also dissenting:
The majority brushes aside defendant’s argument because it “runs the risk of erroneous conclusions.” While the defendant’s argument merely runs the risk of erroneous conclusions, the majority’s approach assures them. The majority’s approach to this case is to respond to an argument that was never made. When the dust has settled from the wake of the majority opinion, trial courts are left without discretion to determine what evidence is relevant at a sentencing hearing, and the appellate court has been forbidden from considering certain cases in reviewing sentences. This unwarranted invasion into the province of the lower courts is ill-advised and will exacerbate the problem of grossly disparate sentences.
I agree with the argument that defendant actually makes in this appeal, which is that trial and reviewing courts should be allowed, in their discretion, to consider evidence of sentences in other cases as one of the many factors that courts rely upon in imposing and reviewing sentences. Defendant does not argue that courts should be required to do so or that sentences in other cases should be given any particular weight. The majority’s decision appears to be inspired by the fear that someday, somewhere, a sentence might be reduced. This position fails to acknowledge that comparative sentencing arguments can also be made by the State, and comparative sentencing analysis can be used to uphold sentences.
COMPARATIVE SENTENCING INFORMATION IN THE TRIAL COURT
The majority fails to draw a distinction between the different applications of comparative sentencing in trial and reviewing courts and uses the same analysis for both. Here, defendant pleaded guilty and received the highest sentence ever given in McHenry County for the particular offense. Defendant filed a motion to reconsider in which he asked the court to compare his sentence with those given other offenders who had committed the same offense. Defendant’s evidence showed that his sentence was almost twice as long as sentences given to other defendants who had substantially fewer mitigating factors. The State moved to strike this information from defendant’s motion. The trial court granted the motion to strike based on its belief that it was prohibited from considering this information because the Appellate Court, Second District, does not engage in comparative sentencing review.
The factors controlling the admission of evidence at a sentencing hearing are relevance and reliability, and the determination of admissibility lies within the sound discretion of the trial court. People v. Lyles, 106 Ill. 2d 373, 414 (1985). In my opinion, the trial court should have discretion to decide whether to consider evidence of sentences in other cases. Here, the trial court should not have stricken the information, but rather should have exercised its discretion in determining whether to consider the evidence and what weight to give it. Whether the appellate court finds comparative sentencing information relevant in reviewing sentences under an abuse of discretion standard should have no bearing on whether the sentencing court has the discretion to consider comparative sentencing information in fashioning an appropriate sentence.
COMPARATIVE SENTENCING REVIEW IN THE APPELLATE COURT
I would also allow the appellate court to consider comparative sentencing arguments. I do not believe this court should dictate to the appellate court how to review sentences to determine if the trial court in a particular case abused its discretion, particularly when this court has itself exercised its discretion to consider comparative sentencing arguments. See, e.g., People v. Smith, 177 Ill. 2d 53, 98-100 (1997); People v. Coleman, 166 Ill. 2d 247, 261 (1995); People v. Palmer, 162 Ill. 2d 465, 491 (1994). In Palmer, we recognized the discretionary nature of this type of review. The defendant argued that he should not have received the death penalty, and he supported his argument with cases in which appellate courts had vacated the death sentences of defendants who had committed more serious acts of violence. We first acknowledged that we were not required to engage in comparative proportionality review, but then exercised our discretion and chose to consider the cases defendant cited. After reviewing the cases, we determined that they did not support defendant’s argument that his sentence should be vacated. Palmer, 162 Ill. 2d at 491. The majority now forbids the appellate court from engaging in the exact analysis that this court has used when presented with comparative sentencing arguments.
THE MAJORITY APPROACH
The support that the majority offers for its decision to forbid courts from engaging in comparative sentencing analysis can be divided into three main categories, none of which is persuasive. The majority bases its decision upon (1) an apparent belief that comparative sentencing analysis could benefit only defendants; (2) a previously unheard of rule of statutory construction; and (3) the supposed negative results that would inevitably follow if comparative sentencing analysis were allowed.
Dual Nature of Comparative Sentencing Analysis
An unstated but underlying theme in the majority opinion is that comparative sentencing analysis is something that could help only defendants. The majority does not acknowledge that the State could use comparative sentencing analysis in support of its position, but clearly the State could do so. The State could argue in the trial court that a defendant deserved a very harsh sentence because other defendants who committed similar crimes also received lengthy sentences. In the appellate court, the State could argue that a defendant’s sentence was justified based upon other sentences received by similarly situated defendants.
The dual nature of comparative sentencing analysis can best be seen in this court’s decision in People v. Smith, 177 Ill. 2d 53 (1997). Smith was issued two years ago, before this court decided to find comparative sentencing analysis objectionable. This court vacated the defendant’s death sentence based on a review of other cases in which the death penalty was found excessive. Smith, 177 Ill. 2d at 98-101. The discussion on this issue began, “An analysis of previous cases where this court has found a death sentence to be excessive is useful.” Smith, 177 Ill. 2d at 98. What this court found useful two years ago, it now forbids other courts from considering.
Three justices dissented in Smith and used comparative sentencing analysis to support their position. The dissenting justices reviewed cases in which defendants had relatively clean criminal records, yet still received the death penalty. See Smith, 177 Ill. 2d at 114-15 (Miller, J., dissenting, joined by Bilandic and Heiple, JJ.). Thus, comparative sentencing arguments could be made by both the State and defendants, and the majority’s apparent fear of the one-sided nature of this type of analysis is unfounded.
An additional problem with the majority’s fear of defendants making comparative sentencing arguments is that, under the majority’s rule, defendants will now look for any evidence that the sentencing judge used a comparative sentencing approach instead of carefully crafting a sentence based on the individual’s circumstances. Any statement by the trial judge or State’s Attorney that the defendant should receive the “typical” or “usual” sentence for a person in the defendant’s position could amount to reversible error. Under a discretionary system, that would not be the case. The majority’s approach will severely hamper judges in sentencing defendants for frequently occurring minor offenses.
Statutory Construction
One of defendant’s arguments in support of allowing courts to engage in comparative sentencing analysis is that such an analysis comports with legislative intent to achieve parity in sentencing. The majority acknowledges that sentencing parity was one of the legislature’s goals in enacting the 1977 sentencing legislation. The legislature sought to implement this policy by changing from an indeterminate to a determinate sentencing system. The legislature invited this court to help with the problem of disparate sentences. Part of the 1977 legislation was the enactment of section 5 — 5—4.2 of the Unified Code of Corrections. This section, entitled “Statewide Sentence Equalization Procedures,” provides that the supreme court may, by rule, implement practices and procedures that will promote parity in sentencing. The majority’s decision — removing all discretion from trial and reviewing courts to engage in comparative sentencing analysis — is this court’s RSVP to the legislature’s invitation. The majority justifies this result by holding that the legislature did not intend for courts to engage in comparative sentencing analysis.
The most difficult obstacle facing the majority’s conclusion that the legislature did not intend for courts to engage in comparative sentencing analysis is section 5 — 5—4.3 of the Unified Code of Corrections (730 ILCS 5/5 — 5—4.3 (West 1998)). This section provides that the Department of Corrections shall publish an annual report containing, inter alla, “The range, frequency, distribution and average of terms of imprisonment imposed on offenders committed to the Department of Corrections, by offense.” 730 ILCS 5/5 — 5—4.3(a)(1) (West 1998). The statute specifically provides that the report “shall be made available to trial and appellate court judges for their use in imposing or reviewing sentences under this Code.” (Emphasis added.) 730 ILCS 5/5 — 5—4.3(a) (West 1998). Although this part of the majority’s analysis is unclear, the majority seems to construe this statute to mean that the legislature did not intend for trial and appellate court judges to use these statistics in imposing and reviewing sentences.1 Here, I must plead ignorance and admit that I am unfamiliar with the canon of statutory construction that says that we construe a statute to mean exactly the opposite of what it says.
In rejecting defendant’s argument on this issue, the majority claims that the legislature enacted this statute but chose to go “no further.” The majority then claims that “[t]he legislature did not indicate that sentencing parity should be achieved by allowing the statutorily proper sentence imposed in one case to control the statutorily proper sentence imposed in another case.” 189 Ill. 2d at 61. This is yet another example of the majority attempting to justify its result by misstating defendant’s argument. Nowhere in defendant’s brief does he argue that sentences in particular cases should be controlled by sentences in other cases. He merely argues that courts should be allowed in their discretion to consider sentences in other cases. Section 5 — 5—4.3 shows that the legislature intended for the courts to have statistics of sentences in other cases available to them “for their use in imposing and reviewing sentences.” The result of today’s opinion must be that courts are now forbidden from using these statistics.
As unconvincing as the majority’s attempt to rewrite section 5 — 5—4.3 is the majority’s casual dismissal of section 5 — 5—4.2. As stated, section 5 — 5—4.2 recognizes this court’s authority to create rules to promote sentencing parity. Defendant relies on this section to support his argument that sentencing parity was a goal of the 1977 sentencing legislation. The majority dismisses defendant’s argument with one sentence: “Although section 5 — 5—4.2 recognizes this court’s authority to create rules to promote sentencing parity, this section in no way suggests which rules or procedures this court should consider.” 189 Ill. 2d at 60-61. This statement does not even address defendant’s argument. The point of defendant’s argument is simply that sentencing parity is a goal of the legislature. Although the majority is correct in stating that this section does not suggest what rules or procedures the court should adopt, the statute does suggest that the rules or procedures, whatever they may be, should promote sentencing parity. I believe I can state with some certainty that the intent of the legislature was not that this court should create rules that remove discretion from the lower courts and ensure that sentences will become much more disparate. I am also fairly certain that the legislature did not intend for this court to construe section 5 — 5—4.3 to mean exactly the opposite of what it says.
Defendant’s argument that a rule forbidding com-' parative sentencing review would be contrary to legislative intent is well supported by sections 5 — 5—4.2 and 5 — 5—4.3. The majority’s attempt to construe these statutes in favor of its rule is entirely unpersuasive.
Negative Consequences
The majority lists several negative consequences that would supposedly occur if comparative sentencing analysis were allowed. The first negative consequence the majority espouses is that the permissible range of sentences could be effectively reduced below that set by statute because judges would be forced to follow more lenient sentences given in other cases. The majority reaches this conclusion only because of its refusal to consider the argument actually presented. Defendant argues solely that courts should, in their discretion, be permitted to consider evidence of sentences in other cases as one of the many factors a court considers in fashioning a sentence. Under a discretionary system, judges would be free to consider or reject comparative sentencing information and could assign it whatever weight they deem appropriate.
The majority’s assertion that “the prior lenient sentence would control the later case” is simply untrue and unfairly characterizes defendant’s argument. It is a well-settled rule that courts are not required to recite and assign a particular value to any particular factor at sentencing. See, e.g., People v. Mayoral, 299 Ill. App. 3d 899, 913 (1998); People v. Cord, 239 Ill. App. 3d 960, 968-69 (1993); People v. Kyse, 220 Ill. App. 3d 971, 975 (1991); People v. Keyes, 175 Ill. App. 3d 1013, 1019-20 (1988). Defendant does not argue that the evidence of sentences in comparable cases should be assigned any particular value, let alone be deemed “controlling,” and the majority offers no support for its assertion that this factor would be treated differently. This claim by the majority is merely an incorrect statement that serves only to make the subsequent erroneous conclusion more palatable.
The majority denies that it is misconstruing defendant’s argument and devotes a paragraph to explaining why its characterization of defendant’s argument is accurate. Suffice it to say that the briefs and oral arguments in this case are a matter of public record, and anyone who is interested can find out if it is the majority or the dissent that correctly states defendant’s argument.
One statement in the majority’s characterization of defendant’s argument needs to be clarified. The majority seizes on defense counsel’s statement at oral argument that, if comparative sentencing evidence is presented to a trial court, the court must consider it. What the attorney said at oral argument was that, like any other evidence that is presented to a court, the court should at least look at it, but that the court could give it whatever weight it’s worth, “which could be none.” In other words, defendant concedes that the trial court has the discretion to give the evidence absolutely no weight.
In further explaining why it is not misconstruing defendant’s argument, the majority trumpets in italics that defendant seeks to attack his sentence because it is grossly disparate to sentences imposed in other cases. I am unsure what point the majority is trying to make or how that defeats my argument. Of course defendant is seeking to attack his sentence in this case. Whose sentence, if not his own, would he be attacking? The reason we are considering this appeal is that defendant is seeking to attack his sentence based upon a comparative sentencing argument. The only issue is whether defendant should be allowed to make that argument, not whether the other sentences should control defendant’s sentence.
Finally, even assuming that defendant did argue that courts should be required to engage in comparative sentencing analysis, that does not mean that we could not adopt a discretionary approach. If one party argues black and the other party argues white, we are free to say that the answer is gray. Our responsibility in this case is to state the proper rule for the lower courts, and we are not bound by what either side argues.
The majority next argues that comparative sentencing analysis runs the risk of erroneous conclusions. The majority’s argument here is that comparative sentencing is not an exact science and that a court will never know all of the facts and circumstances of the other cases. Aside from the fact that such an argument goes only to the weight that should be given the information, not to whether it should be considered, the majority’s premise is demonstrably false. Assume a situation in which a first time offender with numerous mitigating factors and no aggravating factors receives the maximum sentence for an offense, while no one else in that circuit, including violent repeat offenders, had ever received the maximum. Would a court really need to know everything about all of those cases to know that the defendant’s sentence was unfair and disproportionate? Under the majority’s rule, a defendant could not even present that evidence to the court.
The majority also argues that comparative sentencing information would be flawed because published appellate opinions represent an incomplete sample that does not include the numerous cases disposed of by unpublished orders. This is a strange argument for the majority to make, given that the defendant in this case relied on Rule 23 orders at the hearing on the motion to reconsider his sentence. One of the main cases defendant compared his to was People v. Estrada, No. 2 — 92—1297 (1994) (unpublished order under Supreme Court Rule 23), in which the defendant committed the same crime in the same county, had substantial aggravating factors, but received a sentence 11 years shorter. The State argues that Rule 23 orders and summary orders cannot be relied on as legal precedent. This argument misses the point because defendant was not relying on the cases for their legal analysis, but as evidence of sentences handed down in similar cases.
Further, comparative sentencing information would not be skewed because the Department of Corrections publishes statistics of sentences in criminal cases and makes this information available to trial and appellate courts to be used in imposing and reviewing sentences.2 See 730 ILCS 5/5 — 5—4.3 (West 1998). Thus, if a court believed that the information presented to it did not fairly represent the range or average of sentences, the court could consult these statistics. The appellate court has referenced these statistics in certain cases in finding that a sentence was excessive. See People v. Weiss, 263 Ill. App. 3d 725, 735-36 (1994); People v. Neither, 230 Ill. App. 3d 546, 551-52 (1992); People v. McCumber, 148 Ill. App. 3d 19, 24-25 (1986). Thus, the majority’s concerns about skewed samples are illusory.
The court also discounts the use of information about sentences from other cases on the grounds that “persons who commit crimes independently are ‘seldom, if ever, similarly situated.’ ” 189 Ill. 2d at 58-59, quoting People v. Palmer, 162 Ill. 2d 465, 491 (1994), quoting People v. Conaway, 101 Ill. App. 3d 202, 204 (1981). This empty assertion is oft-stated but never proved or supported by authority. The fact is that people who commit the same types of crimes very often are similarly situated. They are not identically situated, of course, but different defendants will frequently exhibit similarities upon which they can be compared.
Hundreds of defendants are senténced every day in this state. Although a court considers many specific factors in sentencing a defendant, the most important considerations are generally the crime committed, other trouble the defendant has been in, and the defendant’s rehabilitative potential. For the routine crimes that are committed every day, the judge will have seen countless defendants who are similarly situated. An experienced judge will likely have an idea of what a fair sentence would be, based on the numerous other similar cases that judge has heard.
For instance, when a trial judge is faced with a second-time DUI offender, and the assistant State’s Attorney recommends the typical disposition for a second-time offender and the trial judge agrees, is the court carefully crafting a sentence based on the individual’s circumstances, or is the court giving the defendant the same sentence he gives all other similarly situated defendants?3 The majority offers no support for its bald assertion that people who commit similar crimes are rarely similarly situated.
Trial judges who sentence thousands of defendants cannot be expected to act in a vacuum. See People v. Tye, 141 Ill. 2d 1, 23-24 (1990). Comparative sentencing evidence would merely augment a judge’s own memory of similar cases. Trial judges should not be expected to forget what they did in every other similar case and reinvent the wheel every time a new defendant comes before them.
MAJORITY’S RESPONSE TO THE DISSENT
In responding to the arguments raised in this dissent, the majority appears to unravel its whole opinion. In a stunning reversal in the penultimate paragraph of the analysis section, the majority states that, “Contrary to the assertions of Justice Rathje’s dissent, nothing in this opinion prevents a trial judge, in fashioning a sentence, from considering his or her knowledge of the sentences imposed in other cases.” 189 Ill. 2d at 62. In other words, trial courts can engage in comparative sentencing analysis.
The majority seemingly retreats from the position taken in the rest of the opinion and allows trial courts to consider a limited kind of comparative sentencing information in fashioning a sentence. The majority’s rule is that, as long as the trial court is already aware of the other sentences, it can consider them. However, the parties are not allowed to argue about any sentences of which the judge is not already aware. In other words, the majority sees no problems with comparative sentencing based on the frailties of an individual’s memory, but recoils at the notion of comparative sentencing based upon statistically complete evidence. Not surprisingly, the majority gives no reason for drawing such a distinction.
Furthermore, the majority cannot square this approach with the positions taken in the rest of the opinion. The majority holds that a court must make its sentencing determination on the particular facts of each case. If that is true, then the court should not be considering sentences it imposed in other cases. Also, the majority endorses the view that defendants are rarely, if ever, similarly situated. Again, if that is true, the court should not be considering sentences it imposed in other cases. Finally, the problems the majority believes are inherent in comparative sentencing would also be present if judges are allowed to consider sentences they imposed in other cases: judges would be relying on incomplete evidence, and the effective maximum sentence for an offense could be reduced to well below that set by statute if the judge felt compelled to follow other sentences.
CONCLUSION
The problem of similarly situated defendants receiving widely disparate sentences is a vexing one, and I do not profess to have an answer that will eradicate the problem. I do, however, work from the assumption that in a fair and equitable criminal justice system, similarly situated defendants should not receive grossly disparate sentences. The majority never states whether it agrees with this sentiment. One very small step this court could take toward achieving that goal would be to allow trial courts, in their discretion, to consider evidence of sentences in similar cases and to allow reviewing courts to consider a defendant’s argument that his sentence is out of line with sentences imposed in similar cases. Trial and appellate courts should also have discretion to consider arguments from the State that, based on sentences given other defendants, a particular defendant deserves a lengthy sentence. Courts would not have to assign any particular weight to these arguments and could use the information as they see fit.
The majority never considers the viability of such an approach. Instead, the majority forbids trial courts from even hearing evidence of sentences in other cases and forbids reviewing courts from hearing arguments about sentences in other cases. This approach is simply an overreaction to an argument that defendant never made, namely that courts should be required to engage in comparative sentencing review and that sentences in other cases will control the sentence in the case before the court.
Perhaps the most interesting case to read side-by-side with the majority opinion is People v. Tye, 141 Ill. 2d 1 (1990). In Tye, the trial court made the following comment in sentencing the defendant to death:
“In evaluating your acts I, as a jury, have a right, have a right to draw upon my experiences in life to determine how serious your crime was. And I’ll state for the record that for a period of seven years I was a homicide detective in the City of Chicago; and I investigated numerous child beatings. And I spent a total [of] 25 years in the criminal justice system. And I have never seen a child beaten with such viciousness, repeatedly beaten over an hour to the extent her death was caused.” Tye, 141 Ill. 2d at 19-20.
The defendant argued that the trial judge improperly relied upon his experiences as a homicide detective and his knowledge of other child abuse cases in sentencing the defendant to death. This court rejected defendant’s argument, holding that it was appropriate for a sentencer to rely upon his or her own background and experience in life and that a judge should not have to make such decisions in a vacuum. Tye, 141 Ill. 2d at 23-24.
An interesting assignment would be to give a law student a copy of Tye and the majority opinion in this case and ask what principle governs the Illinois Supreme Court’s jurisprudence concerning other cases a judge can consider in fashioning a sentence. Tye tells the student that it is perfectly appropriate and permissible for the trial judge to rely sua sponte upon a handful of cases from years ago, of which the judge has personal knowledge and the parties know nothing, in sentencing a defendant to death. Fern, however, tells the student that both the defendant and the State are absolutely forbidden to argue in favor of a particular sentence, based on statistically complete evidence of sentences in other similar cases that are a matter of public record. This hypothetical assignment is interesting not because of the question it asks but because of the answer it yields: there is no principle at work in these cases. Accordingly, I dissent.
In fact, the majority must be holding that courts are forbidden to use these statistics in imposing and reviewing sentences. If courts are allowed to use these statistics in imposing and reviewing sentences, then they are necessarily engaging in comparative sentencing analysis.
Although, as stated earlier, the apparent result of today’s decision is that trial and appellate courts will be forbidden from consulting these statistics.
As suggested earlier, this common scenario could very well amount to reversible error under the majority’s rule.