The due process issue raised by this petition apparently is
one of first impression which has not been considered by any
federal court sitting in Illinois. Cf. United States ex rel.
Hudson v. DeRobertis, No. 82-4048 (N.D.Ill. Feb. 7, 1983) (in
which the petitioner did not challenge the constitutionality of
his extended sentence but argued that the trial judge abused
his discretion in sentencing the petitioner to an extended term
Peeples is not challenging the length of his imprisonment.
He is not arguing that his 80 year sentence is so grossly
disproportionate to his crime that the sentence is cruel and
unusual punishment proscribed by the Eighth and Fourteenth
Amendments. Cf. Hutto v. Davis, 454 U.S. 370, 102 S.Ct. 703, 70
L.Ed.2d 556 (1982) (per curiam); Rummel v. Estelle,
445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980). Indeed, if the
statute provided that the penalty for murder was a term of
imprisonment between 20 and 80 years, the petitioner could not
challenge his 80 year sentence as violative of the Eighth
Amendment. The United States Supreme Court has never held a
sentence for a term of years within statutory limits to be, by
itself, cruel and unusual punishment. See Hutto v. Davis, 454
U.S. at 372, 102 S.Ct. at 704.
Peeples is challenging the Illinois statute as violative of
the Fourteenth Amendment due process clause. He claims that
the statute's vagueness permits the arbitrary and capricious
enforcement of its provisions and that the statute violates
the principles announced in Godfrey v. Georgia, 446 U.S. 420,
100 S.Ct. 1759, 64 L.Ed.2d 398 (1980).
Godfrey v. Georgia dealt with the imposition of a death
sentence by a state court, and a sharp distinction may be drawn
between the imposition of a death sentence and the imposition
of an extended term of imprisonment. In Hutto v. Davis, the
Supreme Court analyzed its decision in Rummel v. Estelle,
445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980), and
distinguished between death and punishments which differ from
each other only in duration. Hutto v. Davis, 454 U.S. at 373,
102 S.Ct. at 704-705. Hutto v. Davis and Rummel v.
Estelle dealt with Eighth Amendment violations, however, and
not with assertions of vagueness under the due process clause
of the Fourteenth Amendment.
To assess adequately the claim that the statute's vagueness
allows the arbitrary and capricious imposition of an extended
term of imprisonment, three decisions need discussion, namely,
Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d
398 (1980); Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49
L.Ed.2d 859 (1976); and Proffitt v. Florida, 428 U.S. 242, 96
S.Ct. 2960, 49 L.Ed.2d 913 (1976).
In Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64
L.Ed.2d 398 (1980) (plurality),*fn1 the Supreme Court dealt
with a Georgia statute which provided that a person convicted
of murder could be sentenced to death if the jury found beyond
a reasonable doubt that the offense "was outrageously or
wantonly vile, horrible or inhuman in that it involved torture,
depravity of mind, or an aggravated battery to the victim." Id.
at 422, 100 S.Ct. at 1762. The Court determined that the
Georgia Supreme Court had adopted such a broad and vague
construction of the statute that, as applied to the petitioner,
the statute violated the Eighth and Fourteenth Amendments to
the United States Constitution. Id. at 432-33, 100 S.Ct. at
In Godfrey v. Georgia, the petitioner had been convicted of
murder and sentenced to die by a Georgia jury. The evidence
at trial demonstrated that the petitioner's offense was indeed
horrible. After a domestic quarrel, the petitioner killed his
wife and his mother-in-law and injured his daughter.
Nonetheless, the Court reaffirmed its prior holding that the
penalty of death could not be imposed under a sentencing
procedure that created a substantial risk that the punishment
would be inflicted in an arbitrary and capricious manner.
Id. at 427, 100 S.Ct. at 1764. Basically, the Court was
concerned that the state statute allowing the imposition of the
death penalty provided no objective criteria for the imposition
of the penalty. The Court noted that while the statute had been
upheld on its face in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct.
2909, 49 L.Ed.2d 859 (1976), at that time the Georgia courts
had provided objective criteria for applying the death penalty.
See generally Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726,
33 L.Ed.2d 346 (1972) (per curiam). Specifically, the Georgia
courts had applied the death penalty only if the offense had
involved some type of torture or aggravated battery. The Court
considered the criteria of "torture" or of "an aggravated
battery" as objective criteria. 446 U.S. at 426, 430-32, 100
S.Ct. at 1763, 1765-67.
In Godfrey v. Georgia, however, no such objective criteria
were evident. No evidence was produced at trial that showed
that the petitioner had in any way tortured his victims or had
committed an aggravated battery. Consequently, the Court could
not determine why the death penalty had been imposed in the
Godfrey case and not in other cases. Id. at 433, 100 S.Ct. at
Godfrey v. Georgia reaffirmed the established guidelines for
imposing the death penalty. First, the state statute and the
state courts must provide clear and objective standards that
give specific and detailed guidance and make rationally
reviewable the process for imposing capital punishment. 446
U.S. at 428, 100 S.Ct. at 1764. The state statute and the state
courts must provide a meaningful basis for distinguishing the
few cases in which the penalty is imposed from the many cases
in which it is not. Id. In short, the United States Supreme
Court was concerned that juries might impose the death sentence
merely because they were shocked and outraged by the vile
nature of the defendant's actions. As the Court noted, almost
all murders are vile and shocking and a jury must not be
allowed unguided and standardless discretion when considering
imposition of the death penalty. Id. at 429, 100 S.Ct. at 1765.
In Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49
L.Ed.2d 913 (1976), the Court dealt with the constitutionality
of a Florida statute providing for capital punishment. The
Court determined that imposing the death sentence for murder
under Florida law did not violate the Eighth and Fourteenth
In Florida if the defendant is found guilty of a capital
offense, a separate evidentiary hearing is held before the
judge and jury to determine the sentence. During this
evidentiary hearing evidence is presented which must include
matters relating to certain legislatively specified
aggravating and mitigating circumstances. At the conclusion of
the hearing the jury is directed to determine whether
sufficient mitigating circumstances exist which outweigh the
aggravating circumstances of the crime and then determine
whether based on these considerations the defendant should be
sentenced to life imprisonment or to death. Id. at 248, 96
S.Ct. at 2964-65. Under the Florida procedure the jury's
verdict is advisory only. The actual sentence is determined by
the trial judge. Id. at 249, 96 S.Ct. at 2965.
The trial judge also must weigh the statutory aggravating
and mitigating circumstances. If the trial court decides to
impose a sentence of death, the court must set forth in
writing its findings upon which the determination is based.
Specifically, the trial judge must weigh eight aggravating
factors against seven mitigating factors to determine whether
the death penalty should be imposed. Id. at 251, 96 S.Ct. at
2966. This determination requires the trial judge to focus on
the circumstances of the
crime and the character of the individual defendant.
The trial judge must consider whether the defendant had a
prior criminal record, whether the defendant acted under
duress or under the influence of extreme mental or emotional
disturbance, whether the defendant's role in the crime was
that of a minor accomplice, and whether the defendant's youth
argues in favor of a more lenient sentence than might
otherwise be imposed. The trial judge must also determine
whether the crime was committed in the course of one of
several enumerated felonies, whether it was committed for
pecuniary gain, whether it was committed to assist in an
escape from custody or to prevent a lawful arrest and whether
the crime was especially heinous, atrocious, or cruel.
Proffitt v. Florida noted a basic difference between the
Florida system and the Georgia system: in Florida the sentence
is determined by the trial judge; in Georgia the sentence is
determined by the jury. Id. at 252, 96 S.Ct. at 2966. The Court
it would appear that judicial sentencing should
lead, if anything, to even greater consistency in
the imposition at the trial court level of
capital punishment, since a trial judge is more
experienced in sentencing than a jury, and
therefore is better able to impose sentences
similar to those imposed in analogous cases.
Id. at 252, 96 S.Ct. at 2966 (citation omitted). The United
States Supreme Court determined that the Florida sentencing
procedure assured that the death penalty would not be imposed
in an arbitrary or capricious manner.
Under the Florida procedure trial judges were given specific
and detailed guidance to assist them in deciding what sentence
to impose. Id. at 253, 96 S.Ct. at 2967. To the extent that any
risk of arbitrariness or capriciousness existed, it was
minimized by Florida's appellate review system under which the
evidence of the aggravating and mitigating factors was reviewed
and reweighed by the Supreme Court of Florida. Id. at 253, 96
S.Ct. at 2967. In Florida, the Court determined that it was no
longer true that no meaningful basis existed for distinguishing
the few cases in which the death penalty was imposed from the
many cases in which it was not. Id. at 253, 96 S.Ct. at 2967.
The Florida statutory system satisfied the Eighth and
Proffitt v. Florida also dealt with the claims that the
enumerated aggravating and mitigating factors were so vague and
broad that they allowed for the arbitrary and capricious
imposition of the death penalty. Specifically, Proffitt v.
Florida attacked the eighth and third statutory aggravating
factors which authorize imposing the death penalty if the crime
was "especially heinous, atrocious, or cruel" or if "the
defendant knowingly created a great risk of death to many
persons." Id. at 255, 96 S.Ct. at 2968. The Supreme Court
analyzed these statutory aggravating factors in light of the
construction placed on these words by the Supreme Court of
The state supreme court had previously indicated that the
eighth statutory provision, relating to "especially heinous,
atrocious, or cruel" behavior, was directed only at "the
conscienceless or pitiless crime which is unnecessarily
torturous to the victim." Id. at 255, 96 S.Ct. at 2968
(citations omitted). The Supreme Court concluded that it could
not state that this provision provided inadequate guidance to
the trial court. Neither was the third aggravating factor —
"the defendant knowingly created a great risk of death to many
persons" — impermissibly vague. Id. at 256, 96 S.Ct. at 2968.
There is some inconsistency between Godfrey v. Georgia and
Proffitt v. Florida. In Proffitt v. Florida, the eighth
aggravating factor providing for the imposition of the death
penalty if the crime was "especially heinous, atrocious, or
cruel" was not unconstitutionally vague on its face. In Godfrey
v. Georgia, the language providing for the death penalty if
the crime was "outrageously or wantonly vile, horrible or
inhuman in that it involved torture, depravity of mind, or an
aggravated battery to the victim," was unconstitutionally vague
as applied to
the petitioner and allowed for the arbitrary and capricious
imposition of capital punishment.
Two possible explanations exist. First, in Godfrey v.
Georgia, the Supreme Court was clarifying and further
explaining its decisions in Gregg v. Georgia and Proffitt v.
Florida. Second, the inconsistency between Proffitt v. Florida
and Godfrey v. Georgia may be explained by the fact that the
judge imposes the sentence in Florida but the jury imposes the
sentence in Georgia. Both explanations have merit.
Godfrey v. Georgia did elucidate the principles established
in Gregg v. Georgia and Proffitt v. Florida. Furthermore, the
Court certainly drew a distinction between a state sentencing
statute in which the sentencing authority is the state court
judge rather than a jury of inexperienced lay persons.
Under the Illinois statute here, the sentencing authority is
the trial judge. The issue presented then is whether that fact
alone should preclude the application of the principles
established in Godfrey v. Georgia to this case. In short, does
the Fourteenth Amendment permit a state court judge to impose
an extended term of imprisonment under a state sentencing
provision which provides no clear, specific, and objective
guidelines for the judge? The rationale that runs through Gregg
v. Georgia, Proffitt v. Florida and Godfrey v. Georgia, is that
such a sentencing provision is invalid under the Eighth
Amendment as applied to the States through the Fourteenth
Amendment. This court rejects the argument that because the
sentencing authority is a judge, rather than a jury, the
statute need not provide clear and objective criteria to guide
the sentencing authority.
Peeples was convicted of murder in violation of
Ill.Rev.Stat. ch. 38, § 9-1 (1979). Pursuant to Ill.Rev.Stat.
ch. 38, § 1005-8-1(a)(1) (1979), Peeples could have been
sentenced to a term of not less than 20 years and not more than
40 years. The sentencing judge, however, sentenced Peeples to
an extended term of imprisonment pursuant to Ill.Rev.Stat. ch.
38, § 1005-8-2(a)(1) (1979). Such an extended term is merited,
the statute provides, if the court finds any of the aggravating
factors listed in Ill.Rev.Stat. ch. 38, § 1005-5-3.2 (1979). At
the sentencing hearing held on October 30, 1980, the trial
court specifically found that the petitioner's offense was
accompanied by exceptionally brutal or heinous behavior
indicative of wanton cruelty. See Ill.Rev.Stat. ch. 38, §
During the hearing the prosecutor referred to evidence which
tended to show that the victim had reacted to the slashings by
grabbing her head and trying to stop the flow of blood on her
body. See Transcript of Sentencing Hearing held on October 30,
1980 at 23. Evidence presented at trial also demonstrated that
the victim had been sexually molested, either before or after
her throat had been slashed. At the hearing the sentencing
court rejected Peeples' argument that the Illinois sentencing
statute was unconstitutionally vague and allowed for the
arbitrary and capricious imposition of an extended term of
imprisonment. See Transcript at 56-58. The state trial judge
[t]hat it could be seriously contended that
somehow exceptionally brutal or heinous behavior
is a difficult concept to understand is beyond
me, and I don't think that the Court is
prohibited from considering those terms and
applying those words simply because of the
argument that if you do then every murder would
be brutal and heinous and I don't believe that I
need in this case the State's Attorney's
description of what he believes how the events
precisely occurred for me to determine from the
evidence in this case that this is clearly a case
where the offense was accompanied by
exceptionally brutal or heinous behavior
indicative of wanton cruelty.
See Transcript at 57. The trial judge further said:
I don't see how anyone would have any problem
with applying those words to this case or
understanding those words. They're not vague, and
I think that anybody
who has a reasonable command of the English
language and some experience with the concept
that those words are trying to express, could not
apply to this case.
See Transcript at 57. The court went on to rule that the
offense was accompanied by exceptionally brutal or heinous
behavior indicative of wanton cruelty within the meaning of the
statute. See Transcript at 58.