CHIEF JUSTICE MORAN
delivered the opinion of the court:
Defendant, Ben Christy, was charged by information in the circuit court of Whiteside County with one count of armed violence, two counts of kidnapping and one count of aggravated criminal sexual abuse in violation of sections 33A — 2, 10 — 1(a)(1) and 12 — 16(a)(1) of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1987, ch. 38, pars. 33A — 2, 10 — 1(a)(1), 12 — 16(a)(1)). Following a bench trial, the circuit court found defendant guilty of armed violence predicated on kidnapping with a category I weapon (Ill. Rev. Stat. 1987, ch. 38, par. 33A — 1(b)) (hereinafter referred to as armed violence), a Class X felony (Ill. Rev. Stat. 1987, ch. 38, par. 33A — 3(a)), and one count of kidnapping, a Class 2 felony (Ill. Rev. Stat. 1987, ch. 38, par. 10 — 1(c)). The circuit court sentenced defendant to concurrent extended-term sentences (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—2) of 60 years in prison for armed violence and 14 years in prison for kidnapping. Defendant appealed his conviction.
On appeal, the appellate court vacated defendant’s conviction and sentence for armed violence and remanded the cause for sentencing on the offense of aggravated kidnapping (Ill. Rev. Stat. 1987, ch. 38, par. 10 — 2(a)). The court reasoned that kidnapping is a lesser included offense of aggravated kidnapping, because aggravated kidnapping requires the same elements as kidnapping plus the additional element of being armed with a dangerous weapon. The court further reasoned that aggravated kidnapping, a Class 1 felony (Ill. Rev. Stat. 1987, ch. 38, par. 10 — 2(b)(2)), requires the same elements as armed violence, a Class X felony. Based on the foregoing reasoning, the court held that the penalties are unconstitutionally disproportionate, because aggravated kidnapping is a more serious offense than the lesser included offense of kidnapping; yet, when armed violence is predicated on kidnapping with a category I weapon, kidnapping is, in effect, enhanced tó a Class X felony and is punished more severely than aggravated kidnapping. 188 Ill. App. 3d 330.
The appellate court also affirmed defendant’s conviction for kidnapping, but reduced his sentence to a non-extended maximum term of seven years in prison. The court reasoned and the State conceded that an extended-term sentence for kidnapping was improper, because kidnapping was not the most serious offense of which defendant was convicted. (188 Ill. App. 3d 330.) This court granted the State’s petition for leave to appeal (107 Ill. 2d R. 315).
The issues presented for review are: (1) whether defendant waived the issue regarding the constitutionality of the statutory penalties for aggravated kidnapping and armed violence by failing to raise it in the circuit court; and, if not, (2) whether the penalties for aggravated kidnapping and armed violence are proportionate penalties pursuant to article I, sections 2 and 11, of the 1970 Illinois Constitution.
On June 5, 1988, 14-year-old Shad Baldwin and 15-year-old Doug Hanabarger were camping in a tent near Rock Falls, Illinois. At approximately 2 a.m., defendant entered their tent, threatened them with a crowbar, overpowered them, handcuffed them and tied their feet. Defendant then took them from the tent, handcuffed them to a tree and secured their feet to two dog-chain anchors. After packing the boys’ camping equipment, defendant forced them to carry the equipment to a storage building approximately 1.7 miles from the campsite.
Shortly after daylight, defendant and the two boys arrived at the storage building and entered one of the storage units. Defendant then forced the boys to remove their clothing and threatened to kill them if they did not. During the course of the day, defendant repeatedly threatened to kill the boys, held a steak knife with a serrated blade in excess of three inches to Hanabarger’s throat, removed his own clothes and put on a tunic, talked about sex, asked the boys if they were virgins, told the boys that he had molested children, hugged the boys, and indicated that he planned their abduction. Later that evening, defendant gagged the boys with duct tape, tied their hands behind their backs, tied their feet together and to each other, tied ropes around each of their necks and tied these ropes to opposite ends of the storage unit. He then left to get bread and water.
While defendant was gone, the boys loosened the duct tape and began yelling for help. A female passerby heard the boys and stopped her car. She sent her 15-year-old granddaughter to call the police and assured the boys that she would not leave the storage unit.
Shortly thereafter, Deputy Sheriff Larry Isaacson of the Whiteside County sheriff’s department arrived at the storage unit. While attempting to enter the storage unit, Deputy Isaacson saw defendant peek around the corner of the storage building and flee. He then informed the responding police officers of his observation.
Officer Ken Carey of the Rock Falls police department saw defendant running through the storage building premises. Officer Carey exited his patrol car, ordered defendant to stop, pursued him when he did not stop and tackled defendant. Deputy Isaacson arrived immediately and assisted in handcuffing defendant. At this time, defendant handed Deputy Isaacson a key to the storage unit and said, “This is what you want.” Defendant also told the police officers that he had a knife which belonged to one of the boys in his pocket. The police officers removed a hunting knife from defendant’s pocket and also found a set of handcuff keys. Deputy Isaacson then returned to the storage unit and opened the door using the key defendant gave him. Upon opening the door, Deputy Isaacson saw the naked, bound and partially gagged boys.
The first issue presented for review is whether defendant waived the issue regarding the constitutionality of the statutory penalties for aggravated kidnapping and armed violence by failing to raise it in the circuit court. As a general rule, “a constitutional challenge to a statute can be raised at any time.” (People v. Bryant (1989), 128 Ill. 2d 448, 454; see also People v. Zeisler (1988), 125 Ill. 2d 42, 46; People v. Sarelli (1973), 55 Ill. 2d 169, 170-71.) Accordingly, defendant did not waive the issue regarding the constitutionality of the statutory penalties for aggravated kidnapping and armed violence.
The second issue presented for review is whether the penalties for aggravated kidnapping and armed violence are proportionate penalties pursuant to article I, sections 2 and 11, of the 1970 Illinois Constitution.
Article I, sections 2 and 11, of the 1970 Illinois Constitution provides:
“No person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the laws” (Ill. Const. 1970, art. I, §2);
and:
“All penalties shall be determined *** according to the seriousness of the offense ***” (Ill. Const. 1970, art. I, §11).
These constitutional provisions mandate penalties which are proportionate to the offenses.
Kidnapping is defined as knowingly and secretly confining another against his will. (Ill. Rev. Stat. 1987, ch. 38, par.
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CHIEF JUSTICE MORAN
delivered the opinion of the court:
Defendant, Ben Christy, was charged by information in the circuit court of Whiteside County with one count of armed violence, two counts of kidnapping and one count of aggravated criminal sexual abuse in violation of sections 33A — 2, 10 — 1(a)(1) and 12 — 16(a)(1) of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1987, ch. 38, pars. 33A — 2, 10 — 1(a)(1), 12 — 16(a)(1)). Following a bench trial, the circuit court found defendant guilty of armed violence predicated on kidnapping with a category I weapon (Ill. Rev. Stat. 1987, ch. 38, par. 33A — 1(b)) (hereinafter referred to as armed violence), a Class X felony (Ill. Rev. Stat. 1987, ch. 38, par. 33A — 3(a)), and one count of kidnapping, a Class 2 felony (Ill. Rev. Stat. 1987, ch. 38, par. 10 — 1(c)). The circuit court sentenced defendant to concurrent extended-term sentences (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—2) of 60 years in prison for armed violence and 14 years in prison for kidnapping. Defendant appealed his conviction.
On appeal, the appellate court vacated defendant’s conviction and sentence for armed violence and remanded the cause for sentencing on the offense of aggravated kidnapping (Ill. Rev. Stat. 1987, ch. 38, par. 10 — 2(a)). The court reasoned that kidnapping is a lesser included offense of aggravated kidnapping, because aggravated kidnapping requires the same elements as kidnapping plus the additional element of being armed with a dangerous weapon. The court further reasoned that aggravated kidnapping, a Class 1 felony (Ill. Rev. Stat. 1987, ch. 38, par. 10 — 2(b)(2)), requires the same elements as armed violence, a Class X felony. Based on the foregoing reasoning, the court held that the penalties are unconstitutionally disproportionate, because aggravated kidnapping is a more serious offense than the lesser included offense of kidnapping; yet, when armed violence is predicated on kidnapping with a category I weapon, kidnapping is, in effect, enhanced tó a Class X felony and is punished more severely than aggravated kidnapping. 188 Ill. App. 3d 330.
The appellate court also affirmed defendant’s conviction for kidnapping, but reduced his sentence to a non-extended maximum term of seven years in prison. The court reasoned and the State conceded that an extended-term sentence for kidnapping was improper, because kidnapping was not the most serious offense of which defendant was convicted. (188 Ill. App. 3d 330.) This court granted the State’s petition for leave to appeal (107 Ill. 2d R. 315).
The issues presented for review are: (1) whether defendant waived the issue regarding the constitutionality of the statutory penalties for aggravated kidnapping and armed violence by failing to raise it in the circuit court; and, if not, (2) whether the penalties for aggravated kidnapping and armed violence are proportionate penalties pursuant to article I, sections 2 and 11, of the 1970 Illinois Constitution.
On June 5, 1988, 14-year-old Shad Baldwin and 15-year-old Doug Hanabarger were camping in a tent near Rock Falls, Illinois. At approximately 2 a.m., defendant entered their tent, threatened them with a crowbar, overpowered them, handcuffed them and tied their feet. Defendant then took them from the tent, handcuffed them to a tree and secured their feet to two dog-chain anchors. After packing the boys’ camping equipment, defendant forced them to carry the equipment to a storage building approximately 1.7 miles from the campsite.
Shortly after daylight, defendant and the two boys arrived at the storage building and entered one of the storage units. Defendant then forced the boys to remove their clothing and threatened to kill them if they did not. During the course of the day, defendant repeatedly threatened to kill the boys, held a steak knife with a serrated blade in excess of three inches to Hanabarger’s throat, removed his own clothes and put on a tunic, talked about sex, asked the boys if they were virgins, told the boys that he had molested children, hugged the boys, and indicated that he planned their abduction. Later that evening, defendant gagged the boys with duct tape, tied their hands behind their backs, tied their feet together and to each other, tied ropes around each of their necks and tied these ropes to opposite ends of the storage unit. He then left to get bread and water.
While defendant was gone, the boys loosened the duct tape and began yelling for help. A female passerby heard the boys and stopped her car. She sent her 15-year-old granddaughter to call the police and assured the boys that she would not leave the storage unit.
Shortly thereafter, Deputy Sheriff Larry Isaacson of the Whiteside County sheriff’s department arrived at the storage unit. While attempting to enter the storage unit, Deputy Isaacson saw defendant peek around the corner of the storage building and flee. He then informed the responding police officers of his observation.
Officer Ken Carey of the Rock Falls police department saw defendant running through the storage building premises. Officer Carey exited his patrol car, ordered defendant to stop, pursued him when he did not stop and tackled defendant. Deputy Isaacson arrived immediately and assisted in handcuffing defendant. At this time, defendant handed Deputy Isaacson a key to the storage unit and said, “This is what you want.” Defendant also told the police officers that he had a knife which belonged to one of the boys in his pocket. The police officers removed a hunting knife from defendant’s pocket and also found a set of handcuff keys. Deputy Isaacson then returned to the storage unit and opened the door using the key defendant gave him. Upon opening the door, Deputy Isaacson saw the naked, bound and partially gagged boys.
The first issue presented for review is whether defendant waived the issue regarding the constitutionality of the statutory penalties for aggravated kidnapping and armed violence by failing to raise it in the circuit court. As a general rule, “a constitutional challenge to a statute can be raised at any time.” (People v. Bryant (1989), 128 Ill. 2d 448, 454; see also People v. Zeisler (1988), 125 Ill. 2d 42, 46; People v. Sarelli (1973), 55 Ill. 2d 169, 170-71.) Accordingly, defendant did not waive the issue regarding the constitutionality of the statutory penalties for aggravated kidnapping and armed violence.
The second issue presented for review is whether the penalties for aggravated kidnapping and armed violence are proportionate penalties pursuant to article I, sections 2 and 11, of the 1970 Illinois Constitution.
Article I, sections 2 and 11, of the 1970 Illinois Constitution provides:
“No person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the laws” (Ill. Const. 1970, art. I, §2);
and:
“All penalties shall be determined *** according to the seriousness of the offense ***” (Ill. Const. 1970, art. I, §11).
These constitutional provisions mandate penalties which are proportionate to the offenses.
Kidnapping is defined as knowingly and secretly confining another against his will. (Ill. Rev. Stat. 1987, ch. 38, par. 10 — 1(a)(1).) Aggravated kidnapping is defined as the commission of kidnapping while armed with a dangerous weapon. (Ill. Rev. Stat. 1987, ch. 38, par. 10— 2(a)(5).) Dangerous weapons are defined in section 33A— 1 of the Code and include a “knife with a blade of at least 3 inches in length.” (Ill. Rev. Stat. 1987, ch. 38, par. 33A — 1(b).) Accordingly, the commission of kidnapping while armed with a “knife with a blade of at least 3 inches in length” constitutes aggravated kidnapping, a Class 1 felony.
Armed violence is defined as the commission of any felony defined by Illinois law while armed with a dangerous weapon. (Ill. Rev. Stat. 1987, ch. 38, par. 33A — 2.) Dangerous weapons are divided into two categories (see Ill. Rev. Stat. 1987, ch. 38, par. 33A — 1(a)), and the commission of any felony with a category I weapon, such as a “knife with a blade of at least 3 inches in length,” is a Class X felony (Ill. Rev. Stat. 1987, ch. 38, par. 33A— 3(a)). Accordingly, the commission of kidnapping while armed with a “knife with a blade of at least 3 inches in length” also constitutes armed violence, a Class X felony.
Defendant argues that the penalties for aggravated kidnapping and armed violence are unconstitutionally disproportionate because each offense requires the same elements, yet armed violence is punished more severely than aggravated kidnapping. In support of his argument, defendant relies primarily on this court’s decision in People v. Wisslead (1983), 94 Ill. 2d 190.
In Wisslead, the defendant argued that the penalties for armed violence predicated on unlawful restraint with a category I weapon and aggravated kidnapping were unconstitutionally disproportionate. The defendant reasoned that the underlying offenses of unlawful restraint and kidnapping are related. The defendant further reasoned that commission of the Class 4 felony of unlawful restraint with a category I weapon constitutes the Class X felony of armed violence, whereas commission of the Class 2 felony of kidnapping with a category I weapon only constitutes the Class 1 felony of aggravated kidnapping. Wisslead, 94 Ill. 2d at 194.
This court agreed with the defendant’s reasoning and stated, “Since each offense is enhanced by the identical additional element, a gun, the lesser offense of unlawful restraint should not thereby become a graver offense than kidnaping.” (Wisslead, 94 Ill. 2d at 195.) Thus, it was concluded that the penalties for armed violence predicated on unlawful restraint with a category I weapon and aggravated kidnapping were unconstitutionally disproportionate. Wisslead, 94 Ill. 2d at 196.
The State counters and argues that the penalties for aggravated kidnapping and armed violence are constitutionally proportionate. In support of its argument, the State relies on this court’s decision in People v. Wade (1989), 131 Ill. 2d 370, and the appellate court’s decision in People v. Moritz (1988), 173 Ill. App. 3d 498.
In Wade, the defendant argued that the penalties for armed violence predicated on intimidation with a category I weapon and attempted armed robbery were unconstitutionally disproportionate. The defendant reasoned that the underlying offenses of intimidation and attempted robbery were based on the same conduct. The defendant further reasoned that commission of the Class 3 felony of intimidation with a category I weapon constitutes the Class X felony of armed violence, whereas commission of the Class 3 felony of attempted robbery with a category I weapon only constitutes the Class 1 felony of attempted armed robbery. Wade, 131 Ill. 2d at 376-77.
In response to the defendant’s argument, this court stated that “it cannot be said that intimidation is a less serious offense than attempted robbery, or that the commission of intimidation while armed is a less serious offense than attempted armed robbery.” (Wade, 131 Ill. 2d at 379.) Thus, the defendant’s argument was reduced to “the claim that identically classified offenses may not be enhanced by the same circumstance to offenses of different classifications.” Wade, 131 Ill. 2d at 379.
In response to this argument, this court determined that “the availability of different punishments for separate offenses based on the commission of the same acts does not offend the constitutional guarantees of equal protection or due process.” (Wade, 131 Ill. 2d at 379.) Thus, it was held that the penalties for armed violence predicated on intimidation with a category I weapon and attempted armed robbery were constitutionally proportionate. Wade, 131 Ill. 2d at 379-80.
In Moritz, the defendant argued that the penalties for aggravated kidnapping and armed violence predicated on kidnapping with a category I weapon were unconstitutionally disproportionate. (Moritz, 173 Ill. App. 3d at 502.) The defendant reasoned that aggravated kidnapping and armed violence predicated on kidnapping with a category I weapon involve the same elements, yet armed violence predicated on kidnapping with a category I weapon is punished more severely than aggravated kidnapping. Moritz, 173 Ill. App. 3d at 500.
The appellate court agreed that aggravated kidnapping and armed violence predicated on kidnapping with a category I weapon “contain the same elements, no more and no less.” (Moritz, 173 Ill. App. 3d at 502.) The court further determined that “[t]he only difference between the two charges is the penalty.” (Moritz, 173 Ill. App. 3d at 502.) The court, however, held that the penalties for aggravated kidnapping and armed violence predicated on kidnapping with a category I weapon were constitutionally proportionate, because the ability to choose between them is a matter of “prosecutorial discretion.” Moritz, 173 Ill. App. 3d at 505-06.
Wisslead and Wade are factually distinguishable from the present case. (See Moritz, 173 Ill. App. 3d at 504-05.) Wisslead addressed the proportionality of the two different penalties for two different, but related, offenses. Similarly, Wade addressed the proportionality of the two different penalties for two different, but related, offenses. The present case, however, involves the proportionality of the two different penalties for two identical offenses.
Furthermore, Moritz does not control the present case. Generally, prosecutorial discretion is a valuable aspect of the criminal justice system. (See People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531, 535-40.) In the present case, however, prosecutorial discretion will effectively nullify the aggravated kidnapping statute, as skilled State’s Attorneys will usually seek the more severe sentence and, therefore, charge defendants with armed violence rather than aggravated kidnapping. An ineffective aggravated kidnapping statute is not what the legislature intended when it enacted both the armed violence and aggravated kidnapping statutes. As such, we decline to accept the reasoning proffered by the appellate court in Moritz.
Having distinguished Wisslead and Wade and disposed of Moritz, we must still determine whether the penalties for aggravated kidnapping and armed violence are constitutionally proportionate. Upon review of the relevant statutory provisions it is apparent that the commission of kidnapping while armed with a “knife with a blade of at least 3 inches in length” constitutes both aggravated kidnapping and armed violence. Since the elements which constitute aggravated kidnapping and armed violence are identical, common sense and sound logic would seemingly dictate that their penalties be identical. Nevertheless, aggravated kidnapping is a Class 1 felony punishable by “not less than 4 years and not more than 15 years” in prison (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(4)), while armed violence is a Class X felony punishable by “not less than 6 years and not more than 30 years” in prison (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(3)). As the court below stated, “It is illogical that identical [offenses] can render two different [penalties].” (188 Ill. App. 3d at 333.) We, therefore, hold that the penalties for aggravated kidnapping and armed violence are unconstitutionally disproportionate.
For the foregoing reasons, we affirm the judgment of the appellate court.
Judgment affirmed.