Criminal Sentencing in
Illinois
Stephen L. Richards
Deputy Defender
OSAD/DPTA
January 11, 2008

Range ?

Probation?

Consecutive?
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Extendable?
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Good-time credits?
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Treatment?

Boot camp?
Sentencing Checklist

“A defendant may not challenge a penalty
under the proportionate penalties clause
by comparing it to the penalty for an
offense with different elements.”

People v. Sharpe, 216 Ill. 2d 481, 839
N.E.2d 492 (2005)
Poked in the Eye with A Sharpe
Stick

People v. Walden, 199 Ill. 2d 392 (firearm
add-on for armed robbery)

People v. Moss, 206 Ill. 2d 503 (15 and 20
year add-ons for armed robbery, AVH, and
AK)

People v. Morgan (firearm add-on for
attempt first degree murder)
Sharpe overrules:

Sharpe applies retroactively to all cases
pending on direct appeal at the time
Sharpe was decided

15 year add-on for armed robbery with
firearm still unconstitutional because of
“identical elements” comparison with
armed violence
People v. Hauschild, 226 Ill. 2d 63,
871 N.E.2d 1 (2007)

Transactional drug offense involving five
or more grams of cocaine

Forcible felony related to the activities of
an organized gang
Common “findings” which make
offenses nonprobationable

See Cunningham v. California, 166 L. Ed.
2d 856 (2007) (where state law sets a
presumptive sentence, a finding which
allows the judge to go above the
presumptive sentence violates Apprendi)
Does Apprendi require these
findings to be made by a jury?
Presumption is to be given unless:
imprisonment needed to protect public or
Probation would deprecate the seriousness
of the offense
Presumption in favor of probation

Harris v. United States, 536 U.S. 545
2002):
Apprendi only applies to findings which
raise the maximum, not to findings which
raise the minimum
Probation and Apprendi

Count the justices:

Majority: Kennedy, Scalia, O’Connor,
Breyer, and Rehnquist (two missing)

Minority: Thomas, Stevens, Souter, and
Ginsberg (all still on court)
But . . .

Mandatory:
class 1, class X, first degree murder and severe
bodily injury
CSA, ACSA, PCSA
Solicitation, heinous battery, agg bat senior citizen,
class X drug case
Bond on bond
Thumbnail Sketch of Consecutive
sentencing

Discretionary:
◦ No single course of conduct
◦ Needed to protect public
Thumbnail sketch of consecutive
sentencing

Severe bodily injury must be part of
triggering murder, class X felony, or class
1, not part of nontriggering offense.
People v. Whitney, 188 Ill. 2d 91 (1999)

But SBI can be inherent in or element of
triggering offense, People v. Phelps, 211
Ill. 2d 1 (2004)
Two rules for severe bodily injury

Nick or cut on arm, caused by gunshot?

Fractured big toe, caused by gunshot?

Injury to knee, “sharp pain,” caused by
gunshot?

Grazed right cheek? Caused by gunshot?
What is SBI?

Independent motivation test

Or: time lapse, proximity, number of
victims
Single course of conduct?






Not retroactive – Schiro v. Summerlin,
542 U.S. 556 (2002)
Doesn’t apply to consecutive sentencing.
People v. Carney, 196 Ill. 2d 518 (2001)
Doesn’t apply to good time credits –
People v. Bell, 327 Ill. App. 3d 328
Doesn’t require indictment – People v.
Thurow, 203 Ill. 2d 352
Doesn’t apply to recidivist cases.
Can be waived and/or harmless
Apprendi – Where are we?

(g) Proceedings When an Enhanced Sentence is Sought.
When the death penalty is not being sought and the State
intends, for the purpose of sentencing, to rely on one or
more sentencing enhancement factors which are subject
to the notice and proof requirements of section 111-3(c-5)
of the Code of Criminal Procedure, the court may, within
its discretion, conduct a unitary trial through verdict on
the issue of guilt and on the issue of whether a sentencing
enhancement factor exists. The court may also, within its
discretion, upon motion of a party, conduct a bifurcated
trial. In deciding whether to conduct such a bifurcated
trial, the court must first hold a pretrial hearing to
determine if proof of the sentencing enhancement factor is
not relevant to the question of guilt or if undue prejudice
outweighs the factor's probative value.

RULE 415(G)
New Apprendi SC rule

While it would have been preferable to have
used a more precise instruction and verdict
form in order to communicate to the jury that
a single juror's “no” vote would prevent an
affirmative verdict of brutal or heinous
conduct, we find no abuse of discretion.
People v. Starnes 374 Ill.App.3d 132, *142,
869 N.E.2d 834, **844, 311 Ill.Dec. 821,
***831 (Ill.App. 1 Dist.,2007)
New Apprendi instructions may
have flaw

I find that the defendant deserves a harsh
sentence. She has not spoken at this
sentencing hearing and has not expressed
remorse. She went to trial. Her witnesses
perjured themselves. Her family disrupted
this courtroom. If she is put on probation she
may become pregnant. She is unemployed,
she lives her boyfriend, she is HIV positive,
and she is an unwed mother. She stole
property, so she received compensation for
committing this offense.
A judge’s finding at a sentencing
hearing.