Commonwealth v. MarcusCommonwealth v. Marcus
- Reporters:
- , ,
- Before:
- Kass
By thе time the defendant was apprehended for selling heroin, his addiction to that drug cost him, according to his own testimony, $400 to $600 per day. The particular sales оf which he stands convicted under
We think it doubtful in the extreme, even if deterrence were the only purpose of the criminal law, that a five-year minimum sentence for a crime as grave as selling heroin is “so disproportionate to the crime that ‘it shocks the conscience and offends fundamental notions of human dignity.’” Commonwealth v. Jackson, 369 Mass. 904, 910 (1976), quoting In re Lynch, 8 Cal. 3d 410, 424 (1972). There may be some doubt as to exactly how much crime heroin use leaves in its wake, but, at the least, it is a great deal. See Kaplan, The Hardest Drug, Heroin and Public Policy 51-58 (1983). The Legislature may, therefore, reasonably impose severe punishment upon those сonvicted of heroin traffic in hope of discouraging not only the primary crime of selling the drug, but also the secondary personal and property crimеs committed by users to fund their habits. In matters of punishment, of course, the Legislature has primacy, and its action carries a presumption of validity. Weems v. United States, 217 U.S. 349, 379 (1910). See Commonwealth v. Morrow, 363 Mass. 601, 610-611 (1973). Courts act with great restraint when they review the exercise of that legislative authority in the light of the Eighth Amendment to the United States Constitution and art. 26 of the Declaration of Rights, the parallel provision in the Massachusetts Constitution. Commonwealth v. Jackson, 369 Mass. at 909. 2 See Gore v. United States, 357 U.S. 386, 393 (1958) (severity of punishment raises questions which are peculiarly questions of legislative policy).
We have already commented that selling heroin is a grave business. Indeed the very penalty under consideration was inserted by St. 1980, c. 436, as part of a legislative decision to increase the penalties for trafficking in drugs. The Legislature was of the opinion that a stern attitude toward drug traffic was not only needed but needed quickly, and, accordingly, included an emergency preamble to the act. Courts, commissions, and commentators have observed that drug traffic is part of a pattern of seriously destructive behavior and attendant crime. Opinion of the Justices, 378 Mass. at 831, citing President’s Commission on Law Enforcement and the Administration of Justice, Task Force Report: Narcotics and Drug Abuse 7, 10-11 (1967). Carmona v. Ward, 576 F.2d 405, 410-412 (2d Cir. 1978). People v. Broadie, 37 N.Y.2d 100, 112-113, cert. denied, 423 U.S. 950 (1975). Kaplan, The Hardest Drug at 51-58. 3
The defendant does not challenge the gravity of the offense but urges that he is a ravaged victim of heroin, who ought more to be pitied than to be an object of societal vengeance. He is so out of control, the argument runs, that a
As we have implied earlier in this opinion, deterrence is not the only purpose of a jail sentence. Imprisonment isolates the criminal and, to that extent, protects society. In the case of a reсidivist seller of heroin, there is a rational legislative purpose in putting the vendor out of business for some considerable time.
Under the second test of proportionality, comparison with what other States do, the Massachusetts statute under attack does not emerge as Draconic. Delaware has a thirty-year minimum term for subsequent convictions of selling heroin, fifteen years of which must be served before eligibility for parole;
4
Georgia, no less than five years, nor more than thirty years for a first offense of sale of heroin and life for a second offense;
5
New York, nine to twenty-five years for a second offense, with a mandatory term of one half of the maximum term imposed;
6
South Carolina, five years mandatory for second offense of distribution;
7
Tennessee, ten years mandatory for habitual drug offender;
8
Vermont, ten years minimum and twenty-five years maximum for subsequent offenses.
9
Other neighboring States have provided for severe maximum penalties for drug selling, although they do not prescribe minimum mandatory sentences. See, e.g., Connecticut, second offense thirty
Whatever its wisdom, with which we cannot be cоncerned, the mandatory penalty provided by the Legislature for purveyors of heroin does not begin to approach the severity of the Texas recidivist statute upheld as to constitutionality by the United States Supreme Court in
Rummel
v.
Estelle,
445 U.S. 263 (1980). Under the Texas law a life sentence had been imposed upon the unfortunate Rummel, whose offenses over a nine-year period consisted of fraudulent use of a credit card to obtain $80 worth of goods, passing a forged check in thе amount of $28.36, and obtaining
Judgments affirmed.
Notes
The minimum punishment prescribed by
Although “parallel,” these analogous provisions in the United States and Massachusetts Constitutions may not import precisely the same meaning. See Commonwealth v. Diatchenko, 387 Mass. 718, 722 n.2 (1982).
The author of that book is skeptical about the efficacy of stiffer penalties in making much of a dent in the social problem. See particularly Kaplan, supra at 92-94.