concurring:
I agree with the court that the statutes at issue here are constitutional. I do not agree, however, that the provisions would be invalid in the absence of the limiting construction adopted by the majority, and for that reason I write separately.
The defendant was indicted for the delivery and possession of lysergic acid diethylamide (LSD), violations of sections 401 and 402 of the Illinois Controlled Substances Act (720 ILCS 570/401, 402 (West 1992)). The trial judge dismissed the charges, agreeing with the defendant that the provisions relating to LSD are unconstitutional. In support of the trial court’s ruling, the defendant highlights what he considers to be three invalid characteristics of the statutes. First, the defendant points out that delivery or possession of multiple objects containing LSD may be punished more severely than delivery or possession of the same quantity of the substance in bulk form. In addition, the defendant notes that possession of the drug in object form may be punished more severely than delivery of the same or greater bulk quantity of the substance. Finally, the defendant complains that the relationship, or ratio, between the number of objects and the weight of the drug in unified form is not constant at all degrees of the offenses, but varies from one level to another.
The majority correctly rejects all three contentions. In the course of its discussion, however, the majority unnecessarily adopts a limiting construction, concluding that the State must prosecute the delivery or possession of objects containing LSD under the objects provisions of the statutes and must prosecute the delivery or possession of bulk, unified quantities of the drug under the grams provisions of the statutes. Only in this way, says the majority, can the constitutionality of the statutory scheme be preserved. I do not agree with the majority that the provisions would be unconstitutional in the absence of this construction.
In general, the statutes at issue here punish the delivery or possession of multiple objects containing LSD more severely than the delivery or possession of an equivalent weight of the substance in unified, bulk form. Separation of the drug into object form facilitates its illegal distribution and sale (see Chapman v. United States (1991), 500 U.S. 453, 457, 114 L. Ed. 2d 524, 533, 111 S. Ct. 1919, 1923), and the legislature clearly intended to enhance the severity of the offenses in those circumstances (People v. Sonntag (1992), 238 Ill. App. 3d 854, 860). As the majority concludes, it is entirely proper to impose greater punishment on the possession and delivery of the drug in object form.
Once the validity of this legislative goal is recognized, the only question that remains is whether the potential overlap alleged by the defendant between these provisions renders them unconstitutional. Leaving to one side the question whether the legislature intended for offenses committed in object form to be prosecuted by weight rather than number, I think it is clear that the existence of overlapping criminal statutes violates no constitutional requirement. Accordingly, I find no need for the limiting construction adopted by the majority in today’s opinion.
As I stated in my dissent in People v. Christy (1990), 139 Ill. 2d 172,183-87 (Miller, J., dissenting), overlapping statutes that impose different degrees of punishment are not unconstitutional; both the United States Supreme Court and this court have previously rejected due process and equal protection challenges to such statutory schemes (United States v. Batchelder (1979), 442 U.S. 114, 60 L. Ed. 2d 755, 99 S. Ct. 2198; People v. Wade (1989), 131 Ill. 2d 370; People v. McCollough (1974), 57 Ill. 2d 440).
In Batchelder, the Supreme Court construed two overlapping Federal statutes proscribing the receipt of a firearm by a convicted felon. The Supreme Court found no constitutional bar to prosecution of the defendant under the provision imposing the greater punishment. Rejecting the contention that the overlap between the statutes made them unconstitutionally vague, the Court stated:
"Although the statutes create uncertainty as to which crime may be charged and therefore what penalties may be imposed, they do so to no greater extent than would a single statute authorizing various alternative punishments. So long as overlapping criminal provisions clearly define the conduct prohibited and the punishment authorized, the notice requirements of the Due Process Clause are satisfied.” Batchelder, 442 U.S. at 123, 60 L. Ed. 2d at 764, 99 S. a. at 2204.
The Batchelder Court also ruled that the discretion afforded to the prosecutor by the existence of the two measures was not an infringement of equal protection or due process. The Court observed that it had "long recognized that when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants” (Batchelder, 442 U.S. at 123-24, 60 L. Ed. 2d at 764, 99 S. Ct. at 2204), and the Court refused to apply a different rule to overlapping statutes that require proof of the same elements. The Batchelder Court explained:
"[TJhere is no appreciable difference between the discretion a prosecutor exercises when deciding whether to charge under one of two statutes with different elements and the discretion he exercises when choosing one of two statutes with identical elements. In the former situation, once he determines that the proof will support conviction under either statute, his decision is indistinguishable from the one he faces in the latter context.” Batchelder, 442 U.S. at 125, 60 L. Ed. 2d at 765, 99 S. Ct. at 2205.
In light of this precedent, and of the decisions of this court in People v. Wade (1989), 131 Ill. 2d 370, and People v. McCollough (1974), 57 Ill. 2d 440, as well, I fail to see the need for the limiting construction adopted by the majority in today’s opinion. People v. Bradley (1980), 79 Ill. 2d 410, cited by the majority, is inapplicable here. The provisions at issue in Bradley imposed, in all cases, greater punishment for the possession of certain substances than for their delivery, which was contrary to the legislature’s declared goal of punishing drug trafficking more severely than possessory offenses. In contrast, the defect alleged in this case simply involves a statutory scheme that, under the defendant’s reading, affords the prosecutor discretion in determining what offense to charge. There is no constitutional infirmity in that.
JUSTICE McMORROW joins in this concurrence.