dissenting:
I do not agree that an unconstitutional disproportion is presented by this case. I would reverse the circuit court’s determination in this regard and remand for trial on the armed-violence count.
The majority completely ignores the State’s argument that a prosecutor can always charge armed violence when a defendant commits a felony with a dangerous weapon, provided that the prosecutor relies on an unenhanced crime as the predicate felony so as to avoid the proscription of People v. Haron (1981), 85 Ill. 2d 261, against double enhancement. To illustrate, the State need not charge aggravated kidnaping when a defendant commits kidnaping with a gun; instead, it may charge armed violence based on simple kidnaping. Similarly, the State is not required to charge forcible detention or forgo a prosecution altogether when a defendant commits forcible detention; in that situation it may charge armed violence based on unlawful restraint, unlawful restraint being a lesser included offense of forcible detention and one which does not require the use of a weapon. I cannot anticipate a situation in which the State would be able to charge armed violence when a defendant commits a given crime while armed, yet would be unable to charge armed violence altogether should the defendant commit a more “serious” crime while armed. As long as the weapon used is a Category I weapon (Ill. Rev. Stat. 1981, ch. 38, pars. 33A— 1(b), 33A— 3(a)), Class X punishment is available for its use regardless of the felony defendant commits while armed.
This is a complete answer to any claim that the armed-violence statute is unconstitutional because of disproportion. To use the defendant’s examples, no one who is guilty of unlawfully detaining another while armed would be encouraged, in order to avoid more severe punishment, to kidnap the victim or hold her hostage instead of merely detaining her. Class X punishment could be imposed in any event. (See People v. Bradley (1980), 79 Ill. 2d 410 (a criminal statute violates due process if not reasonably designed to remedy the evils which the legislature has determined to be a threat to the public health, safety or general welfare, and a disproportion in punishment between crimes of different magnitudes violates the remedial purpose of criminal laws).) At most, there exists a possibility that one who kidnaps another or holds another hostage may be charged with a Class 1 or Class 2 felony rather than with the Class X felony or armed violence, but this is at the option of the prosecutor, who has the choice of moving in either direction. As armed violence based on an unenhanced felony permits no defenses which aggravated kidnaping or forcible detention do not also permit, I do not see why any prosecutor with his wits about him would forswear the Class X charge in favor of Class 1 or Class 2 punishment, except perhaps in the everyday context of a plea bargain in which a defendant is threatened with prosecution for a Class X felony if he does not admit to certain allegations.
The sentencing structure comports fully with the apparent intent of the legislature to provide the maximum disincentive for the carrying of dangerous weapons such as guns in the commission of felonies. The purpose, of course, is to minimize the potential mayhem that may result from an inherently violent crime or to reduce the possibility that a felony that is not intrinsically violent may erupt into violence. To the extent that those who are contemplating the commission of a felony fear punishment and realize that their punishment will be greater if they have a dangerous weapon on their person while committing the felony, some felons will be tempted to leave their guns or knives at home, and fewer people will be hurt. The armed-violence statute acts as a sort of stand-in for a gun control law, and, as such, it serves a useful deterrent purpose. The scheme of punishment under the armed-violence statute is internally consistent. It does not encourage the commission of more serious felonies by a felon who is armed. It thus deprives no one of due process or equal protection of the laws. (People v. McCollough (1974), 57 Ill. 2d 440, 445; see United States v. Batchelder (1979), 442 U.S. 114, 60 L. Ed. 2d 755, 99 S. Ct. 2198 (firearms statutes proscribing the same conduct but providing different penalties held constitutional); Oyler v. Boles (1962), 368 U.S. 448, 455-57, 7 L. Ed. 2d 446, 452-53, 82 S. Ct. 501, 505-06.) I see no basis for holding that the armed-violence statute cannot constitutionally be applied to unlawful restraint and would remand the cause accordingly.
RYAN, C.J., and UNDERWOOD, J., join in this dissent.