                                        2020 IL 123972



                                          IN THE
                                 SUPREME COURT
                                              OF
                           THE STATE OF ILLINOIS




                                     (Docket No. 123972)

                THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
                           WILLIAM COTY, Appellee.


                                  Opinion filed June 4, 2020.



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

        Chief Justice Anne M. Burke and Justices Kilbride, Garman, Theis, Neville,
     and Michael J. Burke concurred in the judgment and opinion.



                                           OPINION

¶1       In this appeal, the State challenges the appellate court’s determination that the
     circuit court’s imposition of a discretionary, 50-year sentence for this intellectually
     disabled defendant amounts to an unconstitutional de facto life sentence, violative
     of Illinois’s proportionate penalties clause (Ill. Const. 1970, art. I, § 11). The
     appellate court held that the characteristics of the intellectually disabled, identified
     in Atkins v. Virginia, 536 U.S. 304, 320 (2002), mitigate culpability and should
     have been, but were not, adequately considered by the circuit court when defendant
     was resentenced. 2018 IL App (1st) 162383. In a cross-appeal, defendant argues
     that his sentence also violates the eighth amendment of the United States
     Constitution or, in any event, that the sentence is excessive. We reject defendant’s
     contentions and reverse the judgment of the appellate court.


¶2                                           BACKGROUND

¶3       Following a jury trial in the circuit court of Cook County, the defendant,
     William Coty, who is intellectually disabled, was found guilty of one count of
     predatory criminal sexual assault of a child, one count of criminal sexual assault,
     and one count of aggravated criminal sexual abuse for conduct committed against
     the six-year-old victim, K.W. 1 Because the defendant had a prior conviction for
     aggravated criminal sexual assault perpetrated on a nine-year-old victim, pursuant
     to section 12.14.1(b)(2) of the Criminal Code of 1961 (Criminal Code) (720 ILCS
     5/12-14.1(b)(2) (West 2004)), 2 the circuit court had no discretion but to sentence
     defendant to the statutorily prescribed term of mandatory natural life in prison.

¶4       After his conviction and sentence were affirmed on appeal, the defendant filed
     a petition for relief from judgment pursuant to section 2-1401 of the Illinois Code
     of Civil Procedure (735 ILCS 5/2-1401 (West 2004)), alleging that his mandatory
     natural life sentence was unconstitutional under the eighth amendment to the United
     States Constitution (U.S. Const., amend. VIII) and the Illinois Constitution (Ill.
     Const. 1970, art. I, § 11). The defendant argued that the statutory scheme under
     which he was sentenced was facially unconstitutional because it categorically
     forbade the sentencing judge from considering his intellectual disability 3 and the
     circumstances of his offense. In the alternative, defendant asserted that the statutory
     scheme, as applied to him, violated the proportionate penalties clause of the Illinois

         1
            A full account of the trial evidence can be found in the appellate court’s original disposition.
     People v. Coty, 2014 IL App (1st) 121799-U.
          2
            Section 12-14.1(b)(2) was recodified as section 11-1.40(b)(2) (see Pub. Act 96-1551, art. 2,
     § 5 (eff. July 1, 2011) (recodifying 720 ILCS 5/11-1.40(b)(2))) and became effective July 1, 2011.
          3
            Courts below, at times, used the term “mental retardation.” We choose to refer to defendant’s
     condition as an “intellectual disability”; however, we will retain the term “retardation” when used
     in lower court proceedings and relevant case authority.




                                                     -2-
     Constitution (Ill. Const. 1970, art. I, § 11). The circuit court dismissed the
     defendant’s petition, and the defendant appealed.

¶5       In a nonprecedential disposition filed pursuant to Illinois Supreme Court Rule
     23(b) (eff. July 1, 2011), the appellate court reversed in part, holding the mandatory
     sentencing statute unconstitutional as applied. 4 People v. Coty, 2014 IL App (1st)
     121799-U. The circuit court’s order dismissing the defendant’s section 2-1401
     petition was vacated, and the cause was remanded for resentencing. The appellate
     court found that the circuit court had improperly dismissed the defendant’s petition,
     sua sponte, on the basis of timeliness. On the merits, the appellate court held that,
     while the circuit court was correct that the defendant had failed to properly state a
     facial challenge to the mandatory sentencing scheme under which he was sentenced
     to natural life in prison, it erred in finding that the defendant had also failed to state
     an as-applied challenge to that sentencing scheme on the basis of the Illinois
     Constitution’s proportionate penalties clause. The appellate court remanded for
     resentencing, noting, inter alia, that defendant’s “crime comprised *** a single,
     brief and limited encounter with the [six-year-old] victim.” Id. ¶ 77. In other words,
     the fact that defendant placed his finger in the vagina of a six-year-old for only a
     minute was, in some sense, mitigating. The appellate court also opined that
     defendant had “confessed and expressed remorse for his conduct.” 5 Id.


         4
          For reasons not apparent to us, the State did not appeal that decision.
         5
          We are compelled to point out that the appellate court’s conclusion is somewhat misleading,
     given the version of events defendant provided in his statement to authorities, which the appellate
     court acknowledged earlier in its disposition:
              “The defendant stated that on November 18, 2004, he was changing his clothes in his
         bedroom with his door open when K.W. walked into the room. The defendant told K.W. to
         leave but she would not. The defendant stated that he finished changing his clothes behind a
         curtain and then sat on his couch. He averred that K.W. then sat on his lap and ‘began grinding
         her butt on his lap.’ The defendant stated that ‘his penis was hard’ but claimed that he and K.W.
         were both clothed. [Defendant changed that part of his story later in his statement.] He stated
         that he then placed his right hand underneath K.W.’s clothes and touched her vagina. He
         admitted that [ ]he ‘inserted his finger into [K.W.’s] vagina up to the first joint.[’] The defendant
         stated that he did not move his finger inside of K.W.’s vagina and that he kept it inside only for
         ‘one minute.’ The defendant averred that K.W. said ‘that feels good.’
              In his handwritten statement, the defendant further stated that K.W. pulled her shorts and
         panties down to her knees before sitting on his lap. He then stated that she was not wearing
         pants when she was seated on his lap. The defendant also stated that after K.W. got off his lap
         and pulled her pants up, she left the room and he saw her go upstairs with her parents into her
         grandparents’ room. The defendant then left the house out of the front door and went to his




                                                      -3-
¶6       On remand, given the appellate court’s holding that section 12-14.1(b) of the
     Criminal Code, as applied to the defendant, violates the proportionate penalties
     clause of the Illinois Constitution, the sentencing judge turned to other applicable
     sentencing statutes. Specifically, as a Class X offender, the defendant was
     punishable by a sentencing range between 6 and 30 years. 730 ILCS 5/5-8-1(a)(3)
     (West 2004). In addition, because the victim was under 18 years of age, the
     defendant was further eligible for an extended-term sentence of up to 60 years’
     imprisonment (id. § 5-5-3.2(c)).

¶7       On August 10, 2016, the matter came before the circuit court for resentencing.
     At the outset, the court acknowledged that the cause was remanded for resentencing
     because of defendant’s intellectual disability. The court stated:

             “I will indicate, first of all, *** that I was tendered a large volume of
         materials both by the State and Defense that included, among other things, the
         transcript of the original trial, and the sentencing that occurred, including the
         testimony of a Doctor who testified regarding William’s intellectual difficulties
         or disabilities. I am taking all that into account.”

¶8       Defense counsel asked the court to “take the expert opinion into account that
     was given at the motion to suppress statement, a copy of the transcript also.” The
     court responded, “I have reviewed that also.” Thereafter, the court noted that it had
     received a new presentence investigative report (PSI) and asked if there were any
     corrections or deletions to that. The State and defense both indicated there were
     none. The parties responded similarly when asked if they were calling witnesses.
     The court advised the parties: “Obviously I’m familiar with the case. I’m familiar
     with his background.”

¶9       For her part, the prosecutor noted, even though the appellate court characterized
     the sexual assault as “a single brief act of penetration, it was very disturbing and




          sister’s house. He also stated that he ‘felt bad that he touched the little girl’ and that he was
          aware that she was six years old.” 2014 IL App (1st) 121799-U, ¶¶ 22-23.
     While defendant did indeed admit to the conduct and express remorse, he also tried to minimize his
     culpability by suggesting that the six-year-old victim initiated the sexual encounter and was gratified
     after the fact.




                                                     -4-
       emotionally upsetting both for the victim and especially for the victim’s family, her
       mom in particular.” The prosecutor continued:

           “This Defendant, there really—the fact that his IQ is in the 55 to 65 range, under
           prevailing social norms, his culpability was less than a person with normal
           cognitive capacity according to the Appellate Court. Nevertheless, the
           Defendant knew what he was doing in that he told the victim he was very careful
           in how he approached her and told her not to tell anyone and then left
           immediately when she went up to call for assistance or to tell somebody what
           had happened. So clearly he was aware what he had done and what he had done
           was wrong.”

¶ 10      On behalf of defendant, defense counsel emphasized the brevity of the
       encounter and suggested the encounter was not “preplanned or orchestrated. It
       seemed simply impulsive ***.” 6 She further observed:

           “Given both the nature of the crime and his disabilities, the Appellate Court
           found that the natural life sentence was so disproportionate as to violate the
           moral sense of our community, and that is a direct quote. Judge Toomin found
           and the Appellate Court agreed that my client suffered from, and the specific
           finding was that my client was mildly mentally retarded.”

       Counsel noted “[t]here were expert opinions elicited at the motion to suppress
       statements, and there was a family member who testified at his sentencing” that
       defendant had been “retarded since he was a baby.” Counsel opined “due to some
       of his intellectual shortcomings, [defendant] is, in fact, less culpable than others
       might be.” She asked the court, “in keeping with the Appellate Court opinion, that
       you give him a term of years that allows him upon sufficient punishment to resume
       some sort of life following incarceration.”

¶ 11       Prior to pronouncing sentence, the circuit court stated:


           6
             As noted in the appellate court’s original disposition, the victim, K.W., testified at trial that
       “defendant came into the room and sat down on the couch with her. He then started to ‘scooch’
       toward her and every time she moved away, he moved closer until she could no longer move. K.W.
       stated that the defendant then touched her arm, her shoulder, her leg, and then ‘started messing with
       me down there.’ She identified that part of her body as the ‘part that [she] use[s] to go to the
       bathroom with.’ ” 2014 IL App (1st) 121799-U, ¶ 13.




                                                       -5-
           “I’m going to consider today the evidence presented at trial, the pre-sentence
           report, the evidence offered in aggravation, mitigation, the statutory factors in
           aggravation, mitigation, the financial impact of incarceration, the arguments the
           attorneys just made here moments [a]go, and the assertions relative to the
           mother of the victim indicating that she still takes this case seriously, this was
           a serious case, and this was an offense committed by somebody whom this was
           not the first. He was previously sentenced to a period of natural life.”

       With that prologue, the court sentenced defendant, who was then 52 years old, to
       50 years in prison. The sentence was to be served at 85%, and defendant was given
       credit for 3553 days. The term of incarceration was to be followed by a period of
       three years to life of mandatory supervised release.

¶ 12       Thereafter, defense counsel filed a motion to reconsider, arguing, inter alia, that
       (1) the sentence was excessive in light of the defendant’s background and the nature
       of the offense, citing the proportionate penalties clause, (2) the circuit court
       improperly considered in aggravation matters that were implicit in the offense, and
       (3) the State failed to prove eligibility for an enhanced penalty or extended term.
       The circuit court denied the motion, and defendant appealed.

¶ 13       On appeal, defendant contended, first, that the circuit court abused its discretion
       in sentencing him to a 50-year, extended-term sentence without properly
       considering that it was, in fact, imposing a de facto life sentence on a defendant
       with intellectual disabilities. Second, the defendant contended that the imposition
       of the de facto life sentence is unconstitutional as applied to him, under both the
       eighth amendment of the United States Constitution and Illinois’s proportionate
       penalties clause.

¶ 14       In a precedential disposition (2018 IL App (1st) 162383), the appellate court
       vacated defendant’s sentence and reversed and remanded for a new sentencing
       hearing. 7 The appellate court found no abuse of discretion because “the trial court
       explicitly stated it considered the evidence presented at the defendant’s trial and the
       parties’ arguments, both of which referenced the defendant’s disability at the time
       of his trial in 2006.” Id. ¶ 54. Nonetheless, the appellate court concluded that the

           7
            The court ordered the new sentencing hearing to be conducted by a different judge. No basis
       appears in the record for that action, and the appellate court offered none.




                                                    -6-
       imposition of a 50-year de facto life sentence on this particular defendant, without
       the procedural safeguards of Atkins, 536 U.S. at 320, Miller v. Alabama, 567 U.S.
       460 (2012), and its progeny, was a penalty so wholly disproportionate that it
       violated the moral sense of our community. 2018 IL App (1st) 162383, ¶ 75. The
       court identified the factors referenced in Atkins as relevant considerations in
       sentencing an intellectually disabled individual:

          “As Atkins articulated, those attendant characteristics include, but are not
          limited to, an intellectually disabled person’s diminished capacity (1) to
          understand and process information, (2) to communicate, (3) to abstract from
          mistakes and learn from experience, (4) to engage in logical reasoning, (5) to
          control impulses, and (6) to understand others’ actions and reactions, so as to
          be more susceptible to manipulation and pressure. Atkins, [5]36 U.S. at 318.”
          Id.

¶ 15        Without further referencing of the mandatory sentencing provision under which
       defendant was originally sentenced, the appellate court held that defendant’s
       de facto life sentence was unconstitutional as applied, as it was violative of the
       Illinois proportionate penalties clause. Id. ¶ 86. The appellate court noted that the
       record on the first remand was

          “void of any information about the state of the attributes of the defendant’s
          intellectual disability in 2016. The new PSI ordered for purposes of
          resentencing contained no reference whatsoever to the defendant’s intellectual
          disability. *** As such, the resentencing court was without an iota of evidence
          from which to determine whether the defendant’s cognitive ability, behavior,
          adaptability, or ability to comprehend the consequences of his actions had
          changed for better or worse in the 10 years of his imprisonment. Therefore, the
          trial court was without the necessary facts from which to determine whether the
          defendant could be restored to useful citizenship or whether he was so
          irretrievably depraved and of such danger of recidivism that a natural life
          sentence was warranted.” Id.

¶ 16       The appellate court—acknowledging that defendant’s attorney had the
       opportunity to, but did not, present additional evidence at the resentencing—urged
       the public defender, on remand, to have the defendant’s mental health evaluated
       and to provide the court with as much information as possible as to the defendant’s



                                               -7-
       behavior and progress, or lack thereof, while in prison. Id. ¶ 87. The appellate court
       also offered the not-so-veiled suggestion that the circuit court should redetermine
       defendant’s fitness before resentencing. Id. The appellate court concluded by
       instructing the trial court, on remand, “to give serious consideration to the attendant
       characteristics of the defendant’s intellectual disability and the fact that this
       disability ‘diminish[es] both [his] culpability and the need for retribution’
       particularly in the context of this, a nonhomicide offense.” Id. (quoting People v.
       Gipson, 2015 IL App (1st) 122451, ¶ 74, and citing Atkins, 536 U.S. at 320).

¶ 17       In sum, the appellate court, via precedential disposition, extended the
       requirements of Miller and its progeny, via Atkins, to adult offenders with
       intellectual disabilities.


¶ 18                                       ANALYSIS

¶ 19        At its core, the question presented in this case is whether a sentence of life
       imprisonment, mandatory or de facto, is permissible for this intellectually disabled
       adult twice convicted of a sexual offense perpetrated upon a young child and, if the
       statute requiring a mandatory natural life sentence does not apply, whether and to
       what extent Atkins factors must be considered prior to the imposition of a de facto
       life sentence.

¶ 20       At the outset, we note that this court, unlike the appellate court, is not
       constrained in our inquiry by law-of-the-case considerations. As we noted in People
       v. Sutton, 233 Ill. 2d 89, 100 (2009):

               “The law of the case doctrine generally bars relitigation of an issue
          previously decided in the same case. People v. Tenner, 206 Ill. 2d 381, 395
          (2002). Thus, the determination of a question of law by an appellate court in the
          first appeal may be binding on the court in a second appeal. Krautsack v.
          Anderson, 223 Ill. 2d 541, 552 (2006). However, even if the law of the case bars
          relitigation of the issue in the appellate court, the law of the case doctrine is
          inapplicable to this court in reviewing a decision of the appellate court. People
          v. Triplett, 108 Ill. 2d 463, 488 (1985). Because this is the first time the case
          has been before this court, we may review all matters which were properly
          raised and passed on in the course of the litigation. Triplett, 108 Ill. 2d at 488.”




                                                -8-
¶ 21       Thus, we begin at the beginning, addressing defendant’s original sentence and
       the legislature’s determination that an adult convicted of predatory criminal sexual
       assault of a child, after having been previously convicted of, inter alia, aggravated
       criminal sexual assault, shall be sentenced to a term of natural life imprisonment.
       See 720 ILCS 5/12-14.1(b)(2) (West 2004) (recodified as 720 ILCS 5/11-
       1.40(b)(2)).

¶ 22       The constitutionality of a statute is analyzed according to well-established
       principles. “Statutes are presumed constitutional, and the party challenging the
       constitutionality of a statute has the burden of clearly establishing its invalidity. A
       court must construe a statute so as to uphold its constitutionality if reasonably
       possible. The constitutionality of a statute is a question of law subject to de novo
       review.” People v. Gray, 2017 IL 120958, ¶ 57. A defendant who has an adequate
       opportunity to present evidence in support of an as-applied, constitutional claim
       will have his claim adjudged on the record he presents. See People v. Holman, 2017
       IL 120655, ¶¶ 49-50

¶ 23       This court addressed the constitutionality of section 12-14.1(b)(2)’s mandatory-
       life sentencing provision—albeit not as applied to an intellectually disabled
       defendant—in People v. Huddleston, 212 Ill. 2d 107 (2004), wherein this court
       upheld the constitutionality of the statute against an as-applied, proportionate
       penalties challenge. Many of the observations in Huddleston and authorities cited
       therein are equally applicable here and require no addition or embellishment. We
       reference and quote them at length hereafter.

¶ 24       Though the authority of the legislature to prescribe penalties is not without
       constitutional limitation, this court has repeatedly recognized that the legislature
       has the power to prescribe penalties for defined offenses, and that power necessarily
       includes the authority to prescribe mandatory sentences, even if such sentences
       restrict the judiciary’s discretion in imposing sentences. Id. at 129 (citing People v.
       Miller, 202 Ill. 2d 328, 336 (2002), and People v. Taylor, 102 Ill. 2d 201, 208
       (1984)). This defendant challenged his mandatory natural life sentence as violative
       of, inter alia, the proportionate penalties clause of the Illinois Constitution. In
       Huddleston this court noted:

          “The proportionate penalties clause provides that ‘[a]ll penalties shall be
          determined both according to the seriousness of the offense and with the



                                                -9-
          objective of restoring the offender to useful citizenship.’ Ill. Const. 1970, art. I,
          § 11. As this court observed in Taylor, ‘there is no indication [in our
          constitution] that the possibility of rehabilitating an offender was to be given
          greater weight and consideration than the seriousness of the offense in
          determining a proper penalty.’ Taylor, 102 Ill. 2d at 206. Factors to be
          considered in determining the seriousness of an offense include the degree of
          harm, the frequency of the crime, and the risk of bodily injury associated with
          it. People v. Hill, 199 Ill. 2d 440, 454 (2002). The legislature may perceive a
          need to enact a more stringent penalty provision in order to halt an increase in
          the commission of a particular crime. Hill, 199 Ill. 2d at 454.” Id. at 129-30.

¶ 25       The legislature perceived that need with respect to those who repeatedly commit
       sexual offenses against children. Addressing the first constitutional consideration,
       the “seriousness of the offense,” this court, in Huddleston, emphasized two factors:
       the degree of harm and the frequency of the crime.

¶ 26      Speaking to the former, the Huddleston court observed:

              “Commentators have recognized that, aside from any physical injury a child
          may suffer in a sexual assault, children who are sexually assaulted are subject
          to chronic psychological problems that may be even more pernicious. Sexual
          assault (rape) has been described as, ‘[s]hort of homicide, *** the “ultimate
          violation of self.” ’ Coker v. Georgia, 433 U.S. 584, 597, 53 L. Ed. 2d 982, 992-
          93, 97 S. Ct. 2861, 2869 (1977), quoting U.S. Dep’t of Justice, Law
          Enforcement Assistance Administration Report, Rape and Its Victims: A
          Report for Citizens, Health Facilities, and Criminal Justice Agencies 1 (1975).”
          (Emphases in original.) Id. at 135.

       The impact on a child can be even more profound than that experienced by an adult.

          “Because of their emotional immaturity, children are exceptionally vulnerable
          to the effects of sexual assault. 45 Ariz. L. Rev. at 209; 39 Duq. L. Rev. at 38.
          Long-term follow-up studies with child sexual abuse victims indicate that
          sexual abuse is ‘ “grossly intrusive in the lives of children and is harmful to
          their normal psychological, emotional and sexual development in ways which
          no just or humane society can tolerate.” ’ 25 Am. J. Crim. L. at 87, quoting C.
          Bagley & K. King, Child Sexual Abuse: The Search for Healing 2 (1990). The




                                               - 10 -
          child’s life may be forever altered by residual problems associated with the
          event. 45 Ariz. L. Rev. at 209; 15 Ga. St. U. L. Rev. at 843.” Id.

¶ 27      As noted in Huddleston, the United States Supreme Court has

          “ ‘sustained legislation aimed at protecting the physical and emotional well-
          being of youth even when the laws have operated in the sensitive area of
          constitutionally protected rights.’ New York v. Ferber, 458 U.S. 747, 757, 73 L.
          Ed. 2d 1113, 1122, 102 S. Ct. 3348, 3354 (1982). In that regard, the Court has
          proclaimed the ‘prevention of sexual exploitation and abuse of children *** a
          government objective of surpassing importance.’ Ferber, 458 U.S. at 757, 73
          L. Ed. 2d at 1123, 102 S. Ct. at 3355.” Id. at 132.

¶ 28       Turning to consider the frequency of the offense and particularly the aspect of
       recidivism—indicative of the difficulty in rehabilitating sex offenders—the
       Huddleston court first shared the following observations of the Supreme Court:

              “As the United States Supreme Court recently reiterated in Connecticut
          Department of Public Safety v. Doe, 538 U.S. 1, 4, 155 L. Ed. 2d 98, 103, 123
          S. Ct. 1160, 1163 (2003):

                  ‘ “Sex offenders are a serious threat in this Nation.” McKune v. Lile, 536
              U.S. 24, 32 (2002) (plurality opinion). “[T]he victims of sex assault are most
              often juveniles,” and “[w]hen convicted sex offenders reenter society, they
              are much more likely than any other type of offender to be re-arrested for a
              new rape or sex assault.” Id., at 32-33.’

          In McKune, the Supreme Court described the risk of recidivism posed by sex
          offenders as ‘frightening and high.’ McKune v. Lile, 536 U.S. 24, 34, 153 L.
          Ed. 2d 47, 57, 122 S. Ct. 2017, 2025 (2002).” Id. at 137.

¶ 29      The Huddleston court noted that this court had recently acknowledged, in
       People v. Donoho, 204 Ill. 2d 159, 174 (2003), that

          “our legislature has responded again and again to the propensity of sex
          offenders to repeat their crimes and to increases in the incidence of sexual
          assault and abuse cases. See also People v. Stork, 305 Ill. App. 3d 714, 721
          (1999) (quoting a legislative declaration referring to ‘ “the high recidivism rate




                                              - 11 -
          of child sex offenders” ’), quoting 90th Ill. Gen. Assem., House Bill 157, 1997
          Sess.” Huddleston, 212 Ill. 2d at 137-38.

              “Although there is considerable debate over the degree to which treatment
          of sex offenders may be effective, it is clear that state legislatures may respond
          to what they reasonably perceive as a ‘substantial risk of recidivism.’ See Smith
          v. Doe, 538 U.S. 84, 103, 155 L. Ed. 2d 164, 183-84, 123 S. Ct. 1140, 1153
          (2003) (‘Alaska could conclude that a conviction for a sex offense provides
          evidence of substantial risk of recidivism. The legislature’s findings are
          consistent with grave concerns over the high rate of recidivism among
          convicted sex offenders and their dangerousness as a class’).” (Emphasis in
          original.) Id. at 138.

¶ 30       Those reasonable concerns over the substantial risk of child sex offender
       recidivism have been addressed by means of two principal approaches: “Some
       statutes seek to protect children once an offender is released from state custody by
       monitoring or restricting his or her movement and access to children. Other
       enactments call for longer sentences of imprisonment, so that the offender’s
       opportunity to reoffend is foreclosed during the period of incarceration.” Id.

¶ 31        We are concerned here with the latter approach—a statutory approach this court
       found constitutional, under our proportionate penalties clause, as applied to
       Huddleston. After noting that “a penalty violates the proportionate penalties clause
       if it is cruel, degrading, or so wholly disproportionate to the offense committed as
       to shock the moral sense of the community” (id. at 130), this court concluded that
       the application of the statutorily mandated natural life sentence did not meet that
       standard as applied to Huddleston (id. at 145).

¶ 32        So, how is this defendant different from Huddleston? What about this defendant
       specifically, or the class to which he belongs (the intellectually disabled), warrants
       a different result? In approaching that question, three differences come to mind, all
       of which have been subjects of comment in the case law: culpability, future
       dangerousness, and rehabilitative potential—the latter particularly important, as it
       is the second consideration in our proportionate penalties clause.

¶ 33       With respect to culpability, we consider and take as a given the characteristics
       of the intellectually disabled that the Supreme Court has identified as relevant to




                                               - 12 -
       sentencing in the context of capital sentencing, emphasizing at the outset that
       whether a defendant is subject to execution is a very different issue than whether a
       mandatory natural life sentence is constitutionally permissible for an adult. 8 As
       noted heretofore, in the context of capital punishment for an intellectually disabled
       defendant, the Supreme Court, in Atkins, determined that an intellectually disabled
       person’s culpability is lessened by reason of a diminished capacity (1) to
       understand and process information, (2) to communicate, (3) to abstract from
       mistakes and learn from experience, (4) to engage in logical reasoning, (5) to
       control impulses, and (6) to understand others’ actions and reactions, so as to be
       more susceptible to manipulation and pressure. Atkins, 536 U.S. at 318. The Court
       concluded those characteristics resulted in reduced culpability and precluded a
       sentence of death. Id. at 320. 9 Presumably, our own legislature considered those
       intellectual deficits in adding “intellectually disabled” to the list of mitigating
       factors to be considered in sentencing. See Pub. Act 86-903 (eff. Jan. 1, 1990)
       (adding 730 ILCS 5/5-5-3.1(a)(13)); see also Pub. Act 97-227, § 145 (eff. Jan. 1,
       2012) (changing “mentally retarded” to “intellectually disabled”).

¶ 34       Although Atkins abrogated Penry v. Lynaugh, 492 U.S. 302 (1989), it did not
       dispute the Court’s observation therein that the defendant’s mental retardation
       represented a “two-edged sword” that “diminish[ed] his blameworthiness for his
       crime even as it indicate[d] that there is a probability” of future dangerousness (id.

           8
              As noted in the appellate court’s well-reasoned decision in People v. Rhoades, 2018 IL App
       (4th) 160457, the Supreme Court has “held ‘a capital sentence is cruel and unusual under the Eighth
       Amendment if it is imposed without an individualized determination that that punishment is
       “appropriate”—whether or not the sentence is “grossly disproportionate.” ’ ” Rhoades, 2018 IL App
       (4th) 160457, ¶ 24 (quoting Harmelin, 501 U.S. at 995). However, the Court declined to extend this
       individualized determination requirement to mandatory life sentences for adults. Harmelin, 501 U.S.
       at 995. “As a result, the defendant’s mandatory life sentence in Harmelin did not constitute a cruel
       and unusual punishment under the eighth amendment and neither does the mandatory nature of
       defendant’s life sentence in this case.” Rhoades, 2018 IL App (4th) 160457, ¶ 24, appeal denied,
       No. 124321 (Ill. Jan. 31, 2019) (addressing the same statutory provision at issue here); see also id.
       ¶ 14 (discussing Justice Kennedy’s concurrence in Harmelin, 501 U.S. at 997 (Kennedy, J.
       concurring in part and concurring in the judgment, joined by O’Connor and Souter, JJ.), which was
       recognized as controlling in Graham v. Florida, 560 U.S. 48, 59-60 (2010)).
            9
              The Court in Atkins noted that the Court had previously identified retribution and deterrence
       of capital crimes by offenders as the social purposes served by the death penalty. The Court
       observed, unless the imposition of the death penalty on a mentally retarded person measurably
       contributes to one or both of those goals, it is nothing more than the purposeless and needless
       imposition of pain and suffering and, hence, an unconstitutional punishment. Atkins, 536 U.S. at
       319. The Court rejected the efficacy of capital punishment in service of those penological goals.




                                                      - 13 -
       at 324), an observation the Court subsequently reiterated in Brewer v. Quarterman,
       550 U.S. 286, 288-89 (2007).

¶ 35       Indeed, this court has held that future dangerousness of an intellectually
       disabled adult is a factor properly considered as an aggravator in sentencing, given
       an appropriate evidentiary basis. While acknowledging that an intellectual
       disability is a statutory factor in mitigation, this court, in People v. Heider, 231 Ill.
       2d 1, 20-21 (2008), nonetheless spoke to the aggravating aspect of intellectual
       disability:

           “[A] trial court might conclude, from the evidence, that a defendant’s mental
           retardation rendered him dangerous to the community, and for this reason
           decided to increase the defendant’s prison sentence. If, for example, the
           evidence established that a defendant had diminished impulse control as a result
           of his mental deficiency, and if that lowered impulse control rendered him a
           threat to the community, a trial court might conclude that, because of the
           defendant’s future dangerousness resulting from his lack of control, the
           defendant should be given a greater prison sentence in the interest of protecting
           the public. See People v. McNeal, 175 Ill. 2d 335, 370, 367-71 (1997).
           However, where mental retardation indicates future dangerousness, it is not the
           mental retardation that is being used as the aggravating factor. Rather, it is the
           future dangerousness that results from the mental retardation that is the
           aggravator. In our view, there is nothing improper in considering the effects of
           mental retardation in this way, so long as the evidence supports the conclusion
           that the defendant poses a future danger.” 10 (Emphasis in original.)

       In Heider, the evidence did not support the circuit court’s characterization of the
       defendant as a “ ‘sexual predator *** who commits crimes against young people,’ ”
       because “[t]here was nothing in his prior history that even remotely resembled a
       violent crime or an offense of a sexual nature.” Id. at 23.

¶ 36       Here, there is. Defendant has twice committed sexual offenses against children.
       Sexual recidivism, and the future dangerousness it entails, was obviously a factor
       in the legislature’s determination that a natural life sentence is warranted for

           10
            Mandatory sentencing based on the commission of repeated sexual offenses against children
       was not at issue in Heider.




                                                  - 14 -
       recidivists. With respect to this intellectually disabled defendant, we note that some
       of the very factors that the Court in Atkins found reduced culpability—diminished
       capacity (1) to understand and process information, (2) to communicate, (3) to
       abstract from mistakes and learn from experience, (4) to engage in logical
       reasoning, (5) to control impulses, and (6) to understand others’ actions and
       reactions (Atkins, 536 U.S. at 318)—are what make him a continuing danger to
       reoffend.

¶ 37       We turn now to the second prong of our constitution’s proportionate penalties
       clause and consider the prospect of rehabilitation. In Huddleston, this court
       concluded that defendant’s rehabilitative potential did not outweigh the
       legislature’s determination as to the seriousness of repeated sexual offenses and the
       need for a mandatory natural life sentence. That defendant experienced no
       intellectual deficits, a fact that would seemingly weigh in favor of greater
       rehabilitative potential than that of a defendant, such as this defendant, with
       intellectual deficits. The factors identified in Atkins logically impair rehabilitative
       potential, and, unlike a juvenile, whose mental development and maturation will
       eventually increase that potential, the same cannot generally be said of the
       intellectually disabled over time.

¶ 38      The Supreme Court has recognized as much. In Heller v. Doe, 509 U.S. 312,
       323 (1993), the court stated:

          “Mental retardation is a permanent, relatively static condition [citation], so a
          determination of dangerousness may be made with some accuracy based on
          previous behavior. We deal here with adults only, so almost by definition in the
          case of the retarded there is an 18-year record upon which to rely.”

       Dr. Marva Dawkins, a clinical psychologist who examined Coty for fitness, also
       observed that “mental retardation is a lifelong condition,” adding, at defendant’s
       age, “learning is becoming more and more difficult.”

¶ 39       While the Supreme Court’s decision in Miller is based in part upon the lesser
       culpability of youth—a characteristic the Atkins Court pronounced shared by the
       intellectually disabled—the Miller Court’s decision is founded, principally, upon
       the transient characteristics of youth, characteristics not shared by adults who are
       intellectually disabled. Referencing its earlier decisions in Roper v. Simmons, 543




                                               - 15 -
       U.S. 551 (2005), and Graham v. Florida, 560 U.S. 48, 68, 75 (2010), the Miller
       Court enunciated the critical differences between juveniles and adults, and the bases
       for the Court’s decision:

              “Our decisions rested not only on common sense—on what ‘any parent
          knows’—but on science and social science as well. Id., at 569. In Roper, we
          cited studies showing that ‘ “[o]nly a relatively small proportion of
          adolescents” ’ who engage in illegal activity ‘ “develop entrenched patterns of
          problem behavior.” ’ Id., at 570 (quoting Steinberg & Scott, Less Guilty by
          Reason of Adolescence: Developmental Immaturity, Diminished
          Responsibility, and the Juvenile Death Penalty, 58 Am. Psychologist 1009,
          1014 (2003)). And in Graham, we noted that ‘developments in psychology and
          brain science continue to show fundamental differences between juvenile and
          adult minds’—for example, in ‘parts of the brain involved in behavior control.’
          560 U.S., at 68. We reasoned that those findings—of transient rashness,
          proclivity for risk, and inability to assess consequences—both lessened a
          child’s ‘moral culpability’ and enhanced the prospect that, as the years go by
          and neurological development occurs, his ‘ “deficiencies will be reformed.” ’
          Ibid. (quoting Roper, 543 U.S., at 570).

              Roper and Graham emphasized that the distinctive attributes of youth
          diminish the penological justifications for imposing the harshest sentences on
          juvenile offenders ***.” Miller, 567 U.S. at 471-72.

¶ 40       The enhanced prospect that, as the years go by and neurological development
       occurs, deficiencies will be reformed—is not a prospect that applies to this
       intellectually disabled defendant, who was 46 years old when he committed this,
       his second sexual offense against a child. The rehabilitative prospects of youth do
       not figure into the sentencing calculus for him.

¶ 41      We note in passing—as the appellate court observed in Rhoades—that the
       Supreme Court’s decision in Harmelin v. Michigan, 501 U.S. 957 (1991), survives
       Miller, as Justice Kagan made clear:

             “The States (along with JUSTICE THOMAS) first claim that Harmelin v.
          Michigan, 501 U.S. 957 (1991), precludes our holding. The defendant in
          Harmelin was sentenced to a mandatory life-without-parole term for possessing




                                              - 16 -
          more than 650 grams of cocaine. The Court upheld that penalty, reasoning that
          ‘a sentence which is not otherwise cruel and unusual’ does not ‘becom[e] so
          simply because it is “mandatory.” ’ Id., at 995. We recognized that a different
          rule, requiring individualized sentencing, applied in the death penalty context.
          But we refused to extend that command to noncapital cases ‘because of the
          qualitative difference between death and all other penalties.’ Ibid.; see id., at
          1006 (KENNEDY, J., concurring in part and concurring in judgment).
          According to Alabama, invalidating the mandatory imposition of life-without-
          parole terms on juveniles ‘would effectively overrule Harmelin.’ Brief for
          Respondent in No. 10-9646, p. 59 (hereinafter Alabama Brief); see Arkansas
          Brief 39.

              We think that argument myopic. Harmelin had nothing to do with children
          and did not purport to apply its holding to the sentencing of juvenile offenders.
          We have by now held on multiple occasions that a sentencing rule permissible
          for adults may not be so for children. Capital punishment, our decisions hold,
          generally comports with the Eighth Amendment—except it cannot be imposed
          on children. See Roper, 543 U.S. 551; Thompson, 487 U.S. 815. So too, life
          without parole is permissible for nonhomicide offenses—except, once again,
          for children. See Graham, 560 U.S., at 75. Nor are these sentencing decisions
          an oddity in the law.” Miller, 567 U.S. at 480-81.

¶ 42       So, was the natural life sentence originally imposed on this defendant, pursuant
       to the mandate of the statute, unconstitutional, under our proportionate penalties
       clause, as applied to him? Was it, taking account of all relevant considerations—
       including defendant’s prior convictions for aggravated battery and attempted armed
       robbery and the fact that this was his second sexual offense against a child—“cruel,
       degrading, or so wholly disproportionate to the offense committed as to shock the
       moral sense of the community?” See Huddleston, 212 Ill. 2d at 130. Given the
       foregoing, we believe the answer is no. While defendant may be less culpable,
       because of his disability, than the defendant in Huddleston, the characteristics of
       his predominantly static condition and his age make him less likely to be
       rehabilitated and thus more likely to reoffend. The whole point of the mandatory,
       natural life sentence for repeat sex offenders is to protect children by rendering it
       impossible for the incorrigible offender to reoffend.




                                              - 17 -
¶ 43        As this court observed in People v. Rizzo, 2016 IL 118599, ¶ 37 (quoting Miller,
       202 Ill. 2d at 339, quoting People ex rel. Bradley v. Illinois State Reformatory, 148
       Ill. 413, 421-22 (1894)), “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.’ ” (Emphasis in original.) “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.” People v. Sharpe,
       216 Ill. 2d 481, 487 (2005). We decline to do so here. The penalty defendant
       challenged in his initial appeal was not, as applied to him, clearly in excess of the
       legislature’s constitutional authority to prescribe.

¶ 44       The original sentence of natural life imprisonment did not violate the
       proportionate penalties clause. In so holding, the appellate court erred. Defendant
       was not entitled to resentencing based on a violation of the proportionate penalties
       clause. We will speak to the procedural consequences of that error shortly.

¶ 45       However, first we address, briefly, one of the two contentions of defendant’s
       cross-appeal, that his sentence violates the eighth amendment of the United States
       Constitution. We note that appellate decisions, including the second in this case,
       have aptly pointed out that this court has not spoken consistently on the relationship
       between our proportionate penalties clause and the eighth amendment. See 2018 IL
       App (1st) 162383, ¶ 58; People v. Horta, 2016 IL App (2d) 140714, ¶ 62. 11
       However, as the court in Horta observed, if a sentence passes muster under the
       proportionate penalties clause, i.e., it is found not to be “cruel, degrading, or so


          11
            In Horta, 2016 IL App (2d) 140714, ¶ 62, the appellate court observed:
          “[O]ur supreme court has not spoken consistently on whether the latter [the proportionate
          penalties clause] is coextensive with the former [the eighth amendment] or provides greater
          protections. Compare People v. Patterson, 2014 IL 115102, ¶ 106 (stating that proportionate-
          penalties clause is ‘co-extensive with the eighth amendment’s cruel and unusual punishment
          clause’), with People v. Clemons, 2012 IL 107821, ¶ 40 (stating that proportionate-penalties
          clause, ‘which focuses on the objective of rehabilitation, went beyond the framers’
          understanding of the eighth amendment’). However, there is no dispute that the reach of the
          state provision is at least as great as that of the federal one. Thus, we shall limit our analysis to
          the proportionate-penalties clause. If defendant’s challenge succeeds on that ground, we need
          not decide whether it would also succeed under the eighth amendment; if it fails under the
          proportionate-penalties analysis, we may assume that it would not succeed as an eighth-
          amendment claim either ***.”




                                                      - 18 -
       wholly disproportionate to the offense committed as to shock the moral sense of the
       community,” after considering “the seriousness of the offense *** with the
       objective of restoring the offender to useful citizenship” (emphasis added) (see
       Huddleston, 212 Ill. 2d at 129-30), then it would seem to comport with the
       contemporary standards of the eighth amendment as explained in Graham, 560 U.S.
       at 58. 12 To the extent that the eighth amendment requires consideration—as stated
       in Graham—of the “moral judgment” and “mores” of a wider, national community,
       we note that defendant acknowledges the State’s observation that “[c]ourts across
       the country that have addressed the issue *** have declined to extend Atkins to
       noncapital sentences or Miller to the intellectually disabled.” We take this to mean
       that the “moral judgment” and “mores” of the nation are not inconsistent with our
       own in this matter. In short, we reject defendant’s eighth amendment argument.

¶ 46       We now revisit the unusual procedural posture of this case. In light of our
       analysis, the mandatory natural life sentence originally imposed upon defendant,
       pursuant to section 12-14.1(b)(2) of the Criminal Code (720 ILCS 5/12-14.1(b)(2)
       (West 2004)), was constitutional as applied to him. It was the proper sentence. The
       original appellate panel erred in ordering resentencing. Defendant’s argument that
       the resentencing court abused its discretion is, in our view, moot. And, with respect
       to the decision of the second appellate panel, what defendant did or did not do while
       in prison, after the mandatory natural life sentence was imposed, is also irrelevant.

¶ 47       But there is now a 50-year de facto life sentence—which might be considered
       a reduced sentence—that resulted from defendant’s initial appeal. The question is
       whether reimposition of the original natural life sentence mandated by statute
       would constitute an improper increase in defendant’s sentence. The question would
       seem largely academic—natural life versus de facto life.



           12
             To determine whether a punishment is cruel and unusual, courts must look beyond historical
       conceptions to “ ‘the evolving standards of decency that mark the progress of a maturing society.’ ”
       Estelle v. Gamble, 429 U.S. 97, 102 (1976) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)
       (plurality opinion)). “This is because ‘[t]he standard of extreme cruelty is not merely descriptive,
       but necessarily embodies a moral judgment. The standard itself remains the same, but its
       applicability must change as the basic mores of society change.’ ” Kennedy v. Louisiana, 554 U.S.
       407, 419, 128 S. Ct. 2641, 2649, 171 L.Ed.2d 525 (2008) (quoting Furman v. Georgia, 408 U.S.
       238, 382, 92 S. Ct. 2726, 33 L.Ed.2d 346 (1972) (Burger, C.J., dissenting)).” Graham v. Florida,
       560 U.S. 48, 58 (2010).




                                                     - 19 -
¶ 48      Section 5-5-4(a) of the Unified Code of Corrections (730 ILCS 5/5-5-4(a) (West
       2012)) provides:

           “Where a conviction or sentence has been set aside on direct review or on
           collateral attack, the court shall not impose a new sentence for the same offense
           or for a different offense based on the same conduct which is more severe than
           the prior sentence less the portion of the prior sentence previously satisfied
           unless the more severe sentence is based upon conduct on the part of the
           defendant occurring after the original sentencing.”

       That provision is directed to the circuit court. However, this court has spoken to a
       somewhat similar situation in People v. Castleberry, 2015 IL 116916, ¶ 24, where
       this court rejected the State’s argument that the appellate court had the authority,
       under Rule 615(b) (Ill. S. Ct. R. 615(b)), to increase a criminal sentence on appeal
       by imposition of mandatory sentencing enhancements that should have been a part
       of defendant’s sentence. We noted, however, that the State could seek to compel
       compliance with a mandatory sentencing requirement via an action for mandamus.

¶ 49       Of course, the matter of a proper sentence is neither before the circuit court nor
       the appellate court—it is before this court. Article VI, section 16, of the Illinois
       Constitution vests this court with supervisory authority over all the lower courts of
       this state. Ill. Const. 1970, art. VI, § 16; In re J.T., 221 Ill. 2d 338, 347 (2006). “This
       authority is ‘unlimited in extent and hampered by no specific rules or means for its
       exercise.’ ” People v. Salem, 2016 IL 118693, ¶ 20 (quoting In re Estate of Funk,
       221 Ill. 2d 30, 97 (2006)). “It is ‘an “unequivocal grant of power.” [Citation.] This
       authority extends to “the adjudication and application of law and the procedural
       administration of the courts.” ’ ” Id. (quoting People v. Whitfield, 228 Ill. 2d 502,
       521 (2007)).

¶ 50        We believe our supervisory authority, and the reach of our review under the
       authority of Sutton, 233 Ill. 2d 89, would allow us to reinstate defendant’s original
       sentence of natural life imprisonment. On the other hand, we could reverse the
       decision of the appellate court now before us, allowing the de facto life sentence to
       stand. The State only asks that we “reverse the appellate court’s judgment finding
       defendant’s sentence unconstitutional and affirm the appellate court’s judgment
       finding that the trial court did not abuse its discretion in sentencing defendant to
       fifty years in prison.” Given the parameter of the State’s request for relief, and no



                                                 - 20 -
       practical difference between a natural life sentence and a de facto life sentence, we
       choose to allow the latter to stand.


¶ 51                                     CONCLUSION

¶ 52       For the foregoing reasons, we reverse the judgment of the appellate court, as
       we find no violation of defendant’s constitutional rights, and we reject the
       defendant’s contentions in his cross-appeal.


¶ 53      Appellate court judgment reversed.

¶ 54      Circuit court judgment affirmed.




                                              - 21 -
