Separation of Powers and the Illinois Habitual Offender Act Who Sentences the Habitual Criminal?

• NCJ Number: 88237
• Journal: Loyola University Law Journal Volume: 13 Issue: 4 Dated: (Summer 1982) Pages: 1033-1053
• Author(s): T J Moran
• Date Published: 1982
• Length: 21 pages
• Publication Format: Article
• Language: English
• Country: United States of America
• Note: *This document is currently unavailable from NCJRS.

Annotation

This examination of the Illinois Habitual Offender Act concludes that the act violates separation of powers as a result of giving the prosecuting State's attorney, an officer of the executive branch, sole discretion to decide whether to invoke the act's sentence enhancing provisions.

Abstract

The exercise of that discretion removes sentencing power from the judge, who is required by the statute to impose a sentence of natural life. However, criminal sentencing has been held to be a purely judicial function. The law provides for mandatory life sentences for defendants convicted three or more times of forcible felonies. Each felony conviction must have arisen from a separate transaction, and the second and third offenses must each have been committed after a prior forcible felony conviction. The Illinois Constitution provides for the separation of the legislative, executive, and judicial branches of the government. In various decisions focusing on whether an exercise of executive power infringes on the judicial sentencing function, the Illinois Supreme Court has considered two factors to be of vital importance: the time when the power was exercised and the effect which the exercise of such power has on the sentence ultimately imposed on a convicted defendant. Analysis of the Habitual Offender Act using either or both of these two factors makes it clear that the law violates the separation of powers clause in the Illinois Constitution. The statute gives the prosecutor direct and absolute control over the judicial function of criminal sentencing. Since Illinois courts will undoubtedly eventually strike down the section of the law which violates the constitution, the Illinois legislature should amend the law. The amendments should change the time when the decision to invoke the statute is made and should leave some sentencing discretion with the court. Footnotes are provided. (Author summary modified)