Lead Opinion
Justiсe Todd delivers the Opinion of the Court, which Chief Justice Saylor and Justice Donohue join in full Justice Wecht joins Parts I, 11(B), and III of the opinion. Justices Baer and Dougherty join Parts I and 11(B) of the opinion. Justice Mundy joins Parts I and 11(A) of the opinion.
OPINION
In this appeal, we review the trial court’s determination that 75 Pa.C.S. § 1611(e), providing that holders of commercial driver’s licenses who are convicted of certain drug crimes while using motor vehicles are disqualified from holding such licenses for life, violates Pennsylvania’s constitutional right to due process and the federal and Pennsylvania constitutional prohibitions on cruel and unusual punishment. After careful review, we reverse in part, vacate in part, and remand to the trial court for further proceedings.
I. FACTUAL AND PROCEDURAL HISTORY
By way of statutory background, 75 Pa. C.S. § 1611(e) derives from Title XII of the Anti-Drug Abuse Act of 1986 — titled the Commercial Motor Vehicle Safety Act — as later amended by the Motor Carrier Safety Improvement Act of 1999.
§ 1611. Disqualification
(a) First violation of certain offenses. — Upon receipt of a report of conviction, [PennDOT] shall, in addition to any other penalties imposed under this title, disqualify any person from driving a commercial motor vehicle ... for a period of one year for the first violation of:
(1) [75 Pa,C.S. § ] 3802 (relating to driving under influence of alcohol or a controlled substance ... where the person was a commercial driver at the time the violation occurred;
[[Image here]]
(7) any offense wherein the person caused the death of a person as a result of a motor vehicle accident through the negligent operation of a commercial motor vehicle, including, but not limited to, a violation of 18 Pa.C.S. § 2504 (relating to involuntary manslaughter) or a violation of [75 Pa.C.S. § ] 3732 (relating to homicide by vehicle).
[[Image here]]
(c) Two violations of certain offenses.— ... [PennDOT] shall disqualify for life any person convicted of two or more violations of any of the offenses specified in subsection (a) ... arising from two or more separate and distinct incidents.
[[Image here]]
(d) Mitigation of disqualification for life. — [PennDOT] may issue regulations establishing guidelines, including conditions, under which a disqualification for life under subsection (c) may be reduced to a period of not less than ten years, if such reductions are permitted by Federal regulations.
(e)Disqualification for controlled substance offenses. — [PennDOT] shall disqualify any person from driving a commercial motor vehicle for life who is convicted of using a motor vehicle in the commission of any felony involving the manufacture, distribution or dispensing of a controlled substance or possession with intent to manufacture, distribute or dispense a controlled substance where either:
(1) the person was a [CDL] holder at the time of the commission of the felony; or
(2) the motor vehicle used in the commission of the felony was a commercial motor vehicle.
There shall be no exceptions or reductions to this disqualification for life.
* * *
(g) Disqualification for serious traffic offenses. — [PennDOT] shall disqualify any person from driving a commercial motor vehicle for a period of 60 days if convicted of two serious traffic violations .., arising from separate and distinct incidents occurring within a three-year period. A violation will only be considered a serious traffic violation for purposes of this subsection where:
(1) the person was a [CDL] holder at the time of the violation, and conviction of the violation results in a revocation, cancellation or suspension of the person’s operating privileges for non[~]commercial motor vehicles; or
(2) the person was operating a commercial motor vehicle at the time of the violation.
Id. § 1611. It is the lifetime disqualification under subsection (e) that is the focus of this case.
Against this statutory backdrop, the factual and procedural history of this matter is relatively straightforward. In 2013, a Pennsylvania State Police inforfnant asked Appellee Lawrence S. Shoul, who held a CDL, to retrieve marijuana from one of Appellee’s co-workers and deliver it to the informant. Appellee obliged, using a motor vehicle to do so, whereupon he was arrested and charged with two counts of felony manufacture, delivery, or possession with intent to deliver a controlled substance, 35 P.S. § 780-113(a)(30), and ultimately convicted of the same.
The trial court ' found that Section 1611(e) violated Pennsylvania’s constitutional right to substantive due process and the federal and Pennsylvania constitutional prohibitions on cruel and unusual punishment. Specifically, concerning Appellee’s claim that Section 1611(e) violated his right to -substantive due process,-the court did not address the federal constitutional issue, but agreed with Appellee that, as a Pennsylvania constitutional matter, statutes affecting one’s right to hold a CDL must bear a rational relationship to a legitimate governmental objective, and that Section 1611(e) is not rationally related to promoting highway safety, reasoning that Appellee’s conduct posed no danger thereto:
[Tjhere is no suggestion that during the underlying incident [Appellee] was ... under the influence of ... marijuana or that he posed any safety hazard at all. No rational argument can be made that a -CDL holder unlawfully delivering a controlled substance is likely to create a commercial vehicle highway safety hazard. It is more likely that a CDL holder unlawfully delivering marijuana will drive safely so as not to call law enforcement attention to himself.
Trial Ct. Op., 2/24/15, at 10-11 (footnote omitted). The court also opined that Section 1611(e) was not rationally related to highway safety because it was uniquely harsh when compared to some of Section 1611’s other disqualification provisions involving conduct it- viewed as more dangerous to highway safety:
[A] CDL holder who is operating a commercial vehicle while under the influence of marijuana is only subject to a one year disqualification. Similarly, a CDL holder who catases the death of another as a result of criminally negligent operation of a motor vehicle is likewise disqualified for one year. Only where a CDL holder has two or more of these convictions is he subject to a lifetime disqualification, and then he may seek reduction of that sanction to 10 years. Furthermore, a CDL holder convicted of two serious traffic violations -only receives a 60-day disqualification. What appears clear is that the lifetime disqualification at issue is only tangentially related to highway safety if other factors are present, which do not appear in this case.
Id. at 11 (quotation marks and citations omitted). Finally, relying-on then-Justice, later-Chief Justice Castille’s rationale in his concurring opinion in Nixon v. Commonwealth,
To paraphrase Justice Castille in Nixon, there may be offenses which are so severe that any reasonable person would agree that a lifetime ban from having a CDL is rational and required. But it is difficult to find a rational basis for automatically concluding that unlawfully delivering marijuana creates such a safety issue that an individual, otherwise qualified to safely operate a commercial vehicle, should forever be denied, employ■ment in this field. , . ,
Trial Ct. Op., 2/24/15, at 11 (citations and footnotes omitted).
Turning to Appellee’s claim that Section 1611(e) violated the federal and Pennsylvania constitutional prohibition on cruel and unusual punishment, the trial court noted that formally civil sanctions may nevertheless be functional criminal punishments according to the framework sеt forth in the United States Supreme Court’s decision in Kennedy v. Mendoza-Martinez,
PennDQT appealed directly to this Court,
I. Did the trial court fail to properly recognize legitimate legislative interests underlying the lifetime disqualification of [Appellee’s CDL] for use of a motor vehicle in a felony violation of the Drug Act other than the reduction and prevention of commercial motor vehicle accidents?
II. Is the lifetime • disqualification of a [CDL] under Section 1611(e) for conviction of a major Drug Act violation • rationally related to highway safety, drug trafficking deterrence, and the continued receipt of federal highway funding?
III. Is the lifetime disqualification imposed under Section 1611(e) a civil collateral consequence of conviction for a major drug trafficking violation rather than a criminal penalty?
PennDOT’s Brief at 3.
II. ANALYSIS
A. Substantive Due Process
In PennDOT’s first two issues, it challenges the trial court’s determination that Section 1611(e) violates Appellee’s right to substantive due process under the Pennsylvania Constitution. Before addressing the arguments of the parties, we begin with a discussion of due process principles. While the claim before us is grounded in the state constitution, because our cases have found guidance from the similar federal right, we offer a brief explication of that right. The Fourteenth Amendment to the United States Constitution provides that no state may “deprive any person of life, liberty, or property, without due process of law.” U.S. Const., amend. XIV. The United States Supreme Court has held that this prohibition contains not only a procedural component protecting persons against arbitrary and unjust proceedings, see, e.g., Mullane v. Central Hanover Bank and Trust Co.,
[Cjourts must weigh the rights infringed upon by the law against the interest sought to be achieved by it, and also scrutinize the relationship between the law (the means) and that interest (the end). Where laws infringe upon certain rights considered fundamental, such as the right to privacy, the right to marry, and the right to procreate, courts apply a strict scrutiny test. Under that test, a law may only be deemed constitutional if it is narrowly tailored to a compelling state interest.
Alternatively, where laws restrict ... other rights ... which are undeniably important, but not fundamental, ... courts apply a rational basis test.
Nixon,
Thus, while statutes abridging fundamental rights are subject to strict scrutiny and are constitutional only where they are narrowly tailored to a compelling governmental interest, statutes limiting other rights are subject to a rational basis test. Notably, the federal rational basis test differs significantly from our own in terms of the degree оf deference it affords to legislative judgment. The high Court has described its rational basis test, albeit in the context of a claim that a statute violated the Fourteenth Amendment’s Equal Protection Clause, as broadly deferential:
We many times have said ... that rational-basis review in equal protection analysis is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.... [A] classification neither involving fundamental rights nor proceeding along suspect lines is accorded a strong presumption of validity. Such a classification cannot run afoul of the Equal Protection Clause if there is a rational relationship between the disparity of treatment and some legitimate governmental purpose. Further, a legislature that creates these categories need not actually articulate at any time the purpose or rationale supporting its classification. Instead, a classification must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. Á State, moreover, has no obligation to produce evidence to sustain the rationality of a statutory classification. A legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data. A statute is presumed constitutional, and the burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it, whether or not the basis has a foundation in the record. Finally, courts are compelled under rational-basis review to accept a legislature’s generalizations even when there is an imperfect fit between means and ends. A- classification does not fail rational-basis review because it is not made with mathematical nicety or because in practice it results in some inequality, The problems of government are practical ones and may justify, if they do not require, rough accommodations — illogical, it may be, and unscientific.
Heller v. Doe,
This Court, by contrast, applies what we have deemed a “more restrictive” test. Nixon,
a law which purports to be an exercise of the police power must not be unreasonable, unduly oppressive or patently beyond the necessities of the case, and the means which it employs must have a real and substantial relation to the objects sought to be attained. Under the guise of protecting the public interests the legislature may not arbitrarily interfere with private business or impose unusual and unnecessary restrictions upon lawful occupations. The question whether any particular statutory provision is so related to the public good and so reasonable in the means it prescribes as to justify the exercise of the police power, is one for the judgment, in the first instance, of the law-making branch of the government, but its final determination is for the courts.
Gambone v. Commonwealth,
Herein, PennDOT argues thаt the trial court erred in determining that Section 1611(e) was not rationally related to promoting highway safety and, in any event, in failing to recognize that it is rationally related to legitimate governmental objectives: deterring drug crime and complying with federal highway funding requirements. Specifically, PennDOT posits that Section 1611(e) is rationally related to promoting highway safety because it protects motorists from “operators of large [commercial motor vehicles who] exercise poor judgment and" risky behavior by committing major drug offenses using motor vehicles.” PennDOT’s Brief at 16. PennDOT rejects the trial court’s determination that a driver delivering marijuana is likely' to drive cautiously as “strain[ing] credulity and miss[ing] the point”: that “[t]he lifetime ban is imposed because the drug trafficking ... while using a véhicle reflects extreme bad judgment and risky behavior and the possibility of further bad [judgment] and risky behavior when behind the wheel of a forty-ton, 100 foot long truck.” Id. at 19. PennDOT further assails the trial court’s reliance on the reasoning underlying Chief Justice Castille’s concurrence in Nixon, asserting that whether dangerous conduct is predictive of future dangerous conduct is a question for the legislature, and further suggesting that Nixon is inapposite because .Section 1611(e) is not retroactive and involves the privilege of a CDL. PennDOT , also rejects the trial court’s view of Section, 1611(e)’s severity, as undermining its rational connection to highway, safety, arguing that variations among Section 1611’s disqualification provisions “only show that the program was well thought through ... with varying sanctions based on the offense,” and that the proper severity of any particular sanction is a legislative question. Id. at 20.
In the alternative, PennDOT offers that Section 1611(e) is rationally related to protecting against drug trafficking and drug use by deterring the same. To that end, PennDOT relies heavily on this Court’s decision in Plowman v. Dept. of Trans., Bureau of Driver Licensing,
Finally, PennDOT submits that Section 1611(e) is rationally related to the legitimate government objective- of continuing to obtain full federal highway funding, estimating that, absent its enactment, the state would lose approximately $56.7 million in such funding in the first year and $113.4 million in subsequent years, and noting that those funds empower Penn-DOT to carry out its governmental duties. See PennDOT’s Brief at 18.
Appellee, by contrast, argues that the trial court correctly found that. Section 1611(e) was not rationally related to any legitimate governmental objective. Regarding the promotion of highway safety, Appellee, largely tracking the trial court’s analysis, posits that it is “undeniable that the commission of a single drug act violation does not directly implicate highway safety” and contends that, because Section 1611(e) sanctions other, more dangerous behavior less severely, it is unreasonable, unduly oppressive, and patently beyond the necessities of promoting highway safety. Appellee’s Brief at 6. Regarding the deterrence of drug trafficking and drug use, Appellee claims that Section 1611(e)’s failure to provide a graduated system of sanctions, or method for. reinstatement after disqualifications, based on drug crime makes it more likely to promote such crime than to deter it:
From a purely logical perspective ... the lack of a graduated punishment scheme violates the baseline principle of proportionality. A CDL holder who is predisposed to traffic in drugs, realizing that ... he faces the same consequences whether he moves a full trunk or a full trailer may, in fact, be incentivized to opt for the more lucrative option of using his commercial motor vehicle to transport the drugs. Alternatively, a commercial driver whose CDL has been disqualified for life may dеcide that he should apply his training as a truck driver to further drug trafficking; [Section] 1611(e) no longer has any teeth, with regard to such an individual.
Id. at 8 (footnote omitted).
■Finally, Appellee concedes that Section 1611(e) is related to, and indeed necessary to, continuing to receive' federal highway funding, but asserts that sanctioning such an objective as satisfying the requirements of substantive due process 'undermines state constitutional guarantees:
This argument, were it valid and taken to its logical conclusion, would permit the General Assembly to disregard the Pennsylvania Constitution in any situation, to pass any law the federal government demanded, so long as it would lead to the Commonwealth’s receipt of federal funding. This cannot be the law. The Commonwealth of Pennsylvania must be and is limited in its actions by the Pennsylvania Constitution. An interest in the receipt of federal funding cannot, by itself, save a law that is otherwise repugnant to the Pennsylvania'Constitution.
Id. at 9.
As detailed above, the question of whether Section 1611(e) violates the right to substantive due process under the Pennsylvania Constitution implicates an evaluation of. the law’s means — i.e., its disqualification of Appellee’s holding a- CDL for life — against its ends — i.e., its policy goals of protecting highway safety, deterring drug crime, and complying with federal highway funding requirements. Where, as here, there is no claim that the law impacts a fundamental right, we need not consider whether Section 1611(e) is narrowly tailored to meet a compelling governmental interest; rather, we need only determine whether it is rationally related to its interest — that is, whether it has a real and substantial relation .to the public interests it seeks to advance, and is neither patently oppressive nor unnecessary to these ends. Gambone,
Preliminarily, we agree with the trial court that Section 1611(e) is not rationally related, at least as a matter of Pennsylvania constitutional jurisprudence, to the protection of highway sаfety. As the trial court reasoned, the mere delivery of a controlled substance does not, by itself, pose a direct or substantial risk to highway safety. Moreover, although Penn-DOT’s creative argument that persons who deliver controlled substances are predisposed to poor judgment and risky behavior, which inferentially includes poor judgment and risky behavior that does pose a risk to highway safety, might be sufficient to satisfy the federal constitution’s requirements, it is too abstract and attenuated to satisfy Pennsylvania’s constitutional requirements that a law bear a “real.and substantial relation to the objects sought to be attained.” Id. at 687. Indeed, Penn-DOT’s argument in this regard ultimately rests on the proposition that persons who engage in any poor judgment or risky behavior are of such risk to highway safety as they might reasonably be barred from driving, a proposition we do not accept.
Furthermore, we find merit in the trial court’s view that Section 1611(e)’s severity, relative to Section 1611’s other sanctions for conduct plainly more dangerous to highway safety, undermines the notion that it is rationally related to that purpose: simply stated, a law which plainly goes too far allegedly in pursuit of some legitimate purpose may reflect arbitrariness or may betray other, unspoken purposes, a principle plainly contemplated by the Gambone test. See id. (“[A] law which purports to be an exercise of the police power must not be unreasonable, unduly oppressive or patently beyond the necessities of the case.... Under the guise of protecting the public interests the legislature may not arbitrarily interfere with private business or impose unusual or unnecessary restrictions upon lawful occupations.”). As the trial court reasoned, Section 1611(e) stands out as the sole provision imposing a lifetime disqualification from holding a CDL that may never be lifted, while holders of CDLs who сommit traffic violations, drive under the influence of alcohol and/or drugs, or even cause negligent homicides — all plainly more dangerous, injurious, or fatal to motorists — are subject to significantly shorter-term disqualifications; even repeat offenders subject to lifetime disqualification may seek exceptions and reductions in the length of their disqualifications. Thus, as the trial court opined, Section 1611 quizzically sanctions perhaps the least risky conduct (relative to highway safety) it regulates with the greatest severity, suggesting it is either harsh for no reason, or for some ulterior reason.
We reject PennDOT’s arguments to the contrary. First, although variation in a statute’s sanctions relative to particular conduct might reasonably demonstrate thorough consideration, it is not Section 1611’s variation which calls its relationship to highway safety into question; rather, it is the apparent disjunct between Section 1611’s lifetime disqualification for conduct which is not, in and of itself, dangerous to highway safety and Section 1611’s less onerous sanctions for conduct that poses greater risks and, in some circumstances, actually injures (or even kills) motorists. Moreover, although PennDOT is correct that, whether a particular sanction is justified for particular conduct is a legislative question in the first instance, it is beyond peradventure that the legislature’s determination is subject to judicial review for compliance with constitutional requirements, including the Gambone test. Id. (“The question [of] whether any particular statutory provision is so related to the public good and so reasonable in the means it prescribes as to justify the exercise of the police power, is one for the judgment, in the first instance, of the lawmaking branch of the government, but its final determination is for the courts.”).
Furthermore, we likewise agree with the trial court that Section 1611(e)’s imposition of a lifetime disqualification undermines its rational relationshiр to promoting highway safety: as Chief Justice Castille explained in Nixon, a law which fails- to account for persons’ inherent potential for rehabilitation may well be “unreasonable,” “unduly oppressive,” or “patently beyond the necessities of’ its regulatory aims. Id, Presently, Section 1611(e) operates on the principle that one’s use of a motor vehicle to deliver a controlled substance not only poses such a risk to highway safety as to justify the disqualification of his right to hold a CDL, but also an irrefutable legislative determination that he will always pose such a risk to highway safety as to justify the same. We agree with the trial court and Appellee that this is an unreasonable conclusion.
However, we ultimately must agree with PennDOT that the trial court overlooked the fact that Section 1611(e) serves the legitimate governmental purpose of deterring drug activity. As PennDOT argues, this Court’s decision in Plowman stands for the proposition that the suspension of a driver’s license is rationally related, at least as a matter of federal constitutional jurisprudence,
Accordingly, we hold ' that Section 1611(e) does not violate Appellee’s Pennsylvania constitutional right to substantive due process.
B. Cruel and Unusual Punishments
In PennDOT’s final issue, it challenges the trial court’s determination that Section 1611(e) violates the federal and Pennsylvania constitutional prohibitions on cruel and unusual punishments. The Eighth Amendment to the United States Constitution provides that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel'and unusual punishments inflicted.” U.S. Const., amend. VIII.
After careful review, we agree with Ap-pellee that Austin provides the appropriate ‘ framework and that Section 1611(e) constitutes punishment because it,- at least in part, exacts retribution or deters crime. Admittedly, the high Court has long employed the Mendoza-Martinez framework in myriad, areas of federal constitutional jurisprudence, arguably including Eighth Amendment jurisprudence, to determine whether a formally civil sanction is functionally punitive in nature. See, e.g., Trop v. Dulles,
. However, it is apparent that Austin retreated from that practice in the context of Eighth Amendment challenges. In Austin, the court considered a claim that a state civil forfeiture law violated the Eighth Amendment’s prohibition on excessive fines, and the government argued that the statute’s civil sanctions were not “punishment” according to the Mendoza-Martinez factors, and, thus, were outside the Eighth Amendment’s scope, Austin,
Some provisions of the Bill of Rights are expressly limited to criminal cases. The Fifth -Amendment’s Self-Incrimination Clause, for example, provides: “No person !.. shall be compelled in any criminal case to be a witness against himself.” The protections provided by the Sixth Amendment are explicitly confined to “criminal prosecutions.” The text of the Eighth Amendment includes no similar limitation.
Nor does the kistory : of the Eighth Amendment require such a limitation. Justice [O-’Connor] noted in [Browning Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc.,492 U.S. 257 ,109 S.Ct. 2909 ,106 L.Ed.2d 219 (1989)]: “Consideration of the Eighth Amendment immediately followed consideration of the Fifth Amendment. After deciding to confine the benefits of the Self-Incrimination Clause of the Fifth'Amend-mént to criminal proceedings, the Framers turned their attention to the Eighth Amendment. There were no proposals to limit that Amendment to criminal proceedings.” [The Eighth 'Amendment’s predecessor,] Section. 10 of the English Rill of Rights of 1689 is not expressly limited to criminal cases either. The original draft of § 10 as introduced in the House of Commons did contain such a restriction, but only with respect to the bail clause: “The requiring excessive Bail of Persons committed :in criminal Cases, and impósing excessive Fines, and illegal'Punishments, to be prevented.” The absence of any similar restriction in the other two clauses suggests that they were not limited to criminal cases. In the final version, even the reference to criminal cases in, - the bail clause was omitted.
Id. at 607-609,
The notion of punishment, as we commonly understand it, cuts across the division between the civil and the criminal law. It is commonly understood that-civil proceedings may advance punitive' as well as remedial goals, and, conversely, that both punitive and remedial goals may be served - by criminal penalties. Thus, the question is not ... whether forfeiture ... is civil or' criminal, but rather whether it is 'puhishment.'
Id. at 609-10,
The question in those cases was whether a nominally civil penalty should be reclassified as criminal and the safeguards ■that attend a criminal prosecution should be required....' In addressing the separate question whether punishment is being imposed, the Court has not employed the tests articulated in Mendozar-Martinez and Ward. Since in this case we deal only with the question whether the Eighth Amendment’s Excessive Fines Clause applies, we need not address the application of those tests.
Id. at 610 n.6,
We need not exclude the possibility that a forfeiture serves remedial purposes to conclude that it is subject to the limitations of the Excessive Fines Clause. We, however, must determine that it can only be explained as serving in part to punish.... [A] civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term.
Id. at 610,
Thus, following Austin, although Men-dozar-Martinez remains salient for determining whether a formally civil sanction is functionally a criminal punishment, implicating constitutional rights attendant criminal proceedings, it is inapplicable in determining whether a sanction is, for purposes of the Eighth Amendment, “punishment,” which includes all civil or criminal sanctions that serve retributive or deterrent purposes to any degree.
Applying Austin, it is clear that Section 1611(e) is punishment. Even assuming ar-guendo that Section 1611(e) is not intended to exact retribution ■ against felony drug offenders, it is unquestionably meant to deter drug crime. Indeed, as noted supra, Section 1611(e) derives from the Commercial Motor Vehicle Safety Act of 1986, which was itself a constituent part of the Anti-Drug Abuse Act of 1986, P.L. No. 99-570, 100 Stat. 3207, legislation directed at curtailing drug cultivation, trafficking, and abuse, аmong other purposes. See id. Plainly, Section 1611(e) deters drug crime. not only by preventing persons previously convicted of drug offenses (who are presumed to be likely to commit the same offenses again) from using commercial motor vehicles to engage in drug trafficking, but also, as detailed above," by attempting to influence holders of CDLs not to engage in drug crime in the first instance — ie., deterring them.
Nevertheless, that determination does not answer the question of whether Section 1611(e) is a cruel and unusual punishment. A claim that a particular punishment is cruel and unusual is evaluated according to the tripartite test set forth in Solem v. Helm,
The Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences which are grossly disproportionate to the crime....
... The [Solem test] examines: ,(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions,... [A] reviewing court is not obligated to reach the second and third prongs of the test unless a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality-
Commonwealth v. Baker,
Finally, the question of whether a particular punishment is appropriate to a particular crime “[b]elong[s] in the first instance to the legislature.” Bajakajian,
Under this approach, the Court has held unconstitutional a life without parole sentence for the defendant’s seventh nonviolent felony, the crime of passing a worthless check. Solem[, supra]. In other cases, however, it has been difficult for the challenger to establish a lack of proportionality. A leading case is Harmelin v. Michigan,501 U.S. 957 ,111 S.Ct. 2680 ,115 L.Ed.2d 836 (1991), in which the offender was sentenced under state law to life without parole for possessing a large quantity of cocaine. A closely divided Court upheld the sentence.... Again closely divided, the Court rejected a challenge to a sentence of 25 years to life for the theft of a few golf clubs under California’s so-called three-strikes recidivist sentencing scheme. Ewing v. California, 538 U.S, 11,123 S.Ct. 1179 ,155 L.Ed.2d 108 (2003); see also Lockyer v. Andrade,538 U.S. 63 ,123 S.Ct. 1166 ,155 L.Ed.2d 144 (2003). The Court has also upheld a sentence of life with the possibility of parole for a defendant’s third nonviolent felony, the crime of obtaining money by false pretenses, Rummеl v. Estelle,445 U.S. 263 ,100 S.Ct. 1133 ,63 L.Ed.2d 382 (1980), and a sentence of 40 years for possession of marijuana with intent to distribute and distribution of marijuana, Hutto v. Davis,454 U.S. 370 ,102 S.Ct. 703 ,70 L.Ed.2d 556 (1982) (per curiam).
Graham v. Florida,
Turning to the instant case, we find that the record is insufficiently developed to determine whether Section 1611(e)’s application to Shoul was grossly disproportionate to his crime, particularly in light of our intervening decision in 1997 Chevrolet. Notably, the evidentiary record contains little detail concerning the facts of Shoul’s offense, the impact of the loss of his CDL, his sentence as compared to the maximum sentence he faced, or the actual harmful consequences resulting from his offense. Moreover, neither the trial court, nor Ap-pellee in his brief, have offered meaningful analysis of the issue. Indeed, the trial court appeared to erroneously conclude that its threshold determination that Section 1611(e) was “punishment” within the meaning of the Eighth Amendment was dispositive of Appellee’s claim, and, although it remarked in 'its analysis of Ap-pellee’s substantive due process claim that Section 1611(e) appeared excessive to the purpose of protecting highway safety and excessive in comparison to Section 1611’s other sanctions, it did not recite or apply the Solem test in any respect. Appellee, likewise terse, baldly argues in his appellate brief that Section 1611(e)’s “imposition of an eternal ban from practicing one’s profession is grossly disproportionate to the severity of a single drug act violation,” and offers no substantive reasoning in support of that allegation. Appellee’s Brief at 18-19.
III. CONCLUSION
Accordingly, we reverse the trial court’s order insofar as it held thát Section 1611(e) violates the Pennsylvania constitutional right to substantive due process, w¿ vacate the trial court’s order insofar as it held that Section 1611(e) violates the federal and state constitutional prohibitions on cruel and unusual punishment, and we remand to the trial court for further proceedings consistent with this opinion.
Jurisdiction relinquished.
Chief Justice Saylor and Justice Donohue join the opinion in full.
Justice Wecht joins Parts I, 11(B), and III of the opinion and files a concurring opinion.
Justice Dougherty joins Parts I and 11(B) of the opinion and files a concurring and dissenting opinion in which Justice Baer, joins.
Justice Mundy joins Parts I and 11(A) of the opinion and files a concurring and ' dissenting opinion.
Notes
. See Pub. L. No. 99-570, 100 Stat. 2307 (1986), as amended by Pub. L. No. 106-159, 113 Stat. 1748 (1999), codified at 49 U.S.C. §§ 31301 et seq.
. See 49 U.S.C. §§ 31310(g), 3134; 49 C.F.R. §§ 383.51,384.401.
.Act of May 30, 1990, P.L. 173, No. 42, as amended by Act of 2005, P.L. 100, No. 37, codified at 75 Pa.C.S. §§ 1601 et seq.
. The record before us does not indicate the amount of marijuana, whether Appellee delivered the marijuana using a personal or commercial motor vehicle, or Appellee’s sentence.
. In Nixon, this court addressed a statute precluding certain former offenders, including those convicted of, inter alia, theft, from working in elder care facilities, but excepting offenders who had already been working on those facilities for at least one year at the time of the statute’s enactment. Nixon,
. See 42 Pa.C.S. § 722(a) (providing exclusive jurisdiction to this Court in "appeals from final orders of the courts of common pleas” in ■ “[mjatters where the court of common pleas .has held invalid as repugnant to the Constitution ... of the United States, or to the Constitution of this. Commonwealth .., any statute of .,, this Commonwealth”). ,
. Because each of PennDOT’s issues implicates Section 1611(e)’s constitutionality, a pure question of law, our standard of review is de novo and our scope of review is plenary. Robinson Twp., Washington Cnty. v. Commonwealth,
. The concurrence views Gambone's formulation of the rational basis test as a remnant of the oft-derided “Lochner era" of federal substantive due process jurisprudence and inconsistent with modern jurisprudential understanding of legislative capacity and authority. Critically, however, the parties do not dispute the applicability of the Gambone test to Appel-lee's challenge to Section 1611(e). Accordingly, in our view,- any reconsideration of Gam-bone., and, more recently, Nixon, must await a future case, with developed advocacy,
. In Plowman, the parties agreed that the federal and Pennsylvania constitutional guarantees of substantive due process were coterminous. Notably, Plowman was decided before Nixon, which dispelled that notion. See Nixon,
. Moreover, tаking Appellee's argument to its natural end, a statute's failure to provide gradations (or gradations within those gradations) in its sanctions would similarly render it an irrational deterrent, essentially requiring that the legislature invent a vast spectrum of sanctions for an equally vast panoply of circumstances attendant prohibited conduct. We do not view the due process clause as imposing such a requirement.
.Because we find that Section 1611(e) is rationally related to the legitimate governmental interest of deterring drug trafficking, we need not consider whether its relationship to federal highway funding requirements is sufficient to satisfy the requirements of Pennsylvania’s substantive due process doctrine.
. This prohibition applies to both the federal government and, via the Fourteenth. Amendment’s guarantee of due process, to state governments. See Jurek v. Texas,
. Similarly, Article I, Section 13 of the Pennsylvania Constitution provides that "Excessive bail shall not be required, nor excessive fines imposed, nor cruel punishments inflicted." Pa. Const., art, I, § 13. Because the parties proceed from the view that the Eighth Amendment and Article I, Section 13 are coextensive and present arguments predicated only on Eighth Amendment jurisprudence, we consider only the Eighth Amendment’s prohibition on cruel and unusual punishments herein. But see Commonwealth v. Baker,
. In her Concurring and Dissenting Opinion, Justice Mundy notes that this formulation of the Eighth Amendment’s scope in Austin derives from Halper, and that the Court in Hal-per adopted two contrary tests for determining if a civil sanction is punishment within the meaning of the federal constitutional prohibition on double jeopardy: (1) that only solely remedial sanctions are not punishment; and (2) that only solely deterrent sanctions are punishment. See Concurring and Dissenting Opinion (Mundy, X), at 696-98. Justice Mundy contends that the high Court in Hudson v. United Statеs,
Respectfully, we view Austin’s pronouncement that civil sanctions intended at least in part to occasion deterrence or retribution are punishment for Eighth Amendment purposes as authoritative notwithstanding Hudson, and appropriately situated to that context in light of the differences, detailed in Austin, between double jeopardy and cruel and unusual punishment doctrine. See Austin,
, In addition, we note that Austin does not sweep all civil sanctions within its ambit, but, rather, only those intended, at least in part, to incentivize primary conduct. For example, although a driver’s license suspension predicated on a motorist’s driving under the influence of alcohol is plainly intended both to protect the community from a.potentially inebriated motorist and to incentivize the motorist not to drive under the influence in the future, a driver’s license suspension predicated on a motorist’s inability to pass a vision exam is intended only to protect the community, not to incentivize the driver to have better vision. Compare 75 Pa.C.S. §§ 3801-3804 with 67 Pa. Code § 83.3. Contrariwise, we note that virtually all sanctions, including imprisonment, which are unquestionably punishment, have a remedial component in that they are ultimately intended to remove dangerous individuals from, or ameliorate the risk of danger to, society and to provide for the rehabilitation of offenders. The high Court has not embraced an interpretation of the Eighth Amendment that would permit punishments to be inflicted in a manner grossly disproportionate to the underlying offenses simply because they are also meant to achieve non-punitive, non-deterrent ends.
. In her Concurring and Dissenting Opinion, Justice Mundy notes, that, in Plowman, supra, this Court previously determined that a driver's license suspension predicated on a drug offense is not a punishment for Eighth Amendment purposes. Concurring and Dissenting Opinion (Mundy, J.), at 696-97 (citing Plowman, supra). Respectfully, this Court’s discussion of the issue was as follows, in toto:
Finally, Appellee argues, as she successfully did before the trial court, that the mandatory suspension of one’s driver's license as a civil sanction for a drug conviction constitutes "cruel and unusual punishment” under both the Eighth Amendment to the United States Constitution and Article I, Section 13 of the Pennsylvania Constitution. The underpinning for her position is that the suspension of her license is a criminal penalty. Because we disagree with her characterization of the sanction imposed, we cannot accept .her conclusion. (Although [the statute providing for the suspension] is included in the Crimes Code, that, in and of itself, does not make the penalty imposed a criminal punishment.) [The statute] is merely a civil consequence of a criminal violation. Furthermore, no discretion exists in its application as PennDOT is required to suspend a driver's license upon proper notification of a conviction. For these reasons, we hold that Section 13(m) of the Act does not violate either the Eighth Amendment of the United States Constitution or Article 1, Section 13 of the Pennsylvania Constitution.
Plowman,
Thus, the court's substantive analysis of the issue was a mere two sentences long, did not support its determination that the license suspension was not punishment by resort to .any legal authority, made no mention of Austin (or any other governing case), and was buttressed by an alternative holding that the sanction was not cruel and unusual. Accordingly, we are inclined to find Plowman of little precedential value on this point, particularly in light of Austin's apparent reformulation of the principles attendant the. scope of thе constitutional prohibition on cruel and unusual punishments.
. Appellee also contends that Section 1611(e) “runs contrary to public policy,” in that it stigmatizes former offenders. Appel-lee’s Brief at 19 (citing Secretary of Revenue v. John's Vending Corp.,
Concurrence Opinion
CONCURRING OPINION
I join in full the learned Majority’s analysis of Shoul’s cruel and unusual punishment challenge. I concur in the result reached by the Majority in its rejection of Shoul’s substantive due process challenge. However, I disagree respectfully with the Majority’s analysis of substantive due process under the Constitution of the Commonwealth of Pennsylvania.
The Majority correctly employs a rational basis test in evaluating Shoul’s due process claim, reaffirming that a commercial driver’s license is a privilege and not a fundamental right. Plowman v. Pa. Dep’t of Transp., Bureau of Driver Licensing,
However, that test, as it has developed in Pennsylvania, is amorphous and subject to inconsistent application. The problem stems from this Court’s continued reliance upon Gambone v. Commonwealth,
By a host of authorities, ... Federal and State аlike, it has been held that a law which purports to be an exercise of the police power must not be unreasonable, unduly oppressive or patently beyond the necessities of the case, and the means which' it employs must have a real and substantial relation to the objects sought to be attained. Under the guise of protecting the public interests the legislature may not arbitrarily interfere with private business or impose unusual and unnecessary restrictions upon lawful occupations. The question whether any particular statutory provision is so related to the public good and so reasonable in the means it prescribes as to justify the exercise of the police power, is one for the judgment, in the first instance, of the law-making, branch of the government, but its final determination is for the courts.
Gambone,
And so was planted the notion that we judges are to weigh the “reasonableness” of statutes. This was more than a little bit of Lochner-mng.
True it is that Gambone was decided in 1954, a time when the constitutional standards for analyzing due process claims still were being formed. See generally David E. Bernstein, Lochner v. New York: A Centennial Retrospective, 83 Wash. U. L.Q. 1469 (2005) (discussing the historical impact of Lochner on due proeéss jurisprudence). Lochner and cases of its genre were decided in an era during which the Supreme Court of the United States, under the guise of protecting economic rights, actively struck down state laws because it disagreed with the economic theory or opinion of the legislatures that passed those statutes. See Sorrell v. IMS Health Inc.,
It was not until the year following this Court’s decision in Gambone that the United States Supreme Court finally interred Lochner’s economic substantive due process doctrine. In Williamson v. Lee Optical of Oklahoma Inc.,
Oddly enough, as the - federal courts evolved toward a “rational relationship” standard, this Court nonetheless has persisted in employing the language of Gam-bone to superintend legislation, sometimes striking laws, and at other times upholding them. Compare Nixon v. Commonwealth,
Although our decisions relying upon Gambone purport to apply the rational basis test, the plain language of Gambone departs significantly from the teachings of the modem federal cases. We confronted this discrepancy in Nixon. In the face of the Commonwealth’s argument for a more deferential rational, basis test, i.e., “the rational basis test used in equal protection challenges and in due process challenges brought under the Unitеd States Constitution,” Nixon,
But why? Nixon baséd its reasoning on nothing other than Pastor,
In point of fact, this Court has embraced a more deferential approach to due process in several decisions both before and since Nixon. See Driscoll v. Corbett,
Although we are of course the arbiters of constitutionality, we do no violence to that role when we defer prudentially to legislative policymaking. The Gam-bone/Nixon standard validates and encourages judicial overstepping, allowing courts to usurp the legislative role and to strike down laws merely because they are imperfect, unwise, or under-inclusive. Surely, some very large proportion of legislative work could fall within one or more of these categories. But republican democracy is a messy business. It is time to cease adherence to the outdated and overbroad language of Gambone in applying the rational basis test in Pennsylvania.
Justice Oliver Wendell Holmes, Jr. dissented in Lochner. As usual, Justice Holmes put it better than others could, then or now:
This case is decided upon an economic theory which a large part of the country does not entértain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making1 up my mind. But I do not cоnceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we as legislators might think as -injudicious, or if you like as tyrannical, as this, and which, equally with this, interfere with the liberty to contract. Sunday laws and usury laws are ancient examples. A more modern one is the prohibition of lotteries. The liberty of the citizen to do as he likes so long as- he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well-known writers, is interfered with by school laws, by the Post [Ojffice, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. The 14th Amendment does not enact Mr. Herbert Spencer’s Social Statics. The other day we sustained the -Massachusetts vaccination law .... United States and state statutes and decisions cutting down the liberty to contract by way of combination are familiar to this court. Two years ago we upheld the prohibition of sales of stock on margins, or for future delivery, in the Constitution of California. The decision sustaining an eight-hour law for miners is still recent. Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of. the citizen to the state or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar, or novel, and even shocking, ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.
General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than' any articulate major premise. But I think that the proposition just stated, if it is accepted, will carry us far toward the end. Every opinion tends to become a law. I think that the word ‘liberty,’ in the 14th Amendment, is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.
Lochner,
The more deferential standard has been recognized by venerated American jurists and wisely embraced at the federal level. I cannot endorse the Majority’s adherence to the Gambone standard as interpreted by Nixon. I agree with the Majority’s ultimate - conclusion that 75 Pa.C.S. § 1611(e) does not violate due process because it is rationally related to the legitimate state interest -of deterring drug-trafficking. But, in my view, the Majority’s analytical route to that result countenances undue encroachment upon legislative prerogative. While I recognize that Gambone and Nixon remain on the books, this Court should abandon those precedents and embrace the federal rule that Justice .Holmes foreshadowed more than a century ago. ;■ ■
. It is well-established that driving is merely a privilege subject to reasonable regulation by the state. See Plowman v. Com., Dep’t of Transp., Bureau of Driver Licensing,
. In Gambone, this Court reviewed a state and federal due process challenge to a Pennsylvania statute that prohibited display of price signs in measuring in excess of twelve square inches at or adjacent to gasoline stations.
. See Lochner v. New York,
. During the "New Deal," the United States Supreme Court shifted toward its modern, deferential approach to substantive due process. The Lochner era’s end is generally associated with the High Court’s decision in West Coast Hotel Co. v. Parrish,
Liberty under the Constitution is .,. necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process.... Liberty implies the absence of arbitrary restraint, not immunity from reasonable regulations and prohibitions imposed in the interests of the community.
Id. at 391-92 (quoting Chicago, B. & Q. Ry. Co. v. McGuire,
. This view is, of course, not limited to Pennsylvania jurists. Interestingly, Judge Henry J. Friendly of the United States Court of Appeals for the Second Circuit — the son-in-law of Gambone's author, Chief Justice Horace Stern — once authored a draft opinion, néver published because the case became moot, in which he also endorsed a deferential judicial approach:
The contest on this, as on other issues where there is determined opposition, must be fought out through the democratic'process, not by utilizing the courts as a way of overcoming the opposition^] ... clearing the decks, [and] thereby enabling] legislators to evade their proper responsibilities. Judicial assumption оf any such role, however popular at' the moment with many high-minded people, would ultimately bring the courts into the deserved disfavor to which they came dangerously near in the 1920’s and 1930’s.
A. Raymond Randolph, Before Roe v. Wade: Judge Friendly’s Draft Abortion Opinion, 29 Harv. J.L. & Pub. Pol'y 1035, 1042 (2006) (alterations in original).
, The cases are legion. See Plowman,
. See also Letter from Oliver Wendell Holmes, Jr., to Harold J. Lаski, (Mar. 4, 1920), in Holmes-Laski Letters, at 249 (Mark DeWolfe Howe ed., vol. 1) (1953) ("[I]f my fellow citizens want to go to Hell I will help them. It’s my job.”).
Concurrence Opinion
CONCURRING AND DISSENTING OPINION
I agree with the learned majority’s application of the rational 'basis test as articulated by this Court in Gambone v. Commonwealth,
In my view, Pennsylvania jurisprudence currently requires a deeper due process analysis than merely considering whether there is any theoretical plausibility a statute is related to any legitimate state interest when that statute infringes on a person’s right to work in his or. her chosen profession. I believe the majority properly sets forth the appropriate test: “[Ujnder our state charter, we must -assess whether the challenged law has a ‘real and substantial relation’ to the public interest it seeks to advance, and is neither patently oppressive nor unnecessary to those ends.” Majority Op. at 678. As I see it, the lifetime disqualification aspect of Section 1611(e)(1) is patently oppressive and unnecessary to the deterrence ends the learned majority identifies as a legitimate governmental interest.
In Plowman, this Court considered the constitutionality of Section 13(m) of the Controlled' Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-113(m) (repealed), by which the'possession of a small amount of marijuana in the home resulted in a driver’s license suspension of anywhere from 90 days to two years depending on whether the offense committed was a first, second or third offense. The Court noted that operating a motor vehicle on Pennsylvania roadways is not &■ property right but a privilege, and thus the Commonwealth may regulate and control the activity; such regulations, however, must be tempered by adherence to the precepts of due process of law under a rational basis analysis. Plowman,
In discussing whether the license suspension sanction comported with the first prong of the due .process analysis,- this Court determined the legislature sought to protect the public interest against the proliferation of drug use, and supported its determination by reference to debate before the House' of Representatives on the final reading of the bill, during which many members “professed their intent to send a strong message that neither possession nor use of illegal drugs will be tolerated in this Commonwealth.” Id. The Court addressed the second prong of the test, ie. whether suspension of -driving privileges for possessing marijuana in the home was related to the interest the state sought to promote, as follows:
In this'particular instance, the 'maximum penalty for the.criminal violation of possession of marijuana is 30 days of imprisonment and/or a $500 fine. It .is doubtful that such.a penalty would be imposed for a first-time offense. In fact, a first offense may merit nothing more than a small fine. As such, the prospect of losing one’s driver’s license may deter a potential drug user from committing that first drug offense.’ At least, that potential user may consider the loss of his/her license and its- effect on employment and transportation prior to committing a drug offense. Both prongs of the rational basis -test have been met.
Plowman,
As the majority recognizes, Plowman was decided before Nixon dispelled the notion federal and Pennsylvania guarantees of due process are coterminous. See Majority Op. at 681 n.9. Under the relaxed standard of Plowman, this Court" determined the statute was rationally related to the legitimate state purpose of deterring drug activity because the maximum penalty for possessing marijuana was 30 days’ imprisonment and/or a $500 fine, -noting even that maximum penalty was unlikely to be imposed for a .first offense. Thus, this Court concluded the statute’s license suspension sanctions might provide a deterrent value which satisfied the second due process rational basis analysis prong.
Clearly, the penalties for the two counts of possession with intent to deliver a controlled substance (PWID) of which appel-lee was convicted by guilty plea carry much greater potential sentences of incarceration and fines than the maximum penalties at issue in Plowman.
Justice Baer joins this concurring and dissenting opinion.
. Appellee was convicted of PWID (marijuana) which carries a maximum sentence of five years and/or a $15,000 fine for a first offense. 35 P.S. § 780-113(f)(2).
Concurrence Opinion
CONCURRING AND DISSENTING OPINION
I agree with the Majority to the extent it concludes that 75 Pa.C.S. § 1611(e) does not violate Appellee’s substantive due process rights under the Pennsylvania Constitution. As the Majority explains, Section 1611(e) has a “real and substantial relation” to the deterrence of drug trafficking. See Majority Op. at 681-82. I therefore join parts I and 11(A) of the Majority Opinion. However, I cannot agree that Section 1611(e)’s revocation of driving privileges imposes punishment within the meaning of the Eighth Amendment. Therefore, I respectfully dissent from the Majority’s decision to vacate and remand in part.
The Eighth Amendment states that “[ejxcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const, amend. VIII. I begin by noting that this Court has already concluded that suspension or revocation of one’s driver’s license is not a criminal sanction. Indeed, in Plowman v. Commonwealth Department of Transportation,
Putting aside this Court’s analysis in Plowman, the Majority’s conclusion is still problematic. Some traditional examples of punishment include imprisonment, a criminal fine, criminal forfeiture, and civil in rem forfeiture, which all impose significant restrictions on thе class of persons against whom they are imposed. Imprisonment, parole, and probation fundamentally restrict a person’s liberty and movement. Further, everyone generally has a right to own property and not to have the government restrict his or her personal liberty. In Austin v. United States,
The Majority concludes that Austin provides the appropriate framework for determining whether Section 1611(e) constitutes punishment' within the meaning of the Eighth Amendment.
This broadly-worded pronouncement in Austin comes from Halper. Halper was convicted of 65 counts of Medicare fraud. Halper,
The Court’s analysis in Halper as to whether the civil penalty was “punishment” appeared to take contradictory positions insofar as the Court articulated two tests. The first was the test that appears in Austin, “a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term.” Id. at 448,
The two “tests” quoted above are strikingly dissimilar. The first is a “solely remedial” test. Applied literally, it would appear to invalidate on double jeopardy grounds any remedial civil sanction also “serving either retributive or deterrent purposes,” no matter how minor. The second is a “solely deterrent/retributive’.’ test. Applied literally, it would appear to uphold on double jeopardy grounds any civil sanction which “may fairly be characterized as remedial.”
State v. Hanson,
The Supreme Court abrogated Halper in Hudson v. United States,
In addition, by taking Halper*s “solely remedial”. test literally, as the Majority does, it is difficult to envision a civil consequence that does not serve as deterrence in some regard, and hence is not punishment. As Hudson recognized, every civil consequence imposed by the government is intended to have at least some deterrent purpose. Id. Indeed, the objective of government-imposed penalties is to advance the betterment of society as a whole and shape citizens’ behavior in a way that promotes good citizenship and deters crime. Consequently, applying Austin’s solely remedial test as the Majority does, anything may be deemed punishment -if it deters some behavior.
In my view, the test we should apply is Halper*s actual holding, i.e., the “solely deterrent” test' that remains viable after Hudson.
.Based on the.foregoing, I conclude the trial court erred when it held that Appel-lee’s substantive due process rights and right to be free from cruel and unusual punishment were violated. Accordingly, I would reverse the trial court’s order in its entirety. I respectfully dissent.
. This Court also expressed the view that, even if it deemed a license suspension predicated on a criminal conviction to be punishment, it would not find it unconstitutional because it was "not arbitrarily imposed for the purpose of inflicting pain and suffering.” Plowman,
. Plowman was decided on December 14, 1993, approximately five and one-half months after Austin was decided on June 28, 1993.
. The Majority concludes that Hudson is of no consequence in this case because Halper and Hudson are Double jeopardy Clause cases, whereas Austin is an Eighth Amendment case. Majority Op. at 684-85 n,14. However, - the Majority appears to acknowledge that the test applied in. Austin derived from Halper’s Double Jeopardy Clause test that the Court has since backed away from in Hudson. I recognize that it is not clear whether the Court has abrogated Halper’s test for all constitutional provisions given that civil in rem forfeiture is materially different from.revocation of a privilege. Nevertheless, I conclude the test is not applicable.
The Majority cites United States v. Ursery,
However, the revocation of a privilege is not a' "payment” of property to the government. In this case, the Majority expands the scope of the "solely remedial” test beyond the Excessive Fines clause. Under the Majority's view, Halper's. "solely remedial” test would apply to any negative consequence imposed by law, including revocation of a privilege. Therefore, even though the Supreme Court has not yet reconciled Halper, Austin, and Hudson, I cannot agree with the Majority’s expansion of Austin beyond its legal foundation.
. This is consistent with Halper's statement that its holding was intended to be "a rule for the rare case[,]” Halper,
. My conclusion is consistent with the conclusion reached by many other states on this issue. See, e.g., State v. Hickam,