The opinion of the court was delivered by: Chief Justice Harrison
Following a jury trial in the circuit court of Hancock County, defendant, Daniel Ramsey, was convicted of two counts of first degree murder, three counts of attempted first degree murder, and one count each of aggravated criminal sexual assault, home invasion and residential burglary. In finding defendant guilty of these offenses, the jury rejected defendant's claim that he was insane under section 6-2 of the Criminal Code of 1961, as amended by section 15 of Public Act 89-404 (720 ILCS 5/6-2 (West 1996)). The jury also determined that defendant was eligible for the death penalty based on the cold, calculated and premeditated manner of the crimes. 720 ILCS 5/9-1(b)(11) (West 1996).
After a sentencing hearing, the jury found that there were no mitigating factors sufficient to preclude imposition of a death sentence. The trial court then sentenced defendant to death. In addition, the court sentenced defendant to terms of imprisonment on his convictions for attempted murder, aggravated criminal sexual assault, home invasion, and residential burglary. Defendant's death sentence has now been stayed pending direct review by this court. Ill. Const. 1970, art. VI, §4(b); 134 Ill. 2d Rs. 603, 609(a). For the reasons that follow, we reverse defendant's convictions and remand for a new trial.
At issue in this appeal is the law governing defendant's insanity defense. The trial proceedings utilized the version of the insanity defense statute as amended by section 15 of Public Act 89-404 because that was the version of the law in effect when the crimes were allegedly committed. The amended version of the law was significant because it altered the definition of insanity. Under the amendment, a defendant could no longer raise an insanity defense based on his inability "to conform his conduct to the requirements of law." *fn1 In addition, the amendment increased a defendant's burden of proof for an insanity defense from "a preponderance of the evidence" to "clear and convincing evidence." See Pub. Act 89-404, §15 (eff. August 20, 1995), codified at 720 ILCS 5/6-2(a), (e) (West 1996).
When defendant's insanity defense failed, he argued in his post-trial motion that the amended version of the insanity defense statute was unconstitutional and should not have been followed because Public Act 89-404 violated the single subject rule in article IV, section 8, of the Illinois Constitution (Ill. Const. 1970, art. IV, §8(d)). Defendant asserted that because of Public Act 89-404's constitutional infirmities, he should have been tried under the former version of the law with its broader definition of insanity and its less stringent burden of proof.
Although the trial court rejected defendant's constitutional challenge, its ruling came before our opinion in People v. Reedy, 186 Ill. 2d 1 (1999), which was filed while this appeal was pending. In Reedy our court held that Public Act 89-404 does violate the single subject rule and is unconstitutional in its entirety. Reedy, 186 Ill. 2d at 12. As a result, the law is void ab initio; " `[i]t is *** as though no such law had ever been passed.' " People v. Gersch, 135 Ill. 2d 384, 399 (1990), quoting People v. Schraeberg, 347 Ill. 392, 394 (1932). Section 6-2 of the Criminal Code therefore remained as it was before the adoption of Public Act 89-404's amendments (Gersch, 135 Ill. 2d at 390), and those amendments should not have been applied at defendant's trial. The judgment of the circuit court must therefore be reversed and the cause remanded for a new trial in accordance with the version of the law in effect prior to Public Act 89-404.
In reaching this conclusion, we note that the General Assembly has now enacted new legislation containing the same revisions to the insanity defense statute originally included in Public Act 89-404. The new legislation, set forth in Public Act 90-593, section 15, is not claimed to suffer from the same single subject rule problems that rendered Public Act 89-404 invalid, and we must presume it to be constitutional (see People v. Hickman, 163 Ill. 2d 250, 257 (1994)). The new law, however, cannot be applied on retrial.
Application of criminal or penal measures to events occurring before their enactment is restricted by article I, section 10, of the United States Constitution, which provides that "[n]o State shall *** pass any *** ex post facto Law" (U.S. Const., art. I, §10) and by article I, section 16, of the Illinois Constitution (Ill. Const. 1970, art. I, §16), which contains similar language. Our court has held that a "law is ex post facto if it makes criminal an act that was innocent when done, if it increases the punishment for a previously committed offense, or if it alters the legal rules of evidence to make conviction easier." People v. Shumpert, 126 Ill. 2d 344, 351 (1989); accord People v. Franklin, 135 Ill. 2d 78, 107 (1990); see Brewer v. Peters, 262 Ill. App. 3d 610, 613 (1994). A law which abolishes an affirmative defense of justification or excuse constitutes an ex post facto law because "it expands the scope of a criminal prohibition after the act is done." Collins v. Youngblood, 497 U.S. 37, 49, 111 L. Ed. 2d 30, 43, 110 S. Ct. 2715, 2723 (1990); see also Beazell v. Ohio, 269 U.S. 167, 169, 70 L. Ed. 216, 217, 46 S. Ct. 68, 68 (1925) (a law is ex post facto if it "deprives one charged with [a] crime of any defense available according to law at the time when the act was committed").
Under these standards, application of Public Act 90-593 to defendant's case would violate the prohibition against ex post facto laws for two reasons. First, it would deprive defendant of an affirmative defense he possessed under the former version of the statute, namely, that he is not guilty because he lacked the capacity " `to conform his conduct to the requirements of the law.' " See United States v. Samuels, 801 F.2d 1052, 1054 & n.1 (8th Cir. 1986) (holding ex post facto clause precludes retroactive application of amendment to federal insanity defense statute eliminating identical prong of insanity defense), quoting United States v. Frazier, 458 F.2d 911, 918 (8th Cir. 1972); United States v. Kowal, 596 F. Supp. 375, 378 (D. Conn. 1984) (same); United States v. Lakey, 610 F. Supp. 210, 212-13 (S.D. Tex. 1985) (same). Second, by increasing the burden of proof a defendant must meet in order to establish that he was insane at the time of the offense, the amendment makes it easier for the State to secure a conviction. See, e.g., People v. Eckhardt, 156 Ill. App. 3d 1077, 1080 (1987) (holding that shift in burden of proof relating to insanity defense would be improper ex post facto application of statute if applied to a trial for an offense committed prior to the amendment to the law); People v. Ahmad, 206 Ill. App. 3d 927, 937 (1990) (same).
In a supplemental brief ordered by our court, the State agrees with this conclusion and concedes that an application of Public Act 90-593's provisions at defendant's retrial would violate ex post facto principles.
For the foregoing reasons, defendant's convictions and sentences are reversed, and this cause is remanded for a new trial. On retrial, defendant shall be allowed to assert an insanity defense in accordance with section 6-2 of the Criminal Code as it existed prior to the amendments contained in Public Acts 89-404 and 90-593. Specifically, defendant shall be allowed to present an insanity defense based on his inability to conform his conduct to the law. In addition, he shall only be required to prove his insanity at the time of the offense by a preponderance of the evidence.
Reversed and remanded with directions.
JUSTICE BILANDIC, specially concurring:
I agree with the holding that Public Act 89-404 is void ab initio.
During the pendency of this appeal, the General Assembly enacted a different act, Public Act 90-593. Public Act 90-593 reenacted the amendment to the insanity defense statute that was originally included in the void act. The parties' initial briefs did not address the effect of Public Act 90-593 on this case. Consequently, this court sua sponte ordered supplemental briefing. We directed the parties to brief the issues of "whether Public Act 90-593 applies retroactively to [defendant] and, if so, whether retroactive application of Public Act 90-593 would violate the constitutional prohibitions against ex post facto application of the law." The parties complied.
Defendant maintains that Public Act 90-593 does not apply retroactively to him under principles of statutory construction. In the alternative, defendant asserts that retroactive application would result in ex post facto violations.
The State does not address whether Public Act 90-593 applies retroactively to defendant. Nonetheless, the State concedes that retroactive application would violate the constitutional prohibitions against ex post facto laws.
The majority opinion determines that the constitutional prohibitions against ex post facto laws prohibit retroactive application of Public Act 90-593 to defendant. I would not address the ex post facto issue, for the reasons explained below.
Ex post facto literally means after the fact. Black's Law Dictionary 520 (5th ed. 1979). Both the United States and Illinois Constitutions prohibit the state from enacting an ex post facto law. U.S. Const., art. I, §10 (providing that "[n]o State shall *** pass any *** ex post facto Law"); Ill. Const. 1970, art. I, §16 (providing that "[n]o ex post facto law *** shall be passed"). Essentially, this prohibition means that the legislature cannot change a criminal or penal law, after the fact, to be less favorable to a defendant regarding events that occurred before the change. See generally Carmell v. Texas, No. 98-7540 (U.S. May 1, 2000) (discussing meaning of prohibition). It therefore follows that the constitutional prohibitions against ex post facto laws are not implicated unless the legislature is changing a law after the fact. Here, because legislative intent is clear that Public Act 90-593 is not to be applied retroactively, there is no reason to conduct an ex post facto analysis. The principle is well established that courts will not consider a constitutional question if the cause can be determined on other grounds. E.g., People ex rel. Waller v. 1990 Ford Bronco, 158 Ill. 2d 460, 464 (1994). Consequently, I would determine this cause solely on the basis that Public Act 90-593 does not apply retroactively to defendant.
This case is analogous to People v. Digirolamo, 179 Ill. 2d 24, 50 (1997). There, this court was presented with an issue of whether an amendment to a statute would apply in that appeal. Defendant was convicted of the offense of obstructing justice. The State, however, failed to prove at trial the venue in which the offense occurred. Because venue was an established element of the offense, this failure necessitated reversal of that conviction. After defendant's trial, the venue statute was amended to remove the necessity of proving venue to obtain a criminal conviction. The State argued that the amended statute should be applied on appeal to sustain defendant's conviction. Digirolamo, 179 Ill. 2d at 49-50.
In resolving this issue, this court in Digirolamo followed a long line of Illinois cases where, in determining whether the amendment applied, we utilized the legislative intent approach and its substantive-procedural distinction. Under this approach, an amendment to a statute is generally construed to apply prospectively and not retroactively, unless the legislature intended a retroactive application of the amendment and the amendment affects only procedure or remedies. Digirolamo, 179 Ill. 2d at 50. Accordingly, this test begins with the presumption that a new statute will not be applied on appeal unless the legislature expressly provides for such application. The language of the amendment at issue showed that the legislature did not intend a retroactive application. Also, the amendment effected a change in more than procedure or remedies. We therefore held that the amendment could not be applied retroactively to defendant, and we reversed his conviction for that offense. Digirolamo, 179 Ill. 2d at 50-52. Given that the amendment was not applied retroactively to defendant, there was no possibility of an ex post facto violation.
In the present case, there is no indication that the legislature intended Public Act 90-593 to apply retroactively. Also, the statutory amendment at issue affects substantive rights, not procedure or remedies. Therefore, pursuant to Digirolamo, Public Act 90-593 cannot be applied retroactively to defendant. This appeal could be resolved on that basis alone.
II. Inapplicable Precedent
As noted, this case turns on whether the amendment to the insanity defense statute contained in Public Act 90-593 may be applied retroactively to defendant. Digirolamo and First of America Trust Co. v. Armstead, 171 Ill. 2d 282 (1996), contain seemingly contradictory statements concerning when to apply an amended statute on appeal. Digirolamo provides that, "[g]enerally, an amendment to a statute will be construed to apply prospectively and not retroactively" unless the legislature intended a retroactive application of the amendment and the amendment affects only procedure or remedies. Digirolamo, 179 Ill. 2d at 50. Armstead states that, with regard to statutory amendments, "a reviewing court should simply apply the law as it exists at the time of the appeal, unless doing so would interfere with a vested right." Armstead, 171 Ill. 2d at 290. Thus, each of these statements appears to be a generally applicable canon of statutory construction for courts to follow when determining whether an amended statute will be applied on appeal. On their face, the canon in Digirolamo favors prospective application whereas the canon in Armstead favors retroactive application.
Although these canons are opposed on their face, there is no conflict between the holdings of Digirolamo and Armstead. Each decision relied on a line of case law that supported its outcome and that followed its pertinent canon of statutory construction. The United States Supreme Court recently observed, "It is not uncommon to find `apparent tension' between different canons of statutory construction. As Professor Llewellyn famously illustrated, many of the traditional canons have equal opposites." Landgraf v. USI Film Products, 511 U.S. 244, 263, 128 L. Ed. 2d 229, 251, 114 S. Ct. 1483, 1496 (1994). Therefore, "another canon of unquestionable vitality" useful to remember when faced with this scenario is "the `maxim *** that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used.' " Landgraf, 511 U.S. at 265, 128 L. Ed. 2d at 252, 114 S. Ct. at 1497, quoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399, 5 L. Ed. 257, 290 (1821).
As discussed above, the present appeal is analogous to Digirolamo. Both this case and Digirolamo involved statutory amendments to a criminal statute and potential ex post facto violations. Armstead, on the other hand, is not applicable to this appeal. Unlike the present case, Armstead concerned a statutory amendment to a civil statute that possibly implicated rights vested under our due process clause (Armstead, 171 Ill. 2d 282). See Weaver v. Graham, 450 U.S. 24, 29-30, 67 L. Ed. 2d 17, 23-24, 101 S. Ct. 960, 964-65 (1981) (explaining that, in addressing whether application of a statutory amendment would violate ex post facto principles, it is not relevant whether the statutory change touches on any vested right).
Nevertheless, given the confusion that has resulted from the two canons, I take this opportunity to explain the legal history behind the canons. I then propose that this court adopt a new test for determining when a new or amended statute will be applied on appeal to pending cases. In Landgraf v. USI Film Products, 511 U.S. 244, 128 L. Ed. 2d 229, 114 S. Ct. 1483 (1994), the United States Supreme Court similarly was faced with seemingly contradictory canons of statutory construction for determining when a new federal statute will be applied on appeal to ...