                                              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
     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).
                                                   -2-
     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.
                                                      -3-
              “[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:

                                               -4-
          “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

                                              -5-
       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.



                                                 -6-
¶ 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
                                                -7-
       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.

                                                -8-
       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.

                                                  -9-
¶ 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
                                              - 10 -
       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

                                               - 11 -
       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




                                              - 12 -
       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.
                                                     - 13 -
       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 then-
       existing, 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

                                               - 14 -
       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

                                               - 15 -
       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.


                                                       - 16 -
       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


                                                - 17 -
       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.

                                                      - 18 -
¶ 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.

                                                - 19 -
