*1
15
PEOPLE v BULLOCK
PEOPLE v HASSON
16).
10,
(Calendar
89661,
Argued
No.
Nos.
89662.
October
Docket
Hasson,
post,
Rehearing
1203.
1992.
denied
Decided June
by separate
Kenneth Hasson were convicted
Ruth Bullock and
Green, J.,
Court, Timothy
of
juries
M.
Clinton Circuit
in the
cocaine,
possession
grams or
of
and were sentenced
more
of
parole.
prison
possibility
The Court of
without
of
to life in
P.J.,
JJ.,
Sullivan,
Shepherd,
Appeals,
and
Maher
curiam,
finding
separate unpublished opinions per
reversed
luggage
not
Hasson’s
and Bullock’s vehicle did
that searches of
exception
Amendment
within the automobile
of
Fourth
fall
111759).
(Docket
Following
requirement
Nos.
warrant
Court,
parties
argument
Supreme
ordered
in the
were
oral
Acevedo,
reargue
500 US
of California v
to address
effect
issue,
(1991),
—;
1982; 114 L
on the search
111 Ct
Ed 2d
S
—;
Michigan,
115 L
111 Ct
and of
v
501 US
S
Harmelin
(1991),
mandatory
imprisonment.
Ed 2d
on the
life
issue
people appeal.
The
Cavanagh,
joined
opinion
Justices
In an
Chief Justice
Supreme
Levin, Brickley,
Griffin,
held:
however,
reinstated;
of both
are
convictions
defendants
being
imposed
down
cruel
the sentences
are struck
Thus,
respect
16.
unusual under Const
have been
these defendants and all other defendants who
333.7403(2)(a)(i), 791.234(4); MSA
under MCL
sentenced
14.15(7403)(2)(a)(i),28.2304(4)
offense,
portion
for the same
down,
denying parole
and.
of the statute
consideration is struck
defendant, upon
years
completion
of ten calendar
each
sentence,
parole
jurisdiction
subject
will become
References
2d,
539, 629;
Law
Searches and Seizures
§§
§§
Am Jur
Criminal
43, 45, 85, 88, 96, 97, 99.
constitution,
Validity,
motor
search of
under federal
warrantless
2d
Court cases. 89 L Ed
vehicles—
prohibiting
provisions
Length
cruel and
as violation of
sentence
punishment. 33
unusual
ALR3d 335.
Reversed. concurring part dissenting part, Mallett, Justice 333.7403; infirmity MSA stated that the constitutional of MCL 14.15(7403) possibility parole, not with lack of a of but rests its application mandatory with its and blanket to all defendants. inquiry constitutionality While a trial court’s into the recognize Legislature’s judgment, penalty the the court should substantial, present opportunity to should afford defendants an compelling, objective, reasons that the and verifiable 15 disproportionate. applied unconstitutionally The is to them might possibility trial such convince the court reasons impose penalty and a substantial term of deviate from the Imposition by years the of not be should foreclosed. possibility parole mandatory life of a sentence without the responsibility strips necessary judiciary its of discretion and the claims, particularly regarding those to examine constitutional However, punishment. unusual on basis of cruel or cases, precise it has facts of these not been circumstances and imposition mandatory life sentences shown that of 1963, 1, possibility parole of in fact Const art violates without Nevertheless, prepared 16. Court is not because § court, sentencing hearings sentencing remand for to act as a opportunity to a had to both sides the create should be afford challenge imposi- a foundation to record that would establish penalty. tion of the part dissenting part, concurring in Riley, Justice prescribed possession mandatory penalty stated that the cocaine, imprisonment possibility grams life without parole, punishment unusual is not cruel or under art § majority persuasively compelling has not established interpret differently from the reason to § Amendment. punishment clause was intended to The cruel unusual prohibit Pre- inhumane and barbarous treatment criminals. interpreting the case did vious state constitutions and law them proportional component respect recognize sentencing not proscriptions. Lorent- to cruel or unusual wrongly application zen decided. The of a was supported by test not its in Lorentzen to art analysis. indepen- is an The contention that the Constitution rights counterpart, dent different from its federal source interpreting the not case law federal constitution is federal correct, nothing attempt presumptively than an more Legislature, judicial policy choice for that of the as is substitute majority’s decision to evidenced eschew historical provisions. by Michigan shared and federal foundations *4 majority compelling has for the failed to advance reasons The provide interpretation Michigan Supreme to a different 1963, 1, than the States of art United § given Eighth the in Harmelin v Michi- Court has Amendment gan. no reason to assume the textual There is sound Amendment, unusual,” Eighth from in the "cruel deviation Bullock 16, 1963, 1, parallel provision Const art "cruel § of the of 1, unusual,” interpretation. Article 16 § a different or mandates Eighth as the is based on the same historical foundation extending guarantees By federal consti- of the Amendment. Michigan, intended the drafters tution to residents of interpretation Michigan’s parallel the corre- Constitution to of penalty regard sponding provision. With to whether federal decency, proportionality, evolving meets of at issue standards rehabilitation, Legislature. the answer must come from part, part dissenting concurring Boyle, Justice 14.15(7403)(2)(a)(i) 333.7403(2)(a)(i); not MSA is stated that MCL grossly disproportionate Amendment under either the proportionality 16 but that limited or Const art § applied challenges permissible. to Because the statute as are judgment give of Lorentzen fails to sufficient deference regarding Legislature, appropriate deference to ensure particular varying gravity of a crime and the to which extent goals penological punishment, a court’s inform the scheme of inquiries only threshold should be whether the sentence is grossly disproportionate. penalty mandatory life without The of grossly dispro- parole possessing grams of for cocaine is not portionate magnitude crime the absolute is because permit grave principle and the not the- of does judiciary subjective impose view to on the its perceived appropriate responses the sentence is evils. While harsh, conduct the social harm caused the criminal devastating. — — Unusual Punish- Constitutional Law Sentences Cruel or Mandatory Imprisonment. —ment Life statutory mandatory prison possi- The life in without any bility parole grams possession of 650 or more disproportionate containing grossly mixture is so as cocaine (Const 333.7403[2][a][i], be cruel or MCL unusual 791.234[4]; 14.15[7403][2][a][i],28.2304[4]). MSA — — — 2. Searches and Without Warrants Automobiles Seizures Containers. placed police open or found in and search container probable long they requisite have the cause an automobile as container, regard probable if even cause focuses specifically on the container is the container arises before (US IV). Const, placed in the automobile Am — — — 3. Searches and Seizures Without Warrants Automobiles Passenger Compartments. occupant of to a arrest an Incident lawful custodial *5 automobile, passenger police com- the entire search automobile, partment found in well as containers compartment purses compartment, including glove and IV). (US Const, Am Gay Attorney Kelley, General, Secor Frank J. Hardy, Sherman, General, Charles D. Solicitor Prosecuting Attorney, Gehrke, and S. Assist- Joel ing Prosecuting Attorney, people. for Brisbois) (by A. for & William
Brisbois Brisbois Bullock. defendant for
Daniel E. and Herb Jordan defen- Manville dant Hasson.
Amici Curiae: Gay Attorney Kelley, General, Secor
Frank J. Hardy, General, Nelson, C. and Thomas Solicitor Attorney Attorney General, Gen- Assistant for Thompson, County Pros- eral; Richard Oakland ecuting Attorney, Modelski, Chief, Michael J. County Appellate Division, for Pros- the Oakland Attorney ecutor; Molner, E. Assistant William Prosecuting Attorneys Appellate General, for Ser- Prosecuting Weiss, vice; Attorneys President,- and Robert O’Hair, Association, D. Prosecut- John ing Attorney, Baughman, Timothy Chief, A. Prosecuting Training Appeals, Research, for Attorneys Association. Attorneys Criminal
John R. Minock for Defense Michigan; Paul Denenfeld for American Civil Fund; Union William Swor for National Liberties Lawyers; Defense Neal Association Criminal Lawyers Rep- Bush, President, Guild; for National Judiciary Perry Chair, Bullard, resentative Representatives; Committee, House of People v Bullock Opinion op the Court Graves, President, and Leslie for Wolverine Bar Association.
Elizabeth L. Jacobs addressing Harmelin v Mich- igan and for Leon Brown. ,
Cavanagh C.J. We address in these consoli- dated cases the of validity a search conducted warrant, without a and question whether Michigan’s mandatory of in prison life without possibility parole, for possession of 650 grams or more containing cocaine, mixture is "cruel or unusual” under our state constitution.
I. FACTS AND PROCEDURAL HISTORY 24, 1988, On February defendant Hasson trav- eled by air from Los Angeles to Lansing’s Capital City Airport. He had a return ticket to Ange- Los les on a flight scheduled to leave less than four arrival, hours after his yet he had checked two large Acting suitcases. on tip from agents airline relayed through the Angeles police, Los the Michi- gan State Police met flight. Hasson’s Before Has- son claimed his luggage, police dog alerted offi- cers to the presence of illegal drugs in both suit- cases. police The observed deplane, Hasson re- trieve his luggage, make a call from a public phone, and walk public outside to the driveway. minutes, After about thirty Hasson flagged down a car driven and owned by defendant Bullock. Bul- lock’s seventeen-year-old grandson was a passenger in the car. placed Hasson his luggage in the trunk got car, in the began which pull away.
At that point, police stopped the car and arrested all occupants. three police, without attempting warrant, to obtain a proceeded then glove examined the They the entire car.1 search which she left in purse Bullock’s compartment, car, placed in the luggage Hasson had and the in glove of cocaine trunk. found traces They over fifteen purse, Bullock’s compartment This luggage.2 in Hasson’s kilograms of cocaine over as evidence trial cocaine was admitted both were objections, and Hasson’s and Bullock’s convicted, trials, pos- separate knowingly in jury or more of cocaine violation sessing grams 14.15(7403)(2)(a)(i).3 333.7403(2)(a)(i); MSA of MCL statute, conjunction As mandated 28.2304(4), 791.234(4); both defendants MCL MSA prison any possi- without were sentenced life parole. bility separate unpublished Appeals,
The Court of 24, 1990,4 re- opinions per April curiam decided The Court both defendants’ convictions. versed luggage found in Hasson’s held the cocaine the fruit of an have been excluded as should *7 because, police proba- while the had invalid search luggage contained contra- ble cause to believe the it, the seizing and justified band therefore were the did no warrant to search it and case police had excep- the "automobile not fall within so-called requirement. warrant Because tion” with- prosecute state lacked sufficient evidence to cocaine, did not re- the excluded out 1 County police telephone Clinton Prosecutor’s office The did in the needed the suitcases ask if a warrant was to search car and view, that, prosecutor police A in his a warrant trunk. was not advised the required. 2 marijuana cigarettes police The also found two burnt and assorted compartment, drug passenger paraphernalia thou in the several purse. sand dollars in cash Bullock’s 3 charged, charges grandson but were dis Bullock’s was also ground linking him evidence missed before trial on the of insufficient to the cocaine. (Bullock) (Hasson). Docket Nos. Opinion of the Court mand for retrial in Hasson. Court, while finding standing challenge that Bullock lacked luggage,
the search of Hasson’s
held that
purse
traces of cocaine found in Bullock’s
and the
glove compartment should also have been excluded
illegal
as the fruit of an
search. Because the Court
found that
the introduction of that cocaine as
regard
evidence was not harmless with
to Bul-
possession
lock’s conviction for
of the cocaine in
luggage,
Hasson’s
the Court reversed the convic-
tion and remanded for retrial in Bullock.
granted
appeal,
(1990),
We
leave to
bility
parole
was invalid under either the fed-
Following
argu-
eral or state constitutions.5
oral
during
ment
reargu-
term,
the 1990-91
we ordered
ment this term to address the effect of the United
intervening
States
California v
Court’s
decisions in
Acevedo,
—;
500 US
111 S
Ct
(1991) (dealing
II. ANALYSIS A. THE SEARCH ISSUE: HASSON There is no basis Constitution Boyle points out, post, As p Justice see n Bullock did not penalty raise the agreeing Appeals, Court, issue in the Court of and this while request Court, to Hasson’s to add that issue before this request denied holding Bullock’s to add the issue. Our on the under issue, however, lying obviously Hasson, affects Bullock no less than persons indeed it affects all other penalty sentenced under the same and for the conclude that part same offense as the defendants at bar. See in. We incongruous it would be and not conducive to substan justice tial to limit our consideration of the issue to Hasson We, course, "may, and not reasons or added,” entered, permit Bullock. time . . . grounds appeal grounds to be amended or new to be any judgment ought and "enter or order that to have been *8 grant and enter other and further orders and relief as the (7). may require 7.316(A)(3), case . . . .” MCR To the extent neces sary, hereby authority. we exercise that 440 15 24 Mich op the Court excluding discovered evidence the cocaine from provides 1, § it 11 in this case. from evidence "shall not be construed bar drug any proceeding any narcotic criminal curtilage by peace . a . . officer outside seized any dwelling analysis house this state.”6 Our governed exclusively by the United States is thus currently Constitution, the United as construed People Chapman, Supreme v 425 See States Court. (1986). 245, 252-253; 387 NW2d Appeals reasoning on While plausible application a this constitutes issue it and seizure law as federal constitutional search decision, the time of Court’s existed at decision United States Court’s recent supra, destroys any plainly Acevedo, v California might issue, had this claim that Hasson have on Appeals. compels Court of reversal overruling Sanders, Acevedo, v Court in Arkansas (1979), 753; 99 L Ed S Ct 2d US Ross, 456 US as reaffirmed United States (1982), L 812-813, 824; 102 Ct 72 Ed 2d 572 S expanded exception the automobile to the Fourth requirement held that Amendment warrant placed open police may and search container long they automobile, in an have or found as probable requisite regard with to such a cause probable container, if even such cause focuses specifically on the container and arises before placed Acevedo, in the See container automobile. 114 L 2d 630-634. Ed "narcotic,” technically no cocaine is not we have doubt While adopted who the 1963 Constitution understood and the voters encompassed quoted provision. Cocaine intended cocaine has purposes be long grouped drugs as heroin for been true narcotic such control, and, indeed, legal legally defined as adopted. the 1963 See 1948 "narcotic” at time Constitution was 1956). (Mason’s 335.51(13) Supp, CL *9 Opinion of the Court Appeals rejected
The Court of Hasson’s claim probable lacking cause case, in this and holding challenged that Thus, is not before this Court.
given police probable had cause to luggage, place- search Hasson’s and because the luggage brings ment of the in Bullock’s car this exception by case within the automobile as defined Acevedo, the failure to obtain a warrant not does prop- render the search invalid. The cocaine was erly admitted as evidence at trial.
B. THE SEARCH ISSUE: BULLOCK
Hasson,
Just as in
above,
for reasons noted
our
analysis
governed exclusively by
here is
currently
Constitution,
United States
as
construed
the United States
Court. The Court of
Appeals
purse
found the search of Bullock’s
glove compartment
invalid,
of her car
not for
assuming probable
which,
lack of a warrant —
clearly
unnecessary
cause, would
have been
under
exception
prior
the automobile
even
to Acevedo—
probable
but because it found insufficient
cause.
Appeals correctly
The Court of
noted that
even
pursuant
search of a car without a warrant
to the
exception
strictly
scope by
automobile
limited in
objects
places
of the search and the
in which
probable
they there is
cause
believe
Supreme
be
found, as the United States
Court noted
strongly
Ross,
456 US
reaffirmed
Appeals
Acevedo,
cause to Hasson’s the circumstances under which Hasson arrived at Mich appar- airport picked up by Bullock, and was response phone ently call. to Hasson’s very an issue cause is its nature Probable specific closely case, and facts of each tied arguably question a close one. in this case is question, however. Under need not decide that We 2860; 69 Belton, 454; 101 S Ct York v 453 US New (1981), contempo police may, L Ed 2d arrest of the incident of a lawful custodial raneous occupant pas automobile, the entire *10 of an search senger compartment and the automobile of including glove compart therein, containers found purses. arrest, at Hasson’s ments and least, Because unquestionably valid, no there can be irrespective valid, also doubt that this search was probable warrant, cause, a of the existence of exigent Chapman, 425 Mich circumstances. See in Bullock’s 250-252. The traces of cocaine found purse glove compartment were thus and properly admitted as evidence trial.7 challenges to her conviction Bullock raised three additional (1) Appeals explicitly address: Court of that that Court did not found in the the admission into evidence of the traces of cocaine glove compartment purse it and Bullock’s was erroneous because 404(b); acts” evidence not admissible under MRE constituted "other (2) jury request to waive trial because the denial of Bullock’s consent, 763.3; prosecutorial with MCL of lack of accordance (as 89, 1, 1, 1988, PA June MSA 28.856 shortly amended effective § place), with then-MCR before Bullock’s trial took was inconsistent 101(F)(1)(c)(ii), transgressing thereby unconstitutionally this 6. Court’s procedure authority promulgate under Const to rules of court (3) 1963, 6, support that the evidence was insufficient art § Bullock’s conviction. have, may Bullock merit the first contention we note that Whatever any timely objection MRE at trial on the basis of failed to raise 404(b), reject this contention on that basis. and we therefore contention, time, it have had at the is second now moot in provides, consistently whatever merit (effective 1989), 1, light 6.401 October which of MCR 28.856, 763.3; that a defen with MCL MSA jury contingent consent of the waiver of trial on dant’s 1989). 6.302(B)(3)(b)(effective 1, prosecutor.” See also MCR October governed by Any obviously current of be retrial Bullock would rules, reject on that her second contention court and we therefore (We challenged of her Bullock not the denial basis. note that has People v Bullock Opinion of the Court
C. THE PENALTY ISSUE: BULLOCK AND HASSON 1. THE APPLICABILITY OF CONST ART 1, § 1963, The United Court, States in Harmelin Michigan, supra, rejected challenge, brought punishments” under the "cruel and unusual clause Eighth of the Amendment of the United States Michigan’s mandatory penalty Constitution, prison possibility parole life in possession without for grams
of 650 or more of a mixture containing challenge cocaine. We address here a on 1, 16, the basis of m,8 differently which is worded and was ratified fro years more than 171 after, Amend ment. binding
While Harmelin is
and authoritative for
purposes
applying
the United States Constitu-
persuasive
only
authority
purposes
tion, it is
interpretation
application
this Court’s
Michigan Constitution. This Court alone is the
authority
regard
meaning
ultimate
application Michigan
Appor-
In
law. See
re
tionment of
State
—
(1982), app
n
To
that we have the
note
expansively
Michigan
than
Constitution more
course,
not, of
States Constitution does
United
should or will
to the conclusion
we
lead
any particular
authority
in
choose
exercise that
given
entirely possible,
or
It
in a
case
area.9
9
have, however,
Michigan
greater protection under the
We
afforded
Constitution,
law,
e.g.,
many
Compare,
in
case
areas.
(1988) (lesser
450, 464-465;
Beach,
People
861
v
429 Mich
418 NW2d
States,
instructions),
United
4Í2 US
included offense
with Keeble v
205;
1993;
(1973);
Twp v
36 L
2d 844
Delta Charter
93 S Ct
Ed
(1984)
Dinolfo,
253, 265-278;
(right
un
419
351
831
Mich
NW2d
persons
"single-family
in an
zoned for
related
residences”),
to share
house
area
Boraas,
1;
Village
Terre v
416 US
94 S Ct
with
of Belle
450, 460-461;
1536;
(1974);
Cooper,
People
L
v
398 Mich
39 Ed 2d 797
(double
(1976)
jeopardy
247
prosecutions
in the context of successive
NW2d 866
Illinois,
sovereigns),
with
v
359 US
different
Bartkus
(1959);
Burden,
121;
676;
People
Mich
79 S Ct
3 L Ed
684
v
395
2d
(unanimous
(1975)
cases),
462;
jury
236
criminal
NW2d 505
verdicts
1628;
404;
Apodaca Oregon,
184
92
32 L Ed 2d
with
v
406 US
S Ct
(1974)
Jackson,
323,
(1972);
337-339;
People
area, that our
will lead to
agreeing
reasoning
our
with the
of the United
e.g.,
Dep’t
See,
States
Court.
Doe v
Services, 439
650;
Social
Mich
our
state
constitutional
broadly in
cases than the United States
these
Eighth
interpreted
Amend
forth these reasons
ment
parts II(c)(2), (3),
Harmelin. We set
Furthermore,
we find that
(4).
proper interpretation
1963,
1, § 16, in
Const
art
longstanding prece
accordance with this Court’s
requires
area,
dent in this
us to strike down
disproportionate
unjustifiably
penalty at issue as
imposed,
it
and therefore
to the crime for which
II(c)(5).
part
"cruel or unusual.” See
2. TEXTUAL DIFFERENCES
already noted,
First, as we have
provision prohibits
punish
"cruel or unusual”
only
ments, while the
Amendment bars
punishments
and unusual.”
that are both "cruel
appear
This textual difference does not
to be acci
t.11 Language providing
dental or inadverten
Pitler, Presenting
argument:
on
&
theory
a state constitutional
Comment
also,
(1987);
e.g.,
technique, 20
L R 635
see
State v
v
Ind
(1983)
260, 262-272;
(Linde, J.);
Kennedy,
Ball,
295 Or
to terms. prohibition "The is unusual implication necessarily but not cruel carries an imprisonment unusually excessive is included prohibition.” in that Id. at 172.13As this Court "significant Collins, noted in a difference[ ] textual parallel provisions between of the state and fed may "compelling eral constitutions” constitute a interpretation reason” for a different and broader provision. of the state 438 Mich 32. regard The decision in Lorentzen was unanimous with to the Kavanagh
issues relevant
these cases. While Justices T. G.
and
separate opinions concurring
part
dissenting
filed
and
Williams
part,
they
only
majority
dissented
insofar as the
refused to strike
disputed marijuana
down the
statute itself and reverse the defen
outright. They expressed complete agreement
dant’s conviction
the
ity analysis
reasoning
majority’s
regard
proportional
and conclusion with
unconstitutionality
and the
of the
sentence
issue. See
Second,
while two members
of the
circum-
maintained
the historical
majority
background
adoption
stances
and
Eighth
preclude
Amendment
the notion that
"proportionality
princi-
federal clause contains
Scalia, J.,
ple,”
(opinion
see
This would constitute another rea- *15 son” under Collins for a broader view of state in protection, "history pro- constitutional reason to those who framed believe vide^] adopted provision the state had different mind,” different, purpose in at any 32— 14 11(c)(4) part thoroughly in this Court’s historical We discuss more component jurisprudence supporting of our state clause, unequivocally punishment” as first articu "cruel or unusual Weems, Mire, People supra, just years after lated in v two Lorentzen, supra. People reaffirmed in v People 33 Opinion op the Court rate, from the understanding historical asserted Justice Scalia.15
4. LONGSTANDING MICHIGAN PRECEDENT
Court,
1963,
this
in
Finally,
interpreting Const
1,
16,
art
long
has
followed an approach more
§
of the Harmelin
consistent with the reasoning
with that of the Harmelin major-
than
dissenters
Lorentzen,
ity.
in
Twenty years
ago,
supra,
down,
we struck
under both
Eighth
1963,
1,
Amendment
and Const
a manda-
minimum
tory
sentence of twenty years
prison
in
(reducible to
ten
approximately
years by earning
time”)
"good
for selling
amount of
any
marijuana.
See
Our
analysis
foreshadowed
striking manner
three-pronged
test
later
adopted by
the United States
Helm,
Solem v
463
290-291;
US
103 S Ct
(1983).
Lorentzen noted the
77 L
Thus,
Ed 2d 637
severity
the sentence imposed and the fact that
it would apply to a
sale
marijuana
by "a first
high
offender
school student.”
Mich
ac-
Solem,
cord
("[f]irst,
US 290-291
we look to the
gravity
the offense and the harshness
penalty”). Lorentzen then compared the penalty to
those imposed for numerous other crimes in Michi-
Solem,
gan. 387
176-177;
accord
for commission of
applied
jurisdictions”). Finally,
Lorentzen
fourth
Michigan’s legal traditions,
in
criterion rooted
provision
in the
for "indeterminate
sen-
reflected
goal
4,
1963,
§
art
45: the
of
tences” of Const
179-181.
rehabilitation. See 387 Mich
Harmelin,
unclear, in
of
whether
It is
the wake
analysis
or
as a mat-
Lorentzen’s
Solem’s
survives
that
law,16
need
ter
federal constitutional
analysis,
any
in
Lorentzen’s
not concern us
although relying
event.
in the alternative on
sufficiently
firmly
Amendment,
in
rooted
preceded
1,
1963,
Indeed,
our
§
Const
art
16.
we
proportionality17 analysis
in
with a
Lorentzen
J.)
Scalia,
Harmelin,
(advocating
(opinion
L
See
115 Ed 2d 858
J.,
id.,
outright);
(Kennedy,
overruling
115 L Ed
871-872
Solem
2d
Solem,
applying only
concurring) (purporting to
reaffirm
while
(White, J.,
id.,
analysis);
dissenting)
prong
lengthy
dating
review of
case law
back
*17
to 1879. See
business livelihood. The
in this
which are
business,
discretionary,
necessarily
up
tive
and are not measured
amount.
not
must
break
by any
proportion
standard
Emphasis
at 563.
[Id.
added.]
strongly
development
It is thus clear that Robison
foreshadowed the
component
punish-
of the
ment”
of our "cruel or unusual
Lorentzen,
jurisprudence,
Court-recognized in
as this
387 Mich
colleague
only language
quoted by
our
is from
who dissented from
from Robison
separate opinion
Sherwood,
the
the Robison Court’s decision to strike down the
penalty
of Chief Justice
five-year suspension
Riley, J.,
p
post,
"cruel or unusual.” See
however, suggested agreement
Sherwood,
n 6. Even Chief Justice
stating
principle
proportionality, by
that the
with
whether
issue was
Legislature’s
so far in excess of what is
"enactments are
*18
necessary
Constitution,
protection
to furnish the
desired as to
obnoxious to the
be
punishments’ . . . .”
which forbids 'cruel and unusual
unfair to full bility guilt and moral to defendants for by acts, them, all collateral unintended which might have been later committed others in connection with the seized cocaine. Persons who independently commit violent and other crimes illegal drugs connection with can and should be individually responsible by jus- held our criminal system. tice Kennedy’s
Thus, even under Justice
restrictive
application
Solem,
view of
it is clear that an
prong
gross
Solem’s first
"leads to an inference of
disproportionality.” Harmelin,
without drug only offender, and then when a first-time possesses kilograms more ten or of co- defendant Id., 115 L caine.” Ed 2d only sum,
In the fair be can conclusion regarding is it reached constitutes an the at issue response
unduly disproportionate to problems by drugs posed society. our serious response may be, However understandable such a prohibi- our it is not consistent with tion constitutional punishment.” pen- or The of "cruel unusual alty face. is therefore unconstitutional on its proportionality principle
The inherent in Const "bright-line” simple, test, 1, § is not a Boyle Schultz, People suggested unusual.” 517, v As Justice (1990), 533-534; compelling 460 NW2d even the interests scourge drugs” underlying "public policy that decries important permitted equally belief to overwhelm "the should not be that only wholly capacity the rarest individual bereft redemption.” Bullock op the Court concededly, may, application of that test unpopular, politically analytically difficult and be principle application especially re- of that where expressed democratically quires us to override Legislature. however, is, judgment fact The of the through speaking Michigan, people their imposition of constitution, forbidden have duty- punishments, are and we or unusual cruel principled test which to devise a bound apply prohibition, that test enforce very brought us. are before the cases that passing subject purpose is to of a constitution political legislative temporary judgments judgment deeper, profound majorities more people constitution, in the reflected judg- to our is entrusted of which enforcement ment.24
III. CONCLUSION *22 parts and we reasons stated For the ii(a) (b), Appeals judgments and the Court of of reverse the at bar. defendants the convictions of both reinstate n(c), part however, we the reasons stated For imposed on both defen- strike down the sentences 24Thus, Riley’s agree "it is admonition that with Justice while we injustice perceived power to correct the of this Court not within by judicially result,” post, politically legislating socially or desirable today p disagree our decision conflicts her assertion that we with Furthermore, colleague principle. herself we note that our with punishments what kinds of no method which to determine offers 1, 16, vague than the other is "inhumane and barba § forbidden under Const are unworkable test rous,” imposed by of whether a analogous perhaps post, p to "the abuses whether it is II,” p Stuarts, King post, during reign James of mandatory evidently colleague find life does not 54. Because our imprisonment parole possibility "inhumane and to be without barbarous,” any principle proportionality, rejects and because she analysis be that this Court would follow under her it would seem to imposed uphold penalty on a child for compelled stealing even if such a bread, taxpayer forgetful to file a who fails or on a a loaf of on time. return Mich op the Court 1963, art under Const "cruel or unusual” dants as 16- remedy remaining question to af- is what guided by considering question, we are In this ford. aspects to First, three factors. there are several (1) length severity penalty at issue: its (2) (life); mandatory character, i.e., the absence its for each defendant consideration of individualized at the (3) sentencing stage; the absence of parole possibility consideration of individualized holding today Second, our is us; each defendant. for necessarily precise issue before limited to the validity hypothet- today of a address we do not lacking penalty any of these three attributes. ical challenging Third, penalty, possibility necessarily bar, this at the defendants especially of the focused on absence parole.25 today Finally, decision our the sentences of all defen- invalidates pen- currently incarcerated under the same dants alty, committing offense, as the and for the same defendants bar. appropriate remedy the most
We conclude ameliorate the no- under the circumstances is to parole penalty. We therefore strike feature of regard down, and all to these defendants under the same others who have been sentenced portion offense, and for the same 28.2304(4) 791.234(4); denying such de- MCL MSA parole otherwise avail- consideration fendants upon completion years of the of ten calendar able sentence. serving subject upon shall, Thus, each such defendant years sentence, of the become ten calendar parole jurisdiction board eligible parole consideration accordance with *23 pressed reargument specify of the at which feature 25 When offensive, speci penalty constitutionally most counsel for Hasson Indeed, suggested parole aspect. counsel for Hasson that he fied the possibility parole the of would be did not think a life sentence with unconstitutional. Mallett, J. 28.2304(4)(a)-(d), 791.234(4)(a)-(d), (5); MSA MCL (5).26 JJ., concurred and Brickley, Griffin,
Levin, Cavanagh, C.J. with dissenting (concurring part and
Mallett,
regarding
part).
majority
the
I
the
concur with
presented by defendant-
and
issues
search
appellee,
seizure
agree
§ 16
component.
See Peo-
does contain
ple
167;
I with Louisiana am proscription against that "the constitutional punishment will override a cruel and unusual legislatively imposed
mandatory
minimum sen-
applied
given
if,
[this]
for
as
to a
defendant
tence
parole
for the same offense as the defendants
served ten calendar
creating
cocaine
cocaine
grams
mum sentence
years in
for the former
791.234(4);
substantial and
ately
of 225 to 650
Legislature
to our decision
14.15(7403)(3).
ameliorative
People
We
penalty
Any
grams
subject
acknowledge
consideration
or more modified
possession.
an
Schultz,
persons
prison
arguably
MSA
for
remains free to
arguable incongruity in the
modifications,
In
grams
more,
possessing
offense
reasons to do so.” MCL
compelling "if
today,
currently
any
14.15(7403)(2)(a)(ii),
that our
more
jurisdiction
according
years
permits
is not before
event,
no
is a
either
penalty for
court
possibility
225 to 650
severe than
both
of their
incarcerated under the
mandatory
modify
decision
a downward
our decision
to law.
prospectively
finds on the record that
tory for crime this without life sentence necessary strips judiciary of discretion. the judiciary the from cannot foreclose exercising responsibility all to examine and its by particularly claims, those offered constitutional punish- claiming cruel and/or unusual defendants ment violations. precise
Nevertheless, circum on the of the basis currently this the before stances facts of cases and imposition Court, the of not convinced I am possibility mandatory of life without the parole sentences 1, § 1963, art in fact violative of Const colleagues prepared my I nor are neither Because sentencing judges, these be to act cases should sentencing hear to the trial court for remanded prosecution ings. afford the This would both opportunity the to create a record the defendants thereof foundation lack that would establish the challenges imposition for individual pos mandatory of life minimum sentence without sibility of parole. 28.2304(4) 791.234(4); By striking it MCL MSA in so far as down prisoners they parole for a if been sentenced for life or denies have offense, years major for a
minimum term of
majority
controlled substance
mandatory
minimum
some
in that
will create
confusion
grams
possession
substance
of
to 650
of
controlled
sentence for
parole,
twenty
possibility
years
unless "the court
without
of
is
finds on
to
compelling
reasons”
that there are substantial
the record
14.15(7403)(3).
333.7403(3);
depart
A
MSA
the minimum. MCL
from
imposition mandatory
possibil
departure
ity
life without
from the
of
twenty
parole
years
term of
less than
diminishes
to a
being punished.
severity of the crime
Mich Riley, J.
(concurring
part
dissenting
Riley,
part).
February
probation
24, 1988,
On
while on
possession
with the
heroin,
intent
to deliver
grams
15,042.40
Kenneth Hasson delivered
caine—worth an estimated
of co-
million on the
$11
Capital
Airport
City
street —to Ruth Bullock1 at
Lansing, Michigan.
near
Both Hasson and Bullock
possessing
grams
were convicted of
over 650
imprisonment
cocaine2 and sentenced to life
out the
with-
possibility
parole.3
agree
majority
IWhile
with the
the Court
Appeals
reversing
erred in
Hasson and Bul-
lock’s convictions on the basis of the search and
compelled
issue,
seizure
I am
to dissent from the
majority’s
mandatory penalty
conclusion that
imprisonment
possibility
of life
without
parole is unconstitutional because it constitutes
punishment”
"cruel or unusual
in violation of
16.1 do so for three reasons.
First,
I believe that
Lorentzen,
(1972),
principle
Amendment, the States United analyzed —; US Michigan, v in Harmelin Court preme (1991). And 2680; finally, 2d 836 115 L Ed 111 S Ct of these resolution majority’s that I believe doctrine powers separation cases violates by our constitution. mandated concern Thus, express my separately I write forward, that, the citizens day from this that conclude Michigan may rightfully State is means is that a sentence the Court [w]hat five it is more than if severe unconstitutional Justices appropriate. case think in this four] [or Helm, 103 S Ct 463 US [Solem (1983) C.J., (Burger, dissenting).] 2d 637 L Ed I Lorentzen, supra, on con- majority, relying The requires that cludes penalties proportional enact However, analysis offense. careful criminal reached Lorentzen reveals that the conclusion Lorentzen deci- wrong. majority clearly following premises. four sion is founded on First, this Court has construed punishment” or unusual "cruel if a is not clause to mean that sentence statute, of a then the excess imposed. no has control over Lorentzen, supra at 173.
Second, has this Court determined pun- "cruel unusual prohibition against attempt by our founders ishment” was an inhu- inflicting prevent government from Id. punishment. mane or barbarous *27 Third, has the exclu- that Mich by Riley, power length impris- sive to determine the felony. onment for a Id. directly, Fourth, that this Court has applied
inference, the test of imposed challenged to the sentence when un- punishment” der "cruel or unusual clause. Id. at 174-175. following
The Lorentzen Court then reached the conclusion: It will be seen from the above discussion of the case[4] leading cases United States and test decided this Court that the dominant
of cruel ishment and unusual pun- is that is in excess of that would be suitable to fit the crime. [Id. 176.] persuaded analysis Because I am adequately support Lorentzen does not its fourth premise and conclusion, ultimate I dissent from my colleagues’ reliance on that I case. believe that proper analysis of the cases illustrates that punishment” "cruel or unusual clause in- prohibit tended to inhumane and barbarous treat- criminally ment of convicted, and does not proportionality component. have a
II. THE LORENTZEN CASES5
directly
The first case in which this Court
ad-
States,
Weems v United
217 US
30 S Ct
pause long establishing the well the action and consider by say penalties], those fixed its before it will [the necessary to furnish of what is are so far excess enactments the protection obnoxious to the Constitution desired as to be at .... [Id. 574.] refer to important Robison Court did not to note that the It is a fine was in Robison was whether because the issue Cummins "excessive” under the state law, liquor fine than whether the rather later, punishment.” the Court A few months "cruel or unusual was was clarify position if the in Robison and determine asked to its liquor violating was also Newaygo penalty constitutionally law as a first offender Luton v an "excessive fine.” defective as (1888). Although Judge, 701 that it was not an excessive uncomforta- 69 Mich 37 NW Circuit penalty, fine. the Court held ble with very a first severe one for we think this While Legislature, offense, yet it the discretion is one within . . . cannot interfere. Whether discretion the courts with which such distinction unwisely wisely is no concern was made power courts, it. provided to make had exists, statute, by injustice must be remedied if it The the Emphasis Legislature. people through 613-614. [Id. added.] (1888), Next, People Murray, NW fifty years for a challenged conviction and sentence his defendant Riley, (similar argument His to the one made case) defendants this was that the penalty prescribed in the statute was "cruel or unusual punishment” greater because it pen- than the alties for similar criminal offenses. The Court rejected argument defendant’s that Const 31 commands the Legislature prescribe proportional to the criminal offense. that, Counsel for claims as properly defendants *29 understood, means, it in when used this connec-
tion, punishment proportion out of to the offense. If by degree punishment, this is meant the we do not think the contention correct. at [Id. 638.] conclusion, In reaching this the Morris Court re original lied on the meaning of the clause and the reason for its inclusion in Declara tion of Rights.7 statutory rape art punishment” as "cruel or unusual under Const challenge however, punishment, 31. The to his was not aimed underlying (permitting sentencing), at the statute indeterminate but imposed by judge. Murray
rather to the found: the trial punishment years, Where the for an offense is for a term of by judge, to be fixed it should never be made to extend n
beyond
average period
life,
persons
prison
i
which
years.
seldom exceeds 25
at
[Id.
17.]
Lorentzen,
Although
Court,
People Armstrong,
cited in
in
(1889),
Mich
defendant’s
the
question.
dant. See id. at 296.
belongs Legislature, composed representa- which is people, right tives direct from the voice the sentiments of the and who alone have the people public in the enactments. Riley, Cooley’s relied on Justice also The Morris Court the con- Limitations and on Constitutional treatise clusion punishment was not therein that reached way, or if in the same unusual” inflicted "cruel or permitted by mode, the common as in a similar law. 408, (4th ed), p Cooley, Limitations Constitutional supra quoted Morris, 639. Under at as punishments analysis, forbidden Cooley’s Justice by the clause were punishments, any state degrading which "those existing its constitu-
had become obsolete before tion was forbidden adopted, may think well be held we it unusual. We well as cruel and whipping-post and right to establish the doubt the nized as instruments whose had banished usual ment must be as ployed recog- pillory they where were never states punishment, ór in states constitutions, public opinion revised since them, cruel and un- have forbidden public punishments. In such states the senti- regarded having condemned them cruel, which, if ever em- all, obsolete, altogether has must become upon certainly be looked as unusual.” [Id.] Although propor the Morris Court discussed the tionality argument opinion, certainly in its it did holding. rely Rather, not in a on for its *30 separate portion analysis, of its the Court arguendo proportionality if were a assumed punishment” component of the "cruel or unusual penalty prescribed by clause, 6, § 31. in Morris not violate Const would supra Morris, at 639. law, only province into
When those sentiments are enacted
validity under the Constitu-
of the Court is to determine their
governed
by which
must be
in such cases
tion. The rule
is as
courts
follows:
challenged
in conflict with the funda-
"When a statute is
as
law, a clear and
conflict must be found to
mental
substantial
justify
to
its condemnation.”
at
exist
[Id.
637.]
15
Mich
by
Riley, interpretation
un-
of the "cruel or
Morris
by
punishment”
was followed
this
clause
usual
Court until
People Mire,
357; 138 NW
173 Mich
v
(1912),
precedent
departing
wherein,
from
(Morris
progeny),8
deter-
the Mire Court
and its
challenge
or
to a sentence as "cruel
mined that a
unusual
punishment”
on the act commit-
focused
prescribing
by
defendant, not the statute
ted
the
inferring
proportionality
penalty, thereby
sentencing. However, the
was to be considered
interpretation
a decade later
Mire
was abandoned
Judge,
Wayne
409;
231 Mich
in
is to
crimes. There is
no
ñxing punishment
for
ture
involved in the steriliza-
element of
respect
it is
In this
persons.
tion of feeble-minded
Both are
analogous
compulsory
to
vaccination.
plainly apparent
nonpunitive.
It is therefore
un-
against cruel or
inhibition
the constitutional
surgi-
application to the
punishment had no
usual
It has
persons.
cal
treatment
feeble-minded
con-
punishments inñicted after
only
reference
to
of crimes.
Emphasis
victions
[Id.
added.]
fifty years
the Smith decision
For almost
after
(and
Lorentzen),
re-
the law
before
meaning
regard
of the
mained settled with
punishment”
clause.10 When
"cruel or unusual
reviewing challenges
punishment as "cruel or
to
10
(1931)(a
290;
People Jagosz,
235
160
sentence
See
v
253 Mich
NW
punish
rape
thirty years for
was not "cruel or unusual
of twelve to
(1929) (the
Cramer,
127, 136;
ment”); People
595
247 Mich
225 NW
v
days
penalty
reporting
five
was not "cruel
for not
a live birth within
Sexton,
36;
punishment”);
234 NW
or unusual
436
diploma,
Steele v
253 Mich
(1931) (the
graduate
right
high
and a
loss of a
to
school credits
statute,
was not "cruel
on the basis of a wilful violation of
Paton,
427, 429;
punishment”); People
279
v
284 Mich
NW
or unusual
888
statute and was not "cruel or unusual
(1938) (the
entering
breaking and
was within the
sentence for
punishment”);
v Har
(1938) (five
wood,
96, 98;
years
to fifteen
286 Mich
A legislative power limits of are defined [T]he constitutions, not our federal and state judiciary. [Doe, supra sentiment 681.] analysis plays In of the role this Court its adjudication, majority constitutional first state contends that independent Constitution is an rights, scope source of different counterpart, from the federal and that the federal interpreting parallel court decisions constitu- provisions presumptively I tional are not correct.11 argument majority’s cannot be- subscribe it cause is evidence of its decision to eschew the *33 Michigan historical foundations which the consti- provision tutional part.12 shares with its federal counter- nothing Furthermore, I view it as more attempt policy judicial than an to substitute a policy already by choice for the Legislature. choice made our evidencing regarding Clearly policy its choice drug the control over increased use Michigan Legislature since amended the the has twice penalty provisions of the Controlled 14.15(7401), Act, 333.7401; Substances MCL MSA 14.15(7403). 333.7403; MCL MSA The first amend- 30, 1988, ment, took on re- which effect March mandatory duced the minimum sentence for the grams, grams, possession of 225 650 but less than twenty years mandatory min- from to ten. The possessing grams imum 50 to 225 for less than years from ten to at the same time. lowered five the The statute was also amended to allow sen- tencing depart from the minimum terms court except grams specified amounts, for all the 650 or 11Cavanagh, C.J., pp 27-29. ante, ii. See Riley, more, the record that there "if court finds on to do so.” compelling reasons are substantial 14.15(7401)(4), 333.7401(4); MCL MSA MCL 14.15(7403)(3). However, Leg 333.7403(3); MSA time in the act a second islature amended prison minimum mandatory and reinstated Legislature original levels. The terms to their for those convicted never amended grams. possessing over legislative from time to time
Admittedly, slow and appear agonizingly to be process may legis- in the for a quest Frustrated unresponsive. amendment, (including be those may lated there Legislature) urge who would this members of the act, not. may Court because However, disagree this with the while imprisonment of life without legislative mandate dealers, the power it is not parole drug within perceived injustice of this Court to correct politically desir- legislating socially judicially reaffirming prin- result. Yet the erroneous able ciple of Lorentzen sentences, has majority
demands proportional do that. power just assumed
B compelling reason for an We believe [a] independent might be if state construction found significant there textual differences between were *34 parallel provisions of the state and federal consti- tutions, and, particularly, history provided if rea- adopted son to believe that those who framed purpose provision a different the state had Collins, 8, 32; 475 [People mind. NW2d (1991) Griffin, (opinion J.).] with col- my disagreement my In addition to from federal constitutional anal- leagues’ deviation Opinion by Riley, ysis, opinion I believe that their fails to advance a "compelling reason” for this Court to find the "no parole” statute unconstitutional under Const Supreme 1, § 16 where the United States Court Eighth has found the statute to be valid under the Amendment in Harmelin. Harmelin,
In
the United States
currently
reviewed the same statute that is
before
rejected
petitioner’s argument
this Court and
mandatory
imprisonment
that
life
without
possibility
parole
possessing
grams
for
prohibition against
cocaine violates the
"cruel and
punishment”
Eighth
unusual
under the
Amend-
Id.,
majority
ment.
Court,
opinion,
sumption proportionality component is a the cruel and unusual clause. Justice writing Scalia, quist, for himself and Chief Justice Rehn- history reviewed the of the clause and found component is not a Kennedy, writing Amendment. Justice himself and Justices Souter, O’Connor and felt constrained stare decisis to hold that a narrow proportionality principle encompasses noncapital justices However, cases. these three were of the opinion dangers flowing drug from offen- ses and the circumstances of the crime demon- Michigan penalty strate that scheme did not *35 Mich 15 Opinion Riley, J. limits, under and that constitutional exceed sentence the accused’s the Harmelin case facts of was not so disproportionate cruel as to constitute punishment. Id., 2d 873-874. 115 L Ed unusual or Justices Marshall, Stevens, and Blackmun White, dissented. analysis agree Scalia’s I with Justice
While supra, Harmelin, that "Solem conclusion simply Eighth wrong; contains no Amendment guarantee,” 846, I L Ed 2d opinion. plurality recognize I is a that Harmelin 333.7403(2)(a)(i); finding my MSA that MCL base 14.15(7403)(2)(a)(i) solely on is constitutional 1, § 16. 1963, art of Const historical foundations arguments majority devi- for its three The submits analysis, and, for that Justice Scalia’s ation from matter, Kennedy’s Amend- Justice from doing majority jurisprudence. so, the ad- In ment right 1963, art under Const a broader vocates following disagree rea- I with which sons. mandatory sentence petitioner’s To set aside of a judgment require rejection not of
would Solem, the collective rather single as in but jurist, and, as a wisdom [Harmelin, Michigan citizenry. consequence, J., concurring).] (Kennedy, 872-873 115 L Ed 2d "sig- majority there is a contends first Eighth Amend- in the difference nificant” textual (cruel punishment), from that and unusual ment (cruel punish- unusual § 16 in ment), give a "broader” the Court to enables
which prohibition interpretation of our constitutional p punishment.” Ante, against unusual "cruel or Riley, History, and this Court’s use of the text of support clause, does not its conclusion. prohibition against It is true that cruel or *36 punishment part unusual has been this of state’s jurisprudence nearly constitutional two hun- Along years. rights panoply dred porated with the of incor- Congress Ordinance, in the Northwest provided that, "[a]ll moderate; fines shall be punishments no cruel or unusual shall be inflict- 1787, ed.” Northwest Ordinance art II. Michigan’s The of drafters first constitution in incorporated phrased clause, the but it as a prohibition against unjust punish "cruel and phrase 1835, 1, § ments.” changed 18. Const art The prohibition against ato "cruel or unusual punishment” 6, in 1850, § 1850. 31. The Reports Proceedings the of and Debates of the (Debates), Constitutional Convention of 1850 the Journal of the Constitutional Convention of (Journal), suggest delegates do not that the replaced phrase unjust” the "and with "or un give provision usual” to our constitutional a greater rights parallel source of than that the of majority concedes,13 federal clause. As the there is 13Cavanagh, C.J., ante, p 11. n authority history There is no in our or in constitutional the com- support assumption by majority mon law to the .made the that the phrase conjunctive drafters debated this "and” be the and concluded that replaced disjunctive permit omitted with the "or” to a interpretation phrase Eighth broader of than our constitutional Amendment. Debates, p pertinent portion The reveal the of 31 of art 6 punishment "and cruel and unusual . . . shall not be .” The inflicted however, Journal, presents phrase, p as "and the same cruel or unusual shall not be inflicted . . . .” Both documents adoption note of an which that amendment directed word Debates, p 897; "and” before word "cruel” was to be stricken. Journal, p appears 480. The deletion in version the enrolled of the p Debates, p constitution found of the Journal and xxx which also "or.” version contains the word only reference to in was made this clause the Debates Delegate predicted including any Hanscom who that “undefinable” Mich Riley, supplement the contention no material deliberate difference between there is a analogous provision. Amendment and our delegates Moreover, to each of State option had the Constitutional Conventions specifically component including punishment” unusual clause.14 the "cruel or provision jurisdictions had their such Several rights, at the time the leaders of own Michigan even bills considering the clause were first supra, Harmelin, 115 L 2d 853-858 See Ed also J.). (opinion Scalia, In most constitution was when our recent Michigan, adopted people by the State constitutionally five man- there were states punishments proportional to the offense dated punishment” clauses.15Pre- the "cruel suming unusual delegates of the 1963 Constitu- *37 pro- were aware of these states’ tional Convention visions, rejected they must have considered and existing require amending the the clause to idea of proportional to sentences the offense.16 " ” " ” terms, bail,’ punishments,’ 'excessive 'unusual such face,” absurdity involve on its had little which "seemed him to Debates, p on action of courts.” 45. "beneficial effect the noteworthy It of 1908 punish to mention that the convention debates is phrase, and 1963 that the same "cruel or unusual reveal ment,” any by delegates. preserved debate the Const without floor 1908, 15, 1963, 1, 2, art 16. art § § Const, Const, 3, Const, 1, 9; art art Me art W Va § § Ind § Const, Const, 2, 39; art 8. Vt ch RI § 16Additionally, it did not seem to matter the Lorentzen conjunctive the that there is a- discernible difference between "and” proportionality component disjunctive devising and the "or” when the punishment the of Const 16.§ to In proportionality cruel or unusual clause by upon relied the Lorentzen Court to devise the the cases component, opinions the use the words "and” and Morris, throughout synonymously. supra. Similarly, "or” See also itself, opinion interchange two Lorentzen the Court uses the words ably tional opinion, Michigan addressing arising claims under the constitu when ("In against punishment.” prohibition "cruel or unusual this only claim that the statute we consider Lorentzen’s People by Riley, suggestion put contrary Therefore, forth by majority,17 I can find no tenable reason to replacement conjunctive that believe supports argu- disjunctive "and” "or” ment that the drafters of the state constitution interpret phrase intended for this Court meaning differently from the the United given States Court has Amendment. principle
"It is a fundamental of constitutional construction that we determine the intent of people of the Constitution it.” and of the framers Collins, adopting [People supra (opinion at 32 v J.).] Griffin, "compelling majority’s second reason” " provide[s] 'history reason to believe adopted provision the state those who framed and purpose mind,’ 32— a different had different, rate, under- at from the historical standing pp Ante, 32- asserted Justice Scalia.” Again, my ii of for the reasons stated section disagree analysis, I must this conclusion. prohi- . . . violates the United States and the constitutional Lorentzen, against punishment.” supra and unusual bitions cruel Morris, [emphasis rejected . . "In . added]. [we] punish- proposition ment out of and unusual constituted that cruel Lorentzen, supra proportion at 175 to the offense.” added].) [emphasis dissents, separate partial partial Justices In concurrences and Kavanagh "and” instead of Williams and T. G. also used the word ("I reasoning concurring agree . . . that "or” in result. with his *38 mandatory 20-year and minimum sentence is invalid as cruel the J., concurring Kavanagh, punishment.” unusual part Id. at 182 G. [T. year dissenting part, emphasis 20 manda- added]. "[T]he punishment.” tory minimum sentence is invalid as cruel and unusual J., concurring part dissenting part, [Williams, Id. at 182 emphasis added].) 17 C.J., ante, Cavanagh, p n 11. 15 by Riley, J. against Michigan prohibition The constitutional punishment” the shares same unusual "cruel or Eighth as the Amendment. foundation historical part Proportionality been, not, never and has history. Thus, Lorentzen decision that because the history provision, in the of this is not well founded the opposite conclusion cannot be assertion of an seriously maintained. argument by major-
Moreover, the the advanced finding ity, supports history that the draft- that a ers the recent state constitution had most purpose that the in mind different from history Amendment, the to take into account fails surrounding the the debates of dele- events gates the Constitutional Convention. Be- Supreme fore the States Court re- United argument rights jected the the crimi- the Rights apply nally Bill of accused contained in the through to the Amendment. the states Fourteenth significantly Court, however, The altered Warren began jurisprudence it to state use when constitutional as a tool to selec- the Fourteenth Amendment incorporate Rights tively it the Bill of and make applicable to total the states. The effect incorporation yet known selective doctrine not delegates by the 1961 Constitu- to Mapp Ohio, US tional Convention because 643; (1961), 81 Ct 6 L Ed first S 2d incorporating procedure case rule of criminal states, the convention was was decided while meeting. Record, 1 Official Constitutional Conven- pp 488-533, tion 674-688. delegates Mapp predict not from could
opinion following decade, all but in the four guarantees relating Rights Bill of applicable justice process criminal would be made states States Court. United extending guarantees persuaded I am *39 Opinion by Riley, J. of the federal constitution to the residents of our state, the delegates intended the interpretation parallel correspond- ing provision. federal
Moreover, even assuming a compelling reason is required to deviate from federal jurisprudence, majority fails to substantiate its assertion history provides a "compelling reason” to find that those who framed adopted the state provision had a different purpose in mind from those who framed Amendment. risk of assessing evolving [T]he standards [of decency] is that it easy is all too to believe that evolution has culminated one’s own views. [Thompson Oklahoma, 487 US 108 S Ct (1988) 2687; 101 L (Scalia, J., Ed 2d 702 dissent
ing).] The third "compelling reason” advanced majority premised on its belief that "the . issue . . constitutes an unduly disproportion- ate response to the serious problems posed by drugs our Ante, society.” p 40. This observation parallels the one made in Lorentzen concerning the "evolving standards of decency.”
In
issue,
responding
to this
I believe that
amicus curiae supplemental
brief of the Prosecut-
ing Attorneys Association correctly identifies
problems with an evolving standards
test. As their
brief posits
15-16,
at pp
"if 'evolving standards of
decency’ as to the appropriate
(proportionate)
sen-
tence for a crime are to be the measure of the
constitutionality
of a legislatively set penalty, how
is such an
inquiry
be carried out? What
is the
measure? What
judgment?
informs the
What
tools
Mich Riley, make it? What enables
a court have to
does
of its 'stan-
expression
society’s
court
to overrule
statute,
through
communicated
decency,’
dard of
standard,
sup-
is also
different
which
imposing a
not the court’s?
standard and
posed
society’s
be
or iden-
not the court’s role be to discover
Would
*40
it
what
decency’
'standard
tify society’s
—not
is',
could
be,
it
and how better
should
but what
than
decency
standard
society express
[its]
its
elected
lawmakers?
through
...
for the
is that
judiciary
alternative
(the
judiciary)
judge,
"it
not on
is
us
perceive the
Amendment
basis of what we
prohibited, or on the basis of what we
originally
pro-
perceive
cesses now
society through its democratic
disapproves, but on the
overwhelmingly
'proportionate’
think
and 'mea-
basis of what we
acceptable goals
punish-
surably contributory to
that,
replace judges
is to
say
ment’—to
of the law with a committee of
and mean
philosopher-kings.
361, 379;
Kentucky
109 S Ct
Stanford v
US
[492
(1989)].” [Opinion of
106 L Ed 2d
Scalia, J., emphasis
original.]
Moreover,
a court
problem
the same
arises when
In
disproportionate”
theory.
the "grossly
relies on
Harmelin,
tracking Justice Kennedy’s analysis
suggests
Justice
my colleague,
Boyle,
"[t]o
legislative
judg-
appropriate
ensure
deference
crime,
regarding
gravity
particular
ments
of a
goals
penological
and the extent
to which varying
punishment,
a court’s
inform
scheme
only
threshold
should be
whether
inquiries
Post, p grossly disproportionate.”
sentence is
it,
However,
I
with a
problem
view
best,
that,
"grossly disproportionate”
analysis
it
to measure the constitu-
subjective
is a
standard
sentencing
statute under Const
tionality
a
Bullock
Riley, J.
our
should
persuaded
inquiry
16.1 am
sentence
particular
not be whether
defendant’s
might
with what a
of this Court
justice
conflicts
rather,
recog-
as Justice Holmes
proper
think
but
York, in Lochner v New
nized
his dissent
(1905):
45, 75-76;
539;
shocking ought not to our conclude judgment upon question statutes em- whether bodying them conflict with the Constitution United States. respect, agree with all I cannot
Additionally,
colleague
Justice Mallett’s
conclusion
my
"the constitutional
of the statute
infirmity
feature,
rests not with the
but with the
no-parole
*41
statute’s mandatory
applica-
uniform and blanket
Ante,
tion to all
44. I
p
defendants.”
believe that
has the constitutional
to
power
enact mandatory
requiring
ap-
sentences
uniform
plication
to all defendants
convicted of certain
Indeed,
crimes.
the United States
Court
opined
regard
has
with
to
except
capital
sentences,
sentences
are constitution-
mandatory
Shuman,
ally permissible. Sumner v
US
(1987).
However,
107 S Ct
Not Michigan, Legislature appears the State of and the drug recognized by penalizing to dealers have this nonparolable imprisonment. life with legislation Whether drug problem
it enacted to address our conceived, conceived, is well or ill is not for this limited; to decide. role we must make Our is regard principled a neutral decision with to legislative punishment whether the choice of vio- prescription against 1, § lates Const punishment.18 question cruel or unusual If the "evolving whether meets the stan- dards, decency,” the answer must come from peo- democratically representatives elected ple: Legislature. 18 majority’s my analysis "it contention that under would seem compelled uphold
to penalty . . . that follow this Court would be such a or on a bread, imposed stealing if even on a child for a loaf of time,” (ante, forgetful taxpayer p n who fails to file a return on 24) supposes example legislative that such an extreme action will present occur. Neither majority tive action. nor other relied on case presents example analysis legisla in its such an extreme (Harvard book, Press, Democracy University In his and Distrust 1980), Ely pondered constitutionality John Professor Hart of an legislative example specifically, hypothetical extreme statute action: passed by legislature prohibiting gall opera- a crazed bladder except person’s response tions His that the save and, life. statute did, pass, repealed representa- if it could not tives who that also would not it would be and the passed impeached. perhaps probably it the claim that To happen, representatives public and the all " ” 'just acting crazy,’ being reasoning possibility and there no " them, responded, telling '[y]ou you’re Professor Hart what know ” you democracy.’ me? That concluded that "it can don’t believe Id. at 182. He then only jurisprudence deform our constitutional enacted, it tailor to laws that couldn’t be since constitutional law *42 appropriately ment cannot representative govern- exists for those situations where trusted, not it can.” at 183 be those where we know Id. added). (emphasis v Bullock J; Boyle, IV wrongly sum, In I believe that Lorentzen was proffer majority decided, and that the has failed to independent grounds compelling sup- reasons to port 1, § its conclusion that Const art 16 has meaning Eighth a different from that of the my colleagues essence, Amendment. In conclude that a sentence will be considered "cruel or unu- punishment” majority sual if a of this Court is punishment prescribed by uncomfortable with the Legislature. majority today, even in the pending legislation face of that would amend the penal- Controlled Substances Act and reduce the prescribed, chosen, deliberation, ties has step into However, the breach. the fact that yet pa- has not as amended the "no provision role” of the Act, Controlled Substances not a sound reason for this Court to assume the legislative Therefore, mantle.19 I because cannot persuade my colleagues restraint, to exercise I dissent. (concurring part dissenting Boyle,
part). majority’s I concur with the resolution of the agree search and seizure I issue. also with Justice 333.7403(2)(a)(i); conclusion that MCL MSA Riley’s 14.15(7403)(2)(a)(i)is not unconstitutional and that interpreted should not be differently from the Amendment counter- 19Moreover, inappropriateness majority’s journey into legislative highlighted by acknowledgment arena is its its decision
may statutory 26], creating arguable incongruity have the effect of an in the governing possession [ante, p scheme cocaine n underscoring point quintessentially thus the writer’s this is legislative matter. *43 15 68 Opinion by Boyle, J. grossly
part. I would hold that
the statute is not
Eighth
disproportionate under either the
Amend
1963,
1,
16,§
ment or Const
art
each
which
proportionality principle.
rea
contain a
For the
Kennedy
sons stated
Justice
in his concurrence
Michigan,
—;
2680;
in Harmelin v
501 US
111 S Ct
(1991),
Nevertheless, I am in Riley 1963, 1, Justices that Const art Mallett require interpretation § 16 does not a different permis- constitution, than the federal it is neither Michigan’s sible to conclude that punishment cruel or unusual provision provides protection than less (Justice Eighth Amendment nor neces- Riley),1 accept suggestion sary to that Lorentzen was (Justice rightly opinion decided The Court’s Mallett). recognizes proportionality in Harmelin a principle, and, constitution, under either the man- datory penalty disproportionate.2 facially is not separately briefly my
I write to state reasons for 1Thus, agree methodology I while approach can the Lorentzen is an proportionality, simply say incorrect that ality component.” it is incorrect Michigan’s proportion cruel or unusual clause "does not have a J., ante, 48.) Further, p grossly dispropor (Riley, a present analysis judiciary tionate improperly does indeed will a risk Riley, J., Legislature, substitute its views for those of the id., p Supreme yet 64, but that is a risk the United States Court is as prepared not to foreclose. Michigan adopt specific proportionality The fact that did not principle, Territory as did sister states of the Northwest before (Ohio adoption 1802, 8, Constitution art § against 10), Ind Const art cuts the claim that cruel "or” interpreted differently unusual Further, should be than cruel and unusual. during proposal penalty rejected abolish death only implemented by of the Constitutional Convention and was later, eight years attempts. the tion of this "cruel” or "unusual” tion until after several failed Aboli did not enter the constitu 46.§ Boyle,
agreement with Justice Mallett’s conclusion that precluded by review is not either the state or federal constitution.
I
Michigan, supra,
In Harmelin v
the United
upheld Michigan’s
States
manda
tory
against
statutory penalty
an
Amend
*44
challenge.
doing,
splintered
ment
In so
Court
differing approaches
question
offered
proportionality principle
whether a
is embodied in
protections
by
the
afforded
the Cruel and Unusual
Punishment Clause of the United States Constitu
tion. Justice Scalia announced that
the under
standing
Eighth
Amendment articulated in
Helm,
277;
Solem v
.463 US
103 CtS
77 L Ed
(1983),
simply wrong;
Eighth
2d 637
"was
the
guaran
Amendment contains no
Harmelin,
tee.”
Because the United States
proportionality principle limiting punish-
nizes a
noncapital punishment
proportion-
ment in
cases,
ality
part
prohibition3 against
is
of this state’s
proportional
statutory
This is not the
exercise of discretion within
recognized
Milbourn,
limits
All of
of the
these
—the
States,
349;
544;
v
217 US
30 S Ct
54 L Ed
See Weems United
(1910),
(1980),
(1982),
Estelle,
263;
1133;
445 US
Ct
L Ed 2d 382
Rummel v
100 S
Davis,
703;
2d 556
Hutto v
454 US
102 S Ct
70 L Ed
Helm, supra.
Michigan authority recognizing
and Solem v
For
Lorentzen,
People
supra,
People
proportionality principle, see
v
a
(1912).
Mire,
v
by objective require propor- strict does not Eighth Amendment tionality between Rather, it crime and sentence. "grossly that are only extreme sentences forbids [Harmelin, 111 S the crime. disproportionate” to 2705, quoting Ct Solem.] Harmelin in advocated a broader The dissenters Jus- proportionality principle. interpretation White, Blackmun and Ste- by Justices joined tice vens, test continued use of the three-factor urged Solem punishment emphasizing employed personal respon- a defendant’s must be "tailored to Harmelin, 111 S Ct guilt.” and moral sibility Stevens, as did Justice Justice dissented Marshall whom Justice Blackmun concurred. with separate in each of the dis- linchpin analysis proportionality princi- the notion that a sents was Amendment is embodied ple legislative to scrutinize enact- requires ments to determine whether Harmelin, 2709-2720. 111 S Ct disproportionate. rec precedents our own authority, Like federal pro fail ognize proportionality principle, but or the answer to the manner of review vide clear proportionality afforded scope protection Michigan’s Constitution. embodied principle Cavanagh traces his Chief Justice Ante, Lorentzen. opinion this Court’s analysis to propor advocates a broad pp apparently 34-35. He review, that "even although he concludes tionality Solem, restrictive view Kennedy’s under Justice prong first of Solem’s application it is clear that an ” gross disproportionality.’ to an inference leads Ante, Harmelin. p quoting both regarding disagree majority
I *46 Mich Opinion by Boyle, major- scope inquiry and the result. Since a Supreme ity not the States Court has of United agreed was Scalia’s view "Solem with Justice simply wrong,” Harmelin, 111 S Ct we disregard precedents Court, and the of not predict majority attempt of must to how its contours. would describe proportionality principle apply I a narrow would sentencing this one. To ensure cases such as to appropriate judgments legislative re- to
deference garding gravity particular crime, of a goals varying penological inform to extent which punishment, threshold of a court’s the scheme only inquiries is be whether sentence should disproportionate. grossly case, this the sentence In parole mandatory of life without for the crime is possession grams of This more than 650 cocaine. grossly disproportionate its face. is not on ii issue us is Hasson’s chal- before defendant lenge face.5 to the statute on its Because grave magnitude of the crime is absolute permit principle not does impose subjec- judiciary on the its below, Defendant did not the issue and the Court Bullock raise brief, argued that her to add the In his Hasson denied the statute stood motion issue. applied. was on its face and as I under unconstitutional challenge applied” the "as to have been waived from colloquy argument, supported recognition that at oral a conclusion presents utilized in the factual none of the circumstances context alleged kilograms possessed Hasson over fifteen cocaine Solem. be worth eleven million dollars, previous for three convictions had narcotics, possession possession probation of heroin on intent the time committed instant offense. sell he Court, Assuming challenge were I find that such a before this would not one of the "rare cases” unconstitution Hasson’s sentence was ally disproportionate application. view, applied” challenge. my present not "as In this case does an Therefore, agree I do with Justice Mallett’s conclusion not appropriate. remand *47 by Opinion Boyle, J. perceived responses appropriate to tive view passes statutory constitutional evils, scheme the statutory has created muster. Our gives is that clear notice that scheme underlying quantity, act, to the rather than to tied reducing actually that sentenc- the likelihood thus ing unwary subject offender to an will discretion ranges The ma- indeterminate scheme. of an the finding penalty jority’s or unusual is cruel that the possession imposed of co- for mere it is because any proof deliver, to or of intent sell without caine purpose sequitur. simply the The clear a non is Legislature possibility of dissemina- is to deter the possessed amount, it is an whether tion of such subsequently lost, deliver, or is intent with suggest penalty misplaced.6 the stolen, To that possibility grossly is nei- that excessive because is grave, requires sufficiently ac- nor ther rational unacceptable. cepting Michigan citizen of No sentient drug ignore the barbarousness can children, on our culture, effects the destructive very of our urban survival the threat grave suggest is not that the crime To centers. Kennedy is, violent, as Justice it is not because point absurdity.” Harme- observed, "false lin, 111 2706. S Ct
Unquestionably, Never- is harsh. the sentence by the crim- theless, the social harm caused where devastating as that is as at issue inal conduct today, drug epidemic in existence created not unconstitutional._ harshly penalize upheld have sentences that courts 6 Other Butler, regard quantity. v underlying See Terrebonne without act 1988) (the (CA 5, upheld statute a Louisiana court 848 F2d 500 twenty-five prison parole imposing without for distribution life in Davis, heroin), supra n Hutto v packets doses of of individual (the forty-year (Powell, J., concurring) upheld a sentence Court at 375 for involving applied to facts possession intent to distribute having marijuana "a street value of nine ounces of distribution of $200”). about Boyle, III emphasized United States It must be forcefully has observed principle rarely result in a will challenge of the "substantial successful because legislatures and must be accorded deference that supra sentencing Solem, n . . . courts dispute prosecution Indeed, does not particular rare on its facts the stat- some case applied. People unconstitutionally ute be (1975).7 Broadie, 100; 332 37 NY2d NE2d *48 punishment Thus, falls the mere fact that a statutory limits of a constitutional statute within inquiry.8 is does not end the Even where statute may extraordinary concededly valid, there exist it as circumstances that render unconstitutional applied under the facts of the case.9 (cid:127) ap-
Institutional
concerns counsel
cautious
proach
length
a court
to review of sentence
lest
appro-
merely
judgment of the most
substitute its
punishment
light
judgment regard-
priate
of its
7
parties
The dissenters in Harmelin observed that since Solem the
only
proportionality.
on the basis of
had cited
four cases reversed
(White, J.,
Harmelin,
dissenting).
2
111 S Ct
n
8
proportional
appeal have
that an extended
Federal courts of
held
ity
imposition
review is warranted on
of a life sentence without
1989).
(CA
Miller,
Young
parole.
v
883 F2d 1276
The contours of
analysis
Although
Kennedy’s opinion in
are unclear.
Justice
review,
it did not criticize the
Harmelin narrows
Solem,
factors utilized in
which included the harm caused or threat
offender,”
society
culpability
463
ened to the victim or
"and the
(1992).
Bartlett,
302;
v
171 Ariz
ing for Appeals States Court The United conduct. concerns: these explained the Fifth Circuit such as we to contem- thing for a court It is one felonizing of as the case such plate an extreme striking an action down such parking, overtime outlandish, interfere in for us to quite another specified gradations of the various which no one disputes are legislator for crimes so on Constitutional ones —and to do serious competent to contem- grounds, at that. We be it declare that outrageous disproportion and plate however, we are not be; certainly, cannot lend themselves procedures equipped, nor do our knowledge and us, the factual equipping pun- proportional, what sense of what common particular should be administered ishments positive offenses, general lines the along what proceed. criminality should on legislative attack Antaeus, need, like do this has who is to One an exercise frequently, pretty earth touch the does not conduce. [Terrebonne our isolation which 1988). (CA 5, Em- Butler, 506-507 848 F2d original.] phasis in the *49 of the Court the decision
I reverse would of defendants the convictions and affirm Appeals Hasson.10 Bullock and sentencing mandatory unwise personal is my It belief Legislature between the kind of tension it creates because making It classically from hard cases. bad law
judiciary
leads
exercised
discretion
and unreviewed
true that
"broad
is also
are
perception
clear standards
sentencing judges
that no
to the
leads
imperiled by sentences
law is
being applied,
the rule of
and that
subjective
reactions
imposed
other than
discernible reason
for no
440 Mich
Boyle, J.,
Harmelin,
(Kennedy,
sentencing judge.”