in the core not cause case one one eight five nine nine people of the state of illinois versus vincent result are you ready to proceed and that's ready thank you  justice members of the morning i'm assistant state's attorney annette collins representing the people of the state of illinois in the matter before this court we brought this appeal because the circuit court held that the aggravated speeding statute was unconstitutional under the proportionate penalties clause that statute in effect at the time panelized excessive speeding over thirty and forty miles per hour with speed limit as a class a or class misdemeanor and prohibited judges from imposing supervision in finding that the statute violated the proportionate penalties clause the circuit court never actually found that the class a or b misdemeanor penalty itself by lated constitution rather the court found that the prohibition of supervision was constitutionally offensive in fact in the body of the court's order when addressing supervision is this court knows is a deferred prosecution that will result in dismissal of the charges and the court wanted this option so it didn't have to impose what it called a mandatory conviction it was this mandatory conviction that the circuit court below found in violation of the portion of penalty scott's but it's reasoning was on sound for a number of reasons the first and primary reason that the court's analysis was incorrect is that a conviction limitation of penalties after conviction now in addition to a conviction not being a penalty collateral consequences of a conviction are not penalties either these are the the proportionate penalt what that was is intended to address but the court below rather than focusing on the actual penalty was more concerned about the collateral consequences in its order the circuit court focused on  applications the potential that a conviction would have on loan applications and ultimately use these collateral consequences as part of its shocks the conscience analysis how do you respond to the in people versus green that said you would realistically supervision with conditions attached recording restitution of chatter involves the imposition of a penalty despite the fact a defender this in power has not offensive and that is not the way the portion of penalties cost operates portion of penalties clause operates to review the actual handle to hear a class a or b misdemeanor without the option supervision and green as well as some of the score to other cases this court recognized that supervision was a unique legislative he created option that a court could not vast itself with the power to impose but that's really what we have here we have a court that wants to impose supervision even though the legislature told it it would not because they have bottom the court disagreed with the legislature as to the seriousness of the offense and wanted to impose a lower penalty and this ultimate disagreement with the legislature as to the seriousness of the events is more about policy and less about a constitutional belatedly of statute and another problem with the court's order is this  disagreement with the seriousness of the offense of the legislature believe led the court to compare this offense with all manner of other offenses in the quote if we take a look at the court's order the  acknowledged that excessive speeding is a dangerous offense in poses a risk but ultimately held that aggravated speeding was not as serious as some of the other crimes for which the legislature had prohibited supervision the court even mention felonies domestic battery which help that some of these other offenses and in comparing these on related offenses to the ensuite crime the court essentially help answer crime was not a serious and therefore there was no reason to prohibit supervision the court also compared this traffic offense to other traffic offenses that the legislature had allowed supervision and felt that this dichotomy of this offense not getting supervision and those offenses like do you and i do you why and reckless getting supervision was not rational ultimately what the court did in some of the fact was revived across comparison analysis that this court abandon in people  versus sharpe this court had the opportunity to discuss very briefly the shocks the conscience prong of the or ship penalties clause and this court said with absolutely no question that the shocks the conscience prong  not involve cross comparison analysis it looks at the penalty in relation to the offense to which that penalty is attached and had the court engaged in this proper proportion of penalties analysis it would have upheld the constitutionality of the statute because there is no disagreement that the offense is serious we're dealing with speeds of over thirty to forty miles per hour and above the speed limit the legislature made express statements that this was a dangerous activity that could potentially kill and defendant's numbers in his brief and the meat i point to these numbers of well as well disclose an alarmingly high rate of excessive speeding in illinois over forty thousand incidents reported in two thousand and three alone over the speed of twenty six miles per hour discounts does the fact that this gesture of change have any bearing on the case now it may have bearing on a potential sentence of this case goes back but other than that it does not really appear to have an effect on what the court below helped obviously we have a rule eighteen order where the statute at play is unconstitutional and that has to be addressed and frankly the change in the statute just a spur really doesn't evidence any concerns on legislatures part with respect to the constitutionality of the absence of supervision or the prohibition of supervision when we take a look at why the legislature recently amended that statute one of the sponsors indicated that it was at the urging of a local defense counsel so no doubt there were some of the same policy arguments that are being presented in this case were presented t legislature the appropriate forum for those concerns the other thing that happened during the amendment to this statute was that the legislature actually increased some other excessive speeding offenses to m that those excessive speeding incidents that occur in school in construction zones not only created mr beaners out of those offenses but also prohibited supervision for everyone not just first time offenders so ultimately when we look at the manner which the legislature over the past seventeen years has dealt with the high incidence of speeding and the fatalities cost by excessive speeding we see that the legislature's acts were rational not just with respect to the designation of this is a misdemeanor and the application of a misdemeanor penalty but also rational with respect to the removal of supervision because this is a fence was too serious to allow the number of supervisions that were being imposed in fact one of the clear expressed bases for the legislature to remove the option of supervision after creating this offense was that over sixty percent about two thirds of the individuals who were arrested for this  actually presented that the court under transcript and one of the one of the bases that we presented that transcript or not transcript at the secretary of state a reflection of some of his prior traffic offenses was because we were pointing out to the court that you mentioned this is about first timers this is a defendant who's had multiple priors so to the extent that you are ruling with only based on your concerns about giving this defendant it is a first timer supervision then we were telling the court that it was in error but it's very clear from the defendant's brief and i think throughout the court's order that it's true intent was to click declare the statute facially unconstitutional and we got that reversed thank you bears richer fruits than strict justice and when looking at the facts of this case it makes absolutely no sense that we show mercy to dui offenders the reckless drivers and we demand strict justice from those who exceed the speed limit even on their first  know that the united states constitution to due process clause there's well as the state to process clause protects individuals from irrational and downright arbitrary sanctions and again the key here is that if an individual commits a dui offense be it in an urban district or rule area he's entitled to supervision if an individual commits reckless driving he's statutory entitled supervision but if an individual speeds up which can be committed in a plethora of ways where there's people on the road or not this individual is required to be convicted as a criminal for the rest of their lives now if if the legislature to mild did away with demanding or giving mercy on some offenses and demanding strict justice here once it's abolish their strict justice equally across the playing field and no longer is there an arbitrary or unreasonable distinction between giving someone supervision for reckless driving versus giving someone supervision for a dui versus giving someone supervision for speeding there's a level field display supervision has been abolished and each individual is being treated reasonably logically and not in a non arbitrary fashion  there's not necessarily some of the offenses that are not there not the same as this offense you see speeding traditionally has always been a petty offense it's something that we encompass in society that occurs a people don't necessarily always go to jail for speeding and i think that in this case in each analysis is based on that when we look at what's shocking in the conscience or we look at what bothers the moral sense of the community we look at it as our modern evolving times and we look at it in terms of the specific offense itself and when you look at this offense as opposed to let's just say domestic battery where there is no supervision domestic battery is a serious offense it involves a specific victim and it involves generally bodily harm here the offense is only and in the analysis that the trial court conducted the offense is only a potential for harm because if the individual speeding and actually crashes there you have a different charge that could be brought it could be a reckless driving charge or vice versa there's pleasure or things that happen once there's injury to property or in would you look at the frequency of the of of the matters here in that's why it's important when you do the analysis of what shocks the conscience you can see here that there's no harm to any specific individual there's no one hurt here there's no involvement of drugs crime any specific criminal mentality there's just individuals who are operating a vehicle slightly faster than what the general somebody said is what they believe to be safe and it doesn't make any sense it's illogical irrational and reasonable that we would allow somebody to get supervision while drinking and driving and committing wrecked was reckless driving but if they were speeding they would have to be convicted on that their charge so hypothetically if an individual is drunk behind the wheel and reckless driving under the pan over foster whichever ways that the reckless driving could be committed and speeding the individual would get supervision would be eligible for supervision on a dui on the reckless driving but would be convicted for the speeding and so when looking at other offenses surely murder shouldn't be entitled to supervision but here we have this distinction amongst traffic offenses and it just shocks the conscious i mean imagine being a mother who's got a child and seven  to get it into the first way that this court recognizes the worst of the penalties analysis when you started talking about dui versus speeding and the right to supervision and want and not the other why isn't that just an analysis that has been refuted by sure it seems like you're saying when the sentence is greater than that for a similar offense that poses a greater risk of public safety that seems to be your argument and we don't accept that for a proportion of penalties avails is correct there were three tests there was an identical elements test then there's a shocking the conscience test and then there's was cross comparison test the cross comparison test was removed but that doesn't mean if you look at and when looking at the shocking of the conscience test that test i guess in compas is the eighth amendment test for cruel and degrading and took us and our framers kaito one hundred miles an hour it's cruel and degrading to not allow supervision for that no no that's not what i mean what i did i mean it seems like you you then segue into the analysis of the as we were talking about before the dui situation right and  t i'm doing that what i'm saying is that the test of shocking of the conscience as one of the factors the courts have traditionally looked at and compared sanctions and other offenses so walt the specific task there were three tests the identical or the cross comparison analysis was its own test after removal rabbit it simply just becomes a factor as it always was under the first test for shocking of the conscious or cruel and degrading and as evidence of that  degrading it's not so much it's cruelly grating it's shocking of the conscience we're not saying that you know we're torturing somebody here or committing that type of cruel or degrading punishment what we're saying is that as society goes  the general moral ideas of the public are violated and here when you again when you analyze the factors and you look at it it's it's it's shock it's a cruel degrading punishment for example recently we just had miller v example and in that case who was held in a mandatory life sentence for a murder that was a juvenile violates the eighth amendment and it's cruel and unusual and they looked at all these factors but their main factor for saying that that penalty was cruel and unusual it wasn't that they were chopping people's heads off on the block or doing things that we believe arcane it was the fact that they did not consider the rehabilitative potential of juveniles or young offenders and here when you look at the analysis that was done in miller v alabama and other cases we don't have such a serious offense where there's bodily harm we have a potential for harm there's no physical contact with any individual the frequency which which the state cited to indicates that speeding occup large common acceptance amongst the populace in illinois and so we can't have in a while this plague of all the criminal isolation if you really think the conscience is shocked by not allowing supervision for somebody going hundred miles an hour down the freeway general conscience of the public and when we look at and that's the other issue when we look at what is the general conscience or morals of friends would be a start with yes i agree or not i do agree but we have to look at it with the moral moral  tendencies of the public well what their idea is and it's presumed that when the general assembly passes a law that indicates the moral sense of the community and as you can see and that's one of the main bases for forming this judgment is the general  already did affirm it by passing and amending the bill if not before we get there i mean that's that's a pretty complex argument to make let's be real real clear you're talking about speeding this is speeding over forty miles per hour over the limit right so this is more than just going you know seventy one or seventy two this is cracked this is this is extensive we're looking at is forty across the board twenty six miles and up it doesn't start at forty they've started at forty and they crap that bounce will wobble we're sooner or later if the court doesn't put a plug on it for five miles over we're all going to be criminals we're talking about the statute in front of us right now right now the question officials have decided that this kind of excessive speed not just a little bit of the limit a great deal of it that this is the kind of conduct that needs to be treated in a specific kind of way they made the decision across the street how do we go behind that and say that the public in general would be shocked well that is done by analyzing the actual facts and analyzing various other factors such as a gun the seriousness of the offense whether the legislator took in soon see when they passed this bill they're bound by our constitutional restraints and to determine whether they've exceeded those restraints we've set forth a task that has factors in those factors again where the seriousness of the offense the type of harm the frequency the culpability of the defendant the criminal history of the defendant the rehabilitation the comparison of the penalty to other offenses and in miller b alabama the even said there was a sanction a procedural sanction that doesn't take into account a person's age is procedurally violet and so we look at these tasks but it's on a case by case basis what's what's most important to answer that question your honor i think it's been answered before the most important and i think the most proper answer is is that the court's i have never this court specifically has never defined what kind of punishment constitutes cruel degrading or so wholly disproportionate to the offense as to shock the most sense of the community this is because as our society evolves so do our concepts of i would mental decency and fairness which shape the moral sense of the community so again there really is no test we just have to look at all the factors and decide is this something we see that here there was no actual harm to any victim there's only the potential for harm which is no different than the harm of running a red light which is no different than all it's traffic safety if you run a red light at thirty miles per hour you can kill someone just as fast as you're speeding at seventy five miles  hour and you stop at the red light you have to address the nature of the harm you have to look at the frequency of the harm to look at whether there was actual injury you have to look at the it is it fair to punish somebody who goes twenty seven miles over the same way with a mandatory criminal convictions to somebody speed sixty miles over is it fair to punish a sixteen year old who's just beginning his life and is not and based on the way the statutes are drafted for traffic offenses is subject to adult prosecution is it fair to do this to the parents of these children and in some times is a criminal conviction necessary is it necessary to prevent it from happening again and  saying looking at somebody who you know a minor looking at this looking at their versus looking at somebody going forty miles over the limit well in the apply as applied argument that the problem with that is even if the judge wanted to look at it whether it was whether she is the judge can entertain soup or not it couldn't because its hands were tied so the u s applied argument is not necessarily is there it's a constitutional ban on its face that we're requiring everybody to be treated but to indicate that there are some scenarios in which it wouldn't be constitutional so is on the other side of that coin is that there are in some instances that would be constitutional  would be unconstitutional on its face it would have to be as applied it seemed to be the argument that you were make and if that's the argument it has to be as applied to your client right that would be that that yes the go into the details of the age of the client or the offender in those specific instances that goes on so that as upright but when you make a blanket prohibition that's the on its face test and that's what was is discussed in miller v alabama that's what what did the court do here was it as applied what i'm not concerned about what the legislature did they made a determination across the board bill or supervision what did the court do here i did this unconstitutional as applied  usually both if i wanted to be as a fax for the as a for the as a i the facts were presented one in the uniform traffic citation that the court had which the facts were presented in the criminal history or the traffic history of the defendant that was presented on the motion to reconsider and came after the finding of unconstitutionality right but it was still considered and could have and it was still considered and then again affirmed so the court did consider that there were hearings and the court heard it and it still didn't change the court's mind you had and what was his driving like i believe he had supervisions for traffic i don't know any i think he had a few from before and from what i think then i would assuming that supervision was allowed and you can decide that question eight i'm assuming somebody sane as it is not with supervision would not be allowed well then you could there offenders for which that would be appro i assume they're either maybe i'm not i mean i don't know how could it be facially unconstitutional because it's a violation of due process there's there's other reasons why it wasn't just a finding based on the shocking of the conscience it was also for due process in a case this court's considered i think it was a wind in case the general assembly passed a law saying that if you your license shall be suspended if you're convicted of a pleather offenses not of these offenses having anything to do with motor vehicles and the court there specifically said that that the methods that were to advance the interests were reasonable and arbitrary and the reason why i say that is because the inclusion of speeding and no others is the same thing there they included offenses that have no relation of motor vehicles in there's no reason itself that we can phantom or the general somebody can present under any rational basis test or a higher level test as to why do you why reckless driving wasn't included in the statute that prohibits supervision so if you see it even if the bet if the goal is to prevent roadside safety wouldn't the proper say should be a suspension of the driver's license not just a conviction where the  drive out and when you look at all these things that's the problem is that i want to ask you a couple questions for instance of your little bit of the trial court specifically found that there's no proportional penalties violation on the donegal elements this is that correct correct and you're not arguing that no one i am at this point as a pollie i believe i had the right to argue to protect the judgment and anything within the record and so we argued that that individual speeding at that rate is just said is could be considered and most recently proven people probably would consider that an individual speeding at that speed would otherwise be operating a motor vehicle with a disregard for the safety of the public and so a jury can technically find that conduct to constitute looked at and clarify this for me at one point the courts as clearly there's no violation of either due process clause or if protection does igniting the excesses speeding as a misdemeanor and then later in the rule eighteen find it's as the constitutional provisions upon which the finding is based include due process of law equal protection of the law was that argued i believe it was  on their vehicle and it was charge of the class two felony there was argued that because it was a zone it violated due process because it didn't meet that prong of volume of advancing reasonably and not arbitrarily the state's legitimate objective and so that's where it came in for due process on this one there was independent ones and my time is up but there is just one thing i was trying to tell the court i think the most important thing to look at and again the basis for affirming this judgement is the fact that the general assembly agreed with the court nationally changed the judgement and the general assembly change can be used to discern what was the intent of the law but what's most important so your time six if there's one man it's all right  you're honest very briefly as seen through the defense argument this case boils down to a disagreement about the seriousness of the offense and in particular the seriousness as compared to other offenses in the code unrelated offenses this is for all intents and purposes across comparison analysis it's what the court did below it's what the defense council is doing now it's been rejected repudiated it's not a basis for a legitimate constitutional attack the proportionate penalties shocks the conscience of wrong deals with the actual penalty here when we take a look at the legislative debates we see that the legislature expressly wanted to deter speeding because speeding kills excessive speeding kills when we took a take a look at the numbers that no doubt the legislature had access to speeding fatalities outpace even dui fatalities so there are rational reason for the legislature to deny supervision and classify this fence as a misdemeanor is unchallengeable based on the way the circuit court did it and based on the way the defense does it there's been some discussion about the eighth amendment about how this is mandatory again that sort of found its way into the courts order as well but but that's only because the defense in the courts focuses just on this notion of a conviction there's clearly a penalty range here and that penalty range is where the or exercises its discretion within the confines of a class a collateral consequences and defense counsel also brought it up we pointed out in our briefs that the legislature has also created independently a statute that allows for the ceiling of convictions while this offense the conviction can be sealed within a period as early as two years and that means that once a conviction is sealed it no longer has to be disclosed to employers or on loan applications etc ultimately your hono when these challenges are reviewed within the correct constitutional calculus each of them whether it's identical aliments or portion of penalties or due process this offense passes constitutional muster there is no other offense that contains the same elements the legislature's decision was eminently rational and reasonable both insofar as creation of the offense and creation of its penalty and the penalty of a that the change in the general assembly is not about the legislature's original intent there is no question the legislature has always intended to prohibit supervision they still do in fact the newly amended statute allows for the disposition of supervision only in very limited cases in cases that number one are only first time offenders and number two that are not in an urban district the way that the legislature has defined urban districts is fairly broad i believe it it's defined as roadways where homes and businesses are within one hundred feet contiguous to the roadway that actually applies to a large number of roads in illinois the other thing the legislature did is it continues to prohibit supervision for excessive speeding offenses if those offenses occurred in school and construction zones so what this illustrates is the legislature's continued it here it's a recognition that excessive speeding is not just serious but it is so prevalent because it's not just the damage and injury that is the hallmark of a serious crime is a crime can be designated serious by the legislature simply by virtue of its prevalence and i think defense counsel inadvertently recognized this when he told this court that speeding is kind of commonly accepted in illinois well i think the legislature's point in creating this statute and arguments this morning you're excused at this time