Appeal from the Appellate Court for the Fifth District; heard
in that court on appeal from the Circuit Court of Jackson County,
the Hon. Richard E. Richman, Judge, presiding.
CHIEF JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:
This case presents a challenge to the validity of section 404 of the Illinois Controlled Substances Act (Ill. Rev. Stat., 1982 Supp., ch. 56 1/2, par. 1404). The penalty provision of section 404, section 404(b), fixes a maximum fine for distribution of a "look-alike," or fraudulent, controlled substance, higher than the maximum fine provided for the distribution of certain bona fide controlled substances. It is claimed that this disparity in maximum fines offends the due process clause of the Illinois Constitution (Ill. Const. 1970, art. I, sec. 2).
This case also involves a broader question, stemming from the history of section 404 and its predecessors. Section 404 states:
"(a) For the purposes of this Section:
(1) `Advertise' means the attempt, by publication, dissemination, solicitation or circulation, to induce directly or indirectly any person to acquire, or enter into an obligation to acquire, any substance within the scope of this Section.
(2) `Distribute' has the meaning ascribed to it in subsection(s) of Section 102 of this Act but as relates to look-alike substances.
(3) `Manufacture' means the producing, preparing, compounding, processing, encapsulating, packaging, repackaging, labeling or relabeling of a look-alike substance.
(b) It is unlawful for any person knowingly to manufacture, distribute, advertise, or possess with intent to manufacture or distribute a look-alike substance. Any person who violates this subsection (b) shall be guilty of a Class 3 felony, the fine for which shall not exceed $20,000.
(c) It is unlawful for any person knowingly to possess a look-alike substance. Any person who violates this subsection (c) is guilty of a petty offense. Any person convicted of a subsequent offense under this subsection (c) shall be guilty of a Class C misdemeanor.
(d) In any prosecution brought under this Section, it is not a defense to a violation of this Section that the defendant believed the look-alike substance actually to be a controlled substance.
(e) Nothing in this Section applies to:
(1) The manufacture, processing, packaging, distribution or sale of non-controlled substances to licensed medical practitioners for use as placebos in professional practice or research.
(2) Persons acting in the course and legitimate scope of their employment as law enforcement officers.
(3) The retention of production samples of non-controlled substances produced prior to the effective date of this amendatory Act of 1982, where such samples are required by federal law." (Ill. Rev. Stat., 1982 Supp., ch. 56 1/2, par. 1404, as amended by Pub. Act 82-968, eff. Sept. 7, 1982.)
Section 404 is virtually identical to a similar provision previously held violative of due process in People v. Wagner (1982), 89 Ill.2d 308, 311. The crucial difference between section 404 and the provision held unconstitutional in Wagner is that, in conjunction with the passage of section 404, the legislature promulgated a preamble which: (1) indicates that the legislature intends the disparity in penalties, and (2) attempts to justify and explain the disparity. This case therefore poses the question of whether certain legislation previously held unconstitutional may be upheld if, when reenacted, it is accompanied by a preamble which expresses a new and different legislative intent.
On June 16, 1983, an information was filed in the circuit court of Jackson County charging defendant Lori E. Upton with three counts of distribution of a look-alike substance, in violation of section 404 of the Illinois Controlled Substances Act (Ill. Rev. Stat., 1982 Supp., ch. 56 1/2, par. 1404). Before trial defendant moved to dismiss the information on the ground that the higher potential fine found in section 404(b) violates the due ...