Docket No. 86154–Agenda 26–May 1999.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.

								JAY HARRY FERN, Appellant.

Opinion filed November 18, 1999.

	JUSTICE BILANDIC delivered the opinion of the court:

	The issue in this appeal is whether the propriety of a criminal

sentence may be judged by comparing it to the sentences imposed

on defendants in other cases. We hold that the excessiveness of a

sentence may not be determined from a consideration of the

sentences imposed on defendants in separate, unrelated cases.

	FACTS

	Defendant, Jay Harry Fern, was charged in the circuit court of

McHenry County with the unlawful delivery of 250 grams of

cocaine. Ill. Rev. Stat. 1987, ch. 561⁄2, par. 1401(a)(2). This offense

carried a sentencing range of 9 to 40 years’ imprisonment. Ill. Rev.

Stat. 1987, ch. 561⁄2, par. 1401(a)(2)(B). Defendant entered an

open plea of guilty and was sentenced to 25 years’ imprisonment. 

	Defendant thereafter filed a motion to reconsider his sentence

pursuant to Supreme Court Rule 604(d) (145 Ill. 2d R. 604(d)).

Defendant argued that his 25-year sentence was excessive because

it failed to account for his rehabilitative potential. In this regard,

defendant noted his long marriage, his three children, and his

consistent employment history. Defendant also pointed out that he

had only one prior conviction, and that he had accepted

responsibility for his actions by pleading guilty. 

	Defendant also argued that his sentence was excessive when

compared to the sentences imposed on defendants in other cases

for the same or more serious drug offenses. Defendant included a

chart of Illinois decisions in which a person convicted of the same

or a more serious drug crime was given a sentence shorter than

that given to defendant in this case. Based on this comparative

information, defendant argued that his sentence was excessive and

“should be reduced to bring it in line with sentences for

comparable offenses.” 

	The State moved to strike the portion of defendant’s motion

that asserted his “comparative sentencing” analysis. The State

asserted that such an analysis was not a valid basis for judging the

propriety of a sentence. The circuit court granted the State’s

motion to strike. The circuit court subsequently denied defendant’s

motion to reconsider his sentence.

	The appellate court affirmed the circuit court. The appellate

court rejected defendant’s comparative sentencing analysis. The

court reaffirmed its previous decisions declining to use a

comparative sentencing analysis in evaluating the propriety of a

sentence. The court noted, however, that appellate court decisions

from other districts had used sentencing information from similar

cases to determine whether the trial court imposed an excessive

sentence. No. 2–97–0917 (unpublished order under Supreme

Court Rule 23). 

	We allowed defendant’s petition for leave to appeal. 177 Ill.

2d R. 315. We now affirm the appellate court.

	ANALYSIS

	Defendant contends that the circuit court erred in striking his

comparative sentencing argument. He asserts that courts, if

presented with comparative sentencing information, must consider

it and act on it where the information reveals “an unexplainable

and gross disparity.” Defendant asks this court to reduce his

sentence on the ground that it is “inexplicably and grossly

disparate and excessive when compared to sentences imposed on

numerous similarly-situated defendants.” The issue we must

decide, therefore, is whether the excessiveness of a sentence may

be determined from a consideration of the sentences imposed on

defendants in separate, unrelated cases. We now hold that such

information is not a proper basis for judging the excessiveness of

a sentence. 

	A brief review of our state’s sentencing structure is necessary.

The legislature sets forth by statute the range of permissible

sentences for each class of criminal offense. The statutory

sentencing scheme is intended to advance four purposes: (1) to prescribe sanctions proportionate to the seriousness of the offense

and permit the recognition of differences in rehabilitation

possibilities among individual offenders; (2) to forbid and prevent

the commission of offenses; (3) to prevent arbitrary or oppressive

treatment of persons adjudicated offenders or delinquents; and (4)

to restore offenders to useful citizenship. 730 ILCS 5/1–1–2 (West

1998). 

	Although the legislature has prescribed the permissible ranges

of sentences, great discretion still resides in the trial judge in each

case to fashion an appropriate sentence within the statutory limits. People v. Wilson, 143 Ill. 2d 236, 250 (1991); People v. James, 118 Ill. 2d 214, 228 (1987). The trial court must base its

sentencing determination on the particular circumstances of each

case, considering such factors as the defendant’s credibility,

demeanor, general moral character, mentality, social environment,

habits, and age. People v. Streit, 142 Ill. 2d 13, 19 (1991); People v. Perruquet, 68 Ill. 2d 149, 154 (1977). A reviewing court gives great deference to the trial court’s judgment regarding sentencing

because the trial judge, having observed the defendant and the

proceedings, has a far better opportunity to consider these factors

than the reviewing court, which must rely on the “cold” record.

Streit, 142 Ill. 2d at 18-19; Perruquet, 68 Ill. 2d at 154. 

	In considering the propriety of a sentence, the reviewing court

must proceed with great caution and must not substitute its

judgment for that of the trial court merely because it would have

weighed the factors differently. Streit, 142 Ill. 2d at 19; James, 118 Ill. 2d at 228. A sentence within statutory limits will not be

deemed excessive unless it is greatly at variance with the spirit and

purpose of the law or manifestly disproportionate to the nature of

the offense. People v. Cabrera, 116 Ill. 2d 474, 493-94 (1987). 

	Defendant contends that the excessiveness of a sentence may

properly be judged by comparing it to the sentences imposed on

similarly situated defendants in other cases. He asserts that a

sentence cannot be permitted to stand when it is grossly disparate

in comparison to the sentences imposed on such similarly situated

defendants. Defendant states, however, that he does not seek a

requirement that courts independently conduct comparative sentencing analyses. Rather, defendant contends that courts must

conduct such an analysis if the parties provide comparative

sentencing information. The State, on the other hand, argues that

allowing the type of comparative sentencing analysis urged by

defendant would interfere with the intended operation and purpose

of sentencing.

	This court has not directly addressed this issue. Several

districts of our appellate court have considered the question, with

differing results. Decisions out of the Fourth and Second Districts

have refused to apply a comparative sentencing analysis in

considering the excessiveness of a sentence. See People v. Thornton, 286 Ill. App. 3d 624, 636 (1997) (refusing to compare the defendant’s sentence to that imposed in a separate case);

People v. Bien, 277 Ill. App. 3d 744, 753-55 (1996) (same); People v. Lintz, 245 Ill. App. 3d 658, 669 (1993) (same); People v. Terneus, 239 Ill. App. 3d 669, 675-78 (1992) (same); People v. Welsh, 99 Ill. App. 3d 470, 471 (1981) (affirming trial court’s refusal to consider comparative sentencing information in

imposing sentence); People v. Brown, 103 Ill. App. 3d 306, 309 (1982). The Third District of the Appellate Court has reached

seemingly contrary conclusions on this issue. Compare People v. Conaway, 101 Ill. App. 3d 202, 204 (1981) (affirming a trial court’s refusal, in sentencing the defendant, to consider the milder

sentence imposed on another person), with People v. Martin, 58 Ill. App. 3d 915 (1978) (although acknowledging that each case must be judged on its own peculiar facts, reviewing the cases cited by the defendants and finding that the defendants’ sentences were

“comparable to those received by defendants in other cases”). The First District applied a comparative sentencing analysis in

reviewing the excessiveness of a sentence in People v. Harris, 187 Ill. App. 3d 832 (1989); see also People v. Norfleet, 259 Ill. App. 3d 381, 396 (1994) (finding that defendant’s sentence “greatly

exceeded” those imposed in other cases); People v. Neither, 230 Ill. App. 3d 546, 551 (1992) (comparing defendant’s sentence to

that imposed in other cases and finding it excessive).

	We agree with those decisions rejecting cross-case

comparative sentencing as a basis for challenging a sentence. We find that such an analysis does not comport with our sentencing

scheme’s goal of individualized sentencing and would unduly

interfere with the sentencing discretion vested in our trial courts. 

	As noted above, the range of sentences permissible for a

particular offense is set by statute. Within that statutory range, the

trial court is charged with fashioning a sentence based upon the

particular circumstances of the individual case, including the

nature of the offense and the character of the defendant. See

People v. Perruquet, 68 Ill. 2d 149, 154 (1977). The sentencing judge is to consider “all matters reflecting upon the defendant’s

personality, propensities, purposes, tendencies, and indeed every

aspect of his life relevant to the sentencing proceeding.” People v. Barrow, 133 Ill. 2d 226, 281 (1989). In reviewing a claim that a sentence within statutory limits is excessive, the court must

consider whether, given the particular facts of the case, the

sentence is greatly at variance with the spirit and purpose of the

law or manifestly disproportionate to the nature of the offense. See

People v. Cabrera, 116 Ill. 2d 474, 493-94 (1987). The fact that a lesser sentence was imposed in another case has no bearing on

whether the sentence in the case at hand is excessive on the facts of that case. As the appellate court in People v. Welsh, 99 Ill. App. 3d 470, 471 (1981), explained, under our sentencing system:

			“[S]entencing becomes an individualized proceeding

but is sufficiently structured to prevent the prejudices of

an individual judge from overcoming an evenhanded

neutral approach. [Citation.] Like fingerprints or

snowflakes, each one bears some similarities to the others,

but no two are exactly alike. It therefore follows that

sentencing is not an exact science and cannot be reduced

to a mathematical formula. It further follows that one

sentence is no precedent for another.” 

See also People v. Lintz, 245 Ill. App. 3d 658, 669 (1993) (declining to compare the defendant’s sentence to that imposed in

another case “because the proper penalty must be based on the

particular circumstances of the individual case”). 

	The propriety of the sentence imposed in a particular case

cannot properly be judged by the sentence imposed in another, unrelated case. Simply because a lesser sentence was imposed in

another case does not lead to the conclusion that the more severe

sentence imposed in the case at hand is excessive. “ ‘[N]o

indication has been shown of a legislative intent to lessen disparity

of sentences by equating all sentences to those that would be

imposed by the most lenient trial courts or approved by the most

lenient courts of review.’ ” People v. Terneus, 239 Ill. App. 3d 669, 676-77 (1992), quoting People v. Cox, 77 Ill. App. 3d 59, 77 (1979) (Green, J., dissenting). Allowing a sentence to be attacked,

and potentially reduced, because the sentence imposed in another

case is less severe would allow a trial judge to effectively reduce

the permissible range of sentences for a particular offense below

that set by statute. Other judges sentencing persons convicted of

that crime would be required to follow suit or have a justifiable

reason for not doing so. Defendant responds to this concern by

arguing that a prior lenient sentence will not always lead to a

reduction of the sentence at bar, because the sentencing court

could find a reason to distinguish the facts of the prior case. Under

defendant’s argument, however, this would be appropriate only if

there was a reason justifying the disparity between the two

sentences. Absent such a reason, the prior lenient sentence would

control the later case.

	In addition, use of defendant’s comparative sentencing

analysis runs the risk of erroneous conclusions. No two cases are ever truly “the same.” Terneus, 239 Ill. App. 3d at 677. In seeking to compare a defendant’s sentence to that imposed in another case,

a court will necessarily be limited in the information it will

possess about that other case. Defendant here suggests that

comparisons may be made using merely the reviewing court

opinions in other cases. The reviewing court opinion, however,

will rarely, if ever, contain a recitation of all the facts and circumstances that were considered in fashioning the defendant’s

sentence. A review of the actual record in each of the other cases

would be necessary. Even assuming such records could be

obtained, and it were feasible for the court reviewing the sentence

to read such records, a truly accurate comparison of the cases still

could not be made as there are factors which will not be apparent from simply reading the record. “The written words of the record

rarely if ever fully capture the intricacies that work into the

sentencing court’s judgment, including but not limited to that

court’s direct observations of the defendant’s demeanor, as well as

the victim’s pain and ability to cope.” Terneus, 239 Ill. App. 3d at 677. Thus, given the limited nature of the information obtainable

about a “comparable” case, the defendant in that case may appear

to be similarly situated to the defendant in the case at hand when,

in fact, some factor exists which solidly differentiates the two. Use

of a comparative sentencing analysis to reduce a sentence may, in

such an instance, disrupt sentencing parity, not achieve it. 

	Moreover, comparing a defendant’s sentence with the

sentences imposed in other cases runs the risk of arriving at an

erroneous conclusion due to a skewed sample. The sample of other

sentences with which a court would be presented in the form of

appellate court opinions could not include all similarly situated cases. Even assuming that all comparable cases reported in

published decisions could be located and presented, the sample

would not include those cases resolved in unpublished orders

pursuant to Supreme Court Rule 23 (166 Ill. 2d R. 23), nor would

it include those cases in which the defendant decided not to

appeal. See Bien, 277 Ill. App. 3d at 754; Terneus, 239 Ill. App. 3d at 677. 

	It is true, as defendant points out, that Illinois courts have held

that fundamental fairness requires that similarly situated

defendants not receive grossly disparate sentences. See, e.g., People v. Cooper, 239 Ill. App. 3d 336, 363 (1992); People v. Owens, 151 Ill. App. 3d 1043, 1048-49 (1987). That principle has been applied, however, only in the context of codefendants

involved in the same crime. See Cooper, 239 Ill. App. 3d at 363; Owens, 151 Ill. App. 3d at 1049; see also People v. Thornton, 286 Ill. App. 3d 624, 636 (1997) (noting that this principle does not

apply to defendants in unrelated cases). Defendant asserts that

there is no principled reason for not applying this rule beyond the

codefendant situation to compare the sentences imposed in

separate, unrelated cases. We disagree. Persons who commit crimes independently are “ ‘seldom, if ever, similarly situated.’ ” People v. Palmer, 162 Ill. 2d 465, 491 (1994), quoting People v. Conaway, 101 Ill. App. 3d 202, 204. Moreover, comparing the sentences of codefendants is an entirely different exercise than

comparing sentences imposed in separate cases. In the codefendant

situation, the persons whose sentences are being compared were

involved in the same crime and there is, therefore, a single set of facts. Further, in the codefendant situation, the pool of sentences

to be compared is, by definition, limited. Extending that principle

to compare the sentences imposed in unrelated cases, on the other

hand, opens up the process to a potentially vast pool of

comparables.

	Defendant also asserts that rejection of the comparative

sentencing approach is at odds with explicit legislative policy.

Defendant argues that, in 1977, the legislature enacted legislation

substantially revising the Code of Corrections in order to ensure

that similar offenders receive similar sentences for the same crime.

Defendant points to comments in the legislative history of the

1977 legislation which indicate that “excessively disparate and

inequitable sentences” were a serious problem under the then-

existing sentencing system. Defendant also highlights two sections

of the Code of Corrections, enacted as part of the 1977 legislation,

which he contends clearly express uniformity and parity in

sentencing as the public policy of this state. Section 5–5–4.2 of the

Code of Corrections, cited by defendant, is entitled “Statewide

Sentence Equalization Procedures” and provides that “[t]he

Supreme Court may by rule, not inconsistent with law, prescribe

such practices and procedures as will promote a uniformity and

parity of sentences within and among the various circuit courts and

appellate court districts.” 730 ILCS 5/5–5–4.2 (West 1998).

Defendant also cites to section 5–5–4.3 of the Code of

Corrections, entitled “Duties of Department of Corrections,”

which requires the Department to publish an annual report which

“shall be made available to trial and appellate court judges for

their use in imposing or reviewing sentences under this Code.”

730 ILCS 5/5–5–4.3(a) (West 1998). That report is to contain,

inter alia, data concerning “the range, frequency, distribution and average” of terms of imprisonment imposed on offenders and of the terms actually served in prison. 730 ILCS 5/5–5–4.3(a)(1),

(a)(2) (West 1998).

	Defendant argues that a rule prohibiting the use of

comparative sentencing information as a basis for attacking a

sentence would be directly contrary to the legislature’s intent in

enacting the 1977 legislation. We are not persuaded by

defendant’s argument. The primary change effected by the 1977

legislation was to abolish our previous system of indeterminate

sentencing and replace it with a system of determinate sentencing.

According to the legislative history, a chief criticism of

indeterminate sentencing was its dependence on rehabilitation as

a sole basis of penal policy. See Summary of the Report to the Illinois House Judiciary II Committee by the Subcommittee on

Adult Corrections, at 3 (June 24, 1976) (Subcommittee Report). The prior system of indeterminate sentencing was also criticized

because its wide ranges of sentences, and its reliance upon the

parole board to determine release dates, had led to excessively

disparate and inequitable sentences. See Subcommittee Report at

4-5. The legislature chose to address these problems by changing

to a system of determinate sentencing. There is no indication that

the legislature also intended that the courts engage in case-specific

comparative sentencing reviews. 

	Defendant’s citation to sections 5–5–4.2 and 5–5–4.3 of the

Code of Corrections does not support his argument. Although

section 5–5–4.2 recognizes this court’s authority to create rules to

promote sentencing parity, this section in no way suggests which

rules or procedures this court should consider. The Code’s

requirement that the Department of Corrections publish general

statistical data concerning the sentences imposed and served

likewise does not support defendant’s position. The legislature

took this step, arguably in part to promote sentencing parity, but

chose to go no further. The legislature did not make any reference

to courts considering case-specific comparative sentencing

information in determining the propriety of a particular sentence. 

	Thus, although we agree that sentencing parity was a goal of

the legislature in enacting the 1977 legislation, we find that the

legislature sought to advance that goal primarily by creating a determinate sentencing system. The legislature did not indicate

that sentencing parity should be achieved by allowing the

statutorily proper sentence imposed in one case to control the

statutorily proper sentence imposed in another case. Moreover, as

discussed above, the comparative sentencing approach advocated

here by defendant would not truly promote the goal of sentencing

parity because it would entail the comparison of only very limited

information. 

	Defendant also argues that this court’s practice in evaluating

attorney discipline cases supports adoption of comparative

sentencing. In considering the appropriate sanction for an

attorney’s misconduct, this court looks at the sanctions imposed

in other cases with similar facts. See In re Timpone, 157 Ill. 2d 178, 197 (1993); In re Tepper, 126 Ill. 2d 109, 126 (1988). In this context, this court has stated that its “goal is to impose sanctions

consistent with sanctions imposed for similar misconduct so as to

ensure predictability and fairness in future disciplinary cases.” Timpone, 157 Ill. 2d at 197. The court has also noted, however, that each disciplinary case is unique and must be resolved based

on its own particular facts. Timpone, 157 Ill. 2d at 197; In re Harth, 125 Ill. 2d 281, 288 (1988). 

	Defendant contends that there is no justification for permitting

consideration of comparative information in the attorney discipline

context but not permitting consideration of comparative

sentencing information in criminal cases. We disagree. Attorney

discipline cases are distinguishable from criminal cases. As noted,

under the Code of Corrections, each criminal offense is prescribed

a range in which the sentence must fall. There are no such

statutory ranges of punishment for attorney misconduct. Other

than the discipline imposed in other attorney discipline cases, this

court has no guidelines to use when reviewing sanctions for

attorney misconduct. 

	Accordingly, we reject defendant’s comparative sentencing

approach. We hold that a claim that a sentence is excessive must

be based on the particular facts and circumstances of that case. If

a sentence is appropriate given the particular facts of that case, it

may not be attacked on the ground that a lesser sentence was imposed in a similar, but unrelated, case. The circuit court

therefore did not err in striking defendant’s comparative

sentencing argument.

	Contrary to the assertions of Justice Rathje’s dissent, nothing

in this opinion prevents a trial judge, in fashioning a sentence,

from considering his or her knowledge of the sentences imposed

in other cases. We simply will not require that a trial court justify

its sentence in relation to the sentences imposed in other cases, and

it will not be a basis for attacking a sentence that a defendant in a

separate, unrelated case received a lighter sentence. Nor are

reviewing courts prohibited, under our decision, from using other

reviewing court opinions as legal precedent in deciding excessive-

sentence claims. A court considering whether a sentence imposed

was excessive may find it useful to look at the reasoning employed

by another court in rejecting, or accepting, an excessiveness claim.

	Justice Rathje’s dissent also spends considerable time

protesting that we have misconstrued the argument made by

defendant. His dissent correctly points out that defendant professes

to ask only that courts be allowed, in their discretion, to consider

evidence of sentences in other cases. A review of defendant’s

briefs and his oral argument, however, reveals that defendant seeks

to attack his sentence on the ground that it is disparate in comparison to the sentences imposed in other cases. In the trial

court, defendant filed a motion to reconsider his sentence on the

ground that it was excessive when compared to the sentences

imposed in other cases. Defendant’s motion argued that his

sentence could not be “reconciled” with the lesser sentences

imposed in other cases, and requested that his sentence be

“reduced to bring it in line with sentences imposed for comparable

offenses.” In this court, defendant asks that his sentence be

reduced on the ground that the comparative sentencing

information he has provided shows a “gross and unwarranted

disparity” between his sentence and the sentences imposed in

other cases. In pursuing this position, defendant repeatedly argues

that the State has failed to “explain” the disparity between his

sentence and the sentences received by other defendants.

Moreover, at oral argument, counsel for defendant conceded that they were urging that, should comparative sentencing information

be presented, a court must consider it. Likewise, in his briefs, defendant urges adoption of a rule that a court “act on”

comparative sentencing information where it reveals an

“unexplainable and gross disparity.” Considering defendant’s

arguments as a whole, it is apparent that defendant’s position is

that, where a gross disparity between a defendant’s sentence and

that imposed in another case cannot be explained, fundamental fairness requires that the defendant’s sentence be reduced.

CONCLUSION

	For the foregoing reasons, we affirm the judgment of the

appellate court which affirmed the judgment of the circuit court

granting the State’s motion to strike and denying defendant’s

motion to reconsider his sentence.

Affirmed.

	JUSTICE McMORROW, dissenting:

	The defendant in the case at bar filed a motion to reconsider

his sentence in which he argued, in part, that his sentence was

excessive when compared to the sentences imposed on other

defendants in comparable cases. The trial court struck this

argument from defendant’s motion, holding, as a matter of law,

that in fashioning defendant’s sentence, it could give no

consideration whatsoever to the sentences imposed on other

defendants in comparable cases.

	The issue presented in this case is a narrow one: did the trial

court err when it held, as a matter of law, that it was wholly

prohibited from considering comparative sentencing information?

I would hold that the court did err. There is no sound reason in law

or policy why a trial court should not be permitted to consider

comparative sentencing information along with all of the other

factors it may consider when making sentencing decisions. I

would hold that if a defendant presents case-specific information

regarding sentences imposed on similarly situated offenders to the trial court, the court should be allowed, in the exercise of its

discretion, to consider such information for the purpose of

ensuring that the defendant’s sentence is not inexplicably and

grossly disparate. In my opinion, the sentencing court should have

the discretion, if it chooses, to consider potentially relevant and

useful information in order to reach a measured and just sentence

within the applicable statutory sentencing range. There is no

reason to artificially limit the information which the sentencing

court has before it, as the majority in the case at bar has done.

	Moreover, unlike the majority, I believe that section 5–5–4.3

of the Unified Code of Corrections (730 ILCS 5/5–5–4.3 (West

1998)) supports the use of comparative sentencing analysis. As

Justice Rathje correctly observes, section 5–5–4.3 shows that

sentencing parity is an explicit goal of the legislature and that “the

legislature intended for the courts to have statistics of sentences in

other cases available to them ‘for their use in imposing and

reviewing sentences.’ ” Slip op. at 18 (Rathje, J., dissenting).

Hence, section 5–5–4.3 supports defendant’s argument that

sentencing judges should be allowed, in the exercise of their

discretion, to consider sentences imposed on other defendants in

comparable cases.

	I emphasize that I would not hold that trial judges are

compelled to consider all comparative sentencing information

which is presented to them, or that comparative sentencing

information may, by itself, control the sentencing judge’s decision.

The question of whether to consider the comparative sentencing

information should be left to the discretion of the trial judge, who

may decide that, in some cases, the comparative sentencing

information is inappropriate and should be given no weight, or,

conversely, should be a factor in fashioning an appropriate

sentence.

	Accordingly, I would remand the case at bar to the trial court

so that it might decide, in the first instance, what weight, if any,

should be given to defendant’s comparative sentencing argument.

	CHIEF JUSTICE FREEMAN joins in this dissent.

	JUSTICE RATHJE, also dissenting:

	The majority brushes aside defendant’s argument because it

“runs the risk of erroneous conclusions.” While the defendant’s

argument merely runs the risk of erroneous conclusions, the

majority’s approach assures them. The majority’s approach to this

case is to respond to an argument that was never made. When the

dust has settled from the wake of the majority opinion, trial courts

are left without discretion to determine what evidence is relevant

at a sentencing hearing, and the appellate court has been forbidden

from considering certain cases in reviewing sentences. This

unwarranted invasion into the province of the lower courts is ill-

advised and will exacerbate the problem of grossly disparate

sentences.

	I agree with the argument that defendant actually makes in

this appeal, which is that trial and reviewing courts should be

allowed, in their discretion, to consider evidence of sentences in other cases as one of the many factors that courts rely upon in

imposing and reviewing sentences. Defendant does not argue that

courts should be required to do so or that sentences in other cases

should be given any particular weight. The majority’s decision

appears to be inspired by the fear that someday, somewhere, a

sentence might be reduced. This position fails to acknowledge that

comparative sentencing arguments can also be made by the State,

and comparative sentencing analysis can be used to uphold

sentences.

COMPARATIVE SENTENCING INFORMATION IN THE

TRIAL COURT

	The majority fails to draw a distinction between the different

applications of comparative sentencing in trial and reviewing

courts and uses the same analysis for both. Here, defendant

pleaded guilty and received the highest sentence ever given in

McHenry County for the particular offense. Defendant filed a

motion to reconsider in which he asked the court to compare his

sentence with those given other offenders who had committed the

same offense. Defendant’s evidence showed that his sentence was

almost twice as long as sentences given to other defendants who had substantially fewer mitigating factors. The State moved to

strike this information from defendant’s motion. The trial court

granted the motion to strike based on its belief that it was

prohibited from considering this information because the

Appellate Court, Second District, does not engage in comparative

sentencing review.

	The factors controlling the admission of evidence at a

sentencing hearing are relevance and reliability, and the

determination of admissibility lies within the sound discretion of

the trial court. People v. Lyles, 106 Ill. 2d 373, 414 (1985). In my opinion, the trial court should have discretion to decide whether to

consider evidence of sentences in other cases.  Here, the trial court

should not have stricken the information, but rather should have

exercised its discretion in determining whether to consider the

evidence and what weight to give it. Whether the appellate court

finds comparative sentencing information relevant in reviewing

sentences under an abuse of discretion standard should have no

bearing on whether the sentencing court has the discretion to

consider comparative sentencing information in fashioning an

appropriate sentence.

COMPARATIVE SENTENCING REVIEW IN THE

APPELLATE COURT

	I would also allow the appellate court to consider comparative

sentencing arguments. I do not believe this court should dictate to

the appellate court how to review sentences to determine if the

trial court in a particular case abused its discretion, particularly

when this court has itself exercised its discretion to consider

comparative sentencing arguments. See, e.g., People v. Smith, 177 Ill. 2d 53, 98-100 (1997); People v. Coleman, 166 Ill. 2d 247, 261 (1995); People v. Palmer, 162 Ill. 2d 465, 491 (1994). In Palmer, we recognized the discretionary nature of this type of review. The

defendant argued that he should not have received the death

penalty, and he supported his argument with cases in which

appellate courts had vacated the death sentences of defendants

who had committed more serious acts of violence. We first

acknowledged that we were not required to engage in comparative proportionality review, but then exercised our discretion and chose

to consider the cases defendant cited. After reviewing the cases,

we determined that they did not support defendant’s argument that

his sentence should be vacated. Palmer, 162 Ill. 2d at 491. The majority now forbids the appellate court from engaging in the

exact analysis that this court has used when presented with

comparative sentencing arguments.

THE MAJORITY APPROACH

	The support that the majority offers for its decision to forbid

courts from engaging in comparative sentencing analysis can be

divided into three main categories, none of which is persuasive.

The majority bases its decision upon (1) an apparent belief that

comparative sentencing analysis could benefit only defendants; (2)

a previously unheard of rule of statutory construction; and (3) the

supposed negative results that would inevitably follow if

comparative sentencing analysis were allowed.

Dual Nature of Comparative Sentencing Analysis

	An unstated but underlying theme in the majority opinion is

that comparative sentencing analysis is something that could help

only defendants. The majority does not acknowledge that the State

could use comparative sentencing analysis in support of its

position, but clearly the State could do so. The State could argue

in the trial court that a defendant deserved a very harsh sentence

because other defendants who committed similar crimes also

received lengthy sentences. In the appellate court, the State could

argue that a defendant’s sentence was justified based upon other

sentences received by similarly situated defendants.

	The dual nature of comparative sentencing analysis can best

be seen in this court’s decision in People v. Smith, 177 Ill. 2d 53 (1997). Smith was issued two years ago, before this court decided to find comparative sentencing analysis objectionable. This court

vacated the defendant’s death sentence based on a review of other

cases in which the death penalty was found excessive. Smith, 177 Ill. 2d at 98-101. The discussion on this issue began, “An analysis of previous cases where this court has found a death sentence to be

excessive is useful.” Smith, 177 Ill. 2d at 98. What this court found useful two years ago, it now forbids other courts from considering.

	Three justices dissented in Smith and used comparative sentencing analysis to support their position. The dissenting

justices reviewed cases in which defendants had relatively clean

criminal records, yet still received the death penalty. See Smith, 177 Ill. 2d at 114-15 (Miller, J., dissenting, joined by Bilandic and

Heiple, JJ.). Thus, comparative sentencing arguments could be

made by both the State and defendants, and the majority’s

apparent fear of the one-sided nature of this type of analysis is

unfounded.

	An additional problem with the majority’s fear of defendants

making comparative sentencing arguments is that, under the

majority’s rule, defendants will now look for any evidence that the

sentencing judge used a comparative sentencing approach instead

of carefully crafting a sentence based on the individual’s

circumstances. Any statement by the trial judge or State’s

Attorney that the defendant should receive the “typical” or “usual”

sentence for a person in the defendant’s position could amount to

reversible error. Under a discretionary system, that would not be

the case. The majority’s approach will severely hamper judges in

sentencing defendants for frequently occurring minor offenses.

Statutory Construction

	One of defendant’s arguments in support of allowing courts

to engage in comparative sentencing analysis is that such an

analysis comports with legislative intent to achieve parity in

sentencing. The majority acknowledges that sentencing parity was

one of the legislature’s goals in enacting the 1977 sentencing

legislation. The legislature sought to implement this policy by

changing from an indeterminate to a determinate sentencing

system. The legislature invited this court to help with the problem

of disparate sentences. Part of the 1977 legislation was the

enactment of section 5–5–4.2 of the Unified Code of Corrections.

This section, entitled “Statewide Sentence Equalization

Procedures,” provides that the supreme court may, by rule, implement practices and procedures that will promote parity in

sentencing. The majority’s decision–removing all discretion from

trial and reviewing courts to engage in comparative sentencing

analysis–is this court’s RSVP to the legislature’s invitation. The

majority justifies this result by holding that the legislature did not

intend for courts to engage in comparative sentencing analysis.

	 The most difficult obstacle facing the majority’s conclusion

that the legislature did not intend for courts to engage in

comparative sentencing analysis is section 5–5–4.3 of the Unified

Code of Corrections (730 ILCS 5/5–5–4.3 (West 1998)). This

section provides that the Department of Corrections shall publish

an annual report containing, inter alia, “The range, frequency, distribution and average of terms of imprisonment imposed on

offenders committed to the Department of Corrections, by

offense.” 730 ILCS 5/5–5–4.3(a)(1) (West 1998). The statute

specifically provides that the report “shall be made available to

trial and appellate court judges for their use in imposing or reviewing sentences under this Code.” (Emphasis added.) 730 ILCS 5/5–5–4.3(a) (West 1998). Although this part of the

majority’s analysis is unclear, the majority seems to construe this

statute to mean that the legislature did not intend for trial and

appellate court judges to use these statistics in imposing and

reviewing sentences.1 Here, I must plead ignorance and admit that I am unfamiliar with the canon of statutory construction that says

that we construe a statute to mean exactly the opposite of what it

says.

	In rejecting defendant’s argument on this issue, the majority

claims that the legislature enacted this statute but chose to go “no

further.” The majority then claims that “[t]he legislature did not

indicate that sentencing parity should be achieved by allowing the

statutorily proper sentence imposed in one case to control the

statutorily proper sentence imposed in another case.” Slip op. at 9. This is yet another example of the majority attempting to justify

its result by misstating defendant’s argument. Nowhere in

defendant’s brief does he argue that sentences in particular cases

should be controlled by sentences in other cases. He merely argues

that courts should be allowed in their discretion to consider sentences in other cases. Section 5–5–4.3 shows that the

legislature intended for the courts to have statistics of sentences in

other cases available to them “for their use in imposing and

reviewing sentences.” The result of today’s opinion must be that

courts are now forbidden from using these statistics.

	As unconvincing as the majority’s attempt to rewrite section

5–5–4.3 is the majority’s casual dismissal of section 5–5–4.2. As

stated, section 5–5–4.2 recognizes this court’s authority to create

rules to promote sentencing parity. Defendant relies on this section

to support his argument that sentencing parity was a goal of the

1977 sentencing legislation. The majority dismisses defendant’s

argument with one sentence: “Although section 5–5–4.2

recognizes this court’s authority to create rules to promote

sentencing parity, this section in no way suggests which rules or

procedures this court should consider.” Slip op. at 9. This

statement does not even address defendant’s argument. The point

of defendant’s argument is simply that sentencing parity is a goal

of the legislature. Although the majority is correct in stating that

this section does not suggest what rules or procedures the court

should adopt, the statute does suggest that the rules or procedures,

whatever they may be, should promote sentencing parity. I believe

I can state with some certainty that the intent of the legislature was

not that this court should create rules that remove discretion from

the lower courts and ensure that sentences will become much more

disparate. I am also fairly certain that the legislature did not intend

for this court to construe section 5–5–4.3 to mean exactly the

opposite of what it says.

	Defendant’s argument that a rule forbidding comparative

sentencing review would be contrary to legislative intent is well

supported by sections 5–5–4.2 and 5–5–4.3.  The majority’s

attempt to construe these statutes in favor of its rule is entirely

unpersuasive.

Negative Consequences

	The majority lists several negative consequences that would

supposedly occur if comparative sentencing analysis were

allowed. The first negative consequence the majority espouses is

that the permissible range of sentences could be effectively

reduced below that set by statute because judges would be forced

to follow more lenient sentences given in other cases. The

majority reaches this conclusion only because of its refusal to

consider the argument actually presented. Defendant argues solely

that courts should, in their discretion, be permitted to consider

evidence of sentences in other cases as one of the many factors a

court considers in fashioning a sentence. Under a discretionary

system, judges would be free to consider or reject comparative

sentencing information and could assign it whatever weight they

deem appropriate.

	The majority’s assertion that “the prior lenient sentence would

control the later case” is simply untrue and unfairly characterizes

defendant’s argument. It is a well-settled rule that courts are not

required to recite and assign a particular value to any particular

factor at sentencing. See, e.g., People v. Mayoral, 299 Ill. App. 3d 899, 913 (1998); People v. Cord, 239 Ill. App. 3d 960, 968-69 (1993); People v. Kyse, 220 Ill. App. 3d 971, 975 (1991); People v. Keyes, 175 Ill. App. 3d 1013, 1019-20 (1988). Defendant does not argue that the evidence of sentences in comparable cases

should be assigned any particular value, let alone be deemed

“controlling,” and the majority offers no support for its assertion

that this factor would be treated differently. This claim by the

majority is merely an incorrect statement that serves only to make

the subsequent erroneous conclusion more palatable.

	The majority denies that it is misconstruing defendant’s

argument and devotes a paragraph to explaining why its

characterization of defendant’s argument is accurate. Suffice it to

say that the briefs and oral arguments in this case are a matter of

public record, and anyone who is interested can find out if it is the

majority or the dissent that correctly states defendant’s argument.

	One statement in the majority’s characterization of

defendant’s argument needs to be clarified. The majority seizes on defense counsel’s statement at oral argument that, if comparative

sentencing evidence is presented to a trial court, the court must

consider it. What the attorney said at oral argument was that, like

any other evidence that is presented to a court, the court should at

least look at it, but that the court could give it whatever weight it

is worth, “which could be none.” In other words, defendant

concedes that the trial court has the discretion to give the evidence

absolutely no weight.

	In further explaining why it is not misconstruing defendant’s

argument, the majority trumpets in italics that defendant seeks to attack his sentence because it is grossly disparate to sentences imposed in other cases. I am unsure what point the majority is

trying to make or how that defeats my argument. Of course

defendant is seeking to attack his sentence in this case. Whose

sentence, if not his own, would he be attacking? The reason we are

considering this appeal is that defendant is seeking to attack his

sentence based upon a comparative sentencing argument. The only

issue is whether defendant should be allowed to make that argument, not whether the other sentences should control defendant’s sentence.

	Finally, even assuming that defendant did argue that courts

should be required to engage in comparative sentencing analysis,

that does not mean that we could not adopt a discretionary

approach. If one party argues black and the other party argues

white, we are free to say that the answer is gray. Our responsibility

in this case is to state the proper rule for the lower courts, and we

are not bound by what either side argues.

	The majority next argues that comparative sentencing analysis

runs the risk of erroneous conclusions. The majority’s argument

here is that comparative sentencing is not an exact science and that

a court will never know all of the facts and circumstances of the

other cases. Aside from the fact that such an argument goes only

to the weight that should be given the information, not to whether

it should be considered, the majority’s premise is demonstrably

false. Assume a situation in which a first time offender with

numerous mitigating factors and no aggravating factors receives

the maximum sentence for an offense, while no one else in that circuit, including violent repeat offenders, had ever received the

maximum. Would a court really need to know everything about all

of those cases to know that the defendant’s sentence was unfair

and disproportionate?  Under the majority’s rule, a defendant

could not even present that evidence to the court.

	The majority also argues that comparative sentencing

information would be flawed because published appellate opinions

represent an incomplete sample that does not include the

numerous cases disposed of by unpublished orders. This is a

strange argument for the majority to make, given that the

defendant in this case relied on Rule 23 orders at the hearing on

the motion to reconsider his sentence. One of the main cases

defendant compared his to was People v. Estrada, No. 2–92–1297 (1994) (unpublished order under Supreme Court Rule 23), in

which the defendant committed the same crime in the same

county, had substantial aggravating factors, but received a

sentence 11 years shorter. The State argues that Rule 23 orders and

summary orders cannot be relied on as legal precedent. This

argument misses the point because defendant was not relying on

the cases for their legal analysis, but as evidence of sentences

handed down in similar cases.

	Further, comparative sentencing information would not be

skewed because the Department of Corrections publishes statistics

of sentences in criminal cases and makes this information

available to trial and appellate courts to be used in imposing and

reviewing sentences.2 See 730 ILCS 5/5–5–4.3 (West 1998). Thus, if a court believed that the information presented to it did not fairly

represent the range or average of sentences, the court could consult

these statistics. The appellate court has referenced these statistics

in certain cases in finding that a sentence was excessive. See

People v. Weiss, 263 Ill. App. 3d 725, 735-36 (1994); People v. Neither, 230 Ill. App. 3d 546, 551-52 (1992); People v. McCumber, 148 Ill. App. 3d 19, 24-25 (1986). Thus, the majority’s concerns about skewed samples are illusory.

	The court also discounts the use of information about

sentences from other cases on the grounds that “persons who

commit crimes independently are ‘seldom, if ever, similarly

situated.’ ” Slip op. at 7, quoting People v. Palmer, 162 Ill. 2d 465, 491 (1994), quoting People v. Conaway, 101 Ill. App. 3d 202, 204 (1981). This empty assertion is oft-stated but never

proved or supported by authority. The fact is that people who

commit the same types of crimes very often are similarly situated. They are not identically situated, of course, but different

defendants will frequently exhibit similarities upon which they can

be compared.

	Hundreds of defendants are sentenced every day in this state.

Although a court considers many specific factors in sentencing a

defendant, the most important considerations are generally the

crime committed, other trouble the defendant has been in, and the

defendant’s rehabilitative potential. For the routine crimes that are

committed every day, the judge will have seen countless

defendants who are similarly situated. An experienced judge will

likely have an idea of what a fair sentence would be, based on the

numerous other similar cases that judge has heard.

	For instance, when a trial judge is faced with a second-time

DUI offender, and the assistant State’s Attorney recommends the

typical disposition for a second-time offender and the trial judge

agrees, is the court carefully crafting a sentence based on the

individual’s circumstances, or is the court giving the defendant the

same sentence he gives all other similarly situated defendants?3 The majority offers no support for its bald assertion that people

who commit similar crimes are rarely similarly situated.

	Trial judges who sentence thousands of defendants cannot be

expected to act in a vacuum. See People v. Tye, 141 Ill. 2d 1, 23- 24 (1990). Comparative sentencing evidence would merely

augment a judge’s own memory of similar cases. Trial judges should not be expected to forget what they did in every other

similar case and reinvent the wheel every time a new defendant

comes before them.

MAJORITY’S RESPONSE TO THE DISSENT

	In responding to the arguments raised in this dissent, the

majority appears to unravel its whole opinion. In a stunning

reversal in the penultimate paragraph of the analysis section, the

majority states that, “Contrary to the assertions of Justice Rathje’s

dissent, nothing in this opinion prevents a trial judge, in fashioning

a sentence, from considering his or her knowledge of the sentences

imposed in other cases.” Slip op. at 10-11. In other words, trial

courts can engage in comparative sentencing analysis.

	The majority seemingly retreats from the position taken in the

rest of the opinion and allows trial courts to consider a limited

kind of comparative sentencing information in fashioning a

sentence. The majority’s rule is that, as long as the trial court is

already aware of the other sentences, it can consider them. However, the parties are not allowed to argue about any sentences

of which the judge is not already aware. In other words, the

majority sees no problems with comparative sentencing based on

the frailties of an individual’s memory, but recoils at the notion of

comparative sentencing based upon statistically complete

evidence. Not surprisingly, the majority gives no reason for

drawing such a distinction.

	Furthermore, the majority cannot square this approach with

the positions taken in the rest of the opinion. The majority holds

that a court must make its sentencing determination on the

particular facts of each case. If that is true, then the court should

not be considering sentences it imposed in other cases. Also, the

majority endorses the view that defendants are rarely, if ever,

similarly situated. Again, if that is true, the court should not be

considering sentences it imposed in other cases. Finally, the

problems the majority believes are inherent in comparative

sentencing would also be present if judges are allowed to consider

sentences they imposed in other cases: judges would be relying on

incomplete evidence, and the effective maximum sentence for an offense could be reduced to well below that set by statute if the

judge felt compelled to follow other sentences.

CONCLUSION

	The problem of similarly situated defendants receiving widely

disparate sentences is a vexing one, and I do not profess to have an

answer that will eradicate the problem. I do, however, work from

the assumption that in a fair and equitable criminal justice system,

similarly situated defendants should not receive grossly disparate

sentences. The majority never states whether it agrees with this

sentiment. One very small step this court could take toward

achieving that goal would be to allow trial courts, in their

discretion, to consider evidence of sentences in similar cases and

to allow reviewing courts to consider a defendant’s argument that

his sentence is out of line with sentences imposed in similar cases.

Trial and appellate courts should also have discretion to consider

arguments from the State that, based on sentences given other

defendants, a particular defendant deserves a lengthy sentence.

Courts would not have to assign any particular weight to these

arguments and could use the information as they see fit.

	The majority never considers the viability of such an

approach. Instead, the majority forbids trial courts from even

hearing evidence of sentences in other cases and forbids reviewing

courts from hearing arguments about sentences in other cases. This

approach is simply an overreaction to an argument that defendant

never made, namely that courts should be required to engage in

comparative sentencing review and that sentences in other cases

will control the sentence in the case before the court.

	Perhaps the most interesting case to read side-by-side with the

majority opinion is People v. Tye, 141 Ill. 2d 1 (1990). In Tye, the trial court made the following comment in sentencing the

defendant to death:

			“In evaluating your acts I, as a jury, have a right, have

a right to draw upon my experiences in life to determine

how serious your crime was. And I’ll state for the record

that for a period of seven years I was a homicide detective in the City of Chicago; and I investigated numerous child

beatings. And I spent a total [of] 25 years in the criminal

justice system. And I have never seen a child beaten with

such viciousness, repeatedly beaten over an hour to the

extent her death was caused.” Tye, 141 Ill. 2d at 19-20.

The defendant argued that the trial judge improperly relied upon

his experiences as a homicide detective and his knowledge of

other child abuse cases in sentencing the defendant to death. This

court rejected defendant’s argument, holding that it was

appropriate for a sentencer to rely upon his or her own background

and experience in life and that a judge should not have to make

such decisions in a vacuum. Tye, 141 Ill. 2d at 23-24.

	An interesting assignment would be to give a law student a

copy of Tye and the majority opinion in this case and ask what principle governs the Illinois Supreme Court’s jurisprudence

concerning other cases a judge can consider in fashioning a

sentence. Tye tells the student that it is perfectly appropriate and permissible for the trial judge to rely sua sponte upon a handful of cases from years ago, of which the judge has personal knowledge

and the parties know nothing, in sentencing a defendant to death. Fern, however, tells the student that both the defendant and the State are absolutely forbidden to argue in favor of a particular

sentence, based on statistically complete evidence of sentences in

other similar cases that are a matter of public record. This

hypothetical assignment is interesting not because of the question

it asks but because of the answer it yields: there is no principle at work in these cases. Accordingly, I dissent.