*1 1983] v HARMAN
PEOPLE 8, 1982, Lansing. at Docket No. 59178. Submitted October Decided denied, 10, 1983. appeal — Leave March Defendant, Harman, Roy for trial A. was bound over charge possession Livingston of cocaine in Court on a Circuit Hensick, J., court, grams. issued trial Bert M. excess of 650 quash granting opinion motion to the informa- an defendant’s people order of dismissal to that effect. tion and issued an appeal, alleging findings error in the trial court’s mandatory prescribed process equal protec- is a denial of due more law, judicial tion of the that since the life sentence shocks the punishment, and it constitutes cruel and unusual conscience that the classification of cocaine in the same classification as and, drugs heroin and other hard is without a rational basis therefore, equal protection is a denial of of the law. Held: 1. A life sentence for conviction of cruel or or more of cocaine does constitute Michigan under the United States prevent Constitutions. Such life sentence serves causing injuries
the offender from to others reason large quantities involvement with of cocaine and serves soci- proscribed ety’s engaging in the need to deter individuals from conduct. statutory places 2. The 2 for scheme that cocaine in Schedule penalty purposes process or does not violate an due individual’s equal protection rights under the United States and Constitutions. 3. The classification of cocaine a narcotic for as (1) purposes upon: profit from is based the fact that enormous crime, illegal including great cocaine traffic has led to a deal of crime, major importers compete
violent and dealers [1, 3-5, [2] [6, [12] Review of 25 Am Jur 21 Am Jur 21 Am Jur 7-9,11] excessivness of sentence in narcotics case. 2d, 21 Am 2d, References 2d, Drugs, Criminal Law § Criminal Law 589. Jur Narcotics, 2d, for Points Criminal Law §§ and Poisons in Headnotes 627, 629, § 17. 55 ALR3d 812. 630. other; strong the use of cocaine and correlation between each opiates; potential harm to a the use of heroin and including danger illegal use of cocaine user inherent paste practice smoking coca inherent in the increase *2 (4) cocaine; ongoing dispute in the or freebase and potential community as harm scientific and medical of unresolved and the abundance inherent in the use of cocaine concerning questions cocaine on humans. the effect of for trial. Reversed and remanded J., part. part and dissented in He concurred hold: would mandatory possession 1. That a life sentence for conviction of grams containing of 650 or more of a mixture cocaine does punishment constitute cruel and/or unusual under the United Michigan States and Constitutions. potential purely hypothetical 2. Defendant’s sentence is not standing challenge and he has applicable minimum statute’s sentence. 3. Three standards are used to determine whether a statute imposes punishment: punishment a cruel and/or unusual offense, proportionate punishment must be to the must be comparable punishments imposed jurisdictions offense, the same and the must serve the modern policy rehabilitation, deterrence, protection factors of society. mandatory 4. The minimum sentence for or more of a mixture cocaine fails to meet proportionality decency evolving the test of or the or standards tests. tried, speed apprehended, 5. The with which the offender is punished measure of the effectiveness of the criminal justice system, length not the of the sentence. The provided by the statute has no rehabilitation potential. goal The of rehabilitation is the stat- not served ute. mandatory penalty 6. The of the statute fails under each test determining whether the minimum violates the prohibition against punishment. cruel and/or unusual The is, therefore, statute unconstitutional. felony-punishment provision 7. The 750.503 should MCL apply to violators of the statute until a new minimum sentence legislatively can be enacted.
Opinion of the Court Mandatory — — Life Cocaine Sen- 1. Controlled Substances — Law. Constitutional tences portion provision of the health of the controlled substances providing life sentence for for a code cocaine does not constitute cruel or 650 or more Michigan punishment under the United States or Constitutions; prevent mandatory life sentence serves to causing injuries from to others reason of the offender large quantities of cocaine and serves soci- involvement with engaging proscribed ety’s from need to deter individuals (US Const, VIII; Am Const art conduct 14.15[7403][2][a][i]). 333.7403[2][a][i];MSA — — Substances Cocaine Constitutional Law. Controlled places among statutory scheme which cocaine the Schedule 2 penalty purposes list of controlled substances for does not process equal protection rights individual’s due violate an Constitutions; under the United States or the classifi- penalty purposes cation of cocaine as a narcotic for is based illegal upon: profit the fact enormous from crime; strong great a correlation traffic has led to deal *3 the the of cocaine and the use of heroin and between use opiates; potential harm the user inherent the cocaine; ongoing dispute illegal use of community potential scientific and medical as to the harm inherent in the use of cocaine and the abundance of unresolved (US questions concerning the effect of cocaine on humans Const, XIV, 1; Am Const art MSA § § 14.15[7214]). and Partial Dissent Mandatory — — 3. Controlled Substances Constitutional Law — Life Sentences Cocaine. provided The for conviction of grams of 650 or more of a mixture cocaine consti- punishment tutes cruel and/or unusual in violation of the (US Const, VIII; United States and Constitutions Am 16). Const art — 4. Constitutional Law Criminal Law Cruel and Unusual — Appeal. — Punishment proper procedure employed provides The to be when a statute punishment thought to be cruel and unusual is to attack the constitutionality of the statute itself than a rather imposed within the limits of the statute. Mandatory — — Life Co- 5. Substances Sentences Controlled caine. charged A defendant who is or more provision of cocaine under a of the controlled substances act standing challenge provi- has of that (MCL imprisonment applicable minimum sentence of life sion’s 14.15[7403][2][a][i]). 333.7403[2][a][i];MSA — — of Crimes Constitutional Law Definition Punishments. rests, power punishments to define crimes and establish instance, however, Legislature; the fust with the exercise power subject judicial scrutiny to ensure that punishment does exceed constitutional limits. — — 7. Constitutional Law Controlled Substances Cruel and Mandatory — — Life Unusual Punishment Sentences Co- caine. imposes
Three standards are used to determine whether a statute punishment: punishment a cruel and/or unusual must be offense, proportionate punishment compara- to the must be punishments imposed jurisdictions ble offense, in other for the same punishment policy and the must serve the modern rehabilitation, deterrence, protection society; factors of mandatory penalty imprisonment provided pos- of life session of 650 or more of cocaine fails under each of standards; is, therefore, these the statute unconstitutional (MCL333.7403[2][a][ij; 14.15[7403][2][a][ij). — — — 8. Constitutional Law Criminal Law Sentences Cruel and Unusual Punishment. punishment, appropriate, may disproportionate A otherwise be so charged unusual; to the offense as to be cruel and/or an excessive sentence is cruel and/or unusual. — — 9. Constitutional Law Cruel and Unusual Punishment Comparative Law. evolving test, test, decency standards also referred to as the determining imposes used in whether a statute cruel and/or comparative jurisdic- looks to law in other guidelines determining penalties widely tions for what are *4 regarded proper for the offense under consideration. — Sentencing. 10. Criminal Law speed tried, apprehended, with which an offender is punished is the measure of the deterrent effect of criminal justice system, length imposed; goal not the of the sentence Opinion of the Court by offender is best served short sen-
of rehabilitation of the except for the most serious crimes. tences — Unusual Punishment. 11. Constitutional Law Cruel and purposes invalid for all other where it is A law is not rendered penalty provision of the is cruel held that law and/or punishment. Sentencing — — Fixed 12. Criminal Punishments Not Law Statute. regarding punishments when not statute for felonies Sxed applied applicable to determine the sentence statute should be penalty provision to felons convicted under a statute whose (MCL 28.771). 750.503; MSA found to be unconstitutional Kelley, Attorney General, Frank J. Louis J. General, Caruso, R. Del Vero, Solicitor Frank Prosecuting Attorney, Nelson, and Thomas C. As- Attorney people. General, sistant for the (by Pritzker, Michael L. Ltd. Michael L. Smith), Pritzker, Sullivan, Mark F. and Marcia L. appeal. for defendant on Kelly Beasley, P.J., and S.W.
Before: White,* JJ. 1979, defendant,
Per Curiam. On December Roy Harman, Andrew was trial on bound over for the offense of excess of grams, 333.7403(2)(a)(i); in violation of MCL 14.15(7403)(2)(a)(i). April 20, 1981, trial On judge opinion granted issued a written he which quash defendant’s motion to the information. holding, prosecutor appeals From this as of right. evidentiary hearing
At an held on December Grinspoon, expert 1980, Dr. Lester a:.i on the subject drugs, psychoactive testified on defen- Among things, Grinspoon dant’s behalf. Dr. * judge, sitting Appeals by assignment. Circuit on the Court of *5 App 93 124
98 Opinion of the Court as a of cocaine the classification testified drug that it has a less and is unwarranted narcotic alcohol or barbiturates. effect than deleterious expert testimony witness of the the Based on People Appeals case, v of Illinois Court and an quashing judge, McCarty,1 informa- in the the trial findings regarding following the tion, made (1) of the statute: prescribed of in excess life sentence process of due is a denial of cocaine equal protection law; of the since the life judicial conscience, it shocks the consti- sentence tutes cruel and unusual punishment; and in the same classification of cocaine classification drugs” is without a and other "hard as heroin equal and, therefore, denial of is a rational basis protection of the law. People McCarty,2 we held that a
In v possession of 650 life sentence for conviction grams does not constitute cruel or more of cocaine punishment under the United States3 or unusual The bases for this Constitutions.4 agree, holding, man were that the with which we pre datory for the offense served causing injuries others the offender from vent large quantities reason of involvement with society’s cocaine and need to deter individuals engaging proscribed from conduct. People Lemble,5
In
we discussed
provisions
act of 1978:6
of the controlled substance
(1981).
App
1
93 Ill
3d
"Nor was equal this defendant denied of the laws. It for the Legislature impose is reasonable to more severe possessing greater for those containing amounts of a mixture a controlled substance potential due to the for wider dissemination with an potential increased harm society. wording The of 14.15(7403) 333.7403; MCL MSA indicates this Court Legislature that the punish intended to defendants more severely greater for of 'any amounts of mixture’ recognition a controlled substance the purchasers
that of such mixtures often have little or no percentage idea of what the of mixture is percent filler and 'pure’ drug. greater what is the mixture, quantity the of regardless degree the of the purity, greater potential the the society. harm to There- fore, the different treatment in persons for different situations proper under the code is it because is based the object legislation, on of the drug. People deterrence of the distri- bution the Chapman, (1942).” NW2d In Peole v Kaigler,7 this Court held that the classification of cocaine among the Schedule list of controlled provisions substances did not violate equal protection clauses App 567;
7 116 Mich
We delineated statutory Supreme nois hold Court and that places pen- 2 that in scheme Schedule alty purposes due an individual’s does violate rights process equal protection fed- under the eral state constitutions. for trial
Reversed and remanded 9 Const, XIV, US Am 1.§ 10 1963, 1, Const art 2.§ 247; (1981), rev’g 898; 418 11 2d 147 93 Ill 3d 86 Ill 427 NE2d (1981). NE2d 26 12 supra, Kaigler, p 571. People v Harman J. M. J. Kelly, Partial Concurrence J. (concurring part dissent- M. ing part). I must dissent from the majority’s holding that a life sentence for convic- tion of of or more of a containing mixture cocaine does not constitute punishment cruel and/or unusual violation of Const, 1963, 1, US Am VIII or art Const
I
Initially,
prosecution
argues that,
since de-
sentenced,
fendant has not yet been
defendant’s
cruel-or-unusual-punishment
claim "is purely hy-
pothetical”.
punishment
be imposed
under
333.7403(2)(a)(i);
MSA 14.15(7403)(2)(a)(i), for
650 grams
of
or more of a mixture
cocaine,
containing
imprison-
life
ment. As defendant was
charged
possession of
over 650
cocaine,
a mixture
potential
his
sentence is not "purely hypothetical”.
When a
provides
statute
for punishment
thought
unusual,
to be cruel and/or
proper procedure
is to attack the
the statute
itself
rather
than a
imposed
within the
Dawson,
v
limits
E.g., United States
statute.
(CA
400 F2d
cert
1968),
den
US
1023; 89
632;
accord,
S Ct
(1969);
L Ed 2d 567
People
Lorentzen,
v
387 Mich
194 NW2d
(holding the minimum
statute
unconstitutional
rather
than the defen-
particular
v People,
sentence);
dant’s
see Cummins
(1879) ("when
142;
102 Kelly, M.J. overruled). charged been Since defendant has be 14.15(7403), he has under challenge standing sentence. minimum applicable
statute’s II punish crimes and establish to define power instance, rests, Legisla in the first ments however, that is sub power, ture. The exercise punish ensure scrutiny ject judicial Fur limits. not exceed constitutional ment does 92 Ct Georgia, vman 408 US S (1972) (Brennan, 2741-2742; L Ed 2d Lorentzen, supra. J., concurring); see adopted Court has three Michigan Supreme im whether a statute determining stnadards punishment: cruel poses a and/or offense, to the punishment proportionate must be punish punishment comparable must be for the imposed jurisdictions in other same ments offense, and the must serve mod punishment rehabilitation, deterrence, ern factors of policy Lorentzen, supra; accord, protection society. Hall, People v 657-658; 242 396 Mich NW2d County Prosecutor Recorder’s (1976); Wayne Judge, Court 433, 438-439; NW2d (1979), lv den
(a) to the Crime Proportionality may A so punishment, appropriate, otherwise be disproportionate charged to the as to be offense cruel and/or unusual. not, sure, days imprisonment ninety
"To be is abstract, cruel or which either question unusual. But the cannot be considered *9 103 by Kelly, J. Partial Concurrence day prison abstract. Even one would be a cruel and having for the 'crime’ of a com- California, mon cold.” 667; Robinson v 370 US 82 S Ct L8 Ed 2d 763 An excessive sentence is cruel or unusual. Lorent- zen, supra, p 176. The statute in the instant case imposes a mandatory life penalty grams 650 or more of a mixture containing co- caine. The statute is equally applicable to a first- time offender as it is to an habitual criminal. The of cocaine quantity possessed actually by indi- ignored vidual by the statute.
By comparison, only possession more of a mixture heroin and the commission first-degree murder, MCL 750.316; 28.548, MSA are subject mandatory life sen- contrast, tences. In murder, second-degree MCL 750.317; 28.549, MSA first-degree criminal sexual conduct, 750.520b; MCL 28.788(2), MSA kidnap- ping, 750.349; MCL 28.581, MSA and taking of hostages by penal inmates, MCL 750.349a; MSA 28.581(1), carry minimum terms of "life or any term of years”.1
While the instant offense carries a minimum life
sentence,
the maximum sentences
for the follow-
ing crimes are enlightening:
assault
danger-
with a
ous weapon, four years,
750.82,
MCL
750.503; MSA
28.277, 28.771;
maim,
assault with intent
ten
years,
750.86;
and possession of
a firearm during the commission of a felony,
two
28.424(2).
years, MCL 750.227b; MSA
interpret
phrase
While I
any
years”
impose
"life or
term of
a
Mich
(1979); People West,
year
day, People Harper,
minimum of one
and one
v
(1978),
Tested offenses, criminal with serious dealing utes posses- minimum sentence present contain- any mixture or more sion proportional- fails meet the test of ing cocaine ity. Evolving
(b) Standards *10 test, evolving also referred as The standards law test”, comparative looks to in "decency guidelines determining for jurisdictions other regarded proper for penalties widely are what supra, Lorentzen, under consideration. the offense p penalties possession
The for of 49 states and the District of Columbia have other that Michi- examined. This review discloses been possession for imposes most severe gan of a mixture or more of People McCarty, Accord, 113 Mich App cocaine. jurisdic- No other NW2d such minimum. imposes Twenty- tion a of have four states and the District Columbia no minimum for or sentence five pure Only provide more cocaine. states for terms minimum in excess four har- years. sentence, provided minimum North Caro- by shest lina, is 35 sen- years, possible maximum "good years, tence of and with reductions "gain time” and time” available. reviewing provided
In by the sentences amounts jurisdictions large cocaine, it is me that Michigan’s clear to manda- minimum of life time tory for first offend- evolving not ers does meet standards "de- test. cency” M.J. by
(c) Rehabilitation "This test looks to a consideration of the modern policy underlying penalties factors criminal —rehabilita- offender, tion of society’s the individual need to deter proscribed others, similar behavior and the need to prevent the individual causing offender from further Lorentzen, injury society.” supra, p 180. prevention perhaps
Goals of deterrence and are by argu- served ment is punishment, life sentence if the
accepted longer the harsher and likely
the more it would "deter” the proscribed behavior. I believe the sounder view quicker clang holds that the the steel doors on the speed offender, the better the deterrent effect. The apprehended, with which the offender tried, punished is the measure of the effectiveness of the justice system, length criminal sentence. Except for the crimes, most serious
goal rehabilitating offenders is best served supra, p short datory Lorentzen, sentences. 181. The man- provided by the statute under potential. consideration has no rehabilitation goal of rehabilitation is not served this statute.
III Under each test to determine whether the mini- penalty 333.7403(2)(a)(i); mum of MCL 14.15(7403)(2)(a)(i) prohibition against violates the punishment, cruel and/or unusual penalty of the statute fails. I would hold the ground. statute unconstitutional on this IV holding provision A that the of a law is App 93 124 Mich not render law unusual does and/or
cruel
v John
See Smith
purposes.
all
invalid
(ED La, 1977),
aff'd son,
F
Supp
(On
(CA
cf.
Stewart
5, 1978);
F2d
553-554;