APPEAL from the Circuit Court of Will County; the Hon. MICHAEL
A. ORENIC, Judge, presiding.
MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:
On September 6, 1973, a disturbance took place at Stateville Penitentiary in which several guards were assaulted and taken hostage and an entire cellblock was held under prisoner control. As a result of the disturbance the Will County grand jury returned indictments against 11 inmates. All 11 prisoners were tried together by a jury in the Circuit Court of Will County, and five were found guilty. The present case involves the appeals of three of the five prisoners who were convicted. James Lewis was found guilty of aggravated battery and a violation of section 3-6-4(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1975, ch. 38, par. 1003-6-4(a)), which relates to the enforcement of prison discipline. He was sentenced to concurrent terms of one to two years on the battery conviction and two to six years for the Code violation. Jesse Thompson and Ford Ransom were also found guilty of violating section 3-6-4(a). Thompson was sentenced to a term of one to three years and Ransom to a term of two to six years. All sentences were to run consecutively with the sentences the men were currently serving.
1, 2 Defendants' first contention on appeal is that section 3-6-4(a) is vague and indefinite and, therefore, violative of the due process clauses of the United States and Illinois Constitutions. The challenged section provides:
"§ 3-6-4(a). Enforcement of Discipline Escape.) (a) A committed person who escapes or attempts to escape from an institution or facility of the Adult Division, or escapes or attempts to escape while in the custody of an employee of the Adult Division, or holds or participates in the holding of any person as a hostage by force, threat or violence, while participating in any disturbance, demonstration or riot, causes, directs or participates in the destruction of any property is guilty of a Class 2 felony." (Ill. Rev. Stat. 1975, ch. 38, par. 1003-6-4(a).)
According to the defendants, the language of this statute fails to adequately specify the conduct it proscribes and fails to provide an ascertainable standard for its enforcement. Defendants object particularly to the use of the words "participation" and "disturbance," claiming that these words are so overbroad as to allow application of the statute to wholly innocent acts.
"The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed." (United States v. Harriss (1954), 347 U.S. 612, 617, 98 L.Ed. 989, 996, 74 S.Ct. 808, 812.)
However, impossible standards of specificity are not required. (People v. Schwartz (1976), 64 Ill.2d 275, 356 N.E.2d 8.) As Justice Marshall so aptly stated, "Condemned to the use of words, we can never expect mathematical certainty from our language." (Grayned v. City of Rockford (1972), 408 U.S. 104, 110, 33 L.Ed.2d 222, 228-29, 92 S.Ct. 2294, 2300.) The legislature is not required to particularize all of the myriad kinds of conduct that may fall within a statute and the fact that there may be borderline cases wherein a degree of uncertainty exists does not render the statute unconstitutional as to conduct about which no uncertainty exists. (People v. Witzkowski (1972), 53 Ill.2d 216, 290 N.E.2d 236; People v. Vandiver (1971), 51 Ill.2d 525, 283 N.E.2d 681.) In deciding whether a statute meets due process requirements a court must consider not only the language of the statute itself, but also the legislative objective and the evil the statute seeks to remedy. Schwartz.
We believe section 3-6-4(a) meets due process standards. The legislative objective in enacting the statute is clear. The statute, as applicable to the case at bar, is intended to insure both the orderly administration of correctional centers and the safety of persons therein by making it a crime for inmates to participate in the holding of hostages while engaging in a prison riot or disturbance. Although the words "participate" and "disturbance" might be considered too vague if found in a general "breach of the peace" ordinance, they are sufficiently precise in a statute written specifically for the prison context, where the prohibited disturbances are easily measured by their impact on the normal activities of the prison. See Grayned, 408 U.S. 104, 111, 33 L.Ed.2d 222, 229, 92 S.Ct. 2294, 2301.
Moreover, there is no question that defendants' conduct in this case fell within the proper scope of the statute. Defendants suggest that an inmate who left his cell solely to observe the events could be found to be a participant in a disturbance under the statute. But, even a casual perusal of the record in this case clearly indicates that such was not the conduct of these defendants. On the contrary, the record indicates that they were among the most active participants in both the holding of the hostages and the disturbance as a whole. "We will not * * * conjecture as to the statute's application to situations less clear." Vandiver, 51 Ill.2d 525, 530, 283 N.E.2d 681, 684.
In sum, we conclude that section 3-6-4(a) is sufficiently definite to give a person of ordinary intelligence fair notice of what conduct is proscribed. The statute does not offend due process requirements, and it was properly applied to the present defendants whose conduct clearly fell within its proscription.
Defendants next argue that the trial court erred in denying, without an evidentiary hearing, their pretrial motion to dismiss the indictments on the grounds of discriminatory prosecution. In their motion defendants claimed they were improperly selected for prosecution based on their race, and their exercise of their first amendment rights of free speech and free association. Included in the motion were statistics indicating that a large number of inmates participated in the September 6 disturbance and received internal disciplinary "tickets" as a result of that participation, yet were not indicted. The motion noted that only one of the 11 inmates indicted was white and goes on to allege that several of the defendants were indicted solely because of their leadership in certain black prisoner groups or solely because they participated in the grievance committee and press conference which took place on the day of the disturbance. Defendants contend these statistics and allegations established a prima facie case of discrimination and entitled them to an evidentiary hearing. We do not agree.
3, 4 It is a fundamental tenet of criminal law that the decision whether or not to prosecute an individual rests in the discretion of the prosecutor. (Oyler v. Boles (1962), 368 U.S. 448, 456, 7 L.Ed.2d 446, 453, 82 S.Ct. 501, 506.) "[T]he conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation." In fact, the exercise of some selectivity in enforcement is a necessary prerequisite of any modern system of criminal justice. Nevertheless, prosecutorial discretion is limited by constitutional protections. The State may not deliberately base its decision to prosecute an individual on the constitutionally protected grounds of race, religion, or the exercise of first amendment rights. (United States v. Falk (7th Cir. 1973), 479 F.2d 616; United States v. Berrigan (3d Cir. 1973), 482 F.2d 171; United States v. Steele (9th Cir. 1972), 461 F.2d 1148.) However, there is a presumption that any prosecution for violation of the criminal law is undertaken in good faith. (Falk.) To overcome this presumption and to justify the holding of an evidentiary hearing, the burden is on the defendant to present sufficient facts to make out at least a prima facie case of improper discrimination. United States v. Scott (9th Cir. 1975), 521 F.2d 1188.
"This requires that appellant first demonstrate that others similarly situated generally have not been prosecuted for conduct similar to that for which he was prosecuted. Secondly, appellant must show that his selection was based on an impermissible ground such as race, religion or his exercise of his first amendment right to free speech." Scott, 521 F.2d 1188, 1195.
5 In the present case defendants' motion satisfied the first requirement by stating facts which indicated that other inmates who participated in the September 6 disturbance were not criminally prosecuted for their conduct. Defendants' motion did not, however, meet the second requirement. Here, there was no showing that the selection for prosecution was deliberately based upon an unjustifiable standard such as race, religion or other arbitrary classification. Included in the motion were general assertions such as, "Several of the defendants were indicted solely because of their membership and leadership in the Black P Stone Nation and the Disciples," and "Several of the defendants were indicted solely because of their work in formulating a list of grievances." But the motion did not include sufficient facts to make out a prima facie case in support of these general allegations. Defendants claim they were selected for prosecution based on their race. However, the only fact cited in support of this claim is the fact that only one of the eleven defendants was white. This is clearly insufficient to establish a case of racial discrimination, especially in light of the fact that the great ...