State v. Mitchell

plianee with the law notice paid by appellant years 1973, because and sale 1974, would “prior proceedings” sec. 1975. 140.460. This would prevent oppo- not an The judgment is affirmed.

nent offering evidence variance Williams, with the title. Hartley v. All of the concur. Judges S.W.2d (Mo.App.1956). also See Thus, Robinson, Moise oppo- an supra.

nent could have the set if he deed aside

could show in his evidence that notice of

sale did of all record not contain the names

owners appear- or the names of all owners

ing on the land tax book. present case involves converse of 140.460, sec. irregu- subsec. 2. There an Missouri, Respondent, STATE of deed; larity face of namely, on the wrong has person been named the one against delinquent whom the taxes have MITCHELL, Jerry Appellant. been returned. Is this irregularity prima No. 59668. facie irregularity evidence of an of a prior i.e., the proceeding, notice of sale? We find Missouri, Supreme Court that it is reasonable infer that was notice En Banc. improperly given when the collector’s deed recited that the taxes were returned delin- March 1978. quent name in the' of one other than the As March 1978. Amended record owner or appearing owner on the Dissenting March 1978. Opinions land tax produced book and that plaintiff 10, 1978. prima Rehearing April evidence Denied invalidity facie of the deed proving same. conclusion, we hold that the record

afforded substantial support evidence

trial finding court’s that the notice sale question 80 acres here in did owner,

contain the name of the record E. Mitchell,

Decatur that the trial court’s

finding against weight was not Therefore,

evidence. the sale under which

Dave C. Mitchell took a tax was in deed 13, Mo.Const.,

violation of art. sec.

secs. 140.150 and 1949. In RSMo

consequence, and ex-officio treasurer September

collector’s deed dated page recorded book Records,

Texas Deed under which County title,

Dave C. Mitchell claims void and defendants, legal

no effect. None of Dave C.

including defendant-appellant title,

Mitchell, any right, interest here, dispute plaintiff-ap-

the land in

pellant E. Decatur Mitchell is the sole own-

er judgment thereof. Pursuant court, appellant

the trial is to recover from

plaintiff the amount of taxes being $95.17 April appellant

On with counsel appeared in circuit court of Howell county pled guilty charge. questioned circuit exten- judge appellant his sively understanding about range punishment being charge, penitentiary, from five to life in the matters pertaining and various other including a clear under- proceedings, appellant’s part as standing on well as had only arrangements court’s that the been defense counsel and made between L. Eisberg, City, prosecutor plea Howard Kansas Steven with reference to the Gladstone, Columbia, R. Keith G. and (a) prosecutor were the would guilty Stroup, Washington, C., appellant. D. for presentence there be a investi- recommend (b) gation, the state would make no and Ashcroft, Gen., John D. Atty. Preston (c) case, other in the recommendations and Dean, Arnet, Gen., F. Attys. William Asst. the No. City, Jefferson for court would dismiss a certain case respondent. 3407. case charge The substance BARDGETT, Judge. not further the No. 3407 was described at guilty, time of the of but a subse- Appellant plea Jerry appeals Mitchell from the conviction years quent hearing and sentence seven the the dis- of record reflects on his plea entered of guilty charge to a of selling larger missed was one of a charge selling marihuana in secs. violation of 195.- quantity which the defendant of marihuana Supp.1975. and RSMo The two sales along admitting with other admitted points 1) made on appeal are: The the of area. At same classification of marihuana in schedule of on ad- plea, time entered his and appellant sec. 195.017and the consequent punishment counsel, appellant vice of to reveal declined of marihuana offenses are set forth in sec. to pertaining to the court of the facts deny appellant 195.200 of equal protection which he charge pleading guilty the to was the law in violation of the United States on that he a premise the desired to enter Constitution, 14, on Amendment the plea guilty precepts under the of North grounds that the classification of marihua- Alford, Carolina erroneous, irrational, na is arbitrary, and (1970). The it 27 L.Ed.2d 162 court made 2) punishments and the provided for of- court, clear to that the after con- appellant involving fenses the sale of marihuana un- presentence but sidering investigation, der sec. 195.200 have no relation- rational it, being by may bound sentence ship are, to gravity of the offense term, term, appellant long to a short therefore, facially as cruel unconstitutional was may put probation. Appellant him on and unusual applied ap- as given opportunity withdrawing also pellant. This jurisdiction court has entered, day it plea his on the was guilty V, Mo.Const., art. sec. as amended. declined. The plea which appellant was sale of Appellant charged with the matter was and the guilty accepted was offense appears marihuana. It time intervening reset for June of the sale of approximately consisted of a being necessary for the preparation August of marihuana for grams of $5.00 pre-sentence investigation. charged, Very being after shortly 1975. attorneys 8 the parties On June Appellant was for him. appointed counsel was again in court appeared appellant has had subsequently retained counsel and guilty persisted plea asked if he his throughout an attorney the benefit of replied April to which he entered on proceedings.

“Yes, general record reflects in thoughts sir.” court stated its on The a satisfaction concerning of offense involved type part of the defense side of the case with marihuana, seriousness, the sale its the manner in which the court han- circuit people its effect and the com- younger sentencing; however, dled the at the same munity. time, defend- court then sentenced very strong viewpoint respectful but penitentiary ant to twelve in the was effect stated to the that the classifica- probation. denied tion statutory punish- of marihuana ments therefor were unconstitutional. 14,1976, June a motion appellant On filed disagreed encouraged trial court but guilty to withdraw aside plea his and set appellate adjudication defense to seek an A hearing the sentence in circuit court. on question this case on the of the constitu- July By this motion place took 1976.1 tionality relating of the Missouri statutes this time had attracted some na- case marihuana. attorneys tional other attention and parts country representing organiza- appeal This is limited consideration of tions in the reform of marihuana interested the facial of the statutes constitutionality laws entered appearance their co-counsel sale of It is relating to the marihuana. appellant. At the outset this hear- obvious from the of facts that statement ing, one of attorneys appellant ad- question is no appellant but what the vised the that he had court discussed the making the terms of the statute violated matter counsel and with other a sale of marihuana. is admitted. That appellant appellant’s and it was desire to challenges On this appeal appellant guilty withdraw motion to set aside the 195.017, of RSMo constitutionality sec. plea and that desired make a appellant to as a Supp.1975(classification of marihuana further the court. appel- statement to The substance) sub- I and sec. schedule then he guilty lant told the court that was provi- 1(4), Supp.1975 (penalty sec. RSMo charges of two sale and that he had sold substances, which sion for sale of schedule I on marihuana other occasions. of the One marihuana). includes larger quantity sales involved a much appellant The is initial issue whether agent. marihuana some undercover The he to raise preserved the issues now seeks record reflects that appellant admitted guilty appeal light pled on fact he having been in the circuit court of Howell is question to the We think this offense. county before previous charges pos- on Hammer, 347 by City Kansas v. answered of a session controlled substance and had (Mo.1961),wherein at 868 S.W.2d been placed colloquy on Further probation. court stated: place took between the court appellant “This state is committed thoroughly during concerning which each the proposition that the unconstitutionali- his expressed view to its effect ty on which a of an ordinance statute users. The that he court indicated believed prosecution be waived. based cannot there in the is change had been a attitude on constitu- of such an act invalidity part of the since the date of appellant subject matter grounds goes tional sentencing a time before and the short raised was, may therefore, prosecution to set going court aside by of the even stage proceedings, twelve-year impose sentence and a seven- Ex sentence, the court attack after conviction. year which did. collateral subsequently July hearing requested 1. At the then said that he had the court Counsel they transcript proceed the mat- defense and discussed counsel to whatever reviewed say support Mr. Mitchell had to of the to with- ter with other counsel and with and the motion plea appellant’s guilty. draw the Defense then it was to withdraw counsel desire plea. plea guilty It is withdrew the guilty stating withdraw to set aside motion to motion of the it had been filed clear the record that a number without transcript plea proceedings allegations of a critical the trial court’s benefit factual proceedings plea guilty pre- acceptance sentencing proceedings and the order totally facially rights appeal. incorrect. serve certain of Mr. Mitchell on were 331; Lerner, parte 281 Mo. must be assumed. 4. who assails S.W. One 457; Taft, Ex parte 284 Mo. 225 S.W. carry the classification in such a law must Smith, Ex parte 135Mo. 36 S.W. showing the burden of that it does not 606; Kaiser, 33 L.R.A. Williams v. basis, upon any rest reasonable but is 398; 323 U.S. 65 S.Ct. 89 L.Ed. essentially arbitrary.” Finley, Mo.App. and State v. words, In other it must be determined S.W. 1162.” legislature classifying whether the mari- Hammer, City

Kansas supra, huana in I had a rational reason schedule did not involve a guilty plea it is well but doing so or whether the classification is settled in jurisdictional this state that de arbitrary. arbitrary, If the statute must be fects and by defenses are not waived enter held unconstitutional. ing a guilty plea. Cody, State v. in its determina guided The court is (Mo. S.W.2d 333 1975); banc City Kansas tion sched classifying the standards Stricklin, (Mo. banc 1968). S.W.2d ule I substances set forth in sec. 195.017as It apparent appellant therefore that did well as marihuana to relationship of objections waive his to the facial consti the other listed in schedule I. If substances tutionality of the statute he presently no reasonable basis for since, was convicted if it were found facial the legislature concluding that marihuana unconstitutional, ly the appellant could not abuse; “(1) has high potential for legally been convicted and incarcerat has no accepted medical use treatment ed for its violation. accepted safety United or lacks States

Appellant does not contend that for use in treatment under supervi medical the sale of marihuana is a fundamental sion”, as those standards relate to other right. Accordingly, to determine whether substances, schedule sec. 195.017would be the scheme of statutory classification set it unconstitutional as relates to marihuana. forth in sec. 195.017violates the strictures making determination, of the equal clause, protection the appropri court is not only bound to use that informa ate standard to be applied is the “rational tion legislature available to the when it basis test”. The rules pursuant to which statute, enacted the guided but we are also appellant’s case must be tested were set presently Leary information available. forth in Lindsley v. Natural Carbonic Gas States, v. United U.S. Co., 61, 78-79, 31 S.Ct. (1969). Leary L.Ed.2d 57 involved a (1911): L.Ed. 69 situation in which the judging court was “1. The equal protection clause of the the constitutionality statutory pre of a Fourteenth Amendment does not take limit sumption. The court did not itself to from the power State the classify in information available at the when the .time the adoption laws, of police but admits of enacted, presumption was but it also con the exercise of a scope wide of discretion sidered more recent information to deter regard, and avoids what is done effect, mine what any, if the new informa only when it is without any reasonable tion validity presumption. had on the basis and therefore is purely arbitrary. pertinent part, 195.017, sec. RSMo 2. A having classification some reasona- Supp.1975,provides: ble basis does not against offend “1. The division of place health shall clause merely because it is not made with substance in it Schedule I if finds nicety prac-

mathematical or because in the substance: tice it results in inequality. some 3. abuse; (1) high potential has When the classification in such a law is called in question, (2) if state of facts accepted has no medical use reasonably can be conceived that would treatment in the or lacks United States it, sustain accepted the existence of that state of safety for use in treatment un- facts at the time supervision. the law was enacted der medical (1)

2. I: The Schedule controlled sub- he reviewed documents has submitted stances listed in this subsection are in- studying to the court.2 After these materi- cluded in Schedule I. als and the briefs of the parties, we have determined that marihuana is not

(2) improper- Any following opiates, in- ly I. cluding isomers, esters, ethers, salts, their classified Schedule isomers, esters, ethers, and salts of legislature In Missouri the does not unless specifically excepted, whenever provide comprehensive legislative history; isomers, esters, the existence of these therefore, relegated looking the court is ethers and possible salts is within the elsewhere for such information. Since Mis specific designation: chemical Act, Drug specifically souri’s Narcotic sec. 195.017, patterned after 21 sec. 812 U.S.C. (3) Any following opium deriva- Comprehensive Drug of the federal Abuse tives, salts, their isomers and salts of Prevention and Control Act of it is isomers, unless specifically excepted, appropriate legislative to consider histo salts, whenever the existence of these ry provided by Congress the United States isomers and salts of isomers is possible to aid us in our 195.- understanding sec. within the specific chemical designation: Cong, 017. 1970 and Admin.News U.S.Code

p. 4566. appellant The directs the atten court’s Heroin; (j) tion jurisdictions, to two cases from other McCabe, People v. 49 Ill.2d 275 N.E.2d material, Any compound, mixture Sinclair, (1971), People 387 Mich. preparation any quanti- which contains (1972), N.W.2d 878 ty of the hallucinogenic following sub- was found to be classification of marihuana stances, salts, their isomers and salts of cases, these how unconstitutional. Both isomers, unless specifically excepted, ever, the instant case. are different salts, whenever the existence of these which classified McCabe involved a statute isomers, and salts of isomers is possible There was drug. marihuana as a narcotic specific within the designation: chemical time, another statute Illinois at Act, which included Drug Abuse Control penal hallucinogens and barbiturates. (i) Lysergic diethylamide; acid Drug ties under Abuse Control Act Marihuana; (j) significantly were less than those for sub Drug stances the Narcotic Act. The punishment for sale of marihuana is Drug ten-year- Narcotic Act for a provided provided 1(4): for in sec. subsee. for the mandatory-minimum sentence sale “Except (c) as provided paragraph of whereas, marihuana, Drug of Abuse subdivision of subsection 1 of this sec- Act provided one-year-maximum Control tion, selling, giving for the offense of or jail con term for the sale of substances delivering any controlled substance listed considering the relevant tained in it. After II, Schedule I by imprison- or to a person, scientific, about the medical and social data ment in a state correctional institution for a acts, court various substances in both term of not nor more years less than five clas improperly was found that marihuana than life imprisonment.” Drug Act because it sified in the Narcotic in common Although no evidence was had more submitted characteristics “much and, court, the appellant barbiturates, to the trial we have with the amphetamines on S. 1450 before the Subcommittee to Investi- 2. National Marihuana and Commission on Abuse, Drug Signal gate Delinquency Marihuana: A of Misun- Juvenile of the Committee Senate, 1972), Cong., derstanding (March Drug Judiciary, 94th Use in United States 14, 1975). (March (May Perspective America: Problems 1st Sess. 1973); Marijuana Hearing Decriminalization: 195.017, separately classified under sec. sub- it does hallucinogens than particularly, 1(4), . . not drugs’ the ‘hard . subsec. does 2(4). sec. Sec. say at went on to N.E.2d at 412. The court any more penalize the sale of marihuana distinguish reasonably 412 that “one cannot of other hallucino- severely than sale marijuana from substances substances, the sale and the fact that genic It was on this Abuse Act.” Drug Control same as the punished of marihuana is was held marihuana basis that court deny not sale narcotic substances does equal protec and violated the misclassified the law. protection of appellant equal rejected was tion clause. The view McCabe Thus, subject statute is not the Missouri one of this court State by division as the constitutional infirmities the same Burrow, (Mo.1974). S.W.2d considered in McCabe Sinclair. statutes Sinclair, a simi- supra, involved People v. in- Furthermore, jurisdictions, a number classified statutory Michigan lar scheme. Connecticut, Alabama, Dako- cluding South drugs opium, with narcotic like marihuana ta, Arizona, government, and the federal sec. 335.- and heroin. M.C.L.A. morphine, to that with a classification scheme similar Hallucinogens 151. were classified in M.C. Missouri, held the classifi- employed in less punished L.A. sec. 335.106 and were in the Uniform Con- provided cation scheme marihuana. severely involving than offenses deny equal not trolled Act does Substances court, however, described marihuana Rao, See, example, protection. State concluded on this hallucinogen mild 171 Conn. 370 A.2d there was no rational basis to basis of Misunder- Signal Marihuana: A Both involving an offense marihuana penalize In America: Drug at Use standing involving other severely more than offenses 460^461, recom- Perspective Problem 884. hallucinogens. 194 N.W.2d at accord- be classified mend that marihuana plurality opinion decision in was a Sinclair set forth in the Uniform ing to the scheme and dis- which reversed conviction Act, which is the Controlled Substances charged plurality the defendant. The It used in Missouri. presently scheme being judges that result consisted of two out, however, that both pointed should be opinion statutory categorization penalties signifi- also recommend reports along drug” with “hard narcot- for marihuana offenses cantly less severe purposes imposition penalties ics for in force in Missouri. presently than those equal protection, judge being denied one opinion right that the statute denied contends he is denied Appellant judges liberty pursuit happiness, two less because marihuana equal protection the marihuana being opinion are than tobacco harmful alcohol and cigarettes which were introduced evi- argu the same makes proscribed. not He as evi- dence should have been excluded because respect to barbiturates illegal ment with entrap- dence obtained as a result of punished sale, although proscribed, ment, judges being opinion three their one- of marihuana. that a minimum sentence of nine and than the sale severely less merit. however, and unusual half constituted cruel is without argument, This such, opinion tobacco, legislature’s As in Sin- punishment. to alcohol and As authority for very clair constitutes little sub- some harmful prohibit decision any singular proposition. constitutionally thereby stances does all prohibit harmful compel regulate it to found unconstitution- Unlike statutes of Optical v. Lee Williamson substances. classi- Michigan, al in Illinois and Missouri Inc., 75 S.Ct. Oklahoma, 348 U.S. hallucinogens fies marihuana with other v. (1955); United States 99 L.Ed. 563 hallucino- Although as a narcotic. and not 1973). (2d This Kiffer, Cir. 477 F.2d (lysergic diethyla- as acid gens, such LSD punishment reasoning applies same mide), mescaline, marihuana peyote, and Bar of barbiturates. assessed for the sale substances, I which schedule are schedule marihuana are are different they biturates opiates, also includes heroin and they may contrary regarding of the more which take view the regardless fact .be this does not re- involved using harmful than marihuana hazards in marihuana. The sale effects legislature punish present knowledge the to their state of of the of quire than is still is severely proscribe incomplete more marihuana or marihuana and marked disagreement controversy. at all. much In by them Products, v. supra, United States Carolene Appellant also claims he was denied 153-154, the court stated at S.Ct. 784: the offense of de equal protection because “Where the existence of a rational basis for of marihuana livery for no remuneration is legislation constitutionality whose is at- severely less than sale of marihua punished depends beyond tacked facts upon the however, This, sight princi na. loses judicial notice, facts sphere may of such ple subjects “that the of ‘[classification judicial properly subject be made the prohibited by equal is not the legislation very . inquiry . . . But their na- the protection of laws clauses United legislative the inquiries, ture such where “if all States and State constitutions within must judgment is question, drawn in the class are same included treated state restricted to the issue whether ; alike,” . . . in the persons “if all [or] could reason- facts either known or which are equality,” same class treated with support be assumed it.” A ably affords v. Ewing, . . .’” State 518 S.W.2d body knowledge exist which does (Mo.1975). The could distin- legislature legislature rationally relied could guish between transfers for remuneration in deciding classify in to sched- without, carrying and those the former light I. the fact that we are ule trafficking drugs. in Fur- implication issue, dealing with a debatable medical we thermore, persons each of within these legislature conclude cannot acted and, classes are treated therefore equally arbitrarily placing or mari- irrationally that the punished the fact offenses are dif- huana schedule I. United States v. See ferently equal protec- does violate the Rao, Kiffer, supra. supra, v. State clause. tion appellant next contends that Appellant that mari argues also for the sale punishments provided huana has been in schedule misclassified imprison life marihuana —five to because it does not within the come criteria relationship to the ment—have no rational established for those sub legislature such, and, as are gravity of the offense stances, wit, “(1) high the substance: has face of cruel and unusual on the both abuse; accepted potential has no applied appellant. statute and as Courts medical use treatment United traditionally in this state have held so for use accepted safety States lacks long punishment meted out within as supervision.” treatment under medical Sec. statutory it does not violate the limits 195.017,subsec. 1. It should be recalled at Eighth Amendment to the U. S. Constitu point presumption there is a This, though, an immutable tion. is not constitutionality; favor of a statute’s fact; legisla punishments prescribed by statutory upheld classification should be if subject to review. In judicial ture are some basis; premised it is on a and the rational Johnson, (Mo. State S.W.2d appellant proving has the burden stated, App.1977), it was “our courts have statute is unconstitutional. United States held that a repeatedly Co., Carotene Products offense, within the for the statutory limits appel L.Ed. is not because . cruel and unusual proof. lant has failed to this burden of carry of its disproportionate duration so unless to shock the directed committed so as Although he has offense men court’s attention to studies which moral sense numerous of all reasonable the circum right comment of marihua what is proper on the harmlessness na, are, however, (Emphasis supplied.) other authorities stances.” DONNELLY, J.,

With in result in respect statutory sep- concurs range punishment, or more particularly opinion arate filed. sentence of statutory minimum five HENLEY, J., in concurs result and con- years, holds, here, on the court record curs in separate concurring opinion of facially such is not cruel and unusual DONNELLY, J.

punishment for the sale marihuana and SEILER, J., separate dissent- dissents is, therefore, is, not It unconstitutional. ing opinion filed. course, people do and will recognized that concerning differ in their the use opinions RENDLEN, J., sitting. not and, consequently, of marihuana also differ SHANGLER, Special March 1978: distribution, use, in whether its or sale Judge, and concurs withdraws concurrence and, proscribed, should be if proscribed SEILER, in separate opinion of dissenting is, what the This how penalties be. should J. ever, legislative a matter for the branch of SEILER, J., government. March 1978: withdraws The court should not invali 13, 1978, March dissenting opinion date a filed statutory penalty minimum unless files separate dissenting opinion the court can confidence this date in say with that the lieu separate minimum term of five bears no thereof and also concurs in ra SHANGLER, dissenting opinion tional relationship severity Special Judge. crime selling marihuana. As noted su pra, differing there are among views peo SHANGLER, Special Judge, sepa- files ple, including judges legislators, con rate dissenting opinion also concurs in cerning marihuana. The record here does SEILER, J., separate dissenting opinion not persuade us that is no rational filed today.

relationship between offense and the DONNELLY, concurring in Judge, result. statutory minimum sentence. It principal opinion appear would that the “ Appellant also contends that approves ‘punishment a rule that a seven-year sentence he received is cruel and is within limits for the of- statutory unusual circumstances of * * * fense, cruel and unusual this case. The referred “circumstances” dispropor- because of its unless so duration by he appellant are that is nineteen years tionate to the committed so as to offense old with no violent history of crime but had all shock the moral sense of reasonable men simply delivered a amount of small mari right proper to what is under the huana to ” Appellant points an adult. out circumstances.’ that he could not be considered a wholesale The italicized of the above state- portion racketeer major or a to society. threat appears Brownridge, ment v. State The facts set forth portion first (Mo.1963)and S.W.2d was cited opinion this light and which came to at the approval Agee, State S.W.2d July 8th hearing, changed attitude (Mo.1971). Brownridge, In concerning conduct, the appellant his did not note the Division No. 1 of this Court were justifi- considered trial court as by the Wolfe, fact that S.W.2d State setting cation for aside both the twelve- (Mo. Court en banc 1961), this had banc “ ‘ year * * * seven-year sentence and imposing punish- ruled that when the sentence. seven-year The court holds the range pre- ment assessed is within sentence is not cruel and unusual punish- statute, adjudged scribed it be cannot ” * ment. court. *.’ appellate excessive an The judgment is affirmed. 368,182 Rizor, Mo. S.W.2d State v. FINCH, J., expressed was

MORGAN, J., (1944), the view C. and SHAN- GLER, cogni- concur. it as a Special Judge, Court has “often treated

28 zable to question appeal proportion if there was evi- out the severity of the passion prejudice” part dence of on the punishment might crime. A fail the test on of the jury assessing punishment. ground.” 592, either at 97 at 2865. Id. S.Ct. concede, Rizor, I as indicated in that an legislatures state attitude of “[T]he argument retreating can be made for from sentencing juries wholly do not determine Wolferule. I doubt that rigidity of the controversy, this for the Constitution con- we should the Wolfe rule. I am abrogate templates judg- the end our own certain by we should not do so indirection. brought ques- ment will be to bear on the acceptability tion of the .

I concur in the result. only under the penalty Eighth Amendment.” SEILER, 597, Judge, dissenting. Id. at 97 S.Ct. at 2868. join in the dissenting opinion Eighth of Shan- Amendment judgments “[T]hese J.,

gler, be, Sp. respectfully be, and I dissent fur- appear merely should not or to Justices; ther as follows: subjective views of individual objective judgments by should informed The offense here was the sale of less than extent,” possible factors to the maximum marijuana half an ounce of trivial —a 2865, part, id. at 97 S.Ct. at because amount —for the trifling sum of In $5.00. meaning “must draw its Amendment my opinion years the sentence of seven evolving decency from the standards incarceration in case is so excessive this maturing society,” mark the of a progress to punishment. constitute cruel and unusual Dulles, 86, 101, Trop v. 356 78 U.S. S.Ct. 433 97 Georgia, Coker v. U.S. S.Ct. 590, 598, 630 L.Ed.2d 2861, 2869, (1977), 53 L.Ed.2d Unit- life penalty at issue—five Supreme ed Court declared that “the States imprisonment for the first sale of death . . . sentence ... is a marijuana amount that mandated disproportionate punishment rape” un- —is legislature Supp. under RSMo § Eighth der the relevant standards It is the nexus of that sanction to the 1975. cruel and un- against Amendment’s ban which, crime which has committed been usual at at punishment. Id. S.Ct. judgment, subject must be the of our my 2869. therefore, inquiry. compelled, We are bars Eighth only Amendment “[T]he us, “objective survey the indicia” before punishments those that are ‘barbaric’ but Gregg Georgia, U.S. S.Ct. also those that are ‘excessive’ relation to (1976), in order to 49 L.Ed.2d 859 Gregg the crime committed. Under [v. determine whether the nexus is a rational Georgia, 428 U.S. ergo legitimate one. (1976)], punishment L.Ed.2d 859 is ‘exces- to Mitchell’s (1) majority responds sive’ if it makes no and unconstitutional Eighth challenge by quoting acceptable goals measurable Amendment contribution under nothing is more our the state punishment and hence standard for review cruel and un- imposi- against than the and needless constitutional ban purposeless This standard is not" pain suffering; grossly punishment.1 tion of usual or rights against to shield us 1. That standard is We what “[A] statutory majority may ad- within the limits the offense . views be. We have never question in relation is not cruel and unusual because of its duration dressed this in Missouri disproportionate punishment. al- We have unless so to the offense com- cruel and unusual ways though question it were a mitted so as to shock the moral sense all looked it as jury’s (or judge’s right proper verdict reasonable men as to what is of whether sentence) (emphasis sup- But the circumstances." was reasonable not. Johnson, plied) question the one of State v. 549 S.W.2d is much different punishment prescribed by leg- (Mo.App.1977). whether islature is cruel in relation to the and unusual right depend To make a constitutional offense involved. No matter how reasonable agree whether all reasonable men it has been (or jury) might judge or unreasonable very corrupt rights. violated is to idea of duty making from the its own majority Supreme the United States adopted Amendment, Eighth into the rational basis applying objective inquiry Court 584, 592, 97 Georgia, e. g., Coker penalty. the criminal 2861, (1977); Gregg v. 53 L.Ed.2d 982 S.Ct. majority is to response The second 153, 171-73,96 Georgia, 428 U.S. S.Ct. to “other authorities refer without citation Dulles, (1976); Trop 49 L.Ed.2d 859 contrary regarding a view which take 86, 100-01, 2 L.Ed.2d 630 U.S. S.Ct. using in marihuana. hazards involved States, (1958); Weems v. United U.S. effects of knowledge state of present 349, 366-73, 54 L.Ed. 793 S.Ct. incomplete is and is marked still standard, above, (1910), it enunciated controversy disagreement much by obligation apply is our constitutional dealing,” . . . are concludes [W]e this case. medical “with a debatable principal opinion, challenged The defendant the rational ba- issue." sis any under which the first sale of amount two unresponsive This contention is of marijuana punished severely is as as “incom- reasons. The first is that however I drugs would the sale of other Schedule be or how “de- plete” knowledge may our or compounds Supp. RSMo § concerning issue” batable” “medical 1975, g., majority’s response e. heroin. The “disagree- much marijuana may be or how is, contend, respectfully misguided and may surround controversy” ment or First, opinion error. seeks a principal drug, grants this concerning discussion legal shield behind which it can avoid legislative no license to violate one’s consti- objective which I be nec- inquiry, believe to right reliance to be free from cruel essary, by upon United States v. tutional Co., Carolene Products less punishment. surely unusual There is S.Ct. 82 L.Ed. 1234 Carolene “controversy” concerning “debate” Products upheld constitutionality of the assuredly cigarette harmful effects of Filled Milk doing Act of 1923 and in so Yet smoking. legislature pro- were the discredited the judicial interference in the crime, I cigarettes hibit the sale of as a Congressional regulation of interstate com- this court would’ be as question whether merce. There is a between great difference to mandate legislature deferential were the judgment a as Congress to whether can years a from five penalty imprisonment declare compound that a of condensed skim pack. to life for the than half sale of less milk and coconut oil is “imitation milk” and view is majority’s The second reason the a judgment legislature as to whether the itself unresponsive is that it has shielded can rationally marijuana unite and heroin is uncertainty which alleged behind factual fact, single in a prohibition. criminal longer can the relic of an earlier No day. decision Justice Stone Carolene Prod- could, claim, we we as once realistically ucts not is best remembered for its text but judge which to the effects of the data oft-quoted says: for its footnote which unreliable, as- marijuana crudely is either may scope “There be narrower for opera- sembled, considerably or outdated. Sub- presumption constitutionality tion of the past research over the sev- private stantial legislation appears when on its face to be joined compre- two years eral has been specific within a prohibition of the Consti- efforts, well- government supported hensive tution, such as those of the first ten amend- utilizing financed studies advanced scientif- ments, which are equally specific deemed analysis: government’s Report ic our own when held to be embraced within the Four- Marijuana of the National Commission on teenth.” Id. at 152 n. at 783. clearly Carolene Products is thus a distin- and the Canadian Commis- Drug Abuse guishable precedent and does not shield the Use of Inquiry sion of into the Non-Medical been, challenge majority present means a such as in this case had to always imprisonment. apply be at least five one will To fail. upon by the traditional Missouri test relied infra, studies, marijuana lows: use of does These summarized not lead

Drugs. deterioration; or effectively, categorically, physical drug mental demonstrably, is addicting, is firm neither reliably producing no tolerance show when used symptoms nor withdrawal when marijuana presently used evidence discontinued; does use was its use not cause country danger attended with is death; insanity marijuana or does not cause Supreme the user or to others. As the behavior, criminal or violent or Sinclair, otherwise Michigan People Court of said drugs other such lead to use of as “hard 91, 104-15, 387 Mich. N.W.2d 881- narcotics; aphrodesiae drugs” or not an (1972), of the effects of “Comparison damage genetic nor does it brain cause use individual and marijuana on both the not, short, major It threat defects. use drug effects of other society to public danger public health or a to safe- no ra only that demonstrates not Soler, ty. A Of Cannabis and Courts: marijuana with classifying tional basis for Critical Examination Constitutional of narcotics’, but, also, there is ‘hard Challenges Statutory Marijuana to Prohibi- treating a mari even rational basis for tions, 601, (1974); 6 Conn.L.Rev. 608-12 drug than alco juana dangerous as a more Hindes, Morality through Enforcement longer hol . can no allow the . .We of Criminal Law and Modern Doctrine early residuals of that misinformation to Process, Substantive Due 126 U.Pa.L.Rev. off a evaluation choking continue national Indeed, 344, (1977). 346—47 n. 4 the “most marijuana large of a and dangers. That widespread effects important ordinary increasing recognize number of Americans relaxation, marijuana of a feeling of are marijuana’s relative truth about harm euphoria, impression sense of and an scarcely lessness can be doubted.” See Ra been sharpened one’s senses have somehow State, 494, (Alaska vin v. 537 P.2d yet impossible . is as in the [I]t McCabe, 1975); 338, People v. 49 Ill.2d laboratory to devise mental test 407, (1971). N.E.2d 409-10 will to reveal consistently anyone What, then, “objective are indicia” Marijua- marijuana.” the influence of Id. which, Coker, according Gregg ex- have na also demonstrated has been making a judges are to determi- analyze tremely valuable treatment uses in the is “cruel nation whether mi- fever, epilepsy, nervosa, pain, anorexia unusual,” show in they and what do psy- graine headache, high pressure, blood this case? asthma, chosis, and leukemia. glaucoma, (a) reliable would look to four factors: Soler, supra at 633. data, public (b) factual relevant informed (b) Though legislative option of de- opinion, (c) imposed in other the sanction of small possession criminalization of jurisdictions, (d) penalties in Mis us, it is marijuana amounts of is not before Downey Peri souri for other crimes. See insti- noteworthy nevertheless that relevant ni, Cir.), 1288, (6th 518 F.2d 1290-92 vacat informed, tutions, indi- reliably we are have ed and on other grounds, remanded rela- acknowledgement cated their 993, (1975); In 96 S.Ct. L.Ed.2d 367 marijuana their by tive harmlessness Cal.Rptr. 217, re Lynch, Cal.3d decriminalization, specifically the support 229-35, (1972); People 503 P.2d 933-39 Association, the American American Bar Lorentzen, 387 Mich. N.W.2d Association, of Gover- Board Medical 829-33 Bar, the American nors of Missouri (a) two en- government Association, The massive the National Public Health studies, dowed one each American Conference of Uniform Commissioners governments, rep- Laws, Canadian national Council State the National modern, Associ- attempts Churches, Educational comprehensive resent the National Union, marijuana ation, use. Civil Liberties the effects of the American determine Health, for Mental reported and other studies have simi- the National Association These Union, Academy of American lar are as fol- Consumers findings which summarized Family offenses, Physicians, relating the American to homicide Act Academy Pediatrics, and such mainstream social (Vernon), the crime of mur- Mo.Legis.Serv. Buckley, critics as William F. James J. Kil- degree punishable der in the second patrick, Ann Landers and Art Linkletter. 4.2. Man- years-life, for 10 imprisonment § aby slaughter punishable in Missouri is (c) states, Arizona, only eight mere fine of California, Connecticut, Indiana, Missouri, ranging sentence from a $500 Ohio, jail Texas and have Virginia pun- county would or less than 6 months in the ished a defendant a minimum of five years. from 2-10 imprisonment § for the sale of than less one half ounce of 1969. RSMo Soler, marijuana supra as a first offense. of the sanc- ignore illogic We cannot Today, at 721-28. that number is two: scrutiny. tion which is here under Virginia, Missouri and Va.Code 18.2-248 § speak to us about “objective loudly indicia” remaining jurisdictions (Supp.1977). between the the absence of a rational nexus penalties for this offense lesser than crime which has been committed and the the one in Missouri. assessed. The punishment which has been (d) Under the new Missouri Criminal Eighth gives power Amendment us the Code, 73,1977 Act Mo.Legis.Serv.(Vernon), over scope judicial punish- review penalties for against offenses persons and I, ments and unusual. alleged be cruel property can compared punish- to this one, powerful for compelling find ment years-life of 5 imprisonment. Those argument that we should invoke dic- punishments crimes and are as follows: as- case, and I tates of that Amendment in this sault in degree the first committed with a majority that a respectfully regret most deadly weapon instrument, or dangerous 10 my colleagues agree. punish- The do not years-life, the same committed without the ment man for young inflicted deadly weapon dangerous or instrumentali- marijua- selling less than one half ounce of 565.050; ty, 5-15 years, assault in the § peni- years na for in the state $5.00—seven 565.060; degree, less, years second or § unusual, if those two tentiary cruel —is 565.110; kidnapping, years-life, rape § any meaning words have at all. I would with the infliction of serious physical injury discharge the de- judgment reverse the or the display deadly of a in a weapon fendant. manner, threatening 10 years-life; rape without such injury display, or 5-15 years,. I There is another factor here which be- 566.030; sexual assault in the degree § first objective lieve we scrutiny requires that with physical serious injury display or the face. The of which forthrightly generation of a deadly weapon in a threatening man- I am which experienced a member an era ner, years; 5-15 degree first sexual assault similar, was great respect, to the current without such injury display, years or or one. in the 1920s Prohibition was the law less, 566.040; sodomy, or deviate sexual § but speakeasys were the fact. From this person intercourse with another who is less experience conduct we popular of punishing old, than fourteen with years physi- serious disrespect for law appreciate should cal injury or the of a display deadly weapon Coudert, Anti-prohibition which follows. manner, in á threatening years-life, sod- Justification, 7 A Activities of the Bar: omy without such 5-15 injury display, or (1929); Sawyer, 167-68 N.Y.U.L.Rev. 566.060; years, robbery in the first de- § the Prohibi- Report on the Enforcement of 569.020; gree, years-life, robbery § States, 30 Mich.L. tion Laws of the United 569.030; degree, the second 5-15 years, § (1931). Rev. 10-18 years, arson in the first degree, 5-15 irrationally When one uses the generation 569.040; arson in the degree, second § and intimidate criminal sanction to coerce less, 569.050; years or burglary in the § harmless 569.160; relatively a degree, rejecting first 5-15 another into years, burgla- § ry less, promoting in the degree, drug, marijuana, openly second while 569.170. Under new relatively Missouri’s statute § the use of what we know to be and of the im- tobacco,2 respect actually ments drugs,

harmful alcohol and dissent. posed. disagree suffers. The process law and the legal for not be de- people should young lives precise- more ground appeal, for The first generational anvil of stroyed against an ra- that marihuana bears no ly, contends mistrust. relationship opi- to heroin or other tional ates, I of 195.017 which § and so Schedule to a rational We must reconcile ourselves together classifies substances —without legal order. drugs “high potential with distinction —as criminal punishes for innocent and abuse” SHANGLER, dissenting. Judge, Special equal pro- conduct alike in violation consideration, full I cannot with agree On Consti- tection clause of the United States opinion. the principal tution. appeal The calls questions two uses rational relation- majority The (1) validity us decide are: determine ship test standard Schedule I of which classifies 195.017 § equal protection. a whether statute infracts opiates heroin and other laid terms, analysis contemporary or sale possession, and constitutes transfer Supreme Court down the United States crime, of the substance whether “if classification legislative sustains un- punishments sale of marihuana ato rationally related classification itself relationship der 195.200 bear no rational United § governmental interest.” legitimate are, v. More- to the seriousness of the conduct and Department Agriculture States reason, unconstitutional, no, and as 93 S.Ct. 413 U.S. of our and un- applied purpose defendant Mitchell cruel L.Ed.2d does not punishment. [Chapter usual rules in Act majority Drug Narcotic 195] enactment, terms, appear, favor of the enact- validity each of these year, only powerful alco- in accidents each 2. “Alcohol is the American deaths self-adminis- percent. up major trated intoxicant used the United States with to 70 hol is a factor approval percent social and without fear of criminal of arrests involve alcohol- About 55 all subjective drunkenness, sanctions. The effects of are alcohol drunk related offenses such as psychological physical but and well-known effects of the use of this neglected body the beverage driving, and violations alcoholic drug long been statutes; ar- control than half of those more ignored. operates in the Alcohol violence, rested for crimes as murder such system depressant: as central nervous a rape, acted under the influence of alcohol. produced very by its are similar those effects to widespread “Tobacco ranks with alcohol in develops the barbiturates. Tolerance Americans; single among it is the also use use, precipi- continued and discontinued use major of heart and blood vessel disorders cause syndrome a tates that hallucinations and delirium tremens which severe withdrawal barbiturate withdrawal similar to cancer, two most common which are the by marked Nicotine, pri- of death America. causes mary may tobacco, is a central active substance commonly to “alco- lead holism” is death. What is called system to am- similar nervous phetamines stimulant actually physical to the addiction general The harmful in its effects. drug causes cirrhosis alcohol. Alcohol abuse are well-known. of nicotine liver, nationally characteristics as of a cause of death. function, which ranks seventh dys- blood vessel disorders kidney to heart and addition to It also leads mouth, lamyx lungs, hyperthy- psychosis, cancer of Korsakoff s and esophagus, smoking may supplies to the also cause roid. Because calories alcohol tobacco sup- body, plying depressing appetite bronchitis, emphysema without thus vi- and loss of chronic acids, alco- needed vitamins and amino (tobacco amplyopia). It is clear that toler- sion engenders hol abuse common to other nutritional deficiencies develops and there to the use nicotine ance types drug These abuse. phenomena strong accom- that the is panying evidence make it more nutritional deficiencies turn of tobacco constitute discontinued use difficult for the alcoholic to withstand syndrome of true characteristic a withdrawal Perhaps syndrome. stresses of the withdrawal omitted) (supporting footnotes addiction.” Soler, dangerous alcohol is most characteristic of A Cannabis and the Courts: Critical Of produces his rela- the effect it tions on the user in Challenges to Examination of Constitutional feisty pugna- to the outside world. The Prohibitions, Statutory Marijuana 6 Conn.L. may joke; tippler of the be a ciousness 601, (1974). 617-19 Rev. aggressiveness hostile not. abuser is of the alcohol 120,000 It has been estimated that of

33 53, 6, States, so—as the 395 U.S. principal opinion suggests Leary v. United —we v. 1532, (1969); Brown look to the federal 23 L.Ed.2d 57 Comprehensive Drug S.Ct. 483, Education, Abuse 347 U.S. Prevention and Control Act of 1970 Board of 686, (1954). our Act follows for expression 98 L.Ed. legislative interest. pub- The federal Act are courts, populace, no less than lishes the Principal Purpose of the Bill as a that marihuana mythology victim the design to “deal in a comprehensive fashion criminal immorality, merely prelude with growing drug abuse in menace of truly dangerous to the use of behavior and the United through drug States” efforts Courts, 6 Soler, and the drugs. Cannabis abuse prevention and rehabilitation of users The earliest 601, Conn.L.R. and, means, among “by providing other from the opinions mythos reflect an overall pen- balanced scheme of criminal era to sustain classification alties for involving drugs.” offenses alone. assumptions on those drug narcotic 6, 26 P.2d Navaro, as it rationality 195.017 relates v. 83 Utah State § marihuana, therefore, Eramdjian, (1933); control of de- v. United States Although pends upon 914, (S.D.Cal.1957). the statutory postulate 195.- F.Supp. [§ deter- 017.1(1)] that have since substance “has massive scientific studies1 high po- marihuana, opiate, tential for a true abuse” so that unlike prohibited unless mined that addictive, criminal sanction the induces withdrawal presents substance is neither nor a menace to public safety comparable symptoms, nor leads to a tolerance —but that which dependency results from the use of psychological heroin or worst leads to a other opiates with which marihuana is alcohol— clas- less severe than that induced sified. therefore, The simple question, validity to sustain most courts continue whether marihuana qualities opi- shares those of marihuana classification of heroin and other opiates presumption known to cause than nothing ates on more destructive dangerous behavior so as a criminal statute. validity which clothes justify 1310, legislative same 370 A.2d disapproval. Rao, State v. 171 Conn. Wadsworth, 109 v. (1976); State 1314[6-9] A criminal pre- statute is clothed with a 1973); (banc Ariz. 505 P.2d 234[2] sumption of validity. At the outset of in- 349, 276 State, So.2d Ala. Boswell v. quiry, a court assumes that a classification Stark, 157 (1973); People 596[5] made by a criminal statute rests on a state (1965); State Colo. 400 P.2d 927[6] of facts which supports legislative de- P.2d 447 252 Or. Leppanen, termination. Lindsley v. Natural Carbonic (1969). Co., 337, 61, 78, Gas 220 U.S. 31 55 S.Ct. dis- (1911). L.Ed. 69 available judicial inquiry The into evidence now empirical The however, conduces constitutionality, is that marihuana pels not confined the concern agree to that information authorities available to the law- to criminal behavior. The maker at is the time of There enactment, also not a narcotic. but on that marihuana is what pro- since becomes requires available. And —as in from use which no tolerance satisfaction, this case—“when the validity larger quantities of the law gressively depends upon the with- accompanies truth of what agony is declared” nor the which short, is marihuana affects behavior as an opi- opiate. drawal from an In [that ate feed, urgency and so has a high potential for no addiction to nor abuse] the court has the need be from duty to examine recent money for that if purpose, empirical Re- data as Marihuana may that bear on the Grinspoon, illicit sources. (1971); Pet presumption of 256-7 validity I, pp. statute. note 1 considered Inquiry into the Non-Medi- 1. National of (1972) Commission on Marihuana and dian Commission Abuse, Report]. Drug signal Drugs The A Marihuana: of Misunder- cal Use of [LeDain Governments, (1972) Swedish, standing Report]; Shafer and Australian [The Second British others, Report published Congress Secretary among Annual commission from the also Health, drug (1972 reports of marihuana Education and Welfare on the role 1973) Reports]; and Third HEW abuse. Cana- [Second 34 Ball, majority opinion effectively ence in the Smoking Marihuana in the United — States, (No. 3,1968). presumption validity 32 Federal Probation 8 employs

The postulations classify very which marihuana a that va criminal statute to sustain thus, opiates amphetamines principle with the or even contradict lidity. They, barbiturates, therefore, constitutionality of a have lost whatever that “the [criminal] the existence of a validity People upon was ever due them. v. statute predicated McCabe, 338, 407, may challenged facts be particular 49 Ill.2d 275 N.E.2d 411 state of facts (1971); Summit, court those People by showing v. 517 P.2d 850 to the v. (Colo.1974). exist.” United States have ceased to Co., 144, 153, 58 Products U.S. Carolene The trial courts have been more faithful The 82 L.Ed. S.Ct. than the appellate courts in cases for the excludes scien practice which effect of equal protection against of the laws arbi the determination of tific evidence from trary classification of marihuana with nar postulate for a criminal the factual whether injunction cotics to the of the United States place any equal valid is to sanction remains Supreme proof Court that the of a statuto challenge to a crimi of the laws protection ry presumption “highly empirical” beyond classification statutory nal 1532; [Leary, supra, 395 l.c. appears it judicial inquiry reach of —unless Brown, supra, 347 U.S. l.c. S.Ct. 686] law. as a matter of open so of modern au scrutiny Rao, in num thority. jurisdictions increasing In v. Those State Conn. — (1976) A.2d 1310 full consideration majority given ber —which have [relied on the is opinion] the Supreme Court of Connecticut evidence empirical available went emphasis so far as to declare that the trial court sue have concluded with cannot had “misconceived its function” reasonable standard [l.c. 1314] Zornes, v. by the wit a narcotic. State expert determination of fact on classified as (banc 1970)2. P.2d 552 testimony ness “the debatable medical is 78 Wash.2d McCabe, People virtually sue” that no That method was used “marihuana has to strike system.” harmful effect on the human Ill.2d N.E.2d the classification as unconstitutional judicial court went on to conclude that de down under the state with narcotics legislative termination that “a enactment of marihuana precise question Drug Narcotic Act. judicial invalid cannot rest a determi of mari whether nation a debatable medical issue.” involved was Wadsworth, than under the 109 Ariz. 505 P.2d huana under that Act rather State Act, which (banc 1973), both of Supreme Drug l.c. 233 Court Abuse Control marihuana, of Arizona conceded that marihuana did not sale of but proscribed the violated punished disparately, fall within the scientific definition of nar that offense The Nar the laws. equal protection cotics but nevertheless refused to find mandatory minimum imposed statute which classified them without dis cotics Act offense first premise tinction invalid on the sentence of ten for the Drug Abuse marihuana, legislative proscribe mere intent mari sale of whereas sufficiently basis stimulant governed huana was a reasonable Control Act which maximum one not a deny depressant drugs imposed for criminal sanction and did The offense. equal protection year of marihuana the for the same purveyor sentence ten a term of This “rationale” was expressly the laws. defendant was sentenced the Narcotics State, adopted years imprisonment in Boswell v. 290 Ala. course, of decision Act. In the Drug 276 597 Each of these So.2d equal the defendant specifically byor refer the sentence denied approved decisions — bility” specifically drugs excluded but which had been convicted 2. The defendants Zornes provisions. That statute from its under a statute which classified marihuana as gives legislative recognition appeals pended to the latest state the Wash- narcotic. While the relatively knowledge drug ington legislature that marihuana a new control enacted “addiction-forming benign applied lia- substance. statute which

35 laws, protection of the the court first un choking off a rational evaluation of mari- the rele dertook “an assessment of That a in- dangers. large huana [l.c. 409] scientific, vant medical and social data . recognize creasing number of Americans to judge presently whether the data availa the truth marihuana’s relative about provides ble a reasonable for the de basis scarcely harmlessness can be doubted. scribed classification of marihuana.” The judicial willingness The to consider the court went on to a careful and meticulous experience instruction of science and on the evaluation of the evidence and discussed the proper effects of marihuana and its status narcotics, effects of use of noted the imme system gained impe within our of law has drugs, diate effects of the the onset of Miller, English F.Supp. tus. v. addiction in development of tolerance (E.D.Va.1972), English rev’d sub nom. v. and withdrawal symptoms, long-term Virginia Board, Probation & Parole use, physiological dangers from including (4th 1973); Carus, F.2d 188 Cir. v. State death, and the relationship between narcot (1972); A.2d 740 N.J.Super. Sam v. ics use and crime. The court concluded [l.c. State, (Okl.Cr.1972). P.2d These “although marihuana has been 411] 410— rejected decisions have the traditional clas commonly associated with the opiates . sification of marihuana with the narcotics there important are differences between on present knowledge. the instruction of the so-called abuse characteristics of the majority opinion The fails because it ne- two . . . Almost all agree authorities glects to determine true state of facts that marihuana is not a narcotic or addict upon which the 195.017 ive in classifications § the sense that precisely the term is opinion acknowledges, gives used. rests. The but opiate Unlike the drugs, it does not produce a no effect to the considerable physical appellant data dependence, upon abstention there are no symp withdrawal Mitchell has submitted on the issue. That toms. A tolerance to drug does not evidence demonstrates that marihuana is a develop.” considerations, On these relatively substance of harmless charac- court found that neither the chemical quali certainly benign cigarette more than ter— ties of drugs nor their effects on the and alcohol use—and so is unreasonably behavior of provides justifiable users classified 195.017with opiates § reasonable basis for the classification as to inquiry barbiturates. court avoids this conduct or penalty with the opiates. body conclusion that of knowl- “[a] edge legislature does exist which the

The Supreme Michigan Court of in Peo could have rationally deciding relied in Sinclair, ple 91, 194 387 Mich. N.W.2d 878 in schedule I.” The at- classify marihuana (1972) agreed with McCabe that the true makes, however, tack appellant Mitchell basis Michigan for the statute which classi is, the time of the present fied marihuana with narcotics was to [that classification, justification determined for the by the available empirical data. offense] After discussion of the enactment. The the extensive and not at the time of proof be fore the court on comparative appellant present offers to show that state effects of marihuana use on the person and communi Prod- of facts States Carolene [United ty compared with the ucts, Inc., effects of other l.c. supra, use, drug the court concluded longer support assumptions no [l.c. 778] et seq.] majority opin- enactment. The original say purpose is no not what the rational basis for ion does classifying marihuana with the adoption “hard classification was at nor how the narcotics,” but, also, that there is not appellant evidence does sustain even a rational treating basis for mari- issue. determination huana as a dangerous more drug than justified classification remains and so alcohol. persist majority should the holds—can —as We can no longer allow the come only residuals of after full consideration early misinformation to continue most and informative data. contemporary the only

The declaration of law can rest a These are fundamental characteristics the legislature requires pos- substance to state of facts found and decided. Other- precedent sess to the proscription the under plausible in favor of assumption wise opiate “any law. The Act as sub- defines statutory hypothetical or validity, however having addiction-forming stance an or ad- fanciful, judi- enough would be to foreclose liability.” The diction-sustaining opiates inquiry equal protection cial and defeat the increase and require tolerance more gives the United States Constitution satisfaction; more quantity for the with- an against arbitrary criminal law. symptoms enough drawal are to in- severe am convinced on impressive empirical I duce illicit for of purchase behavior the authority no threat to poses that marihuana drugs. Marihuana, hand, on the other is public safety the and welfare and less a aggressive induces be- non-addictive and no posed to to danger person the than the It is irrational that simply havior. mari- cigarettes There can user and alcohol. opiates huana be with the should classified classify marihuana be no reasonable basis to potential “high as substances of a like for penalize to them alike. I with narcotics or abuse.” would find that 195.017 its classifica- § to altogether inappropriate say It is equal protec- tion of marihuana violates the “has ac- marihuana that the substance no clause of the Fourteenth Amendment tion cepted medical use in treatment” —the oth- and is United States Constitution proscription to under quality precedent er invalid. The cannabinoids I of 195.017. Schedule § the very uses in treat- have had valuable least, At the remand the very I would ner- ment disorders: anorexia of numerous proceedings ap- to the trial court to allow vosa, high pressure, blood leuke- glaucoma, pellant full present Mitchell to evidence on mia, Soler, Cannabis among others. qualities compared of marihuana as Courts, 6 Conn.L.R. the narcotics and other substances with very has New Mexico legislature of they classified, which the comparative are permits a enacted recently a statute effect of these substances on the persons of me- certain for citizen access marihuana the users and the members of the communi- for glau- dicinal purposes such as treatment ty, and all pertinent present other state of coma nausea an to counteract aid facts which question bear on the ultimate Substance chemotherapy. [Controlled of law: the validity validity or lack of Act, Bill 329 Therapeutic Research House record, the classification. On such a an Governor, Signed Legislature. 33rd appellate court could then declare the law. The conclusion cannot February 1978]. I is knowledge believe there sufficient classification scheme escaped that authentic sources to make that declaration I within Schedule which includes marihuana now, against the confidently, validity arbitrary irrational. 195.017 § classification. impos- I also because sentence dissent answer, also, I would premise punish- and unusual es constitutes cruel majority opinion that category given only briefly but ment. I comment on heroin and opiates separate subsec- dissent thoughtful altogether concur tion within I dispels Schedule inference allows to majority Judge Seiler. common classification marihuana. year prison stand sentence a seven marihuana, This overlooks that heroin and of marihua- an ounce sale of less than half the other substances within Schedule are court, redress would na. The presumably, brought together statutory within it it found had severity of the sentence descrip- according scheme common commit-, to the offense disproportionate “so tions that each: [§ 195.017.1] sense of all ted so moral as to shock the abuse, (1) high potential has right to what reasonable men as I believe proper in treat- the circumstances.” accepted has no medical use given produces ment . the sentence Mitchell Judge shock. As the separate dissent of well, the says protection

Seiler so

Eighth Amendment extends to sentences

disproportionate to the crime committed on considerations,

objective as well as those decency.

which offend the Al- sense of

though departure by I welcome the punish- that a

majority prior from the rule statutory

ment meted within the limits the rule per validity,

shows se believe Johnson,

announced in State S.W.2d the ma- (Mo.App.1977) adopted by

jority protection falls short of the Con- gives.

stitution awareness,

In terms the sen- public merely vengefully

tence shows how the law person “decency”

treats a who offends the instance, society compared, high public

those who violate the trust of

office. What makes this even youth age

more stark is that a perhaps circumstances Mitchell—

present frequently leniency allowed the —is which, of a probation uneventfully when

served, expunges and forgets judgment

altogether. join

I dissent and separate dissent

of Judge SEILER. BRYANT, Movant-Appellant,

Russell Lee Missouri, Respondent.

STATE of

No. 60076. Missouri,

Supreme Court of

En Banc.

March 1978.

Rehearing April Denied 1978.

Case Details

Case Name: State v. Mitchell

Court Name: Supreme Court of Missouri

Date Published: Mar 24, 1978

Citation: 563 S.W.2d 18

Docket Number: 59668

Court Abbreviation: Mo.