dissenting:
Although the majority finds that the enhanced sentencing scheme for attempted first degree murder is not inherently unconstitutional, it nonetheless concludes that the statute is unconstitutional because it violates the proportionate penalties clause of the Illinois Constitution of 1970. Specifically, the majority finds that attempted first degree murder carries a more severe penalty than a similar offense, second degree murder, even though attempted first degree murder creates a less serious threat to the public health and safety. I believe the majority erred in comparing attempted first degree murder with second degree murder for purposes of the proportionate penalties analysis. Accordingly, I respectfully dissent from the majority opinion.
As noted, the analysis used by the majority in finding that the statute violates the proportionate penalties clause is whether the described offense, when compared with a similar offense, carries a more severe penalty even though the proscribed conduct creates a less serious threat to the public health and safety. This analysis applies a two-step, cross-comparison analysis. People v. Hill, 199 Ill. 2d 440, 454 (2002). The first step considers whether the purposes of the compared offenses are distinct such that comparative proportionality review is not appropriate. Hill, 199 Ill. 2d at 454. If the purposes are deemed related, the second step considers whether the offense with the harsher penalty is more serious than the offense with the less severe penalty. Hill, 199 Ill. 2d at 454.
The majority does not address the first step of the proportionate penalties analysis: whether the compared offenses share a common statutory purpose. Instead, the majority simply addresses the second step of the proportionate penalties analysis and concludes that the offense with the harsher penalty is less serious than the offense with the less severe penalty. The majority’s failure to address the first step is significant, because the purposes of the compared offenses are distinct. Absent a shared statutory purpose, there is no need to reach the second step of the analysis.
That the compared offenses do not share a common statutory purpose is evident from the language of the respective statutes. A person commits an attempt when he acts “with intent to commit a specific offense.” 720 ILCS 5/8 — 4(a) (West 2000). The relevant portion of the first degree murder statute provides that a person commits first degree murder when he “kills an individual without lawful justification” and in performing the acts that cause the death, he “intends to kill *** that individual or another.” 720 ILCS 5/9 — 1(a) (West 2000). In contrast, the second degree murder statute provides that a person commits second degree murder when he commits the offense of first degree murder and one of two mitigating circumstances are present. 720 ILCS 5/9— 2(a) (West 2000). Those mitigating circumstances are where the defendant is “acting under a sudden and intense passion resulting from serious provocation by the individual killed or another whom the offender endeavors to kill, but he negligently or accidentally causes the death of the individual killed” (720 ILCS 5/9 — 2(a)(1) (West 2000)) or where at the time of the killing the defendant “believes the circumstances to be such that, if they existed, would justify or exonerate the killing” (720 ILCS 5/9 — 2(a)(2) (West 2000)).
The attempt to commit first degree murder statute, then, is directed at those intending, albeit unsuccessfully, to kill without lawful justification. In contrast, the second degree murder statute is directed against those who, although perhaps intending to kill and succeeding in doing so, do not intend to kill unlawfully. There is a significant difference between the conduct at issue in each statute, particularly with regard to the mind-set of the perpetrator. Because the two statutes are directed at entirely different mental states and conduct, the two statutes do not share a common statutory purpose. Consequently, in light of the distinct purposes of the compared offenses, comparative proportionality review of those offenses is not appropriate.
I also disagree with the majority’s comparison of attempted first degree murder with the crime of second degree murder because I believe the majority is essentially resurrecting the offense of attempted second degree murder, an offense that this court declined to recognize in People v. Lopez, 166 Ill. 2d 441 (1995). In Lopez, we noted that attempted first degree murder requires the intent to kill without lawful justification. Lopez, 166 Ill. 2d at 445. We observed in Lopez that under the prior voluntary manslaughter statute, if a person attempted to kill someone but believed the circumstances were such that if they existed would justify the killing, he did not intend to kill without lawful justification and thus did not commit a criminal offense. Lopez, 166 Ill. 2d at 448. It followed, then, that “ ‘[t]he requirement of the attempt statute is not that there be an intent to kill, but that there be an intent to kill without lawful justification.’ ” (Emphasis added.) Lopez, 166 Ill. 2d at 446, quoting People v. Reagan, 99 Ill. 2d 238, 240 (1983). Consequently, we concluded in Lopez there could be no crime of attempted second degree murder because a defendant could not intend to kill without lawful justification and also intend the presence of a mitigating circumstance such as a sudden and intense passion due to serious provocation or the unreasonable belief in the need for the use of deadly force. Lopez, 166 Ill. 2d at 448-49.
Nonetheless, the majority finds that the statute here violates the proportionate penalties clause because a defendant charged with attempted first degree murder will never have the opportunity to present mitigating evidence which would be a defense to a charge of second degree murder. 203 Ill. 2d at 491. The majority therefore concludes that persons whose actions are identical (except that one victim dies and one lives) may be exposed to vastly disparate sentences. 203 Ill. 2d at 492. I disagree. Based upon Lopez, a defendant charged with attempted first degree murder can raise the mitigating factors set forth in the second degree murder statute to negate a charge that he intended to unlawfully kill. Accordingly, a defendant charged with attempted first degree murder can claim either that he believed he was acting in self-defense, and thus intended to kill but not to kill unlawfully, or that he acted negligently or accidentally and thus did not intend to kill at all. The defendant can argue that, absent an intent to kill without lawful justification, he did not commit attempted first degree murder. Such a defendant would not be raising attempted second degree murder, but would simply be denying altogether that he committed attempted first degree murder. Consequently, I disagree with the majority’s conclusion that “the enhanced penalties apply without regard to the defendant’s ability to prove the existence of mitigating circumstances.” 203 Ill. 2d at 489.
Because I believe the majority erred in comparing attempt to commit first degree murder with second degree murder for purposes of the proportionate penalties analysis, I dissent from the majority opinion. I would reverse the circuit court’s judgment declaring the “15/ 20/25 to life” portion of the attempt statute unconstitutional.
JUSTICE KILBRIDE joins in this dissent.