our first case on the called the docket today tuesday january tenth two thousand and twelve is agenda number one piece number one zero seven eight to one people versus cory d one counsel for the  violence second even accepting this court's interpretation of the armed violence statute delamater merely overlapping with those of armed robbery they are not identical and third this court should abandon the identical elements test because it expands the scope of the portion penalties clause beyond beyond what was intended by the framers of the only constitution five days after how shall the general assembly took steps to clarify beyond violence statu when amendment to a statute clarifies it soon after a controversy arose regarding the meaning of the original statute the amendment is treated as a legislative declaration on that meaning in this case lawmakers were explicit that the r men it was intended to quote clarify the meaning of the original statute following this court's decision and how schild considering the subsequent general assemblies amendment is appropriate where a hearing to the apparent meaning of the plain language of the original statute has produced a result that is clearly in demonstrably at odds with legislative intent is fisher would you agree that the current version of the arm berland scares you crystal clear that simple cases including one kelly that has been argued in this court better rose during the time frame that is addressed subsequent cases the crimes committed charged tried subsequent to that the one of the reasons that the identical elements test should be abandoned is that it actually becomes increasingly unworkable and it's hard to anticipate whether there might be cases where for example the firearm enhancement having been struck down and house child on violence would now have a greater penalty than armed robbery without the enhancement and so there might be a case challenging that could arise from the subsequent period after i shall before the amendments  felony element whether even accepting the interpretation of his court and how shall those elements were identical to armed robbery and whether this court should retain the identical means test are presented without any additional   applying it to a situation like this where you have crimes that have overlapping but not identical elements takes the identical elements sasabe on those parameters the sum of the elements of violence is far broader than the robbery element of armed robbery the dangerous weapons element of violence and broader than the firearms element of armed robbery with a firearm so for example  robbery with a handgun constitutes both armed robbery and armed violence a burglary with an axe is still armed violence and it's obviously not armed robbery with a firearm and that's true even if you narrow the inquiry to the facts that need to be proven rather than the elements as passed by the general assembly because for example while the robbery with a rifle is on drive with a firearm it is not on the violence with a category one dangerous weapon while that is armed violence  h category two dangerous weapon so is a robbery with an axe which is not armed robbery with with a firearm so no matter how narrowly you focus the inquiry on the elements of these crimes they're never identical they're always merely overlapping the only thing that's identical here is that in this specific case this defendant's criminal conduct satisfied two separate criminal statutes but that's exactly the scenario that the supreme court said in united states the batchelder did not violate the federal constitution with which the only constitution is meant to be in lockstep on this question so is the people's position that they don't call and says period extends the scope of the proportion of penalties clause beyond the eighth and then then and what the illinois the framers the only constitution tended but certainly expanding the scope of the that would forbid only extreme sentences that are grossly disproportionate to the crime committed in other words the grossly disproportionate pass that would remain if this court were to abandon the relatively recent identical test not as applied in this case your honor well was certainly the court's intent to adopt actually objective test the question where it's being applied to crimes that have overlapping elements as opposed to identify elements of whether to view those elements in the facts specific situation where they might be viewed you know in this case the same fat criminal conduct constant satisfied both saturates or looking at the elements of drafted by the general assembly becomes a subjective question to contrast this with for example burglary and residential burglary which are two crimes where any structure that satisfies the residence element or twelve limits of residential growth burglary satisfies the building element of burglary the statutes are otherwise identical but resit burglaries a lesser included offense of residential no your honor we are suggesting that there shouldn't be a comparative analysis test to determine the proportionality of a penalty it should be restricted to the question of whether the penalty is grossly disproportionate to the crime in that case so we never were narrower elements even when overlapping with water elements provide a reasonable justification for a greater penalty for fo more narrowly focused crime there's no reason that that one of those two determinations where you would individually the penalty is proportionate to a crime that being charge should be struck down under a portion  mcdonald's certainly that the court could hold that the illinois constitution provides greater protection than the federal constitution but it means donald the courts stated that the framers the only constitution understood proportion the am speaking without the constitutions right in front of me but my recollection is that the due process clause of the only in the united states constitution are not exactly identical in language but i viewed it and there's i know there is it is identical or in lockst one of the one of the things of the united states supreme court has said consistently and looking at the proportionality requirement of the if and then is that successful proportionality challenges should be extremely one right answer for the appropriate penalty to a given crime this court has adopted has that that has far too often infringed on the general assembly's authority to set the proper penalty for for abrogated in this case armed violence with a category one weapon the question of what the proper remedy when a crime is invalidated under the identical elements as it is isn't it should probably intertwined with the question of whether the crime should be  whether whether the crime should be abrogated particularly in a case like this where the identical elements test as discussed has thwarted the legislative intent regarding the proper remedy for this specific criminal conduct implying the whang remedy compounds the problem is how shall was correctly decided and the elements of these two crimes are identical in the defendant has been proven guilty of the elements of two crimes armed robbery with a firearm which is a minimum prison which would violate the plain intent of the general assembly twice over within days of this court's decision and how shall the general assembly acted to in their own words correct this court's decision and clarify that it intended to bar simple robbery from satisfying the felony element of armed violence but even accepting the court's interpretation of on violence the omens of armed robbery of a firearm merely overlap with those of on violence there more specific in the elements around violence and down provides a reasonable justification for the greater penalty that's associated with armed robbery with a firearm and any problem with being  i think your honor it would be analogous to a court under rule three sixty sixty five ordering a defendant be sentenced to a lesser included offense on which it is intitled to an instruction even though that instruction violence and was charged with each of those elements as well  but but this court should in fact bend in the identical and says entirely because it has so far exceeded the scope of the proportion penalties because it was understood by the draft authority to set that proper penalty court has no further questions than for these reasons as well as the state and there in its briefs the people request that this court reversed the decision of the fourth district and that if the court find defendants will court full i'm susan will him with the office of the state appellate defender and i represent the defendant apple equally clemens when this court granted leave to appeal it asked the parties to include a discussion of whether the identical elements to should be aband i'm going to combine the majority of my argument to this issue but i will answer questions on the other two issues if this court would like and the answer simply is that i believe the court should continue to use a difficult elements approach as it's not precluded by the federal constitution by federal case law or by the illinois constitution this court has established a limited objective test for reviewing proportionality it's indorsed by the evolving case law of the united states supreme court when interpreting our eighth amendment protections under the cruel and unusual legislature we put the element side by side we review them to see if there's any coinciding elements and then we compare the penalty ranges which were also set out by the legislature we're not making any determinations of what they meant we're looking at what they stated in the statute so i'm endorses the simple objective test that this court is now using and identical elements so i'm gave a framework for proportionality review and it's first test was the gravity defense to compare the gravity offense the harshness the penalty what we are used to with the shock the conscience test but they also said the proportionality review could include the sentences imposed on other criminals in the same jurisdiction and sentences imposed for the commission of the same crime and other state system of punishment if the state has a reasonable basis for believing the punishment advances the goals of criminal justice in a substantial way i think we can reconcile reasonable basis with identical elements when the legislature determines the exact same elements merit two different penalties it is demonstrating there is no reasonable basis for believing that one of the penalties can address the seriousness of the offense when the legislature has set forth competing sentencing schemes under federal case law both cannot be presumed to be rational and title to deference the united states supreme court is certainly not forbidden identical elements analysis under the proportionate penalties clause as it's not addressed the issue as this court pointed out in sharp the closest case anybody can come up with which is batchelder is a fourteenth amendment due process and equal protection case and they are they just the court the united states supreme court only describe the cases i'm sorry the statute says overlapping and it addressed it as whether or not they need to apply the rule of lenity and whether the defendants had notice of what behavior was prohibited it was certainly not an eighth amendment proportionality case united states supreme court has not seen any cases like  ewing is likewise supported by our constitution to the extent our constitute our courts interpretation of our constitution may be unique compared with the other fifty states are overlapping criminal statutes that require this court to respond to the result disproportionality is that our state and i would point out that in the cases that the state listed in their brief they didn't come up with any case where they were looking at identical elements we seem to be in a situation here in illinois where statutes are passed and then statutes are passed to address the same conduct or very similar conduct and it with another penalty range as they continue to layer these statutes onto another this court has had to find a way to address that issue and as this court said in christie identical elements tests from fourth out of common sense and sound logic to address the situation that we are in it's an objective test it's always been objective and unlike the cross comparison test this court has never allowed the test to get an willfully we've never seen problems like with a cross comparison test with the where the appellate courts had to difficulty applying the test we're not seeing splits in the districts or questions about how are we supposed to apply this what are we supposed to be looking at you guys have kept this test very narrow very strict and the appellate courts have had guidance and have not had difficulty and indeed this court doesn't seem to and if you look at this case this court's case law in the way they've always hued it you've always looked at it as a just charged you've not said well there a possibility of this weapon being users a possibility of that weapon being used i've always looked at it strictly as this is the category of weapon that this person used and this is how we're looking at it in this case and i would also point out that the state's so you have kept it a very strict test it is not is not as broad as the core is the state is trying to make it seem and it the jurisprudence for the way they are saying these cases should be brought and i'd like to point out that the state's argument that our violence predicated on robbery is broader if you take that is true and armed robbery is a more specific and limited offense but somehow deserving of the more serious penalty then violates the due process clause as this court has applied it in other cases because when a greater penalty is assessed for lesser conduct if i lace the due process clause of our state because such a scheme with not reasonably designed to remedy the evil which the legislature determine to be a greater threat to the public so the sentencing scheme that they are suggesting that i don't think this court is actually using would be a violation  the identical elements test does not invade the province of the power of the legislature it's unnecessary check on its power to set designate the seriousness of an offense with one discrete penalty range the legislature does have the power to assign penalt but this power is limited penalties have to be it have to be determined according to the seriousness of the offense and the legislature does not have the power to assign two different penalty sentence to different sentences for the exact same conduct it is simply a logical that identical conduct can have two different levels of seriousness and two different sentencing ranges and that can be allowed under our illinois constitution within our system of checks and balances this court has the authority to strike penalties that fail to meet our constitutional requirements and when this court carries out the duty you're not invading the province of the legislature you're reminding the law the law makers of their duty to adhere to the strictures of our constitution the identical elements approach is simple to apply and workable in practice this court has always applied strict uniform guidelines the test has been simple not only for this court or for the appellate court under the cross comparison test we had splits in the districts this court was asked to resolve them we're not seeing that here with the identical elements test we look at how the legislature defined the elements if they're not identical the test is indeed there are many cases there's five out of those eight cases where this court's looked at the elements and said no they are not the same and we're not going any further we're going to ask ourselves well what did they mean now if they're not set down as the same that is the end of the test there is no compelling reason to abandon the identical elements test at this time the new legislation and they create new sentencing schemes for specific conduct without fully examining whether these behaviors are already adequately punished under another statute and then under our system of checks and balances it calls to this court to determine if the new laws comply with our constitutional guarantees and if the penalties were set according to the seriousness of the offense and this test works it's only workable it works after this course decision hostile the fifteen twenty twenty five life statute was amended and after october of two thousand and seven we're not going to be seeing these firemen hanson cases but this limited objective test is the best tool that this court has she make sure the penalties are set according to the seriousness of the offense and future cases in future legislation scored any questions on either the first or third arguments set out in the briefs i would like to ask is can this court then to retain the identical elements  united states constitution and contrary to defendant's arguments there is no justification in u s supreme court precedent for a short proportionality test like the identical in its test  wade out factors to consider in determining whether a penalty was grossly disproportionate to the crime that was charged it did not as ewing  clear in any way require some sort of comparative analysis within or between jurisdictions and the two to view it as justifying  because it looks only to the elements in the statute as the fine by the general assembly but as defendant has conceded that is not the case the elements of armed violence and armed robbery are unquestionably as written in the statutes  and as passed by the general assembly not identical the identical means test has been applied to the elements as charged in a specific case to this to the facts that need to be proven in specific cases as opposed to the elements in the statutes passed by the general assembly and has therefore moved beyond looking merely at the statutes and comparing the languages such as passed by the general assembly who has to consider not the facts of a specific crime but a wide range of criminal activity that they're seeking to properly detour and punish and by looking specifically at the facts of a crime that need to be proven at the facts of a specific crime the need to be proven calm and status has come up against the the closest case in supreme court precedent united states batchelder which found that there was not a constitutional problem when you had crimes in that case the defendants that the facts that need to be proved against the defendant were identical for the two different criminal statutes in question but again as drafted the elements were merely overlapping and the court held that there was not a constitutional problem if anything it's a closer question under due process whether if the abrogate the preexisting statute have different penalties schemes whether that second statute woodberry reasonable relationship to the with an intimate government interest under the due process clause is if anything a closer question than under the portion of penalties clause which explicitly bars only penalties that are grossly disproportionate to that crime that is being charged i would argue that because the due process clause is in lockstep with the federal due process clause and given the court's decision batchelder that that would not be a due process violation but if anything that's a closer question than under the proportion of penalties clause if it is an unwise scheme of  criminal penalties that has been drafted by the general assembly then the proper check on it certainly is not to span the proportion and all these laws far beyond the scope of what was intended by the drafters of that  clause so you know the checks are best provided by the question penalties clause whether the penalty that the general assembly passes for any criminal conduct is in fact proportionate to that criminal conduct not to start comparing statues especially not with without identical elements