Was this 3 judge appellate panel courages or were they activist judges when they declared the 20 year gun add-on unconstitutional?Listen to the facts & decide.
Appellate court orders the trial court to ignore a sentencing statute. Simply tells them not to impose at least 40 years of a mandatory sentence.
See People v. Gibson, 2015 IL App (1st) 122451 (05/27/2015).
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I find this to be one of the most fascinating cases in while.
No Middle Ground
I feel this way because there can be no middle ground for how you feel about it.
There is no standing in the middle feeling neutral about the thing. Opinions will form at polar opposites of each other with nothing in between.
What Did The Judges Do?
Lets first look at what the judges did in this decision.
In a nutshell, the remanded the case back to the trial court. They then ordered the trial judge to ignore the 20 year gun add-on for personally discharging a firearm during an attempt murder.
That was it.
Of course, there is more to the story.
The case began when a 15 year old and his older brother opened up gun fire on two people sitting inside a car.
The case read like an ambush. Defendant and codefendant took up positions on either side of the doors and went at it.
The victims did not die. Defendant was tried as an adult. When the trial was over Defendant had a 52 year sentence for two counts of attempt murder.
The math for the sentence was the minimum on a class X for attempt murder, 6 years, plus the 20 year gun add-on for personally discharging a firearm.
Two victims meant two charges, thus, two consecutive sentences.
(6+20) X 2 = 52 total years.
This Defendant's Troubled Past
The court noted that the Defendant had quite a depressing background.
Thinks of something depressing and this kid probably had it. All the usual stuff with growing up around drugs and violence was there.
He also had serious mental health issues.
Additionally, this defendant has the unfortunate distinction of being the youngest person in the United States to ever be charged with murder. He was only eight years old. The charges did not stick. Eventually, another person was charged and convicted for the crime.
The appellate panel guessed this experience with the criminal justice system did not help the defendant get along with life.
Young Defendants and the Gun Add-On
We have seen judges in other cases do everything they could to get around the 20 year gun add-on (and other gun add-ons) when they are applied to young defendants.
- Find ‘Em Guilty of Something Else
- Remand for Resentencing to Consider Potential for Rehabilitation
- Just Reversing For Whatever
Bull By The Horns
This appellate panel was done playing around with all the made up excuses to not apply the gun add-ons.
This time they went head-on right at the law.
The flat out ordered the trial judge not to impose the gun-add on when Defendant is resentenced. They held that the law as applied to this Defendant shocks the moral sense of the community.
20 Year Gun Add-On Unconstitutional
The court did not depend on the eighth amendment of the federal constitution. Case law on that front was not going to help them get where they wanted to go.
No, instead they relied on the Proportionate Penalties Clause of the Illinois constitution.
Remember, states have constitutions too.
This clause says 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.
To win with this issue, the defense must demonstrate wither that the penalty is degrading, cruel “or so wholly disproportionate to the offense that it shocks the moral sense of he community.” ¶ 69 citing People v. Klepper, 234 Ill. 2d 337, 348-49 (2009).
The judges were careful to say that this clause may overlap with the eighth amendment, but the rights enumerated there were distinct from what is captured in the federal constitution.
So What Is This?
What do we have here?
Were these three judges of the appellate panel courages esteemed members of the legal community? Were they up with times? Were they cognizant of the research that young minds are prone to impulse and in many ways remain premature for much longer than we all thought?
Did they step-up and do the right thing in the face of an inept and misguided legislative body?
Is an example of the worst kind of judicial activism that we should all hate and abhor? Did this panel loose sight of their role in the system? Did they forget that they are not legislatures. Who are they that they get to decide the moral sentiment for the rest of us? Love it or hate it 52 years is not a prohibited life sentence under Miller v. Alabama, 132 S. Ct. 2455 (2012).
Did they forget that they don't get to ignore a law just because they don't like it?
What Happens Next?
Part of the reason why I find this case so fascinating is because I can't predict what happens next.
As soon as I convince myself that this is a small flickering flame that will quickly be put out by the Illinois Supreme Court, I start to allow myself to be convinced that maybe these three judges have started something.
Let me know what you think.
Where these judges brave or out of line? Will this case get quickly overturned or will this turn into something much bigger?