumerated Felony:  18 – 30 years
		Used a Firearm	Armed Violence:  18 – 30 years Enumerated Felony:  21 – 45 years
Personally Discharged	Armed Violence:  20 – 30 years Enumerated Felony:  26 – 50 years
		Personally Discharged in Direction of Person	Armed Violence:  21 – 30 years Enumerated Felony:  26 – 50 years
Personally Discharged + Great Bodily Harm	Armed Violence:  25 – 45 years Enumerated Felony:  31 years – life	Personally Discharged + Great Bodily Harm	Armed Violence:  26 – 45 years Enumerated Felony: 31 years – life

Part V:  Conclusion

            The proposed “Just Right” cross-comparison test can survive the two thorniest problems created by the pre-Sharpe cross-comparison test, by first correcting the anomalous result in Morgan and preserving a proportionate attempt first degree murder and by second proving itself compatible with a modestly rewritten 15-20-25 to Life firearm enhancement scheme.  Additionally, the analysis supporting the elimination of the cross-comparison test in Sharpe was flawed; it focused entirely on stare decisis and slippery-slope arguments and ignored both policy arguments in favor of some form of cross-comparison test and alternative options open to the Illinois Supreme Court.  As such, the Sharpe decision moved proportionate penalties jurisprudence from “too hard” to “too soft.”  These policy arguments high-light the “softness” of the post-Sharpe proportionate penalties jurisprudence; elimination of the cross-comparison test removed important relief from a Criminal Code crowded with “hodgepodged” offenses and important protections for defendants from internally inconsistent sentences

Thus, this paper recommends that the Illinois Supreme Court reverse its poorly reasoned decision in Sharpe and adopt the proposed “Just Right” cross-comparison test.  This proposed “Just Right” test preserves the positive aspects of the pre-Sharpe test, including the “related purposes” requirement to eliminate separation of powers difficulties.  The test, however, returns to the roots of proportionality jurisprudence and includes the “shocks the conscience” comparison standard, thereby eliminating purely mathematical comparison of sentences.[353]  As such, the “Just Right” test provides defendants and citizens some protection from disproportionality while permitting courts some leeway to uphold sentences that are not “vastly” disproportionate[354] – striking an appropriate balance between the expansive pre-Sharpe cross-comparison and the toothless post-Sharpe proportionality landscape.
Appendix 1:  15-20-25 to Life Pre-Sharpe Proportionate Penalties Troubles

(Shading denotes unconstitutional enhancement)
Predicate Offense	Enhancement	Case (Successful suits in bold)
Attempted First Degree Murder	15 Years	Morgan, 203 Ill. 2d 470 (2003) (Cross-comparison test)
	20 Years
	25 Years to Life
First Degree Murder	15 Years	N/A
	20 Years	Zapata, 347 Ill. App. 3d 956 (2004); Powell, 2004 WL 3019489 (2004)
	25 Years to Life	Sawczenko-Dub, 345 Ill. App. 3d 522 (2003); Moore, 343 Ill. App. 3d 331 (2003); Arnold, 349 Ill. App. 3d 668 (2004), Tolbert, 354 Ill. App. 3d 94 (2004)
Intentional Homicide of an Unborn Child	15 Years	N/A
	20 Years	N/A
	25 Years to Life	N/A
Aggravated Kidnapping	15 Years	Baker, 341 Ill. App. 3d 1083 (2003) (identical elements test); Moss, 206 Ill. 2d 503 (2003) (cross-comparison test)
	20 Years	Moss, 206 Ill. 2d 503 (2003) (cross-comparison test)
	25 Years to Life	N/A
Aggravated Battery of a Child	15 Years	N/A
	20 Years	N/A
	25 Years to Life	N/A
Home Invasion	15 Years	Hill, 199 Ill. 2d 440 (2002); Dryden, 349 Ill. App. 3d 115 (2004) (cross-comparison test)
	20 Years	N/A
	25 Years to Life	N/A
Aggravated Criminal Sexual Assault	15 Years	N/A
	20 Years	N/A
	25 Years to Life	N/A
Predatory Criminal Sexual Assault of a Child	15 Years	N/A
	20 Years	N/A
	25 Years to Life	N/A
Armed Robbery	15 Years	Walden, 199 Ill. 2d 392 (2002) (cross-comparison test); Blanco, 199 Ill. 2d 410 (2002) (cross-comparison test); Garcia, 199 Ill. 2d 401 (2002) (cross-comparison test); Devenney, 199 Ill. 2d 398 (2002) (cross-comparison test); Ridley, 345 Ill. App. 3d 1091 (2004).
	20 Years	Moss, 206 Ill. 2d 503 (2003) (cross-comparison test)
	25 Years to Life	Moss, 206 Ill. 2d 503 (2003)
Aggravated Vehicular Hijacking	15 Years	Moss, 206 Ill. 2d 503 (2003) (cross-comparison test)
	20 Years	Moss, 206 Ill. 2d 503 (2003) (cross-comparison test)
	25 Years to Life	N/A