author: JUSTICE CLARK

text:
    (No. 58075.
    THE BOARD OF EDUCATION OF SCHOOL DISTRICT NO. 131, KANE COUNTY, Appellant, v. THE STATE BOARD OF EDUCATION et al., Appellees.

      Opinion filed December 1, 1983.

      Richard L. Horwitz and David J. Chroust, of Drendel, Schanlaber, Horwitz & Oakes, and Lambert M. Ochsenschlager, Wayne F. Weiler and Craig S. Mielke, of Reid, Ochsenschlager, Murphy & Hupp, all of Aurora, for appellant.
    Wayne Schwartzman, of Hirsh & Schwartzman, P.C., of Chicago, for appellee Robert Slavin.
   JUSTICE CLARK

delivered the opinion of the court:

Defendant Robert Slavin was a tenured elementary school teacher in Kane County when he was discharged by plaintiff, the board of education of Kane County School District No. 131, for allegedly abusing students in his class. The defendant State Board of Education conducted a formal hearing pursuant to section 24 — 12 of the School Code (Ill. Rev. Stat. 1979, ch. 122, par. 24— 12). The hearing officer ordered Slavin reinstated, and the plaintiff filed suit in the circuit court of Kane County on November 12, 1980. The circuit court reversed the decision of the hearing officer and upheld the dismissal of defendant Slavin. The appellate court reversed (112 Ill. App. 3d 696), and we granted plaintiff’s petition for leave to appeal (87 Ill. 2d R. 315(a)).

Robert Slavin had taught elementary school students in Kane County for 17 years prior to his dismissal in 1980. He had been employed at the Dieterich School since 1966 and was teaching a class of fourth graders when he began having serious disciplinary problems with four of his students. Slavin had an unblemished employment record prior to these disciplinary problems. His work performance was found to be satisfactory at a formal review on January 22,1980.

Gary Lay was an 11-year-old student in Slavin’s fourth-grade class during the 1979-80 school term. Gary had repeated kindergarten and was a year older than the rest of the students in the class. In November 1979, Slavin spoke with Gary’s parents during a conference at the school. Slavin complained about Gary’s behavior in class and told the parents that Gary had the impression he could do whatever he wanted in the classroom. Gary’s father said that the boy behaved the same way at home.

Mrs. Sue Mary Lay testified before the hearing board that she noticed scratches and black and blue marks on Gary’s body in February of 1980. When asked to explain what happened, Gary told his mother, “Mr. Slavin did it to me today, he grabbed and shook me.” Slavin testified that Gary often carried on conversations with a girl who occupied the desk in front of his in class. On one occasion, Slavin was seated at his desk and ordered Gary to stop talking. When Gary continued his conversation, Slavin went to Gary’s desk and pushed it away from the girl’s desk. The front of Gary’s desk flew up in the air as Slavin pushed it back. During the hearing, witnesses offered different accounts of the incident. Slavin insisted that he did not abuse Gary, while one student testified that Slavin picked up Gary and threw him into the desk with enough force to cause the front of the desk to fly up. On February 15, 1980, Mrs. Lay met with Slavin and the school principal, Mrs. Gwendolyn Miller. Slavin was not reprimanded for his behavior, but he agreed to send home weekly reports to Gary’s parents. After this conference, Gary was asked to stand in the hallway whenever his conversations disturbed the rest of the class.

Tammy Parker was a 10-year-old student in Slavin’s class during the 1979-80 school term. Tammy had been living with her mother, her mother’s boyfriend, and two other children during January of 1980. Tammy’s mother and her boyfriend abused Tammy by beating her with a strap and cutting her head with a tin can. The Illinois Department of Children and Family Services obtained a court order removing Tammy from her mother’s custody. Tammy’s grandmother, Mrs. Norma Jean Mieno, was granted temporary guardianship.

Mrs. Mieno had several informal conversations with Slavin concerning Tammy’s behavior in class. Slavin complained that Tammy often began singing and dancing in class and that such behavior bothered the other students. On February 22, 1980, Tammy began singing and dancing around her desk while Slavin was conducting class. Slavin told her to stop, but the disruption continued, and she was ordered out into the hall. Finally, Slavin grabbed Tammy by the arm and escorted her into the hallway. Slavin’s fingernails were rather long at the time, and he scratched Tammy’s arm when he grabbed her. The girl’s arm was red and swollen, and she began to cry. Tammy threatened to tell her grandmother and the principal and get Slavin fired. Slavin discussed the incident with Mrs. Miller, the principal, and she told him that if Tammy misbehaved in the future, he should take her by the hand.

On February 26, 1980, Tammy began walking around the class and annoying other students. Tammy testified that she asked Slavin a question and Slavin told her to “Shut up and get out of my way.” Slavin denied making this statement. Tammy continued to leave her seat and disrupt the reading lesson that was being conducted. Slavin warned her again, and finally took her by the hand and led her out in the hall. Tammy continued to disrupt the class by rattling the door and darting in and out of the classroom. Slavin warned her that he would call her grandmother if she continued to misbehave. When the disruptions continued, Slavin called Mrs. Mieno, describing Tammy’s behavior, and asked her to take Tammy home. Slavin took this action without contacting the school principal, who was absent on the day of the incident.

Rex Rose was another 10-year-old student in Slavin’s class. On February 21, 1980, Rex came home from school with three scratch marks near his armpit. Mrs. Marlaina Rose called the principal and accused Slavin of injuring her son. The following day, Mrs. Rose had a conference with Slavin and Mrs. Miller, and Slavin denied injuring her son. Mrs. Rose indicated that she wanted Rex transferred to another teacher’s classroom, but Mrs. Miller suggested a two- or three-week trial period and scheduled another meeting for March 10,1980.

On March 7, 1980, Slavin took the entire class outdoors to withdraw books from a bookmobile. Slavin observed Rex running along the sidewalk, and he ordered the boy back in line. Rex continued to misbehave by chasing other students and climbing a railing. Rex was ordered to the front of the line so the teacher could keep an eye on him. Slavin testified that Rex continued to disrupt the class after the students returned to the classroom. Rex walked around the room, talked to other students, sat on the floor, and interrupted class for almost 30 minutes. Rex testified that he was seated at his desk and he turned around to pick up a pencil that had rolled off his desk. Rex testified that “Mr. Slavin was at another desk, he came up to me, took me and threw me in my desk. I hit my head on the radiator, and hit my side on the corner of the desk.” Rex began crying, and the class started to laugh. Slavin testified that Rex was away from his desk when he placed both hands on the boy’s arm and walked him back to his desk. Slavin testified that Rex went “real limp” as they approached his desk, and that he accidently hit his head on the radiator when Slavin put him in his seat. Slavin testified that he called the" principal on the intercom but could not reach her. The school secretary, Mrs. Reels, testified that Slavin did not use the school intercom on that day.

Rex put on his boots and coat and left school. Mrs. Rose testified that Rex came home crying, with a bruise on his rib cage and a scratch behind his ear. Mrs. Rose called the principal and arranged for a conference at 4:30 p.m. that day. The conference was held in the principal’s office, and it was attended by Mrs. Miller, Mrs. Rose, Rex, Slavin, and James Valesano, the assistant superintendent for instruction in School District No. 131. Slavin was not given a written reprimand or told his conduct was in violation of school rules, but the principal did examine Rex and observed a bump and a scratch behind his ear, as well as a bruise on his rib cage.

Maurice Payne was also a pupil in Slavin’s fourth-grade class. Mrs. Miller testified that Mrs. Payne called her on February 29, 1980, at 11 a.m. and told her that Maurice had come home from school. Later that day, a conference was held with Slavin, Mrs. Miller, Maurice, and Mrs. Payne in attendance. Slavin explained that Maurice disturbed the class and refused to return to his desk. Maurice explained that he was playing with a ruler. Maurice told Slavin that he was going home, and Slavin did nothing to stop him and did not notify the principal that the boy was leaving school. Slavin was not reprimanded or told that he had violated school board policy.

On March 19, 1980, the board of education of School District No. 131 dismissed Slavin from his position based on the following charges:

“1. You are guilty of cruelty to students entrusted to your care.
2. You have caused deliberate and irreparable physical, mental and emotional injury to students in your classroom.
3. You have summarily expelled and excluded students from school in violation of School Board Policy and the School Code of Illinois.
4. You are and have been negligent.
5. You have been insubordinate and have failed to follow the instructions of your supervisors and cooperate with (them) and you have further failed to follow the policies of the School Board, and the laws of the State of Illinois regarding the discipline of students.
6. In the opinion of the Board of Education you are not qualified to teach.
7. In the opinion of the Board of Education your dismissal is in the best interests of the School.”

Slavin’s dismissal was based on alleged violations of regulations promulgated by the board of education, as well as school procedures at the Dieterich school which had been made available to Slavin. These regulations provide, in pertinent part:

“5.06 DISCIPLINE OF PUPILS
D. Corporal Punishment
1. In cases where all other disciplinary measures have failed the principal or other person duly designated by the superintendent may:
a. Strike the pupil with the open hand in an area below the neck. This action should be taken only after other types of influence have failed to gain the desired goal, and it should not be of sufficient severity to be termed a spanking.
b. Spank the pupil with the open hand or a paddle on an area below the neck after arranging for a reliable witness to be an observer. Such corporal punishment must not exceed reasonable limits and must not be given with malice.”
“Dieterich School Procedures:
* * *
13. POLICIES
* * *
3. Never send a child home without prior approval from the office.”
“MISCELLANEOUS POINTS ON/OR ABOUT DISCIPLINE AND RULES
* * *
3. One disciplinary measure that may cause concern is paddling. I ask that any time a child is to be paddled, I (the principal) do it, this will protect you as a teacher. Also, please be cautious as to how you discipline our students. Never hit, slap, or push our students. If you cannot handle a situation, send for help.”

The sole issue presented in this appeal is whether the defendant’s conduct was remediable. If Slavin’s conduct was remediable, he was entitled to a written warning before he could be dismissed pursuant to section 24 — 12 of the Code (Ill. Rev. Stat. 1979, ch. 122, par. 24 — 12). The criteria for determining whether a teacher’s conduct is remediable are set forth in Gilliland v. Board of Education (1977), 67 Ill. 2d 143. In Gilliland, this court affirmed the dismissal of a public school teacher for violations of school board regulations that extended over a four-year period. This court established the test for reviewing teacher misconduct by stating:

“The board’s findings are not, of course, immune from judicial review. The court function, however, is limited, and does not permit substitution of the court’s judgment for that of the board. Rather, the board’s findings must be sustained unless those findings are contrary to the manifest weight of the evidence. [Citations.] The test in determining whether a cause for dismissal is irremediable is whether damage has been done to the students, faculty or school and whether the conduct resulting in that damage could have been corrected had the teacher’s superiors warned her.” 67 Ill. 2d 143, 153.

An important distinction between the case at bar and Gilliland is the time frame of the teacher misconduct. In Gilliland, the teacher’s transgressions extended over a four-year period, while Slavin never encountered any difficulty with his students during 17 years of teaching until the last 6 weeks of his employment.

The Gilliland test mandates a two-pronged analysis of Slavin’s alleged misconduct. First, did Slavin’s conduct cause damage to the students, faculty or school? Although physical abuse of small children should never be tolerated in our school system, Slavin’s conduct did not significantly damage any of his students. None of the students missed school or sought medical attention after contact with Slavin. Slavin was probably guilty of poor judgment in grasping children by the arm when his fingernails could scratch them, but significant damage was not caused by his conduct.

The four cases that plaintiff urges us to follow differ significantly from the case at bar. In Fender v. School District No. 25 (1976), 37 Ill. App. 3d 736, the court upheld the dismissal of a teacher even though the teacher had not been furnished with a written warning prior to his dismissal. In Fender the teacher’s abuse occurred over a period of years and was far more serious than Slavin’s. Fender held one student by the hair and slapped the child 10 to 13 times until the battering caused bleeding inside the child’s mouth. (37 Ill. App. 3d 736, 741.) In Fender, the court was presented with a continuing pattern of cruelty rather than isolated incidents in an otherwise unblemished employment record.

In Rolando v. School Directors of District No. 125 (1976), 44 Ill. App. 3d 658, a sixth-grade teacher procured an electronic cattle prod to discipline unruly students. Recalcitrant students had their names placed on a “coward’s list” on the blackboard in front of the classroom. (44 Ill. App. 3d 658, 660.) In Lowe v. Board of Education (1979), 76 Ill. App. 3d 348, the teacher beat students with a curtain rod, an extension cord, and a club made out of five pieces of balsa wood nailed together and wrapped with masking tape. Welch v. Board of Education (1977), 45 Ill. App. 3d 35, presents a closer factual situation. In Welch, a sixth-grade student was paddled for playing a radio during the school lunch hour. When the student indicated that it did not hurt, the teacher paddled him more severely, forcing his mother to take the child to the family physician. (45 Ill. App. 3d 35, 37.) In the case at bar, Slavin did not seriously injure any student and only used physical force to direct a child into the hallway, toward a desk, or into a line. Although Slavin should have exercised more restraint in forcing the students to behave or sit in their desks, we conclude that his conduct did not significantly damage his students. Slavin exercised poor judgment when he allowed students to leave school without contacting the principal, but this conduct was remediable and should have been called to his attention.

Plaintiff must also demonstrate that the conduct could not have been corrected had the teacher been warned. (Gilliland v. Board of Education (1977), 67 Ill. 2d 143, 153.) Slavin was dismissed without a formal, written warning concerning the nature of his conduct, although he was instructed by the school principal to avoid grasping children by the arm. Plaintiff maintains that the school board would have to retrain Slavin and provide constant supervision before he could be placed in the classroom again. This conclusion is based on the expert testimony of Georgia Scriven before the hearing board. Scriven, a professor in the Department of Education at Northern Illinois University, testified that Slavin would probably continue to have discipline problems if he is allowed to return to the classroom. Scriven did admit that there was a possibility that Slavin would be a useful teacher in the future, and her answer to a hypothetical question before the hearing officer is not sufficient reason for this court to reverse the holding of the appellate court.

Finally, plaintiff argues that the students should have been provided with a hearing before they were sent home from school, and that the students were denied due process of law as enunciated by the United States Supreme Court in Goss v. Lopez (1975), 419 U.S. 565, 42 L. Ed. 2d 725, 95 S. Ct. 729. Even if plaintiff’s contention here were factually true, Goss does not apply here. In Goss, the court invalidated an Ohio statute that permitted 10 days’ suspension from school without a notice or a hearing. However, the Goss court did not discuss the constitutional implications of sending children home from school for the rest of the school day after they had repeatedly disturbed the class. Goss does not support plaintiff’s theory for reversal, and we can find no due process violations based on the actions of Slavin.

We therefore conclude that Slavin’s conduct was remediable, and that the plaintiff erred in dismissing him. We affirm the decision of the appellate court and order Slavin reinstated with back pay.

Judgment affirmed, as modified.


source: Caselaw Access Project

author: JUSTICE UNDERWOOD JUSTICE CLARK,

license: Public Domain

text:
    (No. 59032.
    JAMES SAYLES et al., Appellees, v. JAMES THOMPSON, Governor, et al., Appellants.

      Opinion filed December 1, 1983.

      CLARK and SIMON, JJ., dissenting.

      Neil F. Hartigan, Attorney General, of Springfield (Patricia Rosen, Assistant Attorney General, of Chicago, of counsel), for appellants.
    Charles Hoffman, Jan Susler, Shelley A. Bannister, and Margaret Byrne, all of Chicago, for appellees.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

The representative plaintiffs in this class action are three prisoners heretofore committed to the custody of the Illinois Department of Corrections and presently confined in Illinois prisons. They brought this action in the circuit court of Cook County on behalf of all Illinois prisoners subject to the Interstate Corrections Compact (Ill. Rev. Stat. 1981, ch. 38, par. 1003 — 4—4) seeking a declaration that transfers of inmates to out-of-State prisons pursuant to that compact would violate the transportation clause of our constitution (Ill. Const. 1970, art. I, sec. 11). The Governor and the Director of the Department of Corrections were named as defendants, and plaintiffs prayed that enforcement of the statute be enjoined.

The circuit court denied a motion by defendants to dismiss and granted plaintiffs’ motion for summary judgment, ruling that the statute was unconstitutional and enjoining its enforcement. Defendants appealed directly to this court pursuant to our Rule 302(a) (87 Ill. 2d R. 302(a)).

The sole issue on appeal is whether transfers of inmates pursuant to the Interstate Corrections Compact violate the transportation clause of our constitution. This . inquiry necessitates a determination of the meaning, purpose and scope of the transportation clause.

There is, as this court has frequently emphasized, a strong presumption that legislative enactments are constitutional (People v. Greene (1983), 96 Ill. 2d 334, 338; Cronin v. Lindberg (1976), 66 Ill. 2d 47, 58), and one who asserts otherwise has the burden of clearly establishing the constitutional violation (Polyvend, Inc. v. Puckorius (1979), 77 Ill. 2d 287, 303; People v. Dale (1950), 406 Ill. 238, 244). “A statute should be interpreted so as to avoid a construction which would raise doubts as to its validity. (Morton Grove Park District v. American National Bank & Trust Co. (1980), 78 Ill. 2d 353, 363.) It is our duty to construe acts of the legislature so as to affirm their constitutionality and validity, if it can be reasonably done, and further if their construction is doubtful, the doubt will be decided in favor of the validity of the law challenged. Continental Illinois National Bank & Trust Co. v. Illinois State Toll Highway Com. (1969), 42 Ill. 2d 385, 389; Illinois Crime Investigating Com. v. Buccieri (1967), 36 Ill. 2d 556, 561.” People v. Davis (1982), 93 Ill. 2d 155, 161-62.

The meaning of a statute or constitutional provision depends upon the intent of the drafters at the time of its adoption, and it is a long-standing principle of statutory construction that it is the court’s duty to ascertain and effectuate that intent. (In re Griffin (1982), 92 Ill. 2d 48, 52; People ex rel. Hanrahan v. White (1972), 52 Ill. 2d 70, 73; People ex rel. Cason v. Ring (1968), 41 Ill. 2d 305, 310.) The ordinary meaning of the language employed by the drafters in the questioned constitutional or statutory clause provides the best evidence of the drafters’ intent. (People v. Brown (1982), 92 Ill. 2d 248, 255; People v. Robinson (1982), 89 Ill. 2d 469, 475-76; People v. Haron (1981), 85 Ill. 2d 261, 266.) The transportation clause provides:

“No person shall be transported out of the State for an offense committed within the State.” (Emphasis added.) (Ill. Const. 1970, art. I, sec. 11.)

Plaintiffs describe this language as clear, explicit and unambiguous, and maintain that the language imposes a blanket ban without regard to the method, form or purpose of transportation. Plaintiffs’ characterization, however, clearly overstates the breadth of the clause. If the drafters had intended to unilaterally preclude the transportation of prisoners under all circumstances and for any reason they would surely have stated so. The language of the clause is not unqualified, for it prohibits prisoner transportation only when such transportation is for the commission of an offense.

Defendants contend that the transportation clause was intended to prohibit transportation as a form of punishment for the commission of an offense since this was regarded by the drafters as particularly cruel and unusual. In support of their position defendants rely primarily on the records of the 1970 constitutional convention. They also examine the history of banishment and exile generally, emphasizing that transportation clauses in earlier Illinois constitutions were adopted for the specific purpose of protecting against these archaic forms of punishment.

In England, prior to this century, banishment from the King’s dominion was a common form of punishment. (G. Dues, A History of Penal Methods: Criminals, Witches, Lunatics (1914).) English prisoners were frequently transported to the American colonies under a contract of indentured service (Crais, The Compulsion of Subjects to Leave the Realm, 6 L.Q. Rev. 388, 398 (1890).) Once our independence was secured, many States enacted constitutional safeguards against this form of punishment. (See G. Bra-den & R. Cohn, Illinois Constitution: An Annotated and Comparative Analysis 53 (1969).) Indeed, a prohibition against punishment by transportation has existed in every Illinois constitution, and the language of each has been virtually identical. (See Ill. Const. 1818, art. VIII, sec. 17; 111. Const. 1848, art. XIII, sec. 18; Ill. Const. 1870, art. II, sec. 11.) The precursor to the present transportation clause was the 1870 clause, which provided:

“[N]or shall any person be transported out of the State for any offense committed within the same.” (Ill. Const. 1870, art. II, sec. 11.)

Braden and Cohn explain that the purpose of this language was to protect against prisoner transportation as a cruel form of punishment:

“Historically, banishment or exile from the realm was an accepted form of punishment. The legislature has heeded the admonition against the imposition of this particularly cruel form of punishment.” (G. Braden & R. Cohn, Illinois Constitution: An Annotated and Comparative Analysis 53 (1969).)

In Du Bois v. Gibbons (1954), 2 Ill. 2d 392, 410, this court acknowledged, in dicta, that the purpose of the transportation clause was to prohibit “banishment from the State as punishment.” Since banishment is no longer an acceptable form of punishment Braden and Cohn consider the transportation clause anachronistic and recommend its abolition. Braden & Cohn, Hlinois Constitution: An Annotated and Comparative Analysis 54 (1969).

We note, too, that, while not binding upon us, the Attorney General indicated in a 1982 opinion letter to the Director of the Department of Corrections his belief that temporary transfers of Hlinois prisoners to Federal penal institutions outside Illinois were not prohibited.

During the 1970 constitutional convention there were several proposals to abolish the transportation clause and adopt instead a clause prohibiting cruel and unusual punishment (7 Record of Proceedings, Sixth Illinois Constitutional Convention 2961-64 (Committee Proposal No. 275), 3043 (Committee Proposal No. 433), 3080 (Committee Proposal No. 526).) It was argued that the transportation clause really had no contemporary significance, since banishment was no longer employed as a form of punishment. Delegate Dvorak explained that the transportation clause was retained despite its out-dated purpose since section 11 of article I was actually tantamount to a prohibition against cruel and unusual punishment:

“The third clause, ‘nor shall any person be transported out of the state for any offense committed within the same,’ is akin to the second clause, being explanatory once again. It really has no contemporary significance. The historical basis is evidenced in, for instance, the settling of our original colonies where English prisoners were brought over to do the mundane work necessary for settlement. This has been interpreted in very ancient cases as being so particularly cruel that there is no absolutely decisive case law on this section alone.
Approximately one-third of our states now retain this section in their bill of rights. As indicated in our committee report, this section passed with a seven-to-five vote, and I think this is not indicative of the intent to retain this language. The five votes dissenting on retention were broken down between proponents of some akin matters — for instance, proponents of inclusion of the federal language of ‘cruel and unusual punishment.’ We felt, I believe as a committee, that while we could either include or substitute that language for the existing language, we would be making no substantive changes and, therefore, we preferred not to do it.” (Emphasis added.) 3 Record of Proceedings, Sixth Illinois Constitutional Convention 1380.

In view of these remarks, and Illinois’ historical animosity towards prisoner transportation as a cruel form of punishment, we conclude that the transportation clause is violated only if and when the transportation of prisoners constitutes cruel and unusual punishment. With this premise in mind we turn to the question of whether prisoner transportation pursuant to the Interstate Corrections Compact can be characterized as cruel and unusual.

The express objective of the compact is to serve the best interests of the inmates. (Ill. Rev. Stat. 1981, ch. 38, par. 1003 — 4—4, art. I.) An inmate may only be transferred when “necessary or desirable in order to provide adequate quarters and care or an appropriate program of rehabilitation or treatment.” (Ill. Rev. Stat. 1981, ch. 38, par. 1003— 4 — 4, art. IV.) Despite such concerns, plaintiffs argue that transfer to an out-of-State facility would compel the inmate to forgo, to an appreciable extent, interaction with family and friends. The transferred inmate would also be separated from counsel and the State courts. Defendants emphasize that Illinois prisons are dangerously overcrowded at this time and that this situation has created numerous security and health problems within the prisons. Defendants contend that adequate care and treatment for inmates is presently impossible and submit that the transfer of inmates to out-of-State facilities is the only workable solution to these problems.

Obviously, the, hazards that have resulted from prison overcrowding are most deeply felt by the inmates themselves. In fact, we note plaintiffs alleged in paragraph 8 of their complaint that “[t]his intolerable development [an increase in prison population from 10,000 in 1978 to the present 14,000] has resulted in massive overcrowding and cruel and inhumane conditions of confinement for' Illinois prisoners.” The present effort to transfer them would alleviate many of the problems they confront on a daily basis. Under the compact, a transferred inmate retains all the rights and privileges he possessed while confined within the Illinois prison system. (Ill. Rev. Stat. 1981, ch. 38, par. 1003 — 4—4, art. IV.) Although we appreciate that the transfer of an inmate to an out-of-State facility would make visitation more burdensome, we cannot regard such transfers as cruel and unusual when the clear objective and consequence is to significantly improve their basic living conditions. Accordingly, we hold that such transfers do not violate the transportation clause. We add, however, that careful attention must be given the method of selecting inmates to be transferred in order that constitutional equal protection guarantees are not offended.

This conclusion is consistent with Federal cases that have addressed the issue. In Sisbarro v. Warden, Massachusetts State Penitentiary (1st Cir. 1979), 592 F.2d 1, 4, the court acknowledged that out-of-State transfers involved certain hardships to the prisoner but held that “such transfers are neither unusual nor ‘cruel in the constitutional sense.’ ” See also Olim v. Wakinekona (1983), 461 U.S. 238, 75 L. Ed. 2d 813, 103 S. Ct. 1741; Rodriguez-Sandoval v. United States (1st Cir. 1969), 409 F.2d 529, 532.

For the foregoing reasons the judgment of the circuit court of Cook County is reversed.

Judgment reversed.

JUSTICE CLARK,

dissenting:

It is a well-established principle, as the majority opinion itself points out, that “[t]he ordinary meaning of the language employed by the drafters in the questioned constitutional or statutory clause provides the best evidence of the drafters’ intent. (People v. Brown (1982), 92 Ill. 2d 248, 255; People v. Robinson (1982), 89 Ill. 2d 469, 475-76; People v. Haron (1981), 85 Ill. 2d 261, 266.)” 99 Ill. 2d at 125.

In Salmons v. Dutz (1958), 16 Ill. App. 2d 356, the court held:

“In considering the question raised on this appeal, recognition must be accorded the well established principle that a statute is not open to construction where the language thereof is clear and unambiguous and conveys a clear and definite meaning. [Citation.] If the legislative intention be plain from the language used the courts are not permitted to give the Act any other meaning than that therein expressed.
In Sup v. Cervenka, 331 Ill. 459, the rule to which we refer is thus stated:
‘It is an elementary rule in the construction of a statute that the intention of the legislature must primarily be determined from the language of the statute itself and not from conjectures aliunde. When that language is plain and unambiguous and conveys a clear and definite meaning there is neither necessity nor authority for resorting to statutory construction. If the words of a statute are plain and the legislative purpose manifest, that purpose must be given effect. The courts have no legislative powers, and in the interpretation and construction of statutes their sole function is to determine, and within the constitutional limits of the legislative power to give effect to, the intention of the legislature. They cannot read into a statute something that is not within the manifest intention of the law-making body as gathered from the statute itself. To depart from the meaning expressed by the words is to alter a statute — it is to legislate and not to interpret. If the obvious meaning of a statute should be followed by harsh consequences, such a result cannot influence the courts in administering the law.’ ” 16 Ill. App. 2d 356, 361.

The transportation clause provides:

“No person shall be transported out of the State for an offense committed within the State.” (Ill. Const. 1970, art. I, sec. 11.)

The transportation clause clearly does not state, as the majority suggests, that a person shall not be transported out of the State for an offense committed within the State only if it constitutes cruel and unusual punishment. The majority concludes “that the transportation clause is violated only if and when the transportation of prisoners constitutes cruel and unusual punishment.” (99 Ill. 2d at 128.) I do not agree.

The clear language of the transportation clause should not be ignored. Since the language is clear and unambiguous, it is not necessary to go outside the language of the transportation clause to determine the intention of the constitutional convention.

The majority discusses the fact that several proposals were made during the 1970 constitutional convention to abolish the transportation clause and adopt instead a clause prohibiting cruel and unusual punishment. It further notes the remarks of one of the delegates to the convention regarding the alleged obsolescence of the transportation clause. The majority reasons that these proposals and the remarks of the delegate are indicative of the constitutional convention’s intent. However, the fact remains that the transportation clause was not abolished nor was it altered. It still remains in our constitution. Therefore, it is reasonable to conclude that it was the intention of the constitutional convention that it remain in effect as written.

Prison overcrowding should not affect our interpretation of the Blinois Constitution. The transportation clause of our constitution has not changed significantly since 1818 (cf. Ill. Const. 1818, art. VII, sec. 17; Ill. Const. 1848, art. XIII, sec. 18; Ill. Const. 1870, art. II, sec. 11; Ill. Const. 1970, art. I, sec. 11), and I disagree with the majority’s belief that the exigencies of a temporary crisis should be used to justify a strained interpretation of a clear constitutional mandate. The same argument was rejected by this court in Lane v. Sklodowski (1983), 97 Ill. 2d 311, 318, where we noted:

“Amicus curiae, John Howard Association, argues in its brief that, unless this court holds that the Director has unlimited authority to grant early release to prisoners beyond a total of 90 days per incarceration, dangerous and unconstitutional overcrowding of Illinois prisons will occur: The Director made similar arguments in a motion to stay our order of July 12, but as we stated in our order of July 15, 1983, quoted above, these are principally concerns for the General Assembly.”

Lane does indicate that prison overcrowding could become a matter for the judiciary if Illinois prisons become so overcrowded that there was a violation of the eighth amendment’s prohibition against infliction of cruel and unusual punishment (U.S. Const., amend VIII), but I do not think that the majority opinion has established that such a situation currently exists in Illinois. The only support for this proposition is a quotation from plaintiff’s brief. The prisoners that have been sent to Nevada have been dispatched as the Illinois prison population became larger than 14,000. If the prison situation in Illinois before Lane already constituted cruel and unusual punishment, the prison transfer program, as it has been implemented to this date, will not improve the living conditions of the 14,000 prisoners already incarcerated in Illinois. It merely postpones the day when the legislature will have to effectively deal with the problem of prison overcrowding in this State.

As our appellate court has noted:

“ ‘Such considerations cannot be utilized to sustain a construction at variance with the plain meaning of the statutory language. They are arguments appropriately addressed to the legislature. The function of this court is to construe the statute in accordance with the normal import of the words used, whatever its opinion may be regarding the desirability of results produced by the operation of the statute.’ ” Mason v. Cutkomp (1957), 15 Ill. App. 2d 378, 384.

I am also troubled by the majority’s endorsement of the statute’s authorization to transfer prisoners when “necessary or desirable.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 38, par. 1003 — 4—4, art. IV.) Such a wide range of discretion could have extremely serious consequences. If this opinion is adopted, we could abolish the prison system in Illinois and send all of our prisoners to other States with lower wages and construction costs. Although such a draconian development is unlikely, I can foresee other abuses that such discretion encourages. If we endorse the statute in question, future administrators may find it necessary or desirable to banish prisoners to distant States if they show a talent for assisting other prisoners in learning about the laws that imprisoned them, or assisting others in the preparation of habeas corpus petitions. Prison administrators could effectively punish prisoners without troublesome judicial supervision.

I do not understand the majority’s reliance on the common law development of prisoner banishment. Exile to Australia or the new colonies was conceived as a particularly odious form of punishment. The distance from relatives and loved ones produced a tremendous strain on the early convicts banished to Australia or the new colonies, although the living conditions, climate, space, and food were often better than in England. Nevada is certainly not as far as Australia, but impoverished relatives of Blinois inmates may find the financial burden of transportation too great to bear. Blinois’ exiles will be effectively cut off from contact with their friends, relatives and attorneys. In addition, I am concerned over whether our State will provide adequate facilities to monitor conditions in out-of-State prisons to insure humane and fair treatment of Blinois prisoners once they are in the custody of authorities in other States.

Finally, I would like to recall the judicial philosophy of the late Justice Black of the United States Supreme Court. His strict interpretation of the United States Constitution was epitomized by his construction of the first amendment (U.S. Const., amend. I). He interpreted the phrase “Congress shall make no law *** abridging the freedom of speech” to mean just that — no law. He would not tolerate interpretations that indorsed some laws, as long as they were reasonable. (See Frank, Mr. Justice Black, The Man and His Opinions 253-309 (1949).) In the case at bar, we have the clear language of the Illinois Constitution:

“No person shall be transported out of the State for an offense committed within the State.” Ill. Const. 1970, art. I, sec. 11.

The Illinois Constitution does not forbid the movement of prisoners outside of the State unless it is reasonable, or cruel and unusual, or anything else. It simply forbids it.

I respectfully dissent.

JUSTICE SIMON joins in this dissent.


author: JUSTICE UNDERWOOD JUSTICE CLARK, JUSTICE SIMON,

text:
    (No. 56907.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. STANLEY PAYNE, Appellee.

      Opinion filed December 1, 1983.

    CLARK, J., specially concurring.
    SIMON, J., dissenting.
    Tyrone C. Fahner and Neil F. Hartigan, Attorneys General, of Springfield, and Richard M. Daley, State’s Attorney, of Chicago (Richard A. Devine and Michael B. Weinstein, Assistant Attorneys General, of Chicago, and Michael E. Shabat, Joan S. Cherry and Kevin Sweeney, Assistant State’s Attorneys, of counsel), for the People.
    James J. Doherty, Public Defender, of Chicago (Kathleen O’Donovan, Ira Churgin, Robert P. Isaacson and Aaron L. Meyers, Assistant Public Defenders, of counsel), for appellee.
    Alan Raphael, of Jenner & Block, of Chicago, for
      amicus curiae Chicago Council of Lawyers.
    James S. Liebman, of Chicago, for amicus curiæ NAACP Legal Defense and Educational Fund, Inc.
    James D. Montgomery, Corporation Counsel, of Chicago (Jerome A. Siegan and Maureen Kelly Ivory, of counsel), for amicus curiæ City of Chicago.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County Stanley Payne was found guilty of three counts of aggravated battery and one count of armed violence in connection with the shooting of Frederick Perry. He was sentenced to concurrent terms of five years on the aggravated-battery counts and 20 years on the armed-violence charge.

In a Rule 23 order (87 Ill. 2d R. 23) the appellate court held the evidence sufficient to establish defendant’s guilt beyond a reasonable doubt. (106 Ill. App. 3d 1154.) In a separate opinion (People v. Payne (1982), 106 Ill. App. 3d 1034), however, the court reversed the conviction and remanded the case for a new trial because of what it considered to be constitutional error of reversible magnitude. That court said that it reasonably appears from the record in this case that the prosecutor was peremptorily challenging prospective black jurors simply because they were black. Because of its finding the appellate court held the trial judge should have required the prosecutor to demonstrate that black persons were not being excluded solely because of their race. The failure of the trial court to do so, said the appellate court, violated defendant’s sixth amendment right to an impartial jury drawn from a fair cross-section of the community and required a new trial. (U.S. Const., amend. VI; Taylor v. Louisiana (1975), 419 U.S. 522, 42 L. Ed. 2d 690, 95 S. Ct. 692.) No question is raised here other than the correctness of this holding.

Of the ten black persons on the venire from which the jurors in this case were drawn, three were excused by the court for cause, six were excused by the prosecutor through the use of peremptory challenges, and one was accepted by both sides and served as a juror. Defendant objected to the prosecutor’s use of peremptory challenges for this purpose on the grounds that those persons so challenged were being excused only because of their color. Two white persons were also peremptorily challenged by the prosecution, and the defense exercised all 10 peremptory challenges on white persons. We note parenthetically that, in their briefs, the parties appear to concede that if, in these circumstances, the prosecutor should have been required to justify his use of peremptory challenges, similar explanation would be required from defense counsel. However, in oral argument defense counsel seemed to urge that explanations could not be required of defense counsel.

Our earlier decisions (see, e.g., People v. Davis (1983), 95 Ill. 2d 1; People v. King (1973), 54 Ill. 2d 291; People v. Powell (1973), 53 Ill. 2d 465; People v. Butler (1970), 46 Ill. 2d 162; People v. Harris (1959), 17 Ill. 2d 446) consistently rejected claims that minority group members had been improperly excluded from the convicting juries. The opinions in those cases, however, did not specifically consider Taylor v. Louisiana, the Supreme Court decision which defendant here urges modified the earlier holding in Swain v. Alabama (1965), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824. In Swain the court held the use of peremptory challenges in particular cases to exclude members of discrete groups was not a violation of equal protection guarantees, but recognized that systematic exclusion of such persons in case after case could infringe upon constitutional protections. Defendant here argues that Taylor established a sixth amendment right to jurors selected from a representative cross section of the community, and that this right precludes the prosecutor from so exercising his peremptory challenges as to eliminate members of a discrete group simply because of that membership. Because the sixth amendment to the Federal Constitution, upon which Taylor is bottomed, had not, when Swain was decided, been held applicable to the States, the appellate court considered that the Swain holding was no longer viable and agreed with defendant.

In People v. Williams (1983), 97 Ill. 2d 252, we discussed at length and rejected this specific contention. We there considered the cases upon which defendant and the appellate court in this case relied, and no useful purpose would be served by reiteration of that discussion here. We pointed out Swain’s emphasis upon the importance of peremptory challenges to the process of selecting an impartial jury, and that court’s conclusion that the use of such challenges against group members solely because of such membership was justified in particular cases. Because Taylor’s concern had been with a sixth amendment right to a “fair cross section of the community on venires, panels, or lists from which petit jurors are drawn” (419 U.S. 522, 526, 42 L. Ed. 690, 696, 95 S. Ct. 692, 696), we concluded that Taylor had not diminished Swain’s precedential value. We noted, too, the Swain caveat “that the systematic exclusion of blacks by peremptory challenges in case after case regardless of the particular circumstances involved would raise a constitutional issue.” (People v. Williams (1983), 97 Ill. 2d 252, 278.) Since the issue in Williams concerned only the alleged exclusion of blacks in that case, and Swain specifically permitted the use of peremptory challenges for that purpose, we found no error occurred. We made clear our agreement with the Swain principle that an essential part of our jury trial system is the right of both sides in particular cases to exercise peremptory challenges as they deem advisable, and our belief that this principle was unaffected by Taylor’s announcement of a sixth amendment right to “a fair cross section of the community” on sources from which petit jurors are drawn. Those expressions are dispositive of the only issue before us in this case.

The judgment of the appellate court is reversed and the cause is remanded to that court for consideration of other issues originally argued but not decided.

Reversed and remanded.

JUSTICE CLARK,

specially concurring:

Although I agree with the underlying notions in the arguments advanced by my colleague Justice Simon, I believe that, based on the facts in this case, the majority opinion is fair and reasonable, and therefore concur in the result with the following comments.

Certainly, no one on this court would disagree with the premise that the systematic exclusion of blacks for jury duty is unconstitutional and should be condemned. However, this is not the situation that we are faced with in the case at bar. A future case may present obvious abuses such as systematic exclusion of jurors on the basis of race, and I would not hesitate to invalidate such a practice, but that is not the case in People v. Payne. In this case, while the defendant is black, the victim is also black. The jury that convicted defendant was composed of 11 whites and one black. The prosecutor used six out of eight peremptory challenges to exclude blacks, but the counsel for the defendant used all of his peremptory challenges to exclude whites. Thus we are not faced with the scenario of an all-white jury convicting a black defendant for a crime against a white victim. However, even in the case before us, the systematic exclusion of blacks from this jury would be unconstitutional if proved. I do not believe it was.

Implicit in many of the arguments advanced for reform in the manner of selecting juries is that blacks are less likely to convict fellow blacks than whites. I am not persuaded that this is the case. Many black communities bear the brunt of violent crime, and the citizens of black communities are not automatically more sympathetic to defendants simply because they have black skin. Such arguments merely perpetuate racial stereotypes that have plagued this nation for too long, and are not buttressed by objective studies on jury behavior. (See H. Kalven, The America Jury 195-210 (1966); see generally McCray v. Abrams (E.D.N.Y. Dec. 21, 1983), No. 83-4406.) The systematic exclusion of any group based on sex or ethnicity is equally repugnant, but the most effective way to prevent this may be the drastic reduction of peremptory challenges. Such a reform could well be considered by the legislature as the answer to an enormously complex problem.

Prospective jurors are drawn from voter registration rolls, and as blacks register to vote in greater numbers, it may become not only foolhardy, but statistically impossible, to obtain a racially homogenous jury in urban America. Until that day is reached, the judiciary must be vigilant to avoid the systematic exclusion of blacks from jury duty, but in my opinion that is not the situation here. I therefore concur in the result.

JUSTICE SIMON,

dissenting:

The use of peremptory challenges to exclude black jurors solely on the basis of their race has denied the defendant, Stanley Payne, his constitutional rights to equal protection of the laws and to a trial by a fair and impartial jury drawn from a cross section of the community where he was tried. The majority’s continuing support of this practice will erode public confidence in the fairness and impartiality of our criminal justice system, particularly among the large portion of our population who are of the same race as the persons who are the objects of the exclusion. While this issue cries out for a bold return to first principles, the majority has offered only an inapplicable precedent and distinctions which I find unsound.

I

Swain v. Alabama Does Not Require A Reversal of the Appellate Court Decision in this Case

The majority holds that this case is controlled by Swain v. Alabama (1965), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824, where the Supreme Court concluded that the use of peremptory challenges to exclude black jurors does not violate the equal protection clause unless “prosecutors have consistently and systematically exercised their strikes to prevent any and all Negroes on petit jury venires from serving on the petit jury itself” (380 U.S. 202, 223, 13 L. Ed. 2d 759, 774, 85 S. Ct. 824, 837). Swain, however, said absolutely nothing about the principal issue considered by the appellate court in this case: whether the use of peremptory challenges to exclude jurors on the basis of race violates the sixth amendment. That amendment was not even held to be applicable to the States through the fourteenth amendment’s due process clause until two years after Swain was decided. See Duncan v. Louisiana (1968), 391 U.S. 145, 20 L. Ed. 2d 491, 88 S. Ct. 1444.

The fourteenth amendment’s equal protection clause and the sixth amendment’s guarantee of trial by an impartial jury have entirely different content and scope; the majority therefore errs in assuming that a practice declared constitutional under one provision must be treated the same under the other. For example, in Taylor v. Louisiana (1975), 419 U.S. 522, 42 L. Ed. 2d 690, 95 S. Ct. 692, the Supreme Court held unconstitutional under the sixth amendment a State’s system of excluding women from jury venires unless they volunteered. The court reached this result in Taylor even though it had previously held that a similar system for selecting women did not violate the equal protection clause (Hoyt v. Florida (1961), 368 U.S. 57, 7 L. Ed. 2d 118, 82 S. Ct. 159). In Taylor the court distinguished Hoyt with ease, observing that it “did not involve a defendant’s Sixth Amendment right to a jury drawn from a fair cross section of the community.” 419 U.S. 522, 534, 42 L. Ed. 2d 690, 700, 95 S. Ct. 692, 699.

In holding that a prosecutor’s use of peremptory challenges to exclude black jurors from a particular jury solely on the basis of race does not violate the sixth amendment so long as there is no systematic exclusion of blacks from the jury system, the majority also relies heavily on the Supreme Court’s observations in Swain concerning the history of peremptory challenges. (See People v. Williams (1983), 97 Ill. 2d 252, 276-77.) In Swain the Supreme Court observed that the system of peremptory challenges is deeply rooted in our history and “[t]he persistence of peremptories and their extensive use demonstrate the long and widely held belief that peremptory challenge is a necessary part of trial by jury.” 380 U.S. 202, 219, 13 L. Ed. 2d 759, 771-72, 85 S. Ct. 824, 835.

The majority places too much reliance on the weight of history. Although the historical fact that the use of peremptory challenges predates the adoption of the Bill of Rights is remotely relevant to the question before us, it is not conclusive. The Constitution is a living document that each generation must interpret in the light of its own experience. “Our notions of what a proper jury is have developed in harmony with our basic concepts of a democratic society and a representative government.” (Glasser v. United States (1942), 315 U.S. 60, 85, 86 L. Ed. 680, 707, 62 S. Ct. 457, 472.) We must return to the basic guarantee contained in the sixth amendment to determine whether it is constitutional for State prosecuting officials to use peremptory challenges to exclude black persons from jury service solely on the basis of race. The fact that a practice has been adhered to for a long time does not justify perpetuating it when it undermines fundamental constitutional guarantees.

In reaching its decision the majority also relies on the Supreme Court’s observation in Swain that the function of the peremptory challenge is “to eliminate extremes of partiality on both sides” and “to assure the parties that the jurors before whom they try the case will decide on the basis of the evidence placed before them, and not otherwise” (380 U.S. 202, 219, 13 L. Ed. 2d 759, 772, 85 S. Ct. 824, 835). By permitting trial attorneys the opportunity to exclude jurors when their developed intuition tells them that the juror is not impartial, the peremptory challenge, according to the majority, helps promote the concept of trial by an impartial jury. Under the majority’s view (see People v. Williams (1983), 97 Ill. 2d 252, 277-78), this function cannot be served unless the peremptory challenge retains its traditional character as a challenge “exercised without a reason stated, without inquiry and without being subject to the court’s control” (Swain v. Alabama (1965), 380 U.S. 202, 220, 13 L. Ed. 2d 759, 772, 85 S. Ct. 824, 836).

The majority’s extensive reliance on the function of the peremptory challenge is also misplaced. The use of peremptory challenges may well promote the concept of trial by jury by increasing the parties’ confidence that the jury deciding their case is impartial. Nevertheless, the Supreme Court has not held that peremptory challenges are required by the Constitution (see, e.g., Stilson v. United States (1919), 250 U.S. 583, 586, 63 L. Ed. 2d 1154, 1156, 40 S. Ct. 28, 30), and a State presumably could eliminate such challenges altogether. Peremptory challenges may often have a useful and legitimate purpose, but they are entitled to no more deference in constitutional analysis than any other device used by State officials to exclude persons from jury service on the basis of race, sex, religion or national origin. To the extent that the practice is unconstitutional under the sixth amendment, any conviction obtained through its use is void. Just as the unconstitutional discharge of State employees cannot be excused by referring to the general rule that employers have the right to hire and fire as they please and for any reason they please (see Mt. Healthy City School District v. Doyle (1977), 429 U.S. 274, 283-84, 50 L. Ed. 2d 471, 481, 97 S. Ct. 568, 574), so racial discrimination in the voir dire cannot be condoned by simply pointing to the word “peremptory” and asserting that it means what it says.

II

The Use of Peremptory Challenges to Exclude Black People, as a Group, From Serving on a Particular Jury is Incompatible With the Right to a Trial by Jury Guaranteed by the Sixth Amendment.

The sixth amendment to the Federal Constitution provides that: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” (U.S. Const., amend. VI.) “It is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community.” (Smith v. Texas (1940), 311 U.S. 128, 130, 85 L. Ed. 84, 86, 61 S. Ct. 164, 165.) In Taylor v. Louisiana (1975), 419 U.S. 522, 528, 42 L. Ed. 2d 690, 697, 95 S. Ct. 692, 697, the Supreme Court held that “the selection of a petit jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial.”

The use of peremptory challenges to exclude black persons from jury service violates the sixth amendment for the same reason that the venire selection system in Taylor excluding women from the jury venire unless they volunteered was unconstitutional:

“The purpose of a jury is to guard against the exercise of arbitrary power — to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge. Duncan v. Louisiana [(1968), 391 U.S. 145, 155-56, 20 L. Ed. 2d 491, 499-500, 88 S. Ct. 1444, 1450]. This prophylactic vehicle is not provided if the jury pool is made up of only special segments of the populace or if large, distinctive groups are excluded from the pool. *** Restricting jury service to only special groups or excluding identifiable segments playing major roles in the community cannot be squared with the constitutional concept of jury trial.” (419 U.S. 522, 530, 42 L. Ed. 2d 690, 698, 95 S. Ct. 692, 698.)

The intentional exclusion of black prospective jurors from a particular jury through the use of peremptory challenges prevents them, as a group, from participating on that jury in the same way as the venire selection system held unconstitutional in Taylor, and for that reason this practice also violates the sixth amendment.

The majority, however, in Williams and in this case, interprets Taylor as only prohibiting the deliberate exclusion of groups from the venire, and as not limiting in any way deliberate exclusions that occur later in the jury selection process. (See People v. Williams (1983), 97 Ill. 2d 252, 279.) The distinction the majority attempts to draw is meaningless, for the ultimate purpose of the cross section requirement, announced in Taylor, is achieved not when the venire is selected, but when the jury is deliberating:

“When any large and identifiable segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable. It is not necessary to assume that the excluded group will consistently vote as a class in order to conclude, as we do, that its exclusion deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented.” (Peters v. Kiff (1972), 407 U.S. 493, 503-04, 33 L. Ed. 2d 83, 94, 92 S. Ct. 2163, 2169 (opinion of Marshall, J., joined by Douglas and Stewart, JJ.) (holding that white defendant has standing to raise exclusion of black jurors from grand and petit juries).)

(See also, Ballard v. United States (1946), 329 U.S. 187, 194, 91 L. Ed. 181, 186, 67 S. Ct. 261, 264 (“a flavor, a distinct quality is lost if either sex is excluded” from participating on the jury).) The appellate court in this case correctly observed that “[t]he desired goal of interaction of a cross section of the community does not occur within the venire, but rather, is only effectuated by the petit jury that is selected and sworn to try the issues.” 106 Ill. App. 3d 1034, 1036.

Also underlying the Supreme Court’s decision in Taylor is the ideal that qualifications for jury service should be evaluated on an individual and not on a group basis. The court in Thiel v. Southern Pacific Co. (1946), 328 U.S. 217, 220, 90 L. Ed. 1181, 1185, 66 S. Ct. 984, 985-86, in the exercise of its supervisory jurisdiction over the administration of justice in the Federal courts, reversed a case decided before a jury because all wage earners and working people had been systematically excluded from jury service. The court recognized that complete representation of every group on every jury would be impossible, but the court decried any practice that allowed governmental officials the discretion to exclude people from participation on juries solely because of their group membership:

“[Prospective jurors shall be selected by court officials without systematic and intentional exclusion of any of these groups. Recognition must be given to the fact that those eligible for jury service are to be found in every stratum of society. Jury competence is an individual rather than a group or class matter. That fact lies at the very heart of the jury system. To disregard it is to open the door to class distinctions and discriminations which are abhorrent to the democratic ideals of trial by jury.” (Emphasis added.) (328 U.S. 217, 220, 90 L. Ed. 1181, 1185, 66 S. Ct. 984, 985-86.)

(See also State v. Chosa (1982), 108 Wis. 2d 392, 321 N.W.2d 280 (trial court may not exclude prospective jurors because of group membership where no individualized assessment of qualifications made at voir dire).) The use of peremptory challenges to exclude blacks from jury service solely because of their race is no more in keeping with the concept of individualized evaluation of a juror’s qualifications than was the exclusion of women in Taylor and of wage earners in Thiel. Any deliberate exclusion of all members of a group from participating on a jury violates the sixth amendment whether it occurs at the voir dire or when the members of the venire are selected.

So long as our legislature allows peremptory challenges, the problem is to discover in each case whether peremptory challenges are being used to exclude black people from participating on the jury solely on the basis of their race, or whether they are being used against individual black persons for some legitimate purpose. The majority argues that the same standard adopted by the Supreme Court in Swain under the equal protection clause should also be applied under the sixth amendment to determine whether prosecutors are using their peremptory challenges for legitimate purposes. The Swain requirement of systematic exclusion of black jurors in case after case, however, presents a nearly insurmountable hurdle for an individual defendant, and I have found only two cases decided since Swain where defendants actually established this systematic exclusion. State v. Brown (La. 1979), 371 So. 2d 751 and State v. Washington (La. 1979), 375 So. 2d 1162 (both involving conduct of prosecutors in the same jurisdiction at the same time).

It is obvious why defendants have established so little misuse of peremptory challenges under the Swain standard. The prosecutors are the only people who know why peremptory challenges are used against black persons, and they are not telling anyone. It seems to me that if this court imposes the Swain requirements on defendants, the only way defendants could get solid evidence on the misuse of peremptory challenges in case after case would be to subpoena assistant State’s Attorneys and even State’s Attorneys to testify at a hearing during voir dire or in a civil class action suit by prospective black jurors or black defendants. Certainly this would provide a spectacle that should be avoided if any alternative is available, and I submit one which this court is inviting by this decision and by its prior decisions in Davis and Williams.

The prosecutor skips over a problem that Justice Marshall recently identified when he observed that the “case after case” requirement of Swain does not adequately protect an individual defendant’s constitutional rights: “Since every defendant is entitled to equal protection of the laws and should therefore be free from the invidious discrimination of state officials, it is difficult to understand why several must suffer discrimination because of the prosecutor’s use of peremptory challenges before any defendant can object.” (McCray v. New York (1983), 461 U.S. 961, 964-65, 77 L. Ed. 2d 1322, 1324, 103 S. Ct. 2438, 2440 (Marshall and Brennan, JJ., dissenting from denial of certiorari).) Justice Nix of the Pennsylvania Supreme Court has put it another way: “Is justice to sit supinely by and be flaunted in case after case before a remedy is available? Is justice only obtainable after repeated injustices are demonstrated?” Commonwealth v. Martin (1975), 461 Pa. 289, 299, 336 A.2d 290, 295 (Nix, J., dissenting).

Recognizing these defects in the Swain standard, the appellate court adopted a fair and workable approach for determining when peremptory challenges are used for illegitimate purposes. (106 Ill. App. 3d 1034, 1040.) When it reasonably appears to the trial court that the prosecution is systematically using peremptory challenges to exclude black jurors from the jury solely on the basis of race, the prosecution must come forward with evidence that its challenges were based on some legitimate, nonracial motive. This is the same test as that used by the courts of California (People v. Wheeler (1978), 22 Cal. 3d 258, 583 P.2d 748, 148 Cal. Rptr. 890), Massachusetts (Commonwealth v. Soares (1979), 377 Mass. 461, 387 N.E.2d 499, cert. denied (1979), 444 U.S. 881, 62 L. Ed. 2d 110, 100 S. Ct. 170), and New Mexico (State v. Crespin (1980), 94 N.M. 486, 612 P.2d 716) for regulating the use of peremptory challenges by State prosecutors, and courts in those States have had no apparent difficulty in applying it. The advantage of the Payne standard is that it forces the only people who know why the prosecution has used its peremptory challenges, that is the prosecutors themselves, to disclose that information.

Moreover the Payne standard does not unreasonably restrict the legitimate uses of peremptory challenges. All that is required is that the prosecutor identify a legitimate, nonfrivolous ‘rationale for challenging the black jurors, and this is only required in cases where the defense has already established a prima facie case that the prosecution has been using peremptory challenges to exclude black people solely on the basis of race. (See, e.g, Commonwealth v. Smith (Mass. App. 1981), 428 N.E.2d 348, 353 n. 7.) If a constitutional violation can be avoided under the Payne standard without too much difficulty, one may reasonably ask why adopt it at all? The answer is that prosecuting attorneys are both lawyers and public officials, and when acting in these capacities, they have both a professional and a legal obligation to obey the law. By holding that prosecutors cannot use peremptory challenges to exclude black persons from jury service solely on the basis of race, we would also require State’s Attorneys to police the behavior of their assistants to ensure that they do not engage in unethical and illegal conduct. This is, after all, the level at which regulation of these unlawful practices will be most effective.

The record in this case adequately established a prima facie case that the prosecutor was using peremptory challenges to exclude black jurors solely on the basis of their race. As the majority points out, the record indicates that 10 black persons were called to the box during voir dire. Three were excluded for cause, leaving seven potential black jurors. The prosecution exercised six of the eight peremptory challenges that it used in this case to exclude all but one of the remaining black prospective jurors. To conclude, the prosecution used its peremptory challenges to exclude six out of seven available black jurors while it used them to exclude only two out of 23 available white jurors. These recitations alone indicate to me a deliberate plan, to which the defendant called the court’s attention, to keep black persons from serving on the jury.

As the appellate court observed, the black jurors who were excluded are fairly heterogeneous, and “the single distinguishing characteristic that [they] shared is their race.” (106 Ill. App. 3d 1034, 1045.) When the information obtained at voir dire concerning the excluded black jurors is compared with the information obtained about the selected jurors, no reason for their exclusion is apparent. (See the appendix to this dissent, 99 Ill. 2d at 159.) Although all of the black prospective jurors who were excluded were single, the People admitted in the appellate court that they did not notice this common characteristic until preparation of the case on appeal. See 106 Ill. App. 3d 1034, 1045.

It is important to note that this is not a case where jurors have individually admitted in voir dire that their group membership would prevent them from fairly trying the issues before them. (Compare Witherspoon v. Illinois (1968), 391 U.S. 510, 520, 20 L. Ed. 2d 776, 784, 88 S. Ct. 1770, 1776 with Lockett v. Ohio (1978), 438 U.S. 586, 596-97, 57 L. Ed. 2d 973, 984-85, 98 S. Ct. 2954, 2960.) In this case the court specifically asked the prospective jurors whether their judgment would be influenced one way or another by the race of the defendant. Only one prospective juror said that he would be influenced by the defendant’s race and he was promptly excused for cause.

Moreover, the defendant’s prima facie case is not destroyed by the circumstance that one black person did serve on the jury that convicted him. “The evil lies in the *** wholesale exclusion of a large class *** in disregard of the high standards of jury selection.” (Thiel v. Southern Pacific Co. (1946), 328 U.S. 217, 225, 90 L. Ed. 1181, 1187, 66 S. Ct. 984, 988.) The appellate court correctly held in this case that “[systematic and affirmative racial exclusion of available black jurors by the State which results in only one black being seated as a juror is no less evil and no less constitutionally prohibited than the same procedure which results in the total exclusion of blacks.” 106 Ill. App. 3d 1034, 1045.

Based on all these circumstances, I believe that the appellate court was correct when it concluded that:

“[I]t should have reasonably appeared to the trial court that the prosecutor was using peremptory challenges to systematically exclude blacks from the jury solely because they were blacks. At that stage, the trial court should have required the prosecutor to demonstrate, by whatever facts and circumstances existed, that blacks were not systematically excluded solely because they were blacks. The failure of the trial court to impose such a requirement on the prosecutor at that stage was error, and the error is of such magnitude that the convictions must be reversed and the case remanded for a new trial.” 106 Ill. App. 3d 1034, 1045-46.

III

In Case After Case, Illinois Prosecutors Have Systematically Used Peremptory Challenges to Exclude Prospective Black Jurors in Violation of the Equal Protection Clause of the Fourteenth Amendment.

The defendant is also entitled to a new trial because he has established that the widespread misuse of peremptory-challenges by prosecutors in this State violates the equal protection clause of the fourteenth amendment even as construed by the Supreme Court in Swain. Swain did not endorse the idea that the peremptory challenge is immune from equal protection scrutiny when it is purposefully used to facilitate or justify a system which results in denying black persons “the same right arid opportunity to participate in the administration of justice enjoyed by the white population.” (Swain v. Alabama (1965), 380 U.S. 202, 224, 13 L. Ed. 2d 759, 774, 85 S. Ct. 824, 838.) The majority itself concedes that the defendant establishes a violation of the equal protection clause if he can show that peremptory challenges have been systematically and purposefully used to exclude black people from jury service in case after case. See, e.g., 99 Ill. 2d at 138; People v. Davis (1983), 95 Ill. 2d 1, 16.

A shocking number of defendants in this State have alleged that prosecutors used peremptory challenges to exclude black people from the juries that convicted them:

People v. Payne (Nov. 23, 1983), No. 56907; People v. Yates (Oct. 25, 1983), No. 53482, slip op. at 25 (Simon, J., dissenting); People v. Cobb (Oct. 4, 1983), Nos. 52944, 53038 cons.; People v. Williams (1983), 97 Ill. 2d 252; People v. Bonilla (1983), 117 Ill. App. 3d 1041; People v. Gosberry (1983), 93 Ill. 2d 544; People v. Davis (1983), 95 Ill. 2d 1; People v. Gilliard (1983), 112 Ill. App. 3d 799; People v. Newsome (1982), 110 Ill. App. 3d 1043; People v. Turner (1982), 110 Ill. App. 3d 519; People v. Teague (1982), 108 Ill. App. 3d 891; People v. Belton (1982), 105 Ill. App. 3d 10; People v. Dixon (1982), 105 Ill. App. 3d 340; People v. Gaines (1981), 88 Ill. 2d 342; People v. Mims (1981), 103 Ill. App. 3d 673; People v. Lavinder (1981), 102 Ill. App. 3d 662; People v. Clearlee (1981), 101 Ill. App. 3d 16; People v. Vaughn (1981), 100 Ill. App. 3d 1082; People v. Tucker (1981), 99 Ill. App. 3d 606; People v. Allen (1981), 96 Ill. App. 3d 871; People v. Bracey (1981), 93 Ill. App. 3d. 864; People v. Smith (1980), 91 Ill. App. 3d 523; People v. Fleming (1980), 91 Ill. App. 3d 99; People v. Attaway (1976), 41 Ill. App. 3d 837; People v. Thornhill (1975), 31 Ill. App. 3d. 779; People v. King (1973), 54 Ill. 2d 291; People v. Powell (1973), 53 Ill. 2d 465; People v. Petty (1972), 3 Ill. App. 3d 951; People v. Fort (1971), 133 Ill. App. 2d 473; People v. Butler (1970), 46 Ill. 2d 162; People v. Cross (1968), 40 Ill. 2d 85; People v. Dukes (1960), 19 Ill. 2d 532; People v. Harris (1959), 17 Ill. 2d 446.

In some of these cases the use of peremptory challenges to exclude prospective black jurors has been especially obvious. In Yates, a capital case, the prosecution used 13 of 16 peremptory challenges that it exercised to exclude black persons. In that case only one black person served on the jury, and he worked as an investigator for the Department of Public Aid and might well have been suspected by the State to be a person who would favor the prosecution. See People v. Yates (1983), 98 Ill. 2d 502, 545 (Simon J., dissenting).

In Cobb, another capital case, the defendant’s first two trials ended in hung juries. In jury selection at those trials the prosecution cumulatively exercised 28 out of 41 peremptory challenges against prospective black jurors and succeeded in limiting participation by black persons on each jury to one. At the third trial the prosecution used 8 out of 11 peremptory challenges against black people and finally succeeded in obtaining a conviction by an all-white jury. We reversed and remanded this conviction on other grounds, and it will be informative to see whether at the fourth trial the prosecution will again attempt to obtain a conviction by an all-white, or nearly all-white jury. '

In view of the obvious misuse of peremptory challenges in cases like Yates and Cobb and the tremendous number of cases from this State raising the issue, I believe that the defendant has established that prosecutors in Illinois have been purposely and systematically using peremptory challenges in case after case to exclude black persons from juries in a State having one of the largest populations of black people in the nation. The appellate court recently noted:

“[I]t is an open secret that prosecutors in Chicago and elsewhere have been using their peremptory challenges to systematically eliminate all blacks, or all but token blacks, from juries in criminal cases where the defendants are blacks. (See Waltz, Now It’s Harder for Lawyers to Pick Biased Jury, Chicago Sun-Times, July 13, 1982, at 30, col. 1.) Since all others can see and understand this, how can we properly shut our minds to it? [Citation.] There comes a point when we should not be ignorant as judges of what we know as [human beings]. Watts v. Indiana (1949), 338 U.S. 49, 52, 93 L. Ed. 1801, 1805, 69 S. Ct. 1347, 1349.” People v. Gilliard (1983), 112 Ill. App. 3d 799, 807.

If the majority finds the record in this case inadequate to establish a constitutional violation under Swain, at the very least we should enter an order under our supervisory authority requiring the circuit court clerks in this State to adopt a system for recording prosecutors’ use of peremptory challenges against black persons and the extent of black participation on juries. Only in this way can criminal defendants in this State acquire the information about the use of peremptory challenges in case after case that the majority insists is necessary under Swain to establish a violation of the constitution. Without this assistance, any effort by. defendants to prove what is happening is at the worst hopeless and at the best will take many years to accomplish.

IV

The Use of Peremptory Challenges to Exclude Black People From Serving On Juries Violates the Illinois Constitution.

Even if the sixth and fourteenth amendments to the Federal Constitution permit State prosecutors to use peremptory challenges to exclude black people from jury service solely on the basis of their race, something I believe they do not, we, as judges of the supreme court of this State, have an independent obligation to apply our State constitution to the defendant’s claim. In fulfilling that obligation we are not bound by the precedent of the United States Supreme Court. Indeed in many instances considerations of federalism, which do not influence us, may counsel the Supreme Court against the broad expansion of the individual liberties guaranteed by the Federal Constitution. See Fay v. New York (1947), 332 U.S. 261, 287, 91 L. Ed. 2043, 2060, 67 S. Ct. 1613, 1627.

I interpret article I, section 13, of our 1970 Constitution to guarantee to each criminal defendant a trial by an impartial jury selected from a fair cross section of the community in which he is tried. (Ill. Const. 1970, art. I, sec. 13.) Our constitution also recognizes the equality of all citizens, regardless of race, as a fundamental public policy. (Ill. Const. 1970, art. I, sec. 2.) Are judges as well as prosecutors not unfaithful to these important and constructive moral principles when we permit the State to use peremptory challenges to exclude black persons from jury service solely on the basis of race?

As explained above, implicit in the guarantee of a jury trial is the principle that the qualifications of jurors will be determined on an individual and not on a group basis. Although this does not guarantee a defendant that his jury will proportionately reflect the racial makeup of the community, it does guarantee him that no human hand will deliberately interfere with the jury selection process so as to prevent the participation of particular racial groups on his jury. The prosecution’s use of peremptory challenges in this case violates our State constitution. The prosecution may use peremptory challenges for any legitimate reason under our constitution, but purposeful discrimination against, or exclusion of, black persons cannot be a legitimate purpose. The obligation to be fair to all of the citizens he represents, and not to discriminate, is as important a function and responsibility of the public prosecutor as is the seeking of convictions. Cf. People v. Cornille (1983), 95 Ill. 2d 497, 513-14.

At least three States have held that the use of peremptory challenges to exclude prospective jurors solely on the basis of race violates provisions of their State constitutions. (State v. Crespin (1980), 94 N.M. 486, 612 P.2d 716; Commonwealth v. Soares (1979), 377 Mass. 471, 387 N.E.2d 499, cert. denied (1979), 444 U.S. 881, 62 L. Ed. 2d 110, 100 S. Ct. 170; People v. Wheeler (1978), 22 Cal. 3d 258, 583 P.2d 748, 148 Cal. Rptr. 890.) Several members of the United States Supreme Court have stated that “further consideration of the substantive and procedural ramifications of the [peremptory challenge] problem by [State] courts will enable us to deal with the issue more wisely at a later date.” (McCray v. New York (1983), 461 U.S. 961, 962, 77 L. Ed. 2d 1322, 1322, 103 S. Ct. 2438, 2438 (opinion of Stevens, J., joined by Blackmun and Powell, JJ., on denial of certiorari).) Hlinois courts could play a constructive role in developing procedures to limit the misuse of peremptory challenges, and I regret that the majority has not considered the applicability of our State constitution to this question. Whether or not the defendant has specifically placed reliance on his rights under our State constitution in this case, the issue before us is one of such magnitude in the administration of justice that, in our role as guardians of the judicial process with responsibility to see that justice prevails, it is our duty to examine whether our State constitution is offended by the practices which are complained of. Moreover, when the defendant specifically raises an issue under the Bill of Rights in the Federal Constitution, I believe that we should consider him to have raised the same issue under the broadly analogous provisions of our State constitution, especially when we would construe the State guarantees as more protective of the defendant’s individual rights than the comparable Federal ones.

V

To Maintain Public Confidence in the Fairness and Impartiality of the Jury System We Must Grant a New Trial in This Case Under Our Supervisory Jurisdiction. ■

Even more troubling is the majority’s reluctance to consider limiting the misuse of peremptory challenges under our supervisory jurisdiction over the system of justice in this State. (Cf. Ballard v. United States (1946), 329 U.S. 187, 91 L. Ed. 181, 67 S. Ct. 261 (granting new trial under supervisory jurisdiction over Federal courts where, pursuant to State law, women were excluded from a jury venire unless they volunteered); see also United States v. McDaniels (E.D. La. 1974), 379 F. Supp. 1243, 1244 (granting a new trial under Federal Rule of Criminal Procedure 33 (Fed. R. Crim. P. 33) in the “interest of justice” where prosecutors used peremptory challenges to remove six of seven black persons from venire).) The cost of not doing so is substantial. The majority’s decisions in this case, Williams, and Davis will embolden prosecutors to increase their use of peremptory challenges to exclude black people from jury service. These decisions, as a group, give judicial sanction to racially discriminatory activity in a way that is likely to undermine the jury system and pervert its goal of seeking the truth. The majority’s implicit endorsement of these practices will diminish the confidence that the people of this State must have in the fairness and impartiality of the trial by jury, and it will ultimately discourage respect for the law.

The defendant is not the only person affected by this pernicious practice — “there is injury to the jury system, to the law as an institution, to the community at large, and to the democratic ideal reflected in the processes of our courts.” (Ballard v. United States (1946), 329 U.S. 187, 195, 91 L. Ed. 181, 187, 67 S. Ct. 261, 265.) Moreover, when lawyers use peremptory challenges to exclude prospective black jurors from serving on a jury, they deny those persons the opportunity to participate in the administration of the criminal justice system through the privilege of jury service. In many cases, I suspect, lawyers are using peremptory challenges to exclude black jurors as a group because they presume all black people will decide cases based upon racial affinity with the defendant or the victim in the case rather than upon their obligations as citizens and as impartial jurors. This kind of stereotype has been justly condemned under the equal protection clause. (See Strauder v. West Virginia (1879), 100 U. S. 303, 25 L. Ed. 664; Frontiero v. Richardson (1973), 411 U.S. 677, 36 L. Ed. 2d 583, 93 S. Ct. 1764 (opinion of Brennan, J., joined by Douglas, White, and Marshall, JJ.).) Whether exercised by prosecutors or by private attorneys, discrimination based on race, sex, religious creed, or national origin is contrary to the principles of fairness and justice which guide us in the exercise of our supervisory jurisdiction.

The idea that a citizen shall have the right to have his guilt or innocence determined by fellow citizens and not by the government is the most cherished democratic component of our common law system of justice. We must do everything in our power to protect this hard won right to trial by jury against practices that would destroy it. “It follows that we cannot sanction the method by which the jury panel was formed in this case. *** To reassert [the high standards of jury selection], to guard against the subtle undermining of the jury system, requires a new trial by a jury drawn from a panel properly and fairly chosen.” Thiel v. Southern Pacific Co. (1946), 328 U.S. 217, 225, 90 L. Ed. 1181, 1187, 66 S. Ct. 984, 988.

APPENDIX

BACKGROUNDS OF BLACK PROSPECTIVE JURORS EXCLUDED BY PROSECUTOR’S PEREMPTORY CHALLENGE (6)

1. E.P., a woman, has been employed for six years as a pricer for a distributing company. She is single and lives alone. The son of a friend is a police officer, but she last saw him six months ago and he never discusses his work with her. She was rape victim 29 years ago; rapist was discovered and prosecuted; she testified at trial.

2. B.W., a man, is single and unemployed. He last worked four months ago as a machinist. He is 20 years old and out of school for three years. His mother works as a secretary for the Department of Human Services. He has two brothers, the elder is unemployed, the younger is in school. He was a plaintiff in a lawsuit to recover money from Ms employer for the loss of a finger and the case was settled out of court.

3. Miss E., a woman, teaches mentally handicapped students for CMcago Board of Education. She is single and has lived on South Vernon Ave. for over 20 years. She has a younger brother, unmarried, who is a claims adjuster for an insurance company. Her father works for the post office and her mother works in the home. In 1974 her ear was vandalized. She reported the incident to police and although the culprit was never found, she was satisfied with the police work. She was a juror in 1976 m a civil case.

4. Miss J., a woman, has worked for two weeks at a department store; before that she was a clerk in a hosiery store. She is 21, single and lives with parents. Her stepfather works as a driver for a manufacturing company and her mother is a nurse’s aide for the Board of Health. She has two younger sisters, both in school. While working at the hosiery shop, the shop was robbed and in the robbery she was assaulted with a knife. Police caught the perpetrators and she testified at their trial.

5. N.Y., a woman, has been a receiving clerk for 16 years. She has been divorced for one year, after 30 years of marriage. Her former husband was a janitor. She has a 17-year-old in high school and a 20-year-old in electronics school.

6. F.A., a man, has been employed by the City of Chicago, Department of Human Services, for one and a half years. Before that he was a packer at Chicago Rotoprint Co. He is single and lives with his parents. His father is a postal worker; his mother works in the home. He has four brothers, five sisters, none in law enforcement. He has lived on South Throop Street for 10 years. He was in the service briefly but had an eye impairment and was discharged.

BACKGROUNDS OF JURORS SELECTED AT DEFENDANT’S TRIAL (12)

1. M.H., a white woman, has worked for six years at the Institute for Psychological Analysis. Before that she was a cook at a tavern. She is married and has nine children, none of whom work in law enforcement or medicine. Her husband is retired but was a crane operator.

2. P.C., a white woman, has been married for six months and has no children. Her husband works as a forklifter at the same steel mill where her father is a foreman. Her mother works part time as a weight watcher lecturer. Her parents live in Calumet Park and she lived there for 20 years before her marriage. She has three sisters, a student, a nurse and a beautician.

3. J.C., a white woman, is a clerk at Amoco Motor Club. Her husband has been a sales representative for Canadian Pacific for eight years. Before that he was a sales representative for Montgomery Ward. She has twins, 12 years old. Her husband’s sister is married to a policeman and she sees him once every two weeks but he never talks about work.

4. C.B., a white woman, has been a credit correspondent for an insurance company for five years. She has been married for 12 years. Her husband is a machinist. She has one child, 10 years old. She is a native of the Chicago area, and has lived for the last 12 years in Forest Park after moving out of the city.

5. J.R, a white man, has been an auto mechanic for the last eight years. He is married, his wife works in the home. They have one child, 11 months old. He has lived in Buffalo Grove for six years. His cousin is a Chicago police officer but he sees him infrequently.

6. S.R., a white man, is retired. Before that he worked for U.S. Steel at the South Works for 34 years. He is married and his wife works as a sales clerk two days a week. They have three daughters: a divorced teletype operator, 41; a married schoolteacher, 36; and a single custom designer, 31. He was a juror in a personal injury case in 1975.

7. J.D., a white man, is employed at Illinois Bell as an executive in long-range coiporate planning. His wife is a hospital nurse who works on patients as they come out of surgery. They have three children, the oldest is 13 years old. They have lived in Evanston for 15 years, before that in Rogers Park on the north side of Chicago. His sister’s husband is a Chicago police officer, but he sees him only twice a year. His parents’ house has been burglarized twice, once when he was living there. Neither case was ever solved.

8. T.D., a white man, has been a salesman for one and one-half years with a chemical company. He is 26, single, and lives with his parents. His father is an accountant with an insurance company. He has five brothers, none in law enforcement.

9. R.V., a white man, has worked at Motorola for two and one-half years. He is single and has lived with his parents in Elmwood Park for 17 years. His father works at a fasteners company and his mother works in sporting goods. He has one married sister. He has a cousin who is a police officer, but he only sees him once every two years or so.

10. B.C., a white woman, is a physical education teacher in Palatine. She has been married for four years and her husband is a parts clerk at 3M Co. She has lived in Franklin Park for 14 years. A neighbor of her mother-in-law is a police officer, but she rarely sees him.

11. J.G., a white woman, has been a C.P.A. with a national accounting firm for four years, before that she was in school. She is single and lives alone. Her parents live in the Chicago area. Her father is a corporate comptroller and her mother works in the home. She has two older brothers, one a C.P.A. with the same accounting firm, and one with W. R. Grace in New York. She knows a lawyer in general practice, but last saw him four months ago. Her father was robbed six years ago and the robbery was never solved.

12. J.W., a black woman, has been a registered nurse . for one year, before that she was a licensed practical nurse for 20 years. She is married, and her husband is a foreman for the University of Chicago printing department. They have lived in Park Forest for six years, before that on the south side of Chicago. They have two children, a 15-year-old daughter in high school, and an 18-year-old son in the Air Force overseas. Eight years ago she was in a car accident. The occupant of the other car sued her, but the case was settled and she was never called to testify.