2016 IL 118599

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 118599) 

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

VINCENT RIZZO, Appellee. 

Opinion filed June 16, 2016.

JUSTICE KARMEIER delivered the judgment of the court, with opinion. 

Chief Justice Garman and Justices Thomas, Kilbride, and Theis concurred in 

the judgment and opinion. 

Justice Burke specially concurred, with opinion, joined by Justice Freeman. 

OPINION

¶ 1 At issue in this case is the constitutionality of the 2012 version of section 

5-6-1(p) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5-6-1(p) 

(West 2012)), which, in pertinent part, precluded a disposition of supervision for 

those who have violated the speed parameters of section 11-601.5 of the Illinois 

Vehicle Code (625 ILCS 5/11-601.5 (West 2012)).1 Defendant was charged with, 

 1

Effective January 1, 2016, section 5-6-1 was amended to narrow the prohibition to violators 

previously convicted of a violation of section 11-601.5, those who have previously been placed on 

supervision for a violation thereof, or, irrespective of any previous violations, someone who “was 

operating a vehicle, in an urban district, at a speed that is 26 miles per hour or more in excess of the 
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inter alia, a violation of section 11-601.5(b) and moved to dismiss that charge on 

constitutional grounds. The circuit court of Cook County ultimately entered an 

order concluding that section 5-6-1(p)’s prohibition of supervision as a disposition 

in this context is “unconstitutional as violating the proportionate penalties clause, 

Article I, Section 11 of the Illinois Constitution.” In Rule 18 findings appended to 

the order (see Ill. S. Ct. R. 18 (eff. Sept. 1, 2006)), the court stated that “[t]he 

constitutional provisions upon which the finding is based include due process, 

equal protection of the law and violation of the proportional [sic] penalties clause.” 

The court purported to find the statute “unconstitutional on it[s] face and as applied 

to the case sub judice.” The State appealed. Because the circuit court’s judgment 

invalidated a statute of the state of Illinois, the appeal was taken directly to this 

court pursuant to Illinois Supreme Court Rule 603 (eff. Feb. 6, 2013). We reverse 

the judgment of the circuit court and remand for further proceedings. 

¶ 2 BACKGROUND

¶ 3 On September 17, 2013, defendant, Vincent Rizzo, was charged by uniform

citation and complaint forms with: (1) a violation of section 11-601.5(b) of the 

Vehicle Code (625 ILCS 5/11-601.5(b) (West 2012) (“A person who drives a 

vehicle *** at a speed that is 40 miles per hour or more in excess of the applicable 

maximum speed limit *** commits a Class A misdemeanor.”))2 in that he allegedly 

drove his vehicle 100 miles per hour in a 55-mile-per-hour speed zone and (2) a 

violation of section 11-709 of the Vehicle Code (625 ILCS 5/11-709(a) (West 

2012) (improper lane usage)) in that he allegedly “cut in between two semi-trucks 

at [a] high rate of speed.” 

¶ 4 Defendant, through counsel, filed a motion to dismiss the section 11-601.5(b) 

charge on constitutional grounds. Although defendant’s arguments therein are at 

times confusing and ill-defined, defendant presented discernible arguments that: 

(1) the 2012 version of section 5-6-1(p) of the Unified Code violates principles of 

due process and the Illinois Constitution’s proportionate penalties clause (Ill. 

 

applicable maximum speed limit.” Pub. Act 99-212, § 5 (eff. Jan. 1, 2016) (amending 730 ILCS 

5/5-6-1(p), (q) (West 2014)). 2

The statutory threshold for subsection (b) was subsequently lowered to 35 miles per hour over 

the posted speed limit. See Pub. Act 98-511, § 5 (eff. Jan. 1, 2014). 
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Const. 1970, art. I, § 11),3 insofar as that section precludes entry of an order for 

court supervision where a defendant, as here, is charged with violating section 

11-601.5(b) of the Vehicle Code (see 730 ILCS 5/5-6-1(c), (p) (West 2012)); and 

(2) the legislature’s classification of said violation as a Class A misdemeanor, 

subject to strict liability, contravenes the same constitutional provisions. In an 

argument heading, defendant also suggested a violation of equal protection; 

however, there appears to be no correlative argument or supporting citations in the 

body of his motion. 

¶ 5 Though defendant did not specify whether his constitutional challenges were 

facial, as applied, or both, the body of his motion offered only hypothetical 

situations wherein defense counsel believed the statutes might violate 

constitutional rights, and there was no attempt to show how the statutes would 

operate unconstitutionally in defendant’s circumstances. No hearing was ever held 

to adduce facts specific to the disposition or penalty that might reasonably be 

imposed upon this particular defendant. 

¶ 6 In its response, the State argued that: (1) “a defendant’s eligibility—or lack 

therefore [sic]—for supervision is not constitutionally significant”; (2) the statutory 

elements of “aggravated speeding” and reckless driving are not, as defendant 

argued, identical for purposes of proportionate penalty analysis; and (3) the 

statutory preclusion of supervision as a disposition for section 11-601.5 violations 

is neither “so wholly disproportionate to the offense as to shock the moral sense of 

the community”—for purposes of proportionate penalty analysis—nor does it lack 

a “reasonable relationship between the legislature’s purpose and the statute”—for 

purposes of due process. 

¶ 7 With respect to due process, the State concluded, “increasing a criminal 

penalty” for a violation of section 11-601.5, via mandatory misdemeanor 

conviction, “bears a rational relationship to the government’s purpose,” in that it 

“decreases the likelihood people will take certain actions (here speed).” With 

respect to the proportionate penalties clause, the State noted that “the actual, 

statutory elements” of reckless driving and “aggravated speeding” are not identical

and submitted: 

 3

Although the parties sporadically referenced the eighth amendment to the United States 

Constitution (U.S. Const., amend. VIII), because their principal arguments pertain to the Illinois 

Constitution’s proportionate penalties clause, and this court has interpreted the scope of the latter to 

be more expansive than the former (see People v. Clemons, 2012 IL 107821, ¶ 40), we will not treat 

the eighth amendment separately herein. 
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“[Defendant] can’t show that denying supervision to aggravated speeders 

‘shocks the moral sense of the community’ or that reckless driving and 

aggravated speeding are identical crimes. Put bluntly, the Defendant’s 

invocation of a constitutional provision that deals with sentences of death, 

torture, and life imprisonment, an invocation made without a single case 

suggesting that the ability to receive supervision is constitutionally significant, 

trivializes the Constitution.” 

¶ 8 Defendant filed a reply insisting, inter alia, that aggravated speeding and 

reckless driving share identical elements. Therefore, defendant reasoned the 

divergent dispositional range, i.e., the preclusion of supervision as a dispositional 

option for a violation of section 11-601.5, violates the proportionate penalties 

clause. 

¶ 9 Following hearings on the matter, the court filed a memorandum opinion and 

order on August 12, 2014. Therein, the circuit court declared section 5-6-1(p) of the 

Unified Code unconstitutional insofar as it “denies supervision to offenders of 625 

ILCS 5/11-601.5.” The court specified: “This finding is limited to the denial of 

supervision. It does not affect the validity of the crime of Aggravated Speeding as 

either an [sic] Class B or A misdemeanor.” 

¶ 10 En route to its conclusion, the court determined: “Given the serious problems 

individuals operating a vehicle at an excessive speed can cause, Illinois had a 

legitimate interest in enacting legislation defining and criminalizing excessive 

speeding. There is no violation of either Due Process or Equal Protection in 

designating excessive speeding as a misdemeanor.” 

¶ 11 Turning to defendant’s proportionate penalties claim, the court first found no 

violation via application of the identical elements approach. The court rejected 

defendant’s contention that the offenses of reckless driving, for which supervision 

is an authorized disposition, and aggravated speeding, for which it was prohibited, 

share identical elements. The court observed that reckless driving requires the 

driver to act with a willful and wanton disregard for the safety of persons or 

property and, to so act, the driver must be proven to have consciously disregarded a 

substantial and unjustifiable risk in that regard. The court further noted that the 

legislature had considered making driving 40 miles per hour or more over the speed 

limit prima facie evidence of reckless driving but had ultimately declined to do so. 

The court observed: 
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“The speed of a vehicle may be evidence of willful and wanton conduct but it is 

not an element of the charge [of reckless driving] and need not be proven. 

Aggravated Speeding requires proof of the specific speed the vehicle was 

going. There is no need to show willful or wanton conduct on the part of the 

driver. The elements in the two statutes are different so they may not be 

considered identical for purposes of the proportionate penalties clause.” 

¶ 12 However, the court went on to find that denying the dispositional option of 

court supervision where a defendant has exceeded the speed limit by 40 miles per 

hour or more—here, allegedly, 100 miles per hour in a 55-mile-per-hour zone—is 

indeed “cruel and degrading punishment.” In arriving at that conclusion, the court 

compared aggravated speeding to other misdemeanors for which supervision is 

precluded—misdemeanors that the court deemed more serious because of elements 

of bodily injury or physical harm to property—and offenses like driving while 

license revoked or suspended, driving under the influence, driving without 

insurance, and theft, for which first-offense supervision is allowed. The court 

remarked on hypothetical collateral consequences attendant to a misdemeanor 

conviction. The judge also suggested that the legislature should have “given us 

their reasons for denying supervision to anyone convicted of Aggravated 

Speeding” and should “have *** informed us as to whether they were attempting to 

Prevent, Restrain, Rehabilitate, Deter, Educate or require Retribution.” Although 

the court acknowledged that “excessive speeding has the potential of creating grave 

injury to the public,” it again compared the legislature’s dispositional 

determination here to those for other offenses, where different elements are 

concerned: “The sentencing provision here, unlike many others in the criminal and 

motor vehicle codes does not differentiate between first offenders[,] circumstances 

surrounding the crime (injury or property damage)[,] or other aggravating factors 

found in the elements of other misdemeanors where there is mandatory denial of 

supervision.” 

¶ 13 Citing dictionary definitions of “cruel”—“to inflict pain or suffering”—and 

“degrading”—“to reduce in grade, status; *** to expose to contempt, dishonor or 

disgrace”—the court concluded that denying the option of supervision where a 

defendant is guilty of driving 40 miles per hour over the speed limit qualifies as 

“cruel and degrading punishment.” The gist of the court’s reasoning is summarized 

in the following excerpt, which seemingly melds various constitutional standards 

and concerns—such as proportionate penalties, due process, and separation of 
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powers—in order to strike down the statute under the guise of proportionate 

penalty review: 

“Mandating a conviction for a first offender for speeding where they [sic] may 

or may not have been mitigating factors, with no showing of physical harm, no 

showing of property damage, no showing of an intentional act or a showing of 

any surrounding circumstances is cruel and degrading. This is seen when the 

ramifications of a conviction are considered as well as the crime itself. There 

does not appear to be a relationship between the penalty and the crime alleged. 

The legislature has not given nor does there appear to be a rational basis for 

removing judicial discretion concerning sentencing for at least first time 

offenders. Clearly absent some serious repercussion from excessive speeding 

judges must be able to decide the appropriate sentence on a case by case basis.” 

¶ 14 In Rule 18 findings appended to the court’s opinion and order, the court stated: 

“The only portion of this statute that is unconstitutional is the denial of supervision 

to first offenders. The statute may stand as creating different levels of 

misdemeanors for individuals speeding in excess of specific amounts over posted 

speed limits.” Although the court’s declaration of unconstitutionality in the body of 

its order was premised solely upon a violation of the proportionate penalties clause, 

in its Rule 18 findings the court indicated “[t]he constitutional provisions upon 

which [the declaration] is based include due process of law, equal protection of the 

law and violation of the proportional [sic] penalties clause.” The court found the 

pertinent portion of the statute “unconstitutional on it [sic] face and as applied to 

the case sub judice.” The court averred that the statute cannot reasonably be 

construed in a manner that would preserve its validity, opining: “A mandatory 

conviction for any violation of Aggravated Speeding without review of specifics of 

the facts or of the defendant’s background is not reasonably designed to remedy of 

[sic] the particular evil the legislature was targeting.” 

¶ 15 The State filed a motion to reconsider, raising three main points in support 

thereof: (1) a recent opinion from this court, In re Derrico G., 2014 IL 114463, 

wherein this court affirmed, as constitutional, limitations on a trial court’s ability to 

order a disposition of supervision; (2) “the possibility that this case could have been 

decided on non-constitutional grounds”; and (3) lack of case law supporting the 

court’s finding. 
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¶ 16 With respect to its first point, the State noted that this court in In re Derrico G. 

addressed the constitutionality of a statute (705 ILCS 405/5-615(1), (2) (West 

2010)) which, at the time, effectively allowed supervision in certain juvenile cases 

only with the consent of the State’s Attorney. The circuit court ruled the statute 

unconstitutional, and this court reversed. The State, in this case, admitted that the 

contexts “are not identical” but maintained that Derrico G. offered additional 

support for the State’s contention that no Illinois court of review “has ever so much 

as hinted that a defendant’s ineligibility for supervision is unconstitutional.” The 

State suggested “if a statute giving the State’s Attorney veto power over 

supervision is constitutional, it is hard to see how a statute barring all offenders 

from supervision is unconstitutional.” 

¶ 17 With respect to its second point, the State averred that the court had found the 

pertinent portion of the statute would be unconstitutional as applied to first 

offenders, and the court had suggested there are constitutional implications in 

denying a circuit court the ability to consider a defendant’s background in the 

dispositional phase of proceedings; however, the State observed, “there is no 

evidence in the record to suggest that the Defendant is a first offender,” and “[i]f the 

Defendant’s background and the facts of the case were such that the Court would 

not give him supervision, the Court’s decision could ‘rest on an alternative ground’ 

under Rule 18(c)(1).” (Emphases in original.) 

¶ 18 In support of its argument, the State attached, as an exhibit, defendant’s 

certified driving abstract. As the State noted, the abstract showed, before his arrest 

in this case, the defendant had two prior convictions and four prior dispositions of

supervision for moving violations. Defendant had prior convictions for driving on 

the left side of the road where prohibited and disregarding a stop/yield sign at an 

intersection. He had been afforded the consideration of supervision four times: 

twice for driving 15-25 miles per hour over the speed limit, once for disregarding a 

stop/yield sign, and once for driving the wrong way on a one-way street or 

highway. 

¶ 19 For its third point, the State observed that the court had not offered any case law 

in support of its key propositions. Quoting our decision in People v. Sharpe, 216 Ill. 

2d 481, 487 (2005), the State noted that courts “generally defer to the legislature in 

the sentencing arena because the legislature is institutionally better equipped to 

gauge the seriousness of various offenses and to fashion sentences accordingly.” 

The State took issue with the court’s reliance upon “the various unpleasant 
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consequences of a misdemeanor conviction,” pointing out that case law holds the 

proportionate penalties clause and the eighth amendment are concerned only with 

“direct action by the government to inflict punishment” (emphasis in original), and 

the “collateral consequences by some other actor,” upon which the court relied, are 

simply irrelevant. Finally, the State observed that the court, in its Rule 18 findings, 

stated that the statute violates the constitutional principles of due process and equal 

protection; however, “the opinion lacks any analysis or case law explaining, for 

instance, what exact legislative classification is being made, what test that 

classification is subject to, any [sic] why that classification is unconstitutional.” 

¶ 20 Defense counsel filed a response to the State’s motion, arguing that the motion 

to reconsider was “improper” in that, according to defense counsel, the “motion 

does not inform the trial court of newly discovered evidence that was unavailable at 

the time of the original hearing, does not alert the court to changes in the law, and 

does not apprise the court of any errors it made in its application of existing law.” 

¶ 21 After a brief hearing, the circuit court denied the State’s motion without further 

comment. The State filed a timely notice of appeal.

¶ 22 ANALYSIS 

¶ 23 We begin with applicable standards, which favor upholding the 

constitutionality of a challenged statute. As this court has often emphasized, 

“Constitutional challenges carry the heavy burden of successfully rebutting the 

strong judicial presumption that statutes are constitutional.” People v. Patterson, 

2014 IL 115102, ¶ 90. That presumption applies with equal force to legislative 

enactments that declare and define conduct constituting a crime and determine the 

penalties imposed for such conduct. People v. Dunigan, 165 Ill. 2d 235, 244 (1995). 

“To overcome this presumption, the party challenging the statute must clearly 

establish that it violates the constitution.” Sharpe, 216 Ill. 2d at 487. Courts have a 

duty to uphold the constitutionality of a statute whenever reasonably possible, 

resolving any doubts in favor of the statute’s validity. Patterson, 2014 IL 115102, 

¶ 90. The constitutionality of a statute is a matter of law, and accordingly we review 

the circuit court’s conclusion de novo. Sharpe, 216 Ill. 2d at 486-87. 

¶ 24 This court has recently reiterated that facial and as-applied challenges are not 

interchangeable, and there are fundamental distinctions between them. People v. 
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Thompson, 2015 IL 118151, ¶ 36. “An as-applied challenge requires a showing that 

the statute violates the constitution as it applies to the facts and circumstances of the 

challenging party. [Citation.] In contrast, a facial challenge requires a showing that 

the statute is unconstitutional under any set of facts, i.e., the specific facts related to 

the challenging party are irrelevant.” Id. The burden on the challenger is 

particularly heavy when a facial constitutional challenge is presented. Bartlow v. 

Costigan, 2014 IL 115152, ¶ 18. “The fact that the statute might operate 

unconstitutionally under some conceivable set of circumstances is insufficient to 

render it wholly invalid.” Hope Clinic for Women, Ltd. v. Flores, 2013 IL 112673, 

¶ 33. So long as there exists a situation in which the statute could be validly applied, 

a facial challenge must fail. People v. Davis, 2014 IL 115595, ¶ 25; Hill v. Cowan, 

202 Ill. 2d 151, 157 (2002). 

¶ 25 In this case, the circuit court stated, in its Rule 18 findings, that it was holding 

the statute unconstitutional facially and as applied; however, in the latter regard, 

prior to the court’s ruling, there was no evidence adduced as to the “facts and 

circumstances” of the defendant or any discussion of how the statute would 

adversely affect defendant specifically. Nor does the court’s opinion and order 

contain any discussion or analysis of this defendant’s circumstances, i.e., his 

relevant background or the circumstances of the alleged offense, though the circuit 

court bemoaned the statutory impediment to consideration of those very factors. 

¶ 26 As we recently reiterated in People v. Mosley, 2015 IL 115872: 

“ ‘A court is not capable of making an ‘as applied’ determination of 

unconstitutionality when there has been no evidentiary hearing and no findings 

of fact. [Citation.] Without an evidentiary record, any finding that a statute is 

unconstitutional ‘as applied’ is premature.’ ” Mosley, 2015 IL 115872, ¶ 47 

(quoting In re Parentage of John M., 212 Ill. 2d 253, 268 (2004)). 

Because there was no evidentiary hearing and there were no findings of fact, the 

circuit court could not have made a separate as-applied finding. “When there has 

been no evidentiary hearing and no findings of fact, the constitutional challenge 

must be facial.” Mosley, 2015 IL 115872, ¶ 49. In any event, the court’s as-applied 

finding would be irrelevant in light of its finding that the statutory provision was 

facially unconstitutional, since “a facial challenge requires a showing that the 

statute is unconstitutional under any set of facts.” (Emphasis added.) People v. 

Thompson, 2015 IL 118151, ¶ 36. 
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¶ 27 We note, at the outset, that the circuit court’s opinion and order contains an 

ambiguous analysis and ill-defined concerns en route to its conclusion that section 

5-6-1(p) is unconstitutional. The final paragraph of the order appears to identify 

only a violation of the proportionate penalties clause; however, the court’s 

references in its Rule 18 findings to due process and equal protection concerns 

muddy the waters in that regard. We nonetheless believe the court’s finding of 

unconstitutionality is grounded upon a perceived violation of the proportionate 

penalties clause—because the court says so in the concluding paragraph of its order 

proper—and we will proceed principally on that basis. However, because the 

circuit court used due process terminology in portions of the order ostensibly 

dealing with proportionate penalty concerns, we will briefly address aspects of due 

process. We will not address equal protection at all, as defendant did not present 

any argument in that regard, and the circuit court’s order is bereft of any equal 

protection analysis. Simply saying, in Rule 18 findings, that a finding of 

unconstitutionality is based upon equal protection does not make it so. With those 

qualifications, we address the proportionate penalty issue. 

¶ 28 As this court recently observed in People v. Williams, 2015 IL 117470, ¶ 9, a 

proportionality challenge derives from article I, section 11, of the Illinois 

Constitution of 1970. Section 11, commonly referred to as the proportionate 

penalties clause, provides that “[a]ll penalties shall be determined both according to 

the seriousness of the offense and with the objective of restoring the offender to 

useful citizenship.” Ill. Const. 1970, art. I, § 11. After our decision in 

Sharpe—jettisoning the “problematic and unworkable” cross-comparison 

approach to proportionate penalties review (Sharpe, 216 Ill. 2d at 519)—two bases 

remain for mounting a proportionate penalties challenge. A defendant can argue 

that the “penalty for a particular offense is too severe under the ‘cruel or degrading’ 

standard or that the penalty is harsher than the penalty for a different offense that 

contains identical elements.” (Emphasis added.) Williams, 2015 IL 117470, ¶ 9. 

Defendant in this case tried both approaches. 

¶ 29 The circuit court rejected the latter, noting that the crime of reckless 

driving—the offense with which defendant compared aggravated speeding, for 

purposes of the identical elements test—“requires the driver to act with a willful 

and wanton disregard for the safety of persons and property,” which, the court aptly 

observed, “is clearly not an element of Aggravated Speeding.” Conversely, the 

court noted: “Aggravated Speeding requires proof of the specific speed the vehicle 

was going. There is no need to show willful and wanton conduct on the part of the 
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driver. The elements in the two statutes are different so they may not be considered 

identical for purposes of the proportionate penalties clause.” In its opinion and 

order, the court also specifically referenced the legislature’s decision to treat the 

two offenses separately. We find the circuit court’s identical elements analysis 

sound. 

¶ 30 Not so with respect to the remainder of the court’s proportionate penalty 

analysis. The circuit court commences that discussion with the question: “Is the 

penalty such that is [sic] cruel and degrading?” The court then cites our decision in 

Sharpe for the proposition that a penalty violates the proportionate penalties clause 

when “the greater penalty [is] so disproportionate that it shock[s] the moral sense of 

the community or [is] cruel and degrading.” What follows is a proportionate 

penalty analysis that, first, attempts to compare section 11-601.5(b) violations to 

other traffic offenses, misdemeanors, and felonies for which a disposition of 

supervision is prohibited, or for which supervision is allowed for a first offense, 

then suggests—without any meaningful discussion—that aggravated speeding 

poses a lesser threat to public health or safety:

“Unlike many of the other misdemeanors precluded from receiving a 

sentence of supervision[,] here bodily injury is not an element in Aggravated 

Speeding. There is not an element of physical harm to property. Many of the 

statutes listed allow supervision if it is the first offense, such as Driving on 

Revoked or Suspended License; Driving Under the Influence; Driving Without 

Insurance; or Theft.” 

¶ 31 The circuit court then goes on to cite possible, collateral consequences of 

conviction as relevant to its finding: “It will be a misdemeanor conviction that 

would need to be disclosed on job applications and loan applications. It could be a 

basis for denial of a mortgage, student loan or employment.” In the same 

paragraph, the court references undeveloped concerns over mandatory sentencing 

and possible separation-of-power considerations: “It should be noted the denial of 

supervision for Aggravated Speeding does not consider the prior driving history of 

the offender *** [n]or does the mandatory conviction requirement allow the judge 

to consider the circumstances of the speeding in the case before them.” 

¶ 32 In the midst of what is represented to be a proportionate penalty analysis, the 

court states that “[s]ubstantive due process requires the sentence be related to an 

injury to the Public.” In that paragraph, the court suggests that the legislature is 
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required to furnish a statement as to the goal of this legislation, noting that the 

“legislature has not given us their reasons for denying supervision to anyone 

convicted of Aggravated Speeding, nor have they informed us as to whether they 

were attempting to Prevent, Restrain, Rehabilitate, Deter, Educate or require 

Retribution.” 

¶ 33 The court does eventually acknowledge that “excessive speeding has the 

potential of creating grave injury to the public”—something legislators may have 

considered when they assigned the then-extant penalty range—however, the court 

immediately observes “[i]t is a potential, not a given, not an absolute.” Again, the 

court compares “[t]he sentencing provision here” to “many others in the criminal 

and motor vehicle codes” that “differentiate between first offenders” and allow for 

consideration of “circumstances surrounding the crime (injury or property 

damage).” Reiterating the question posed at the outset of what is represented to be a 

proportionate penalty analysis, the court again asks: “[D]oes the denial of 

supervision amount to cruel and degrading punishment?” The court’s answer, after 

consulting a dictionary of general usage and taking into account all of the foregoing 

considerations, is yes. 

¶ 34 We note, initially, that the parties dispute, as a threshold matter, whether the 

legislature’s exclusion of supervision as an available disposition can run afoul of 

the proportionate penalties clause, the State arguing that supervision is neither a 

“punishment” nor a sentence, but rather “a statutory deferral of prosecution and 

possible avoidance of any judgment of conviction,” and that even “a ‘conviction’ 

alone cannot be unconstitutionally disproportionate since it is not even a specific

sentence.” 

¶ 35 We will assume, solely for purposes of this analysis, that supervision may 

constitute a “penalty” that represents the lowest range of a possible dispositional 

framework for a misdemeanor. This court has stated: “Viewed realistically, 

supervision with conditions attached (reporting, restitution, etc.) involves the 

imposition of a penalty despite the fact that defendant has not been found guilty, or 

an earlier finding of guilt has been vacated.” People v. Breen, 62 Ill. 2d 323, 326 

(1976). However, even assuming that a disposition of supervision can be 

considered part of a “penalty” framework for purposes of proportionate penalty 
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analysis, legislative restrictions on its availability, or withholding the option 

altogether,4 cannot, under these circumstances, violate constitutional safeguards. 

¶ 36 As this court observed in Sharpe: 

“We generally defer to the legislature in the sentencing arena because the 

legislature is institutionally better equipped to gauge the seriousness of various 

offenses and to fashion sentences accordingly. [Citation.] The legislature’s 

discretion in setting criminal penalties is broad, and courts generally decline to 

overrule legislative determinations in this area unless the challenged penalty is 

clearly in excess of the general constitutional limitations on this authority.” 

Sharpe, 216 Ill. 2d at 487. 

¶ 37 In this context, this court has stated—more than once: 

“ ‘When the legislature has authorized a designated punishment for a specified 

crime, it must be regarded that its action represents the general moral ideas of 

the people, and the courts will not hold the punishment so authorized as either 

cruel and unusual, or not proportioned to the nature of the offense, unless it is a 

cruel or degrading punishment not known to the common law, or is a degrading 

punishment which had become obsolete in the State prior to the adoption of its 

constitution, or is so wholly disproportioned to the offense committed as to 

shock the moral sense of the community.’ ” (Emphasis added.) People v. 

Miller, 202 Ill. 2d 328, 339 (2002) (quoting People ex rel. Bradley v. Illinois 

State Reformatory, 148 Ill. 413, 421-22 (1894)). 

In other words, the fact that the legislature “has authorized a designated punishment 

for a specified crime” itself says something about the “general moral ideas of the 

people” with respect thereto, though obviously that designation is not 

determinative. 

¶ 38 In Miller, this court noted that it has never defined what kind of punishment 

qualifies as “cruel” and “degrading” or “so wholly disproportioned to the offense as 

to shock the moral sense of the community.” Miller, 202 Ill. 2d at 339. “This is so 

because, as our society evolves, so too do our concepts of elemental decency and 

fairness which shape the ‘moral sense’ of the community.” Id. Objective evidence 

 4

In Breen, this court made clear that “absent appropriate legislation, a trial judge is without 

authority to place a defendant on supervision.” Breen, 62 Ill. 2d at 328. The disposition of 

supervision was not statutorily authorized until 1977. 
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may be considered in this inquiry, but it does not wholly determine the controversy, 

because, in the end, the constitution contemplates that our own judgment will be 

brought to bear on the question. Id. at 339-40. In that endeavor, “[w]e review the 

gravity of the defendant’s offense in connection with the severity of the statutorily 

mandated sentence within our community’s evolving standard of decency.” Id. at 

340. 

¶ 39 The mandatory requirement of conviction upon a finding of guilt, as opposed to 

the dispositional option of supervision, does not, in itself, violate the proportionate 

penalties clause. In Sharpe, for example, we rejected defendant’s contention that, 

by setting forth lengthy mandatory minimum sentences for murder involving a 

firearm, the legislature had failed to consider the objective of restoring the offender 

to useful citizenship, as required by the proportionate penalties clause:

 “ ‘Our court has previously rejected claims that the legislature violates 

article I, section 11, when it enacts statutes imposing mandatory minimum 

sentences. Our decisions have recognized that the legislature’s power 

necessarily includes the authority to establish mandatory minimum sentences, 

even though such sentences, by definition, restrict the inquiry and function of 

the judiciary in imposing sentence.’ ” Sharpe, 216 Ill. 2d at 525 (quoting 

Dunigan, 165 Ill. 2d at 245). 

In fixing a penalty for an offense, the possibility of rehabilitation is not given 

greater weight or consideration than the seriousness of the offense. Sharpe, 216 Ill. 

2d at 525 (citing People v. Taylor, 102 Ill. 2d 201, 206 (1984) (upholding, against 

proportionate penalty challenge, a statute that mandates a sentence of natural life 

for murdering more than one victim)). 

¶ 40 In this case, the circuit court did not find the Class A penalty range for a 

conviction under section 11-601.5(b)—which included imprisonment of up to a 

year in jail—cruel and degrading nor violative of due process; it was only the thenexisting, comprehensive prohibition of the dispositional option of supervision that 

was “cruel” and “degrading.” It was only preclusion of the opportunity to come 

away with a clean record—after having been apprehended driving more than 40 

miles per hour over the speed limit—that the judge considered “cruel” and 

“degrading.” Though the judge acknowledged that “excessive speeding has the 

potential of creating grave injury to the public,” and she was in fact presiding over a 

case in which defendant was alleged to have driven 100 miles per hour in a 
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55-mile-per-hour zone, cutting in between semitrucks at a high rate of speed, she 

nonetheless determined the “potential” of “grave injury” was insufficient to justify 

the legislature’s determination, at that point in time, that supervision was not an 

appropriate disposition, under any circumstances. The court considered the flat ban 

on supervision, for those who had exposed the public to the potential of “grave 

injury,” to be “cruel” and “degrading.” 

¶ 41 In our view, the legislature’s prohibition of the dispositional option of 

supervision, in this context, does not even approach the “cruel and degrading” 

standard requisite for a finding of unconstitutionality. We do not believe our 

society has devolved to the permissive point that the legislature is obligated to 

provide an escape hatch for those who have shown such a blatant disregard for 

posted speed restrictions. We have, in the context of our community’s evolving 

standards of decency, reviewed and considered the gravity of defendant’s alleged 

offense in connection with the severity of the statutorily mandated sentence then set 

by the legislature. Our consciences are not shocked by the prohibition, individually 

or collectively. It appears the circuit court reached its result through application of 

the proportionate penalty analysis this court rejected in Sharpe. 

¶ 42 While discussing what is “cruel” and “degrading,” the analysis actually uses 

comparisons of this offense, and its prescribed “penalty” framework, with other 

offenses with different elements and the penalties assigned to them. This approach 

is precisely what we abandoned in Sharpe. In Sharpe, this court concluded: 

“[C]ross-comparison analysis has proved to be nothing but problematic and 

unworkable, and *** it needs to be abandoned. Those cases that used such an 

analysis to invalidate a penalty are overruled, and this court will no longer use 

the proportionate penalties clause to judge a penalty in relation to the penalty 

for an offense with different elements.” Sharpe, 216 Ill. 2d at 519. 

One of “[t]hose cases that used such an analysis” was People v. Davis, 177 Ill. 2d 

495 (1997). In fact, this court noted in Sharpe that Davis “established 

cross-comparison analysis in its current form.” Sharpe, 216 Ill. 2d at 505. Davis 

was the principal case upon which this defendant relied. At the very outset of this 

case, the State advised the circuit court that Davis was no longer good law after 

Sharpe. It appears that the circuit court’s analysis effectively resurrects the 

cross-comparison analysis under the guise of an inquiry into what is cruel and 

degrading. A penalty—or in this case the withdrawal of a dispositional 
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option—does not become “cruel” and “degrading” simply because it differs from 

the penalty for a different offense with different elements. “Different” is not 

consonant with “degrading.”5 

¶ 43 The other error in the circuit court’s analysis lies in its improper consideration 

of possible collateral consequences of a misdemeanor conviction, such as a 

requirement of disclosure on job or loan applications. Aside from the fact that an 

employer, for valid safety concerns, might want to know that a prospective 

employee has driven 40 miles per hour over the speed limit, we note that the 

collateral consequences of conviction, referenced by the circuit court, do not 

qualify as part of the “penalty” for purposes of proportionate penalty analysis. Both 

Illinois’s proportionate penalties clause and the federal constitution’s prohibition of 

cruel and unusual punishment “apply only to the criminal process involving a direct 

action by the government to inflict punishment.” People v. Boeckmann, 238 Ill. 2d 

1, 16-17 (2010). This court has held that the Illinois Secretary of State’s suspension 

of driving privileges, when a person receives court supervision for unlawful 

consumption of alcohol under 21 years of age, “is not a direct action by the 

government to inflict punishment.” Id. at 17. More to the point, this court has 

consistently held that the requirement of registration, pursuant to the Sex Offender 

Registration Act (730 ILCS 150/1 et seq. (West 2004)), is not a direct action by the 

State to inflict punishment. People ex rel. Birkett v. Konetski, 233 Ill. 2d 185, 

207-08 (2009). In light of those holdings, what reasoning or case law supports the 

conclusion that a nongovernmental actor’s requirement of misdemeanor disclosure 

 5

We acknowledge the contention of amicus curiae in this case—the Illinois Bar Association, 

the Illinois Association of Criminal Defense Lawyers Association, and the Du Page County 

Criminal Defense Lawyers Association—that “Sharpe does not require the Court to completely 

disregard the general penalties that the legislature has set for other acts of misconduct.” We respond 

that the legislature has “generally” set consistent penalties for violations of section 11-601.5(b) and 

reckless driving, the principal offense with which defendant seeks comparison. They are both Class 

A misdemeanors. In Sharpe, we cautioned “that the cross-comparison challenge will not simply 

resurface as a due process challenge along the lines of [People v. Wagner, 89 Ill. 2d 308 (1982)],” 

where this court “made a subjective determination about the seriousness” of the two offenses there 

at issue. Sharpe, 216 Ill. 2d at 522-23. We reiterate that caution in this context, again quoting 

Sharpe: “[C]ourts generally decline to overrule legislative determinations in this area unless the 

challenged penalty is clearly in excess of the general constitutional limitations on this authority.” 

(Emphasis added.) Id. at 487. “Different” simply does not translate into “cruel” or “degrading.” 

There must be a disconnect between the gravity of defendant’s offense and the severity of the 

statutorily mandated sentence that “shocks the moral sense” or is inconsistent with community 

“standard[s] of decency.” See Miller, 202 Ill. 2d at 339. 
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is properly considered as part of a pertinent “penalty” in this context? We are aware 

of none, and the circuit court cites none. 

¶ 44 In sum, we find no basis for the circuit court’s ruling that the prohibition of 

supervision, in the 2012 version of section 5-6-1(p) of the Unified Code, violates 

the proportionate penalty clause. Although the circuit court purported to hold the 

statutory provision unconstitutional only on the basis of a proportionate penalty 

violation, in light of the court’s imprecise approach in Rule 18 findings—stating 

that the ruling was based on “due process of law” and “equal protection of law” as 

well—its use of due process language in the body of its order, and defendant’s 

contention that due process was also violated, we will briefly address due process 

concerns. 

¶ 45 When legislation does not affect a fundamental constitutional right, this court, 

in a due process analysis, applies the rational basis test to determine the 

legislation’s constitutionality. People v. Wright, 194 Ill. 2d 1, 24 (2000). A statute 

attacked on due process grounds will be upheld so long as (1) it bears a reasonable 

relationship to the public interest sought to be protected and (2) the means 

employed are a reasonable method of achieving the desired objective. People v. 

Carpenter, 228 Ill. 2d 250, 267-68 (2008). In order to “pass muster under the due 

process clause, a penalty must be reasonably designed to remedy the particular evil 

that the legislature was targeting.” Sharpe, 216 Ill. 2d at 531. When applying the 

rational basis test, the court is highly deferential to the findings of the legislature. 

People v. Johnson, 225 Ill. 2d 573, 585 (2007). If any state of facts can reasonably 

be conceived of to justify the enactment, it must be upheld. People v. Alcozer, 241 

Ill. 2d 248, 263 (2011); People v. Shephard, 152 Ill. 2d 489, 502 (1992). 

¶ 46 In this instance, the legislature was addressing excessive speeding, which the 

circuit court acknowledged “has the potential of creating grave injury to the 

public.” The legislature initially considered making speeding in excess of 40 miles 

per hour over the limit prima facie evidence of reckless driving, then changed 

course and made speeding in that range a stand-alone, Class A misdemeanor. The 

fact that the legislature saw fit to make aggravated speeding a separate offense, for 

which proof of a reckless mental state was not required, suggests the seriousness 

with which the legislature regarded this conduct. That it might put restrictions on 

the dispositional option of supervision, as is still the case even after the recent 

amendment of section 5-6-1, or prohibit it altogether, as was the case with the 
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statutory version currently under consideration, is not an unreasonable or arbitrary 

means of addressing or deterring the perceived evil. 

¶ 47 The circuit court expressed concern that the legislature failed to inform us 

“whether they were attempting to Prevent, Restrain, Rehabilitate, Deter, Educate or 

require Retribution.” The legislature does not have to offer the judiciary an 

obligatory statement of purpose for every penal provision it passes.6 If one were 

required, deterrence would suffice in this instance. The circuit court and the 

defendant have already given us examples of how a conviction in and of itself 

might have consequences that would deter this type of conduct. In short, we find no 

due process violation. 

¶ 48 In closing, we wish to again emphasize that one who challenges the 

constitutionality of a statutorily mandated “penalty” has the burden of clearly 

establishing that the challenged provision is in excess of the general constitutional 

limitations on the legislature’s authority. Sharpe, 216 Ill. 2d at 487. The challenger 

cannot shift the burden of proof and research to the circuit court—it is his burden 

alone to overcome the presumptions of unconstitutionality, which exist for a 

reason. For its part, a circuit court contemplating the invalidation of a law enacted 

by the representatives of the people should proceed with the utmost caution before 

following an attorney’s ill-defined path to a finding of unconstitutionality. Rule 18 

requires the court to set forth the specific grounds for the finding of 

unconstitutionality, including the constitutional provision(s) upon which the 

finding of unconstitutionality is based, and whether the law is being found 

unconstitutional on its face or as applied to the case sub judice. At a minimum, that 

should include an adequate discussion of relevant case law and should sufficiently 

differentiate the various constitutional bases that might bear upon its finding. That 

was not done here. 

¶ 49 For the foregoing reasons, we reverse the judgment of the circuit court and 

remand for further proceedings consistent with this opinion. 

¶ 50 Reversed and remanded.

 6 Moreover, in this context, where evidence of the legislature’s deliberative process is minimal 

at best, we decline to “second-guess the legislature’s judgment” and engage in a Wagner-style due 

process analysis that this court roundly criticized in Sharpe. See Sharpe, 216 Ill. 2d at 495-96. 
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¶ 51 JUSTICE BURKE, specially concurring:

¶ 52 I agree that the judgment of the circuit court should be reversed. However, my 

reasons for reaching that result differ somewhat from the majority. I therefore 

specially concur.

¶ 53 The circuit court held that the 2012 version of the aggravated speeding statute 

violated the proportionate penalties clause of the Illinois Constitution because 

supervision was not a possible disposition for the offense. The difficulty with this 

conclusion is that proportionate penalties analysis rests on the actual penalties set 

by the legislature and whether those penalties are set according to the seriousness of 

the offense. The absence of supervision as a possible disposition is not, itself, a 

penalty. Thus, in this case, the only question that need be addressed is whether a 

mandatory misdemeanor penalty for the offense of aggravated speeding—the 

actual penalty imposed by the General Assembly—is so cruel, degrading or 

disproportionate to the offense that it shocks the moral sense of the community and 

thereby violates the proportionate penalty clause. 

¶ 54 Driving 40 miles per hour over the speed limit is an inherently dangerous 

activity that puts the safety of other drivers at risk. It cannot reasonably be said that 

making the offense a mandatory misdemeanor is so cruel or degrading a 

punishment that the legislature is constitutionally precluded from imposing that 

penalty.

¶ 55 Also, in addressing this appeal, the majority is unnecessarily critical of the 

circuit court. The primary concern of the circuit court was that, by making 

aggravated speeding a mandatory criminal offense, the legislature barred the circuit 

courts from ever considering any mitigating circumstances that might accompany 

the violation. In other words, a judge could not consider granting supervision if, for 

example, the speeding was necessitated by a medical emergency of some kind. 

Notably, after the circuit court’s decision in this case, the legislature amended the 

relevant statutes to make supervision generally available as a disposition for first 

offenders. See Pub. Act 99-212, § 5 (eff. Jan. 1, 2016) (amending 730 ILCS 

5/5-6-1(p), (q) (West 2014)). Thus, the circuit court’s concerns in this case were 

fully validated by the General Assembly. 

¶ 56 For the foregoing reasons, I specially concur.

¶ 57 JUSTICE FREEMAN joins in this special concurrence.