378 Mass. 822 | Mass. | 1979
Lead Opinion
To the Honorable the House of Representatives of the Commonwealth of Massachusetts:
The undersigned Justices of the Supreme Judicial Court respectfully submit their answers to the questions set forth in an order adopted by the House of Representatives on May 21, 1979, and transmitted to us on May 23, 1979. The order recites that certain bills are pending before the General Court, identified as Senate No. 777, Senate No. 813, Senate No. 814, and House No. 507, all of which provide for mandatory prison sentences for ma
“1. Would the enactment of Senate, No. 777, Senate, No. 813, Senate, No. 814, and House, No. 507 be unconstitutionally vague, as to the definition of ‘sales value (street value) in excess of twenty-five thousand dollars’?”
“2. Would the enactment of said bills result in cruel and [sic] unusual punishment in violation of Article XXVI of the Massachusetts Declaration of Rights,2 in that Senate, No. 777 prescribes a penalty of a twenty-five year mandatory imprisonment with no probation, parole, furlough, or reduction of*825 sentence for good conduct; Senate, No. 813 which provides for a penalty of a twenty-five year mandatory imprisonment with no probation, parole, furlough or reduction of sentence for good conduct; Senate, No. 814 which provides for a mandatory sentence of one year for each one thousand dollars in illegal sales value which is in possession of the defendant at the time of arrest, without probation, parole, furlough, or deduction of sentence for good conduct; and House, No. 507 which provides a penalty of a twenty-five year mandatory imprisonment with no probation, parole, or furlough or any reduction from his sentence for good conduct?”
Responding to our invitation for briefs from interested persons, the Massachusetts Trial Lawyers Association, the National Lawyers Guild, the Massachusetts Bar Association joined by the Massachusetts Defenders Committee, and the Civil Liberties Union of Massachusetts joined by the Massachusetts Association of Criminal Defense Lawyers, have argued that the questions should be answered in the affirmative.
We answer both questions in the negative. In so responding, we, of course, make no comment as to the wisdom of the proposed legislation or whether it would tend to derogate from the even-handed administration of justice. Compare Commonwealth v. Jackson, 369 Mass. 904, 908 (1976). Also, in so responding, we point out that our views on these issues are based solely on a facial examination of the proposed legislation, and that, even as to facial constitutionality, our examination is confined to the two narrow questions submitted to us. Thus, for example, we do not indicate any other opinion, although certain briefs filed with us urged that we do so, regarding the bills’ constitutionality under the due process or equal protection clauses of the Fourteenth Amendment to the United States Constitution.
Furthermore, we do not foreclose arguments by defendants that the proposed statute is unconstitutional as applied in specific cases. Hence, we do not preclude the
1. Vagueness. It is a central tenet of our constitutional law that, as a matter of due process, a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden should be deemed void for vagueness.
It is appropriate to restate our understanding of the requirement that criminal conduct must be delineated with a reasonable degree of definiteness. Commonwealth v. Reilly, 248 Mass. 1 (1924). Commonwealth v. Pentz, 247 Mass. 500 (1924). Fundamental is the premise that a penal statute must be sufficiently well-expressed that those who may be subject to its penalties should not be forced to guess at its meaning. McQuade v. New York Cent. R.R., 320 Mass. 35, 40 (1946). Yet, a statute does not fail to satisfy constitutional requirements merely because it uses general terms. Jaquith v. Commonwealth, 331 Mass. 439, 442 (1954). If the language which is challenged as being vague conveys a definite warning of proscribed conduct — when measured by common understanding and practices — it is constitutionally adequate. Commonwealth v. Jarrett, 359 Mass. 491, 496-497 (1971). Language of statutes, criminal statutes included, may also be given definite meaning when viewed in light of common law interpretations or against the background of the terms’ statutory history. Commonwealth v. Balthazar, 366 Mass. 298, 300 (1974). Commonwealth v. Brasher, 359 Mass. 550, 553 (1971).
In short, the constitutional burden imposed by the vagueness doctrine requires simply that the statute be drafted in such form as to present "ascertainable standards of guilt.” Winters v. New York, 333 U.S. 507, 515 (1948). United States v. Herrera, 584 F.2d 1137, 1149 (2d Cir. 1978). The fact that close questions may arise in determining guilt does not render the statute unconstitutionally vague. United States v. Douglass, 579 F.2d 545, 548 (9th Cir. 1978).
Approaching the specific question asked us by the House of Representatives, we note initially that none of the bills makes criminal conduct that has been heretofore
As the proposed legislation is presented to us, we do not discern that any of the bills is facially vague. The expression "street value,” we think, possesses a clear meaning, one that has been implicitly recognized in common speech as well as in numerous judicial decisions both in this Commonwealth and elsewhere.
To be sure, the "street value” or "retail value” of a given quantity of narcotics is not a static amount. Street prices of drugs, like those of other goods, vary in accordance with prevailing market conditions, see United States v. Green, 548 F.2d 1261, 1266 (6th Cir. 1977), and proof of "street value” will necessarily be a critical element of the prosecution’s case. But so long as the defendant is not restricted at trial from challenging the value the prosecution ascribes to the narcotics at issue, we see no constitutional barrier to the use of this shorthand expression in the proposed enactments.
2. Cruel and ,unusual punishment. The second question we address is whether the bills’ mandatory sentencing provisions — including the requirement that a twenty-five year mandatory sentence in State prison be imposed on persons found manufacturing, distributing, dispensing, or possessing with intent to distribute, certain narcotics having a street value in excess of $25,000 — are unconstitutional under the Eighth Amendment to the United States Constitution or under art. 26 of the Commonwealth’s Declaration of Rights as "cruel and unusual punishment.”
For over three-quarters of a century this court has recognized that "imprisonment in the state prison for a long term of years might be so disproportionate to the
In order to mitigate the inherent subjectivity in the "shocks the conscience” standard, a growing number of courts, this one among them, have attempted to develop a more objective framework for the evaluation of the constitutionality of criminal sentences. See, e.g., Commonwealth v. Jackson, supra; Carmona v. Ward, 576 F.2d 405 (2d Cir. 1978), cert. denied, 439 U.S. 1091 (1979); Hart v. Coiner, 483 F.2d 136 (4th Cir. 1973); People v. Broadie, 37 N.Y. 2d 100, cert. denied, 423 U.S. 950 (1975); Mulligan, Cruel and Unusual Punishments: The Proportionality Rule, 47 Fordham L. Rev. 639, 645 (1979); Note, 1976 Wis. L. Rev. 655. Three factors compose the gist of the
We begin by examining the nature of the crime of drug distribution and what we may assume to be the rationale for mandatory sentencing. There can be little doubt that the problems connected with traffic in narcotics are serious social concerns. Indeed, criminal narcotics sales are not simply isolated economic transactions. They may be said to form the root of a pervasive cycle of destructive drug abuse, a phenomenon which accounts for untold numbers of crimes of violence and crimes against property. President’s Commission on Law Enforcement and the Administration of Justice, Task Force Report: Narcotics and Drug Abuse, 7, 10-11 (1967).
In addition to sparking the fires of collateral crime, drug addiction, of course, poses a social evil in and of itself. It “degrades and impoverishes those whom it enslaves,” and is a significant cause of family disruption.
It is significant to note, moreover, that courts in other jurisdictions have consistently upheld long periods of imprisonment for serious narcotics offenses. See, e.g., Gregory v. United States, 585 F.2d 548 (1st Cir. 1978); Salazar v. Estelle, 547 F.2d 1226 (5th Cir. 1977); United States v. Fiore, 467 F.2d 86 (2d Cir. 1972); McWilliams v. United States, 394 F.2d 41 (8th Cir. 1968); Smith v. United States, 273 F.2d 462 (10th Cir. 1959) (en banc), cert. denied, 363 U.S. 846 (1960); Black v. United States, 269 F.2d 38 (9th Cir. 1959); People v. Broadie, 37 N.Y. 2d 100 (1975); State v. Stetson, 317 So. 2d 172 (La. 1975). To be observed also is the fact that the United States Supreme Court has never found a sentence imposed in a criminal case violative of the Eighth Amendment simply on account of its length.
Turning to the other two prongs of the trilateral "dis-proportionality” test, we correspondingly find no constitutional barrier to enactment of the proposed legislation. The instant drug bills are not unlike severe penalty provisions for narcotic offenses that can be found in other States. See, e.g., N.Y. Penal Law § 220.21 (McKinney Supp. 1979); N.J. Stat. Ann. § 24:21-19 (West Supp. 1979). Similarly, when viewed in comparison to the prescribed penalties for the commission of more serious crimes in the Commonwealth, the suggested mandatory sentences for those found trafficking in sizeable amounts of narcotics do not appear to be excessive. Cf. Carmona v. Ward, 439 U.S. 1091, 1098-1102 (1979) (Marshall, J., dissenting from denial of certiorari).
Accordingly, we answer
Question one: "No.”
Question two: "No.”
The foregoing answers and opinions are submitted by the Chief Justice and the Associate Justices subscribing hereto on the sixth day of July, 1979.
Edward F. Hennessey
Francis J. Quirico
Robert Braucher
Benjamin Kaplan
Herbert P. Wilkins
Senate No. 813 — "Section 32 of chapter 94C of the General Laws, as appearing in section 1 of chapter 1071 of the acts of 1971, is hereby amended by adding the following paragraph: — Notwithstanding any other penalty provisions of this section, which shall remain in full effect, whoever, except as authorized by this chapter, knowingly or intentionally manufactures, distributes, dispenses or possesses with intent to distribute a controlled substance in classes A to D, inclusive, of section thirty-one in an amount having a sales value (street value) in excess of twenty-five thousand dollars shall be punished by imprisonment in the state prison for not less than twenty-five years. Any sentence so imposed shall not be suspended nor shall any person so convicted be eligible for probation, parole or furlough or receive any deduction from his sentence for good conduct. Prosecution under this section shall neither be continued without a finding nor placed on file by the court.”
Senate No. 814 — "Chapter 94C of the General Laws is hereby amended by inserting after section 32, the following section: — Section 32A. Any person who sells or possesses with intent to sell a controlled substance as listed in section thirty-two shall be punished by a mandatory imprisonment of one year for each one thousand dollars in illegal sales value (street value) such substance represents. Any sentence so imposed shall not be suspended nor shall any person so convicted be
House No. 507 — "Section 32 of chapter 94C of the General Laws, as appearing in section 1 of chapter 1071 of the acts of 1971, is hereby amended by adding the following three paragraphs: — Except as authorized by this chapter, no person shall knowingly or intentionally manufacture, distribute, dispense, or possess with intent to manufacture, distribute or dispense a controlled substance; or create, distribute, dispense or possess with intent to distribute or dispense a counterfeit substance.
"Whoever over the age of twenty one years who may be deemed a major dealer, importer or distributor and violates any provision of this section relative to a controlled substance in Class A through D of section thirty one shall be punished by imprisonment for not less than twenty five years. Any sentence so imposed shall not be suspended, nor shall any person so convicted be eligible for probation, parole or furlough or receive any deduction from his sentence for good conduct. Prosecution under this section shall neither be continued without a finding nor placed on file.
"For the purposes of this section, 'a major dealer, importer or distributor’ shall be one who knowingly or intentionally manufactures, distributes or dispenses a controlled substance in Class A-D of section thirty-one in an amount having a value in excess of twenty five thousand dollars.”
We interpret the question to ask whether the bills, if enacted, would violate either the "cruel and unusual” punishment clause of the Eighth Amendment to the United States Constitution or the corresponding article of our Declaration of Rights (art. 26), which refers to "cruel or unusual punishment,” see Commonwealth v. O’Neal, 369 Mass. 242, 246-247 (1975) (Tauro, C.J., concurring).
A law may also be judged void for vagueness if "it encourages arbitrary and erratic arrests and convictions.” Papachristou v. Jacksonville, 405 U.S. 156, 162 (1972). And where uncertainty engendered by a criminal statute threatens to restrain the exercise of constitutionally protected rights, judicial relief is particularly appropriate. Smith v. Goguen, 415 U.S. 566, 573 (1974). Grayned v. Rockford, 408 U.S. 104, 109 (1972). Keyishian v. Board of Regents of the Univ. of N.Y., 385 U.S. 589, 603-604 (1967). Revere v. Aucella, 369 Mass. 138 (1975), appeal dismissed sub nom. Charger Invs., Inc. v. Corbett, 429 U.S. 877 (1976).
See, e.g., Commonwealth v. Rivera, 6 Mass. App. Ct. 947 (1978); Commonwealth v. Baltrop, 2 Mass. App. Ct. 819, 820 (1974); United States v. Bycer, 593 F.2d 549, 551 (3d Cir. 1979); United States v. Muckenthaler, 584 F.2d 240, 247 n.3 (8th Cir. 1978); United States v. Restrepo-Granda, 575 F.3d 524, 527 (5th Cir.), cert. denied, 439 U.S. 935 (1978); United States v. Schmidt, 573 F.2d 1057, 1061 (9th Cir.), cert. denied, 439 U.S. 881 (1978); United States v. Herron, 567 F.2d 510, 512 (D.C. Cir. 1977); United States v. Reese, 561 F.2d 894, 897 (D.C. Cir. 1977); Taylor v. United States, 550 F.2d 983, 985 (4th Cir. 1977); People v. Dickson, 91 Cal. App. 3d 409, 413-414 (1979); Peasley v. State, 83 Wis. 2d 224, 232 (1978).
When used to refer to the sale of stolen noncontraband goods, "street value” may have a somewhat different meaning. Because these goods are legally available, the "street value” of such items will often be lower than the regular retail prices. See United States v. Watson, 570 F.2d 282, 283 (8th Cir. 1978).
We observe, however, that House No. 507 uses the word "value” rather than the expression "street value.” Whether the term "value” is sufficiently definite to withstand a vagueness challenge is a question we do not address.
"[T]he power of punishment is vested in the legislative, not in the judicial department. It is the legislature, not the Court, which is to define a crime and ordain its punishment.” United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820) (Marshall, C.J.). See Rummel v. Estelle, 568 F.2d 1193, 1202 n.3 (5th Cir. 1978) (Thornberry, J., dissenting), cert. granted, 441 U.S. 960 (1979).
By emphasizing the significance of narcotics abuse, we by no means minimize other, less tangible but perhaps more basic, causes of crime. Likewise, we do not suggest that the existence of drug traffickers is the single cause of narcotics addiction.
Apart from cases involving capital punishment, the Supreme Court has on only three occasions voided punishments under the Eighth Amendment'. In Weems v. United States, 217 U.S. 349 (1910), the Court struck down a punishment involving fifteen years of "painful labor.” In Robinson v. California, 370 U.S. 660 (1962), the Court held that imprisonment for the status of being a drug addict was a cruel and unusual punishment. A plurality of the Court in Trop v. Dulles, 356 U.S. 86 (1958), found that, after a deserter from the armed forces was court-martialed and given a dishonorable discharge, to punish him further by depriving him of his citizenship contravened the Eighth Amendment.
Neither do we find the provisions barring parole or early release to be constitutionally objectionable. "There is no constitutional or
Dissenting Opinion
(dissenting, with whom Abrams, J., joins). I dissent. I am of opinion that each of the four bills submitted, if enacted, would violate art. 26 of the Declaration of Rights of the Constitution of Massachusetts. Because I am informed that the General Court may prorogue in the near future, time does not permit that I set forth the reasons for my view.
The reservations expressed by the majority as to other possible constitutional infirmities these bills may suffer in areas not raised by the questions posed to the court provide additional reasons, on alternative grounds, to doubt the constitutionality of these bills.