Dissenting Opinion
dissenting.
The Court today summarily affirms, without opinion, the Superior Court’s determination that the mandatory $25,000 fine imposed in this drug possession ease was not unconstitutionally excessive. Because I believe that there must be some rational and reasonable relationship between the actual criminal conduct, the circumstances at issue, and the fine imposed, and because I believe that sentencing courts must have some discretion to ensure that such a relationship exists, I would find that the one-size-fits-all mandatory approach represented by 18 Pa.C.S. § 7508 violates constitutional prohibitions against excessive fines. Hence, I respectfully dissent.
Appellant pleaded guilty to possession with intent to deliver (“PWID”) roughly 188 grams of cocaine.
This Court granted appellant’s petition for allowance of appeal, limiting review to the question of whether the mandatory minimum fines in Section 7508 violate the prohibitions against “excessive fines” set forth in the Eighth Amеndment to the U.S. Constitution and Article 1, Section 13
Appellant does not dispute that mandatory fines may be valid as a punitive and deterrent measure against drug trafficking offenders. But, appellant argues, the amount of the fine here is unconstitutionally excessive. He asserted at his plea colloquy that at the time of his offense, he was thirty-six years old, had only an eighth-grade education, had lived in the same area for six years, had worked for the same employer for four years, had a wife and children, and, most importantly, had no prior criminal record. He claimed that he acquired the cocaine only because he “fell into a drug habit.” N.T., 9/11/08, at 2-6. Appellant adds that even though he pleaded guilty to PWTD, there was no history or evidence that he was engaged in actual drug dealing. He suggests that absent any nexus between the offense and the fine amount, the fine was disproportionate and unconstitutionally excessive. To this end, he cites certain forfeiture сases, including Commonwealth v. 5043 Anderson Road, Buckingham Township, Bucks County,
The Commonwealth responds that, in the context of a constitutional excessive fine challenge, the dispositive inquiry is whether the fine is irrational and unreasonable, relying upon the Superiоr Court’s opinion in Gipple,
Section 7508, originally enacted in 1988 at the height of the crack cocaine epidem
(a) General rule. — Notwithstanding any other provisions of this or any other act to the contrary, the following provisions shall apply:
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(3) A person who is convicted of violating section 13(a)(14), (30) or (37) of The Controlled Substance, Drug, Device and Cosmetic Act where the controlled substance is coca leaves or is any salt, compound, derivative or preparation of cocа leaves or is any salt, compound, derivative or preparation which is chemically equivalent or identical with any of these substances or is any mixture containing any of these substances except decocain-ized coca leaves or extracts of coca leaves which (extracts) do not contain cocaine or ecgonine shall, upon conviction, be sentenced to a mandatory minimum term of imprisonment and a fine as set forth in this subsection:
$ $ ^ ‡
(iii) when the aggregate weight of the compound or mixture of the substance involved is at least 100 grams; four years in prison and a fine of $25,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity; however, if at the time of sentencing the defendant has been convicted of another drug trafficking offense: seven years in prison and $50,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity.
18 Pa.C.S. § 7508.
As to fines, then, the provision sets a mandatory floor of $25,000, but requires a higher fine if $25,000 is not enough to “exhaust the assets” and “proceeds” involved in the drug trafficking offense at issue. Contrary to the Commonwealth’s argument, this is not unlike the goal of forfeiture. Presumably, the trial judge faced with imposing a fine under Section 7508 determines whether $25,000 is sufficient to exhaust assets and proceeds amassed by a defendant engaged in drug trafficking. However, by its terms, the flexibility in the mandatory minimum fine scheme works only one way; the statute reposes no discretion in the judge to impose a lesser fine if the court determines that a lesser amount will sufficiently exhaust the defendant’s assets and proceeds in relation to the offense committed. Indeed, the statute requires no relationship between the fine and the assets and proceeds before the mandatory $25,000 fine is imposed: as to the statutory floor, one size fits all.
In the near-quarter century since Section 7508 was enacted, Pennsylvania courts have passed upon a number of constitutional challenges to the provision, but have not yet addressed a challenge premised uрon whether the provision’s mandatory minimum fines are constitutionally excessive. See Commonwealth v. Burnsworth,
In 1993, this Court denied allocatur from the Superior Court’s decision in Gipple, which remains the most relevant existing precedent; the Court’s per curiam action today effectively leaves Gipple as the controlling law. In that case, the defendant pleaded guilty in 1990 to PWID charges involving multiple drug substances. Under Section 7508, he was sentenced to a minimum sentence of four years and three months in prison and a mandatory fine of $20,000. On appeal, the defendant argued that the fine, which was imposed without inquiry as to his ability to pay it, violated the Pennsylvania Constitution’s prohibition against excessive fines at Article I, Section 13, which is quoted supra at note 2. The Superior Court rejected the challenge, stating that a defendant’s ability to pay is irrelevant to the constitutional question of whether a fine is irrational or unreasonable. To the unanimous Gipple panel, the fines set forth in Section 7508 were valid as both punitive and deterrent measures against drug trafficking: “Simply put, there is no evidence to suggest that Article I, Section 13 of the Pennsylvania Constitution is in anyway offended when those properly and justly convicted of drug dealing are sentenced to pay for the price they cost society. [Gipple’s] constitutional challenge must, therefore, fail.” Id. at 603. The Gipple panel did not explain how it determined that the one-size-fits-all mandatory minimum fine required by Section 7508 reflected the actual “price” that drug offenders “cost society,” and the equivalence is decidedly not self-evident.
The U.S. Supreme Court has stated that “at the time the Constitution was adopted, the word ‘fine’ was understood to mean a payment to a sovereign as punishment for some offense. The Excessive Fines Clause thus limits the government’s power to extract payments, whether in cash or in kind, as punishment for some offense.” United States v. Bajakajian,
It is an easy enough matter to look the other way at one-size-fits-all mandatory fines because the goal of deterring and punishing drug trafficking is clearly meritorious. Notably, however, former U.S. Supreme Court Chief Justice William H. Rehnquist once critiqued mandatory minimums in a speech as “perhaps a good example of the law of unintended consequences.” William H. Rehnquist, Luncheon Address, in United States Sentencing Commission, Drugs and Violence in America: Proceedings of the Inaugural Symposium on Crime and Punishment in the United States 283, 286 (1993) (quoted in Molly Booth, Sentencing Discretion at Gunpoint: How to Think About Convictions Underlying [18 U.S.C.] § 924(c) Mandatory Minimums, 77 U. Chi. L.Rev. 1739 (2010)). A decade later, when Congress attempted a further legislative restriction of federal judicial sentencing discretion, Chief Justice Rehnquist reiterated his discomfort: “[T]his legislation, if enacted, would do serious harm to the basic structure of the sentencing guideline system and would seriously impair the ability of courts to impose just and reasonable sentences.” Letter from Chief Justice William Rehnquist to Senator Patrick Le-ahy 2 (Apr.2003) (quoted in Skye Phillips, Protect Downward Departures: Congress and the Executive’s Intrusion into Judicial Independence, 12 J.L. & Pol’y 947, 991). Put simply, mandatory mínimums are automatic, indiscriminate, and blunt provisions that deny trial courts the ability to calibrate punishment to correspond to a defendant’s actual criminal conduct and circumstances. As one scholar, a former federal prosecutor during the crack epidemic of the 1980s, has observed, these types of sentencing provisions transform judges into “mere automatons” permitted only to mechanically impose standardized and arbitrary sentences without the authority to perform the difficult and nuanced job of determining “the punishment that best fits each partiсular crime and, even more importantly, each unique offender.” David M. Zlotnick, The War Within the War on Crime: The Congressional Assault on Judicial Sentencing Discretion, 57 SMU L.Rev. 211, 212-15 (2004).
Professor Zlotnick added that at the federal level, the crack cocaine wave of the mid-to-late 1980s pushed Congress into an “anti-drug frenzy” where the demand for expeditious passage of tough drug enforcement legislation overrode the traditional process of deliberation. According to Professor Zlotnick’s research, the 1986 Anti-Drug Abuse Act, 21 U.S.C. § 841, which sеt mandatory minimum sentences for defenders convicted of trafficking in extremely large amounts of narcotics, was passed “without any hearings, with no input from the judiciary, and very little input from even law enforcement agencies.” Id. at 218-19. Of course, the drug fears in the 1980s affected the states no less than the federal government. Thus, the same impetus behind federal mandatory drug sentences and fines may well have governed
Indeed, my review of the legislative debate surrounding Section 7508 suggests that the legislative process leading tо enactment of the statute was not unlike that in the U.S. Congress: some individual legislators critiqued mandatory sentencing (albeit during the discussions, prison terms were clearly the stronger focus than fines) and spoke in favor of judicial discretion, but their voices were few and far between, measured against the far louder cries calling for more punishment or, in the alternative, more treatment and social aid.
With regard to Section 7508, it is unclear how the General Assembly arrived at the numbers it assigned for mandatory minimum fines. The $25,000 amount for all cases involving over 100 grams of cocaine is substantial (and was even more so when the legislation was enacted in 1988), and well beyond the means of many individuals. There is no argument forwarded that $25,000 represents some measured examination of the cost or value “on the street” of cocaine, either then or now. Presumably, the figure was borrowed from similar statutes being enacted across the nation at the time, or perhaps it was just fixed arbitrarily by the legislative eommit-tee charged with drafting the legislation.
Combining the “sufficient to exhaust the assets” language of Section 7508 with the conclusion of this Court and the U.S. Supremе Court that forfeitures are to be viewed as fines for purposes of Eighth
51M Spruce Street was an in rem forfeiture matter, and Bajakajian was an in personam forfeiture matter, but this Court accepted that Bajakajian’s general principles applied because both cases entаiled “excessive fines” claims. As such, we held, the proposed forfeiture must be remanded for a court to apply the Bajakajian factors comparing the potential forfeiture to the underlying offense: whether the defendant’s conduct was an isolated violation or “part of a pattern of misbehavior,” the actual or potential harm that could result from the underlying offense, and whether the forfeiture sought was the maximum allowable under the controlling statute. Through that analysis, the trial court was to determine whethеr the forfeiture sought by the prosecution was grossly disprOportional to the gravity of the offense committed. 5444 Spruce Street,
The language of Section 7508 regarding how fines above the minimum are to be assessed, combined with constitutional concerns focusing on reasonability, rationality, and proportionality, as demonstrated by the more nuanced approach of forfeiture cases like Bajakajian and 5JM Spruce Street, would restore discretion to sentencing courts-the entities best suited to determine how the goals of punishment, deterrence, аnd depletion of illegal gains should be achieved in a given case. This would ensure that punishment is just, but not excessive. By contrast, I am convinced that mechanical imposition of mandatory mínimums, as applied in cases like appellant’s, can result in violation of constitutional prohibitions against excessive fines. Therefore, I respectfully dissent.
Notes
. There is some suggestion in the record that appellant may have intended to purchase this rather large amount in conjunction with at least one other person. During his plea colloquy, in response to questions posed by the court, appellant responded affirmatively when asked by the court: "Is it also true that you intended to give some of that to another person?” Appellant also stated: “Some of it was mine and some was for the other person.” N.T., 9/11/08, at 3. Given the mandatory nature of the sentence, and the plea, the point was not developed.
. The Eighth Amendment to the U.S. Constitution provides that "[ejxcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const, amend. VIII. The Pennsylvania Constitution provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel punishments inflicted.” Pa. Const, art. I, § 13.
. As will be further discussed infra, both this Court and the U.S. Supreme Court have, in fact, held that in the context of excessive fines challenges, forfeitures are "fines.” United States v. Bajakajian,
. Combing the legislative history of Section 7508 reveals no debate in either the House or Senate as to the particular fine amounts specified in the various subsections.
. The defendant in Bajakajian attempted to leave the country with $350,000 in cash, in violation of federal law requiring that any amount over $10,000 be reported. The federal district court, after determining that the money was not the proceeds of illegal activity, nor was it to be used for illegal activities abroad (the defendant testified that he was taking it overseas to repay a legitimate debt), assessed a forfeiture of $15,000 and imposed
. As the following segment reveals, the High Court’s inability in Bajakajian to solve the question presented through either plain text or historical analysis certainly did not result from lack of strenuous effort to do so:
The text and history of the Excessive Fines Clause demonstrate the centrality of proportionality to the excessiveness inquiry; nonetheless, they provide little guidance as to how disproportional a punitive forfeiture must be to the gravity of аn offense in order to be "excessive.” Excessive means surpassing the usual, the proper, or a normal measure of proportion. See 1 N. Webster, American Dictionary of the English Language (1828) (defining excessive as "beyond the common measure or proportion”); S. Johnson, A Dictionary of the English Language 680 (4th ed. 1773) ("[b]eyond the common proportion”). The constitutional question that we address, however, is just how proportional to a criminal offense a fine must be, and the text of the Excessive Fines Clause does not аnswer it.
Nor does its history. The Clause was little discussed in the First Congress and the debates over the ratification of the Bill of Rights. As we have previously noted, the Clause was taken verbatim from the English Bill of Rights of 1689. That document's prohibition against excessive fines was a reaction to the abuses of the King's judges during the reigns of the Stuarts, but the fines that those judges imposed were described contemporaneously only in the most general terms. See Earl of Devon-shire’s Case, 11 State Tr. 1367, 1372 (H.L. 1689) (fine of £30,000 "excessive and exorbitant, against Magna Charta, the common right of the subject, and the lаw of the land”). Similarly, Magna Charta — which the Stuart judges were accused of subverting- — required only that amercements (the medieval predecessors of fines) should be proportioned to the offense and that they should not deprive a wrongdoer of his livelihood:
A Free-man shall not be amerced for a small fault, but after the manner of the fault; and for a great fault after the greatness thereof, saving to him his contenement; (2) and a Merchant likewise, saving to him his merchandise; (3) and any other's villain than ours shall be likewise amerced, saving his wainage. Magna Charta, 9 Hen. Ill, ch. 14 (1225), 1 Stat. at Large 6-7 (1762 ed.).
Bajakajian,
. Justice Kennedy, joined by Chief Justice Rehnquist, Justice O’Connor, and Justice Sca-lia, issued a dissenting opinion. The dissenters skeptically critiqued the Majority’s application of the "gross disproportion" test as a "see-no-evil approach” that effectively condoned international money launderers (Justice Kennedy seemed to be convinced that the defendant was one) by punishing their crimes with forfeitures that amounted to mere slaps on the wrist. Bajakajian,
. State Senator Edward P. Zemprelli of Allegheny County described “the tragedy of mandatory sentencing” in an instance where "it absolutely divested the court of an opportunity to deal with a situation that called for a little compassion, called for a little sympathy, called for a little understanding, and the court’s hands were tied because it could not do anything about it.” Pa. Senate Legislative Journal, 2/23/88, at 1783. In the House, Representative John Broujos of Cumberland County, stated: "We have had a system in Pennsylvania that has worked fоr decades — I would like to say centuries — and that is placing within the hands of a judge the question of sentencing. Only a judge first as elected and as qualified to make these decisions sees the presentence report, judges the case, may have heard the case, knows the district attorney, knows the parties, and makes a decision on sentencing. Gradually, with mandatory sentencing and the other abuses to the sentencing system, we have eroded the power of the judge to make those decisions.” Pa. House of Representatives Legislative Journal, 3/16/88, at 363.
. It is notable that the mandatory fines have not been adjusted in the twenty-four years since the statute took effect. There may be a valid point that if the fines set were appropriate for the times in 1988, they may have by now become inappropriately lenient. But the arbitrary nature of the amount remains the constant.
Lead Opinion
ORDER
AND NOW, this 17th day of July, 2012, the order of the Superior Court is hereby AFFIRMED.
Justice ORIE MELVIN did not participate in the decision of this case.
Justice SAYLOR, EAKIN, BAER and McCAFFERY join the per curiam affirmance.
Chief Justice CASTILLE files a dissenting statement in which Justice TODD joins.