People v. Watters

• Decision Date: 09 July 1992
• Docket Number: No. 5-90-0719,5-90-0719
• Citation: 595 N.E.2d 1369,231 Ill.App.3d 370
• Parties: , 172 Ill.Dec. 699 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Bryan WATTERS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1369

595 N.E.2d 1369

231 Ill.App.3d 370, 172 Ill.Dec. 699

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Bryan WATTERS, Defendant-Appellant.

No. 5-90-0719.

Appellate Court of Illinois Fifth District.

July 9, 1992.

Clyde L. Kuehn, Kuehn & Trentman, Belleville, for defendant-appellant.

Robert Haida, State's Atty., Belleville, Norbert J. Goetten, Director, Stephen E. Norris, Deputy Director, Debra A. Buchman, Staff Atty., Office of the State's Attys. Appellate Prosecutor, Mt. Vernon, for plaintiff-appellee.

Justice CHAPMAN delivered the opinion of the court:

"Lennie said, 'Tell how it's gonna be.'

George had been listening to the distant sounds. For a moment he was business-like. 'Look acrost the river, Lennie, and I'll tell you so you can almost see it.'

* * * * * * 'Go on,' said Lennie. 'How's it gonna be. We gonna get a little place.'

'We'll have a cow,' said George. 'An' we'll have maybe a pig an' chickens ... an' down the flat we'll have a ... little piece alfalfa--'

'For the rabbits,' Lennie shouted.

'For the rabbits,' George repeated.

'And I get to tend the rabbits.'

'An' you get to tend the rabbits.'

Lennie giggled with happiness, 'An' live on the fatta the lan'.'

Lennie turned his head.

'No, Lennie. Look down there acrost the river, like you can almost see the place.'

* * * * * *

Lennie said, 'I thought you was mad at me, George.'

'No,' said George. 'No, Lennie. I ain't mad. I never been mad, an' I ain't now. That's a thing I want ya to know.'

* * * * * *

Lennie begged, 'Let's do it now. Let's get that place now.'

'Sure, right now. I gotta. We gotta.'

And George raised the gun and steadied it, and he brought the muzzle of it close to the back of Lennie's head. The hand shook violently, but his face set and his hand steadied. He pulled the trigger. The crash of the shot rolled up the hills and rolled down again. Lennie jarred, and then settled slowly forward to the sand, and he lay without quivering." ¹

* * * * * *

* * * * * *

Steinbeck's story is a familiar one; Lennie with his giant's strength and damaged brain; George, small and sharp, but caring for Lennie and their dream of a place of their own where Lennie could care for the rabbits. Lennie's brain did not differentiate between the death of the little mice he petted too hard and the broken neck of Curley's wife with the long blond curls. George chose not to let Lennie die at the hands of the mob led by Curley. George's sentence was approved by Slim, the jerkline skinner, in a few simple words, "You hadda George. I swear you hadda."

In this case we are asked to review a minimum six-year sentence on a Class X crime. The trial court specifically found that the defendant would be eligible for probation and stated, "Because of all the factors that I have enumerated * * * the court should grant * * * leniency as much as can be given * * * ", but he concluded that mandatory sentencing provisions of section 5-5-3(c)(2)(C) of the Unified Code of Corrections (Ill.Rev.Stat.1989, ch. 38, par. 1005-5-3(c)(2)(C)) precluded a sentence of probation. We reverse and remand.

While examining the law in this case we are drawn to review the history of punishment in general and the development of probation as a viable concept in our system of penology.

"Punishment" has been defined in terms of five elements:

"(i) It must involve pain or other consequences normally considered unpleasant.

(ii) It must be for an offence against legal rules.

(iii) It must be of an actual or supposed offender for his offence.

(iv) It must be intentionally administered by human beings other than the offender.

(v) It must be imposed and administered by an authority constituted by a legal system against which the offence is committed." H.L.A. Hart, Punishment and the Elimination of Responsibility 5 (1968).

Corporal punishment and imprisonment were the sentences of choice in early America for those convicted of crime. Instruments such as the stocks, pillory, scarlet letter, and other devices for torture and debasement were used regularly. (A. Wood & J. Waite, Crime and Its Treatment 462-63 (1941).) The Quakers were instrumental in implementing reforms in the early criminal code. For instance in 1682, under the guidance of William Penn, "imprisonment at hard labor in 'houses of correction' was substituted for death for all crimes except murder, and for the barbarous corporal punishments." (Crime and Its Treatment, at 492.) When Quaker rule came to an end in 1718, their reform efforts were curtailed. Accounts are told of the institution of 13 capital offenses, with whipping, branding and mutilation for lesser crimes. In the late 18th century, the ideas of humane penology idealized by William Penn were adopted by "The Philadelphia Society for Relieving Distressed Prisoners", which is said to be the first prison association in America. (Crime and Its Treatment, at 493.) The society advocated the separation of hardened criminals from first offenders, chapel services for prisoners, the separation of witnesses awaiting trial from convicts, the separation of the sexes in prison, and other reforms. (Crime and Its Treatment, at 494.) Efforts at improvement were slow. Massachusetts was the first state to enact a provision for probation in 1878. (Crime and Its Treatment, at 632.) During probation's development as a recognized sentencing alternative, the United States Supreme Court opined, "Probation is the attempted saving of a man who has taken one wrong step, and whom the judge thinks to be a brand who can be plucked from the burning at the time of the imposition of sentence." (United States v. Murray (1928), 275 U.S. 347, 358, 48 S.Ct. 146, 149, 72 L.Ed. 309.) Probation involves the supervision of the convicted offender in the community in lieu of his having to serve a sentence in a penal institution. (Crime and Its Treatment, at 630.) By 1938, statutes authorizing probation for adults had been enacted in 37 states. Crime and Its Treatment, at 633.

That the punishment should fit the offender and not merely the crime became the prevalent philosophy of penology.

"The belief no longer prevails that every offense in a like category calls for an identical punishment without regard to the past life and habits of a particular offender. This whole country has traveled far from the period in which the death sentence was an automatic and commonplace result of convictions--even for offenses today deemed trivial. Today's philosophy of individualizing sentences makes sharp distinctions for example between first and repeated offenders. Indeterminate sentences, the ultimate termination of which are sometimes decided by nonjudicial agencies have to a large extent taken the place of the old rigidly fixed punishments. The practice of probation which relies heavily on non-judicial implementation has been accepted as a wise policy." (Williams v. New York (1949), 337 U.S. 241, 247-48, 69 S.Ct. 1079, 1083-84, 93 L.Ed. 1337, 1342-43.)

Today the concept of individualized sentencing treatment is an important factor in our system of penology. People v. Boclair (1989), 129 Ill.2d 458, 494, 136 Ill.Dec. 29, 45, 544 N.E.2d 715, 731; Lockett v. Ohio (1978), 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973, 990.

While there has been some recognition of the benefits of the individualization of sentencing, our society is only beginning to understand the plight of the mentally retarded.

"The more severely retarded have often been warehoused because traditional prejudgments have left their potential unrecognized * * *. Even today many severely retarded persons are placed in remote state institutions where they receive mere custodial care." (Fizzo, Beyond Youngberg: Protecting the Fundamental Rights of the Mentally Retarded, 51 Fordham L.Rev. 1064, 1064 n. 7 (1983).)

What is done to offenders against custom or law, and why it is done, are aspects of the state of culture of a given social group. (Crime and Its Treatment, at 445.) Hopefully we have come further than the summary disposition of mentally disabled criminal defendants like Steinbeck's Lennie. J. Steinbeck, Of Mice and Men (1937).

Defendant Bryan Watters appeals his sentence of imprisonment from a judgment of guilty but mentally ill on a charge of aggravated criminal sexual assault, a Class X felony. He contends that, under the circumstances of his case, the mandatory prison provisions for Class X offenses should not apply.

On or about September 16, 1988, Bryan Watters and three neighbor children engaged in various sexual acts and photographed one another in the process of such conduct. Defendant took the film to Smith's Pharmacy for development, the store called the police department, and defendant was indicted on three counts of child pornography (Ill.Rev.Stat.1987, ch. 38, par. 11-20.1(a)(4)) and three counts of aggravated criminal sexual assault (Ill.Rev.Stat.1987, ch. 38, par. 12-14(b)(1)).

The court conducted a hearing to determine defendant's fitness to stand trial, and on January 5, 1990, the court entered an order:

"that despite the defendant's diagnosis of [m]ild [m]ental [r]etardation, he is able to understand the nature and purpose of the proceedings against him, and can, within a limited range, assist in his defense, even though he may not be able to plan a defense or thoroughly understand all of the complexities of a defense or thoroughly understand all of the complexities of a trial or possible legal issues or theories that may be raised."

The court further ordered that the following special procedures would be observed during the course of the trial:

"1. The Court may limit the State in asking leading questions of the defendant in cross[-]examination should defendant elect to testify.

2. Defense counsel shall be allowed sufficient recesses during the course of the trial to confer with defendant concerning defendant's ability to understand each phase of the trial. Only at defense counsel's request,...