NOTICE: Under Supreme Court Rule 367 a party has 21 days after the filing of the opinion
to request a rehearing. Also, opinions are subject to modification, correction or withdrawal at
anytime prior to issuance of the mandate by the Clerk of the Court. Therefore, because the
following slip opinion is being made available prior to the Court's final action in this matter,
it cannot be considered the final decision of the Court. The official copy of the following
opinion will be published by the Supreme Court's Reporter of Decisions in the Official
Reports advance sheets following final action by the Court.
Docket No. 80672--Agenda 4--January 1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. GLENN W. MEYER,
Appellant.
Opinion filed April 17, 1997.
JUSTICE McMORROW delivered the opinion of the court:
The sole question presented for our review in the instant case
is whether section 5--6--3(b) of the Unified Code of Corrections
(Code) (730 ILCS 5/5--6--3(b) (West 1994)) authorizes a trial court
to order, as a condition of probation, that the defendant post a
large sign at all entrances to his family farm which reads
"Warning! A violent felon lives here. Enter at your own risk!" The
appellate court affirmed the trial court's imposition of this
condition (277 Ill. App. 3d 784), and defendant appealed (134 Ill.
2d R. 612). We reverse, and hold that the trial court exceeded the
scope of its sentencing authority because posting a sign of this
type is not a reasonable condition of probation under section 5--6-
-3(b) of the Code. Therefore, we vacate the order of the circuit
court in part.
BACKGROUND
Following a jury trial, the defendant, Glenn Meyer, was
convicted of aggravated battery of Gary Mason. The trial testimony
showed that on February 25, 1995, Gary Mason visited the
defendant's farm in order to return some vehicle parts that he
purchased from the defendant. Mason and the defendant began to
quarrel over whether the parts were functioning properly. During
the argument the defendant swung one of the parts at Mason,
striking him in the nose and eye, causing several injuries.
At the defendant's sentencing hearing, evidence was presented
in aggravation and mitigation. On behalf of the State, Tim Belford
testified that in September 1986, he went to the defendant's farm
in order to collect monies for two insufficient fund checks issued
by defendant to Belford's employer, the First National Bank of
Pittsfield. Belford stated that the defendant eventually gave him
the money, but then kicked him and ordered him off of the farm.
Belford acknowledged that a jury acquitted the defendant of
aggravated battery charges stemming from this incident.
Next, Harry Dyel testified that in May of 1990, he went to the
defendant's farm on behalf of his employer, Shelter Insurance
Company, in order to investigate a claim filed by the defendant.
Dyel testified that the defendant became hostile because he was
annoyed by the company's failure to process his claim promptly.
Dyel stated that after he attempted to comply with the defendant's
demands for payment, the defendant pushed him down and kicked him
several times, causing injuries to his torso, arms, face and head.
The defendant was convicted of the aggravated battery of Dyel.
Finally, Gary Mason, the victim in the present case, testified
regarding the defendant's actions on February 25, 1995.
Several witnesses testified in mitigation. Kenwood Foster
testified that he is a licensed clinical social worker who operates
a private counselling service. The defendant began seeing Foster in
the fall of 1991. Foster testified that doctors at several
different clinics have diagnosed the defendant as having "major
depressive disorder" or clinical depression. Foster further stated
that he believes that the defendant may also suffer from a
condition similar to a type of post-traumatic stress disorder. He
indicated that the defendant has been taking prescription
medication known as Zoloft, to control his illness.
Foster further testified that certain stresses, such as a
perceived threat to the defendant or his family, could trigger a
change in the defendant's behavior. Foster acknowledged that the
defendant may perceive certain behavior as threatening, even if the
average individual would not feel threatened under similar
circumstances.
Friends of the defendant, Gregg Smith, David Gratton and Bruce
Lightle, also testified. All three described the defendant's good
character and reputation within the community.
Mary Meyer, the defendant's wife of 36 years, testified that
the defendant's elderly mother relies on the defendant, her only
child, for care and assistance. Mrs. Meyer stated that she teaches
high school, and has always relied on the defendant to manage the
farm. She indicated that her family would suffer great hardship if
the defendant were incarcerated. Mrs. Meyer also testified
regarding the defendant's prolonged psychological illness and his
efforts to control his sickness with medication.
In addition to the testimony of the witnesses, 20 letters were
submitted by individuals from throughout the defendant's community.
These letters chronicle examples of the defendant's generosity and
willingness to assist friends and neighbors in need. The letters
contain many descriptions of the defendant's good character and
reputation.
Additionally, the presentence investigation report contains a
detailed description of the defendant's mental health history.
Several psychological evaluations of the defendant, dating from
1989, show that he suffers from major depressive disorder and
possibly an additional psychological malady.
Upon evaluating all of the evidence in mitigation and
aggravation, the trial court sentenced the defendant to 30 months'
probation. The court considered the defendant's family members and
the adverse impact that incarceration would have upon them. The
court stated that it considered that the defendant was 62 years
old, his mother's age and ill-health, and Mary Meyer's need to have
the defendant care for the farm, in deciding to sentence the
defendant to probation instead of prison.
The court conditioned defendant's probation on the following:
(1) payment of $9,615.95 in restitution, (2) payment of a $7,500
fine, (3) payment of a $25 monthly probation services fee, (4)
psychological psychiatric evaluation and treatment, (5) one-year
home confinement and (6) the placement of a "violent felon" warning
sign at each entrance to the defendant's property for the duration
of the probation period. With respect to the sign requirement, the
court stated that it believed that "maybe [the sign] will protect
society." The court's supplemental order regarding the sign
provides:
"As a condition of probation defendant shall erect
and maintain at each entrance of his property a 4' X 8'
sign with clearly readable lettering at least 8'' in
height reading: `Warning! A Violent Felon lives here.
Enter at your own Risk!' To be erected by 8-11-95.' "
The defendant appealed his sentence, arguing that the sign was
an improper condition of probation. The appellate court determined
that section 5--6--3(b) authorized the trial court to order the
sign as a reasonable condition of probation, and affirmed the trial
court on this issue. We granted the defendant leave to appeal
pursuant to Supreme Court Rule 612 (134 Ill. 2d R. 612).
ANALYSIS
The sole issue presented to us for review is whether the trial
court was authorized to order the violent felon warning sign as a
condition of probation. The defendant maintains that the trial
court acted outside of the scope of its sentencing authority
because the sign is not a reasonable condition of probation within
the meaning of the Unified Code of Corrections (730 ILCS 5/5--6--
3(b) (West 1994)). Section 5--6--3(b) of the Code lists 16
permissible probation conditions that the trial court may impose
"in addition to other reasonable conditions relating to the nature
of the offense or the rehabilitation of the defendant as determined
for each defendant in the proper discretion of the Court."
(Emphasis added.) 730 ILCS 5/5--6--3(b) (West 1994). The defendant
maintains that the warning sign is not a reasonable condition of
probation because it does not comport with traditional notions of
punishment or probation in Illinois, and instead is an unauthorized
"shaming penalty" or a scarlet letter type of punishment. The
defendant argues that nothing in the Code supports the subjection
of probationers to public ridicule as a goal of probation.
The State responds that while the sign may embarrass the
defendant, it is not intended to subject him to public ridicule.
Rather, the State and the amicus curiae, the American Alliance for
Rights and Responsibilities, contend that this condition of
probation furthers the goals of probation because it protects the
public and serves to rehabilitate the defendant.
The State maintains that the sign protects the public by
warning against provoking the defendant and by reducing the number
of guests or business invitees who visit the farm. The State and
the amicus argue that the goal of rehabilitation is fostered by the
sign because it reminds the defendant that society disapproves of
his criminal conduct. The amicus further argues that because the
sign reminds the defendant of his offense, the defendant will
modify his behavior and will be less likely to commit acts of
violence in the future. Finally, both the State and the amicus
argue that the trial court acted within its discretion by carefully
fashioning the conditions of probation to correspond to the needs
of the defendant and the public.
Generally, the trial court is afforded wide discretion in
fashioning the conditions of probation for a particular defendant.
See People v. Harris, 238 Ill. App. 3d 575 (1992). However, while
the trial court has discretion to impose probation conditions which
will foster rehabilitation and protect the public, the exercise of
this discretion is not without limitation. See Harris, 238 Ill.
App. 3d at 581.
Section 5--6--3(b) of the Code contains 16 permitted
conditions of probation which may be imposed "in addition to other
reasonable conditions." (Emphasis added.) 730 ILCS 5/5--6--3(b)
(West 1994). Requiring the defendant to erect a sign on his
property, proclaiming his status as a violent convicted felon, is
not statutorily identified as one of the conditions of probation.
The statute gives the trial court the discretion to impose
additional conditions of probation provided that they are
reasonable. See People v. Ferrell, 277 Ill. App. 3d 74, 79 (1995).
In Ferrell, the court determined that a probation condition not
expressly enumerated in the statute may be imposed as long as it is
(1) reasonable and (2) relates to (a) the nature of offense or (b)
the rehabilitation of the defendant as determined by the trial
court. See also People v. Hubble, 81 Ill. App. 3d 560 (1980);
People v. Dunn, 43 Ill. App. 3d 94 (1976). We must, therefore,
determine whether compelling defendant to post a 4-foot by 8-foot
sign in front of his residence which, in 8-inch high letters,
states that defendant is a violent felon is a reasonable condition
under section 5--6--3 of the Code.
Section 1--1--2 of the Unified Code of Corrections provides:
"The purposes of this Code of Corrections are to:
(a) prescribe sanctions proportionate to the
seriousness of the offenses and permit the recognition of
differences in rehabilitation possibilities among
individual offenders;
(b) forbid and prevent the commission of offenses;
(c) prevent arbitrary or oppressive treatment of
persons adjudicated offenders or delinquents; and
(d) restore offenders to useful citizenship." 730
ILCS 5/1--1--2 (West 1994).
Consistent with this legislative intent, this court has
recognized repeatedly that the purpose of probation is to benefit
society by restoring a defendant to useful citizenship, rather than
allowing a defendant to become a burden as an habitual offender.
People v. Lowe, 153 Ill. 2d 195 (1992); In re G.B., 88 Ill. 2d 36
(1981); People v. Molz, 415 Ill. 183 (1953). Probation
simultaneously serves as a form of punishment and as a method for
rehabilitating an offender. In re G.B., 88 Ill. 2d at 44.
Protection of the public from the type of conduct that led to a
defendant's conviction is one of the goals of probation. People v.
Cozad, 158 Ill. App. 3d 664 (1987).
The State argues that the warning sign in the case at bar is
a reasonable condition of probation because it is consistent with
the permissible conditions listed in section 5--6--3(b) and
furthers the goals of probation.
Although the sign may foster the goals of probation to the
extent that it punishes the defendant and protects the public,
furtherance of these two goals alone does not render the condition
reasonable. Indeed, we are persuaded by defendant's contention that
the sign, in fact, may hamper the goal of rehabilitation, and that
the erection of the sign is inconsistent with the conditions of
probation listed in section 5--6--3(b). We recognize that the trial
court labored arduously and sincerely to develop a sentence which
would serve the needs of society and simultaneously avoid
incarceration of the defendant. Nonetheless, we hold the sign
condition of probation imposed in this case was unreasonable and
did not serve the purposes of section 5--6--3(b).
The Tennessee Supreme Court in State v. Burdin, 924 S.W.2d 82
(Tenn. 1996), considered and rejected a comparable "shaming sign,"
finding that it was unreasonable. The Tennessee court held that the
Tennessee statute at issue there did not authorize a condition of
probation which required the defendant to erect a sign in the front
yard of his residence which read, "Warning, all children.
[Defendant] is an admitted and convicted child molester. Parents
beware."
In Burdin, the defendant pleaded guilty to sexual battery of
a 16-year-old victim. As a condition of probation, the court
ordered the defendant to place the warning sign in the front his
residence where he lived with his mother. The Tennessee statute,
like the Illinois statute, provided a non-inclusive list of
permissible probation conditions. The Tennessee statute also
contained a provision which stated, in part, that the defendant may
be required to satisfy "any other condition [of probation]
reasonably related to the purpose of the offender's sentence and
not unduly restrictive of the offender's liberty, or incompatible
with the offender's freedom of conscience, or otherwise prohibited
by this chapter."
The Burdin court stated:
"The consequences of imposing such a condition without
the normal safeguards of legislative study and debate are
uncertain. Posting a sign in the defendant's yard would
dramatically affect persons other than the defendant and
those charged with his supervision. *** [C]ompliance with
the condition would have consequences in the community
perhaps beneficial, perhaps detrimental, but in any event
unforeseen and unpredictable." Burdin, 924 S.W.2d at 87.
Similarly, in People v. Johnson, 174 Ill. App. 3d 812 (1988),
the court cautioned against allowing trial courts to impose
unconventional conditions of supervision (730 ILCS 5/5--6--3.1(c)
(West 1994)), which may have unknown consequences. The defendant in
Johnson was convicted of driving under the influence of alcohol. As
a condition of supervision, the trial court in Johnson ordered the
defendant to place an advertisement in the local daily newspaper,
which contained her booking picture and an apology. The appellate
court vacated this condition, finding it to be inconsistent with
the overall intent of section 5--3--6.1. Johnson, 174 Ill. App. 3d
at 815.
Specifically, the court in Johnson noted that none of the
listed, permissible conditions suggest subjecting the defendant to
ridicule. Rather, the court determined that the overall intent of
section 5--6--3.1 was to aid the defendant in rehabilitation and to
avoid future crimes. The court stated:
"Neither the trial court *** nor this court can determine
the psychological or psychiatric effect of the
publication. An adverse effect upon the defendant would
certainly be inconsistent with rehabilitation and with
the statutory provision allowing the court to require
psychological or psychiatric treatment." Johnson, 174
Ill. App. 3d at 815.
We are mindful of the distinctions in the case sub judice and
the Burdin and Johnson cases. However, we agree with the specially
concurring opinion in Johnson, which observed:
"[T]o uphold the condition imposed here would encourage
other courts to impose other unusual, dramatic
conditions, and the proliferation of these types of
conditions would cause problems of a greater magnitude
than their propensity to rehabilitate." Johnson, 174 Ill.
App. 3d at 817 (Green, P.J., specially concurring).
See also People v. Harris, 238 Ill. App. 3d 575 (1992) (banishing
the defendant from the state of Illinois as a condition of
probation was unreasonable because no valid purpose would be
served); People v. Letterlough, 86 N.Y.2d 259, 655 N.E.2d 146, 631
N.Y.S.2d 105 (1995) (condition of probation requiring the defendant
to affix a florescent sign reading "convicted dwi" to the license
plate of any vehicle he drove was not authorized); People v.
Hackler, 13 Cal. App. 4th 1049, 16 Cal. Rptr. 2d 681 (1993) (court
not authorized to require probationer to wear a T-shirt bearing
bold printed statement proclaiming his felony status); but see
Lindsay v. State, 606 So. 2d 652 (Fla. 1992) (condition of
probation requiring defendant to place a newspaper advertisement
showing a mug shot, name and caption "DUI-convicted" upheld under
Florida statute); Goldschmitt v. State, 490 So. 2d 123 (Fla. 1986)
(bumper sticker reading "CONVICTED D.U.I.--RESTRICTED LICENSE"
upheld); Ballenger v. State, 210 Ga. App. 627, 436 S.E.2d 793
(1993) (court had the authority to require the defendant to wear a
pink fluorescent bracelet reading "D.U.I. CONVICT").
We hold that section 5--6--3(b) of the Code did not authorize
the trial court to require the sign as a condition of the
defendant's probation. The sign contains a strong element of public
humiliation or ridicule because it serves as a formal, public
announcement of the defendant's crime. Thus, the sign is
inconsistent with the conditions of probation listed in section 5--
6--3(b), none of which identify public notification or humiliation
as a permissible condition. Further, we determine that the sign may
have unpredictable or unintended consequences which may be
inconsistent with the rehabilitative purpose of probation.
Finally, the nature and location of the sign are likely to
have an adverse effect on innocent individuals who may happen to
reside with the defendant. At the time of sentencing in this case,
the defendant's wife was living on the premises where the violent
felon sign was to be displayed. The defendant's elderly mother also
intended to live there. The record shows that the defendant has two
adult children who visit the farm, as well as young grandchildren.
We believe that the manner in which the sign affects others also
renders it an impermissible condition of probation.
Conditions which label a defendant's person or property have
a stigmatizing effect and are considered shaming penalties. D.
Kahan, What Do Alternative Sanctions Mean? 63 U. Chi. L. Rev. 591
(1996); Comment, Sentenced to Wear the Scarlet Letter: Judicial
Innovations in Sentencing--Are They Constitutional? 93 Dick. L.
Rev. 759 (1989); Comment, The Modern Day Scarlet Letter: A Critical
Analysis of Modern Probation Conditions, 1989 Duke L.J. 1357
(1989). Although a probationer may experience a certain degree of
shame from a statutorily identified condition of probation, shame
is not the primary purpose of the enumerated conditions.
The judicially developed condition in the case at bar does not
reflect present penological policies of this state as evidenced by
our Unified Code of Corrections. The authority to define and fix
punishment is a matter for the legislature. People v. Breen, 62
Ill. 2d 323, 327 (1976). The drastic departure from traditional
sentencing concepts utilized in this case is not contemplated by
our Code. Therefore, we determine that the erection of the sign as
a condition of probation was unreasonable, and may be
counterproductive to defendant's rehabilitative potential.
For the above stated reasons, we conclude that the trial court
exceeded its authority and abused its discretion under section 5--
6--3(b) when it ordered the defendant to place the violent felon
sign at the entrance to his farm. This condition was not
reasonable. Because the sign has already been in place for more
than half the period of the defendant's probation, and in order
that the issue may not become moot by the further passage of time,
we hereby order that the disputed condition of probation is vacated
instanter.
The judgment of the appellate court is reversed and the
judgment of the circuit court is affirmed in part and vacated in
part.
Appellate court judgment reversed;
circuit court judgment affirmed in part
and vacated in part.
JUSTICE MILLER, concurring in part and dissenting in part:
I agree with the majority's decision that requiring the
defendant to maintain a warning sign on his property was not an
appropriate condition of probation. Rather than simply leave
undisturbed the remainder of the defendant's sentence, however, I
would vacate the sentence and remand the cause to the circuit court
for a new sentencing hearing. The trial judge sentenced the
defendant in August 1995 to a 30-month term of probation. Because
of the amount of time remaining in that period--nearly a year--and
because we have now eliminated an important condition of that
disposition, I believe that the trial judge should have the
opportunity to reconsider the defendant's sentence in light of our
holding here, and with regard to the defendant's conduct since the
original hearing (see 730 ILCS 5/5--5--3(d) (West 1994)).
CHIEF JUSTICE HEIPLE joins in this partial concurrence and
partial dissent.
JUSTICE BILANDIC, also concurring in part and dissenting in
part:
I agree with the majority that the provision of the sentence
requiring the erection of the sign was not reasonable. Rather than
just vacating that portion of the sentence, I would vacate the
entire sentence and remand to the circuit court for a new
sentencing hearing consistent with the views expressed in the
opinion.
CHIEF JUSTICE HEIPLE joins in this partial concurrence and
partial dissent.