*1 45296, 44890, April En Banc. 1980.] 44597. [Nos. Respondent, Washington, H. v. James The State Appellant. Smith, Respondent, v. David Washington, The State Anderson, Petitioner. Respondent, J. Washington, David Appellants. al,
Redwine, et *3 Kuhn, R. Don McCulloch, and & Roethler Clifford petitioner McCulloch, for Anderson. by Jerry Moberg, appellants Kenison,
Ries & J. for Red- wine. Kaplan, Withey,
Smith, Theiler & Sowa and Daniel Hoyt (Timothy Smith K. Ford of American Civil Liberties Washington Organization Union of and the National for Laws), Marijuana appellant the Reform of for Smith. Schillberg, Prosecuting Attorney Robert E. for County, Snohomish Chen, David G. Carl K. Metcalf Deputies, Prosecuting Attorney Klasen, Paul Grant for Whitaker, Dunn, Henry Deputy, James A. R. County, James E. Attorney County, Cowlitz Prosecuting for Warme, Deputy, respondent. H. Aronson on behalf of University
Robert of Wash- Advocacy Program, amicus curiae. ington Appellate indi- of four appeal J. This is a consolidated Rosellini, of the defendants was criminal convictions. Each vidual Controlled Sub- of the Uniform convicted of a violation Act, appeals We consolidated the stances RCW 69.50. which raise constitutional the resolution issues facilitate con- statutory We affirm the prohibitions. challenges victions. County in convicted Cowlitz Anderson was
Petitioner 69.50.401(a), proof of violation of RCW Superior Court to a gave a small amount showing that he addition, misde- was convicted of a agent. he police than 40 meanor, quantity less possession Appeals Two of Court of affirmed Division grams. Anderson, published opinion. convictions granted This court P.2d 307 App. Wn. for review. petition respectively and Smith were appellants Redwine Courts County Superior and Snohomish
convicted Grant 69.50.401(c), the felonious punishing RCW violations of activity upon marijuana. grams of over confined to factually based was convictions are which their of these None private their residences. and around areas to establish sufficiency of the evidence parties disputes Rather, they argue delivery marijuana. information current of the crimes and of the locus light constitutionally convictions are their marijuana, regarding infirm. *4 defendants, join as the referred to herein parties,
These the statu- They argue challenges. in two constitutional delivery prohibiting marijuana tory scheme legitimate govern- bears no fair and substantial relation equal protection guar- violates objectives mental and thus privacy anties; right and that their constitutional home, within the protects marijuana possession and use for the State has shown no substantial reason because the contention that regulation. The defendant Smith adds a unusual. prescribed is cruel and trial against are framed challenges These constitutional our discussion precede Smith. We will record defendant by reviewing constitutional issues this record unconstitutionality defendants assert establishes the statutory scheme. challenged tes- rely which defendants contains the upon
The record addition, In it contains timony expert of several witnesses. addict, testimony of a as well as the testi- drug former mony police of a officer. The record establishes that mari- alcohol, body, juana, like into the human ingested when produces physiological and effects. The chief psychological ingredient marijuana, largely respon- active and the one (THC). effects, tetrahydrocannabiniol sible for its called varies, in samples The level of THC and this for the human part variation accounts differences way predicting is no how drug. reactions There marijuana, will given quantity much THC be found easily plant subject since it is a of substances collection —a to change. evidence, that once question,
There is little under THC, by a marijuana, ingested threshold dose of intoxication. euphoric it will state person, produce state, accompanying distortion addition to this there is reflects that person's sensory perceptions. The record motor coordina- impairs an individual's use tion, learning ability, and motivation. there judge the trial
Expert witnesses also informed effects and often debated frequently recognized are other (1) chromosomes, on: marijuana. These include effects (3) (a hormone), (2) system, testosterone the endocrine *5 (the (DNA) (4) deoxyribonucleic acid of the formation genes composed). of which are substance may marijuana cause deleterious that There is evidence Thymidine is a chemical not caused alcohol. effects DNA; testimony building indi- of block is incorporation may marijuana of affect cates that thymidine Further, DNA, not. whereas alcohol does into way body degraded in that in the the same THC is not may body up to 8 A dose of THC remain alcohol is. days. respecting marijuana findings not effects are Scientific expert are "at that chromosome studies One said settled. remarking expert, on Another with other". variance each experimentation difficulty documentation of candidly: marijuana "It not some- of effects stated area you quick thing get to." answer divergent amply results This is demonstrated study experimental example, com- For one studies. upon by expert witness, of brain atro- evidence mented an study phy Yet, in another users. found was technique, no evi- a different measurement which utilized expert divergence atrophy an This led was found. dence marijuana's regard "There is effects: with to to state that generally great amongst people legitimate I have a debate respect for." deal not seem resolve record does defendant's judge, we, learn that Rather, it, the trial from like
debate. fully long known. This are effects term example, partially For been limited. studies have because prohibits Drug the use Administration Food and generation subjects. before Thus, it will be at least women fully explored. little has been There fetal effects study on children. effects of the uncertainty present light judge ruled
The trial legislature marijuana, respect the effects with potential drug classify marijuana for abuse. aas could his not sustained defendant had concluded He con- We are unconstitutional. the act proving burden bur- correctly held that carefully, judge vinced the trial was not met. proof den of con- they have a do not contend that
While defendants they urge that we right possess marijuana, stitutional See arguments. and their review the record independently Sweet, (1978); and State v. P.2d 579 90 Wn.2d have Byers, State v. P.2d We 85 Wn.2d record, ignore permitted but we are not reviewed that State's wit- credibility testimony question the regarding debate disregard nesses or the unresolved *6 effects, would have us do. marijuana's as the defendants mind, now turn to chal- With this we the constitutional lenges.
I of RCW constitutionality challenge Defendants 69.50.401(a) (c) They equal protection grounds.1 on no and sub- prohibition assert that bears fair legitimate stantial relation to a state interest. any equal protection analysis
At
outset of
it is neces-
sary to
which to test
against
define the standard
review
case,
legislation.
designation
challenged
this
appropriate
important
argu-
test
is
since defendants'
marijuana prohibition
ment
is that
must bear a fair and
to a
state
legitimate
objective.
substantial
relation
Two
measure classifica
judicially
tests are used
scrutiny
alleged
equal protection:
tions
to violate
the strict
Washington
v.
relation test. Nielsen
rational
test and the
1"(a)
chapter,
any person
Except
it is unlawful for
as authorized
this
deliver,
manufacture,
deliver,
possess
or
a con
or
with intent
manufacture
69.50.401(a).
RCW
trolled substance."
"(c)
any person
possess
unless
It
a controlled substance
is unlawful
to,
from,
prescription
directly
pursuant
a valid
or order
was obtained
or
substance
except
acting
professional practice,
practitioner
or
in the course of his
while
Any
chapter.
person who
this subsection
authorized
this
violates
as otherwise
crime,
upon
may
imprisoned
guilty
for not more than five
conviction
is
both,
dollars,
years,
except
provided for in
thousand
as
fined
more than ten
69.50.401(c) (now
69.50.401(d)).
(d)
RCW
subsection
of this section." RCW
Ass'n,
State Bar
(1978).
90 Wn.2d
dicta
from
appearing
time to
time
our
is used
whenever
legislation does not
infringe upon fundamental
rights or create a suspect classification.2 Brewer v. Cope
land,
n.8,
see State v.
(1975);
86 Wn.2d
337
(1974).
legislation,
In
to defeat
P.2d
order
162
doubt,
no
that
show, beyond a reasonable
must
defendant
to justify
be conceived sufficient
or can
of facts exists
state
so far
classification,
facts have
or that
challenged
arbitrary and obso-
to render the classification
changed as
Ruzicka, supra.
v.
v.
State
Copeland, supra;
Brewer
lete.
burden,
Smith
the defendant
to meet
this
an effort
If
view
record.
the defendants'
compiled a substantial
leg-
correct,
as the
marijuana is not as harmful
the facts is
believes,
perhaps
was
legislation
therefore the
islature
meritorious, which is
challenge,
ill
But a
however
advised.
court
justify
will not
of the statute
directed to the wisdom
School
Washington State
it unconstitutional.
finding
Indus.,
&
Labor
Department
Ass'n v.
Directors
(1973).
367, 378,
legislature repre-
The
Wn.2d
There can be State, regulate police power, the exercise of its administration, sale, dangerous use of prescription and is so power habit-forming drugs. right exercise welfare, public health and manifest the interest of the in question. called firmly too established 82 S. California, L. Ed. 2d Robinson Ct. may legislature there that Supreme Court said of narcotics upon criminal sanctions
impose would borders, legislation of such and the wisdom within its not be While review. open judicial not be Zornes, (see P.2d 109 78 Wn.2d a narcotic reasonably has (1970)) legislature if the forming, or habit *8 338 dangerous, in it has a broad discretion that it is
concluded penalties possession. prescribing for its critical facts Our of the record reveals certain review dangers, marijuana presents certain and which show that reasonably public prohibition related its euphoric safety. Marijuana state and creates a health efficiency, impedes learning, incentive, intoxication importantly, There remains a and, motor coordination. expert opinions regarding the seriousness conflict yet marijuana's From effects, much to be learned. has say reading record, that all doubts about we cannot safety marijuana resolved its favor. have been legislature
Assuming it the evidence that the had before marijuana concerning the known effects this case drug, yet properties it could reason- unknown the as ably danger marijuana to users and creates a find that others. legislature
Furthermore,
well have considered
brought
court
before the trial
than was
more evidence
adoption
say, therefore,
that the
We
this case.
cannot
reasonably
penalties
imposing
indi-
was not
criminal
laws
public
protect the
welfare.
cated to
marijuana
apparent dangers
use have
We note that
opinions,
judicial
recognized
courts. Recent
been
other
(Alaska 1975),
including
State,
find
v.
P.2d 494
537
Ravin
suggested dangers
knowledge
spite
of advanced
Attorney
rationally
yet,
v.
also Marcoux
are,
See
based.
(1978), and see
63,
General,
N.E.2d 688
375 Mass.
375
(1974);
State,
It is enough that the present statute strikes at the evil it where is felt and reaches the class of where it cases most frequently occurs. Silver, v.
Silver 117, 124, 221, 74 L. Ed. Ct. 50 S. 57, 65 A.L.R. see Aetna Ins. Co. v. Wash (1929); Life ington & Disability Ass'n, Guar. supra. Ins. Ravin Life State, Kells, supra, and State v. supra.
II
Next,
the defendant Smith raises a contention that his
conviction is barred under
eighth
amendment
1,
14,
United States Constitution and Const. art.
both
§
which forbid
imposition
punishment,
of cruel
the fed
eral constitution
forbidding
also
"unusual" punishment.5
(1973)
1164,
major
4An annotation in 50 A.L.R.3d
1177 n.18
reveals that
ity
protection
equal
challenges
grounds
which
courts
have entertained
on
that
drug
challenged
is not a narcotic
have sustained the
laws. After our
Laitinen,
130,
(1969),
decision in State v.
legislature
77 Wn.2d
P.2d 789
law,
response
public pressure
deleting
to substantial
the helmet
amended the
requirement,
illustrating
efficacy
principle.
Ex.
thus
of this
Laws of
1st
Sess.,
55, p.
ch.
§
1598.
essentially
past
these two constitutional
standards
5We have
accorded
Smith,
See,
e.g.,
(1968);
State v.
74 Wn.2d
identical
treatment.
Judicial
the
as to what
judicial
legislative judgment
between
Constitution means
Amendment
and
respect, Eighth
requires.
It
posture.
to us
no different
cases come
imposes
that
the Amendment
seems conceded
all
the constitu-
judge
on
obligations
judiciary
some
tionality
punishments
that
there are
punishment
denied,
Burton,
(1972),
review
App.
and Woods v.
Wn.
designed good to be a society. reflex of a democratic Their judgment informed, is best most therefore dependable, within narrow limits. Their essential qual- ity detachment, founded on independence. History teaches that the independence of the judiciary jeop- ardized when courts become embroiled passions day primary assume responsibility choos- ing between competing political, economic and social pressures."
The court said: Therefore, in assessing selected
democratically elected legislature against the constitu- measure, tional require possible we presume its validity. We legislature to select the least severe penalty long
so penalty as the cruelly selected is not or disproportionate inhumane a to the crime involved. And heavy burden rests on those who would attack the judgment of representatives people.
In ascertaining contemporary standards, said, the court legislative judgment weighs heavily, legisla- because the ture, courts, rather than the is constituted to respond will and consequently the moral values of people, pointing out specifications of punishment are peculiarly questions of legislative policy.
The court said that it could not category invalidate a penalties because it penalties deemed less severe adequate to serve the ends of penology.
The court rob- upheld there a death sentence for armed Georgia, bery v. hand, and murder. On Coker the other (1977), 433 U.S. it held Ed. 2d Ct. 97 S. invalid pursuant a death imposed, sentence which was statutory authority, rape of the crime commission under aggravating circumstances.
Here, Smith was
a deferred sentence
given
defendant
probation for a
of 3
years.
placed
period
of 5
He was
on
years. He does not claim that
this sentence constituted
is no case
punishment,
cruel
unusual
and indeed there
pro-
which has
that a
sentence
suggested
even
deferred
prohibition.
bation could fall within the constitutional
Rather,
crime a
his
the statute makes his
argument
felony
by the
designation
and that
such
is unwarranted
expressly
does not
seriousness of his offense. The statute
"crime."
felony,
calls it a
designate the offense a
but rather
in RCW 9A.20.020
punishment prescribed
provided
felonies,
regarded
C
should be
and this offense
class
so,
authority
no
for the proposi-
such. Even
we are shown
offense, or
person's
tion
of a
the disabili-
that classification
more,
can, without
ties attached
to that classification
punishment.
constitute
and unusual
cruel
Leis,
v.
in Commonwealth
theory
A
similar
was advanced
(1969),
persons
where
355 Mass.
343 (1962),6 acknowledgment that, is before these constitu- an invoked, provisions be defendant must show tional can reason of the sen- punishment he suffers and imposed tence is cruel unusual. our fact of
Smith calls attention to the that a number fit to designate felony states have not seen as a the offense of of 40 of others possession grams marijuana. There are See Conference, which have done so. 3 National Governors' A (1977) Study State Policies Penalties Marijuana: (hereafter Policies). State study simple This indicates that marijuana possession always is in two punished felony as a jurisdictions, felony three, punished never as a one state, Arizona, the decision whether to posses- leaves treat felony sion a to the court's discretion. 24
Of the remaining jurisdictions, an specified have possession always amount above which will be considered felony; a the other depends the distinction still solely on the possessor. intent Policies, (Italics ours.) State supra at 90.
The report on marijuana policies state further indicates is there little consensus the amount regarding required felony elevate grams; status. Florida uses 5 Hawaii 1 kilogram. uses popular point most elevation (28 Policies, State supra at is ounce grams). With 93. factor, regard imprisonment, another maximum uniformity. However, appears laws also lack maxi- a years' mum 5 imprisonment is decreed for the seri- least felony in eight (including ous at least jurisdictions Washington) least impose while at five maximum of less years than and at least five set the maximum more at Policies, years. supra at than 95. case, question 6In that it a criminal have statute had made offense drug punishment having The court for a dis status addict. likened this to universally punishment regarded ease and said that such a would as cruel only days prison, punishment prescribed was inhuman. While the minimum any punishment unusual, just the court said would as it would be cruel and having "crime" of common cold. There is no contention here that smoking status, doctrine, cognizable any punish under the Robinson is a or that ment all would be unusual. at cruel and
Washington's grams statute makes over delivery punishable by any amount nonmandatory imprisonment. years' maximum 5 When provisions alongside practices, it we set these nationwide evident that the statutes this state do not conflict Washington Moreover, current standards. statutory among provisions the states which have added *13 expunging sealing per the state arrest records 43.43.730(1); who are not convicted. State Poli sons RCW supra probation, cies, at who 108. One receives Smith may, compliance upon here, with the conditions of his did probation, the information or dismissed.
have indictment RCW 9.95.240. any objective punishment prescribed test, for
Under possession grams marijuana not offensive 40 more of is Likewise, do to current values. historical attitudes societal penalties prescribed. an Vir- not reflect abhorrence tually every policy to a of dis- state remains committed couraging applicable marijuana law, use. even Federal pro- achieved, where decriminalization has been states 844(a) (1970). possession. § its 21 Histori- scribes cally, Washington's U.S.C. support marijuana citizens who liberal consistently gain have failed to broad-based citizen laws support legalization marijuana ini- for or decriminalization Evidently are number of citizens tiatives. a substantial existing are not shocked content laws and penalty. leg say citizens, as as the
We cannot that these well wrong punishment islature, are disproportionate grossly A offense. is only disproportionate punishment grossly conduct is if the e.g., proscribed, see, v. Robinson never should be arbitrary clearly supra,7 punishment California, or if the is attempted punish person California, supra, for his v. 7In Robinson a state Also, drug drug not a defendants Possession of a status. status as a addict. circumstances, may prohibited; marijuana possession, at least some admit thus, inapplicable. Robinson's test is
[345] Brittain, v. Kasper 245 to the sense of shocking justice. denied, (6th 1957), 834, 2 L. Ed. cert. F.2d 92 Cir. 355 U.S. Louisiana Nat'l (1957); 54 2d 78 S. Ct. Affiliate Guste, Organization Laws v. Marijuana Reform of (E.D. (5th 1974), aff'd, F. F.2d 1400 Supp. La. denied, 1975), cert. L. Ed. 2d 96 S. Cir. 423 U.S. Ct. 129 Dulles, Trop 86, 101,
In
L. Ed.
2d
(1958),
S. Ct. 590
held that
Supreme
Court
dena
tionalization for wartime
was
shocking
desertion
viola
placed
totally
tive of this standard
because
the individual
country
at
sufferance
which he finds himself.
Gitchel,
(1971),
5 Wn.
App.
Considering all the that bearing factors have a on the then, question, punishment, we that conclude Smith's deferred of years probation years, sentence 5 of 3 and was grossly not disproportionate to the offense. we
Accordingly, hold that the defendant Smith was not subjected to cruel and unusual for his violation 69.50.401(c). of RCW
Ill 69.50.401(a) (c) Defendants also contend RCW and are possession as applied marijuana unconstitutional to of for in personal They use one's own home. of argue enforcement these statutes under the above circumstances invades right privacy, to and justified that this invasion is not when prohibited activity the relatively harmless. Organization theory rejected the Louisiana Nat'l 8The in was Affiliates of Guste, Marijuana supra. v. Laws
Reform of 346 of was the Court
This contention
raised before
Anderson,
v.
Two,
State
App.
in
Wn.
Appeals, Division
16
553,
(1976).
Pearson,
J.,
P.2d
Speaking through
558
307
court
an
which we do not
opinion upon
that
delivered
we
substantial
We there
improvement.
believe
can make
modifications,
minor
adopt
pertinent
fore
part,
own,
our
and set it forth herewith:
first,
hold,
court
that
urge] this
to
defendants
[The
right
privacy
to
in the home
there is a constitutional
delivery
possession
noncommercial
encompassing the
exists,
second, if
marijuana,
right
of
such a
interest
compelling
not
state
neces-
State does
have
this area. We decline
sary
justify regulation
of
extends to
right
privacy
adopt
position
delivery
or
of
possession
marijuana.
any
spe-
no
of
found
"right
While there is
privacy"
Constitution,
cific
the United States
guaranty
of
recognized
Court has
constitu-
Supreme
United States
privacy"
governmental
of
which limit
tional
"zones
Davis,
Paul v.
424 U.S.
L.
2d
96
power.
47
Ed.
(1976). Only personal
S. Ct.
that can be
rights
1155
of
"implicit
concept
"fundamental"
in the
deemed
ordered
privacy.
liberty"
guaranty
personal
included in this
are
Wade,
v.
2d
93
Roe
35
Ed.
(1973). If
possession
S. Ct.
and noncommercial
delivery
a constitutional
"zone
marijuana
come within
inter-
compelling
then
must
state
privacy"
there
Wade,
v.
supra;
this area. Roe
justify regulation
est
Gould,
Darrin v.
P.2d
Wn.2d
cf.
which have
overwhelming majority
jurisdictions
use
right
privacy
considered the
right
marijuana
accord. No constitutional
are
right
possess
encompasses
privacy exists which
(Del.
State,
A.2d 31
Kreisher
marijuana.
and use
1974).
pre
right
privacy
does
The constitutional
proscribing
from
legislature
vent
_
_
Renfro,
use. Hawaii
private
(1975). Michigan laws which
501],
P.2d
Haw.
[56
do not
and sale of
prohibit
possession,
use
People v.
to privacy.
right
the constitutional
violate
*15
(1974).
Alexander,
223 N.W.2d
App.
56 Mich.
not
to the
fundamental
right
marijuana
to smoke
necessary
to ordered
of
it is
justice,
American scheme
Common
liberty,
privacy.
and it is not within a zone of
Leis,
wealth v.
(1969).
355 Mass.
First, Ravin decision is substantially upon based strong right privacy provision to the Alaska Constitution.1 The Alaska court impor- evidenced the provision tance of this to ruling its when concluded right that "citizens of the State of Alaska have a basic privacy right in their homes under Alaska's constitution. This privacy would encompass possession ingestion of in purely substances such as personal, in . . ." non-commercial context the home State, v. supra Ravin Washington at 504. does not have constitution, equivalent privacy provision an. nor its privacy. does case law establish such a strong right A second distinction is that court rejected Alaska test, right-compelling the fundamental state interest special constitutionality used a test to determine prohibiting the statute marijuana. The court right-compelling employing stated that if it was the fundamental
state interest test "we would hold that there is no fundamental right, either under the Alaska constitutions, possess federal either mari- ingest State, supra Ravin juana." Washington at 502. courts right-compelling have utilized the interest state fundamental Gould, supra, see Darrin v. test past, will not adopt special we test at this time. the basis for the Ravin decision was the exten-
Finally, sion of right privacy possession privacy the home A marijuana. leading right case on the Stanley Georgia, home, 22 L. Ed. 2d (1969), 89 S. Ct. involved the home. personal obscene material for an adult's use *16 Supreme Court held that The United States of the material protected in home because the was the right strong to First Amendment and fundamental Supreme Court involved. The information was receive noted that upon power ruling infringe not the its did prohibit in the of narcotics to the state home. Other cases home also discussing right privacy in impor- involving right limit that to activities rights.2 Possession of is tant or fundamental Anonymous, supra, right, not a fundamental it is not tantamount Amend- of a First to the exercise authority logic supports Additionally, right. no ment [any] right to deliver right that a the contention possess Therefore, it. more fundamental than right privacy in the home we refuse to extend the delivery marijuana. possession or either adopt persuasive and we is not The Ravin decision holding (d) jurisdictions position simi- that statutes of those 69.50.401(a) do not unconstitution- to RCW lar any privacy. ally right to interfere with provides, in 1, § 22 of Alaska Constitution 1Article recognized privacy right people part: "The infringed." not be and shall generally, Slaton, I v. 413 Theatre Paris Adult 2See (1973); Ct. United 2d 93 S. 2628 37 Ed. U.S. 139, L. S. Ct. Orito, Ed. 2d States (1973). Elliott, P.2d N.M. State v. Cf. correctly Appeals Court of The trial courts and unconstitutional. to hold the statutes refused
IV assignment raises an additional Defendant Anderson peculiar circumstances to his case. He asserts error finding police or, at a misconduct his arrest warrant police informing jurors activ- minimum, an instruction good ity surrounding must be faith an arrest policy. public violative arrest, at he was contacted
Prior to defendant Anderson's agent's plan agent. by police was to The undercover home 1-pound attempting pose drug two to deliver dealer as a packages marijuana party. agent to some other sub- sequently plan executed this and contacted Anderson. upon seeing marijuana, Anderson, commented that "good agent replied looked like stuff". The it was indeed quality marijuana. inquired When Anderson further agent willing marijuana, whether the would be to sell the agent previously not, indicated he would because it was person. agreed committed to this, another After Anderson agent they that the could come back at a later date and arrangement marijuana. could work out an for the sale of agent occasions, on returned two later but neither opportune discussing time was business. On third agent occasion, however, the and Anderson discussed the *17 drug price, pur- and Anderson indicated his desire was to pounds marijuana. 1 chase between and 3 of After this agent intent, of manifestation the asked Anderson if he had any marijuana agent in the house. When the received an reply, suggested ought affirmative he two the of them to get acquainted. in smoke some order to better Anderson gave agent quantity smoke, declined to but the a small marijuana and him invited to take some with him. There is conflicting agent evidence as to whether the ever smoked marijuana, undisputed pos- this but it is that Anderson sessed and also delivered the substance to the agent.
Sometime later a search warrant Anderson's home upon presence marijuana was obtained based the in Upon location. quantity warrant, execution of the in a grams confiscated, less than 40 was and Ander- charged delivery posses- son was with the offenses marijuana. sion of
It that, trial, Anderson's contention at court the erred by refusing give proposed jury instruction: invoking You are instructed that a criminal defendant entrapment defense must show that the criminal design originated police in the mind of the officer and not accused,
with the and that the accused was lured or 350 com-
induced to commit a crime he not intended to had accused, If in mind of originated mit. the crime to com- opportunity officer afford the accused an an crime, and, in not acting good mit acting against when faith and deception. use of public policy, make 8,No. judge gave The trial court instruction which reads: Entrapment You is a are instructed that defense defendant, if charge against established entitles acquittal. the defendant to an Entrapment design origi- criminal occurs where the mind of officer informer and police nates accused, lured or induced into not the and the accused is committing. no crime had intention committing a he decoy or informer an present use of mere commit crime does opportunity individual with an entrapment. itself constitute entrapment police cases view treats majority unless the conduct serves to secondary entrap conduct as unwary he had no committing into crime an defendant Russell, v. United States committing. U.S. intention Gray, State (1973); Ed. 2d S. Ct. 1637 Emerson, (1966); Wn.2d 418 P.2d sup P.2d 245 It has never been App. Wn. pol weigh public be instructed to posed jury must its on whether good reaching decision icy faith Rather, out. under entrapment has been made defense its are to directed Washington law deliberations originated design criminal whether question *18 who lured or induced the mind of law enforcement officials otherwise had not to commit a crime which he defendant to intended commit. correctly court reflects jury given instruction of entrap- the defense concept regarding
this law instruction was not give proposed to ment. Failure error. of law that a matter argues further
Defendant public policy. to contrary conduct was police to vio opportunity In with affording suspect an example, subterfuge. For law, may police use some late dealer, fence, pose drug prostitute. an officer as a Russell, Gray, supra. supra, State v. United States agent that who argued government's the defendant in become so involved supplied ingredient a scarce had any manufacturing that an activity prosecution criminal process. violated fundamental of due illegal drug principles Court, Supreme noting necessity The United States agent's illicit conduct was participation, stated that the shocking not so as to violate fundamental fairness. case, which, The conduct of in the officer Anderson's dis- is, subterfuge hardly tasteful as all can to have been said so to shocking as violate fundamental fairness.
V assignments Defendants Redwine also raise additional peculiar error They their case. contend the search war- infirm, constitutionally rant for their home is that police statute, violated the knock and notice and that sentences were unfair.
The defendants urge Redwine that the trial court erred in in admitting evidence the fruits a search conducted pursuant to a warrant issued magistrate. The warrant authorized a search of the defendants' home and of the yard it, fenced behind which an officer had observed marijuana plants growing. magis- He testified before the trate that there was "no but were question" plants that the marijuana plants. yard officer's of the had inspection complaint been made to a were response plants that such growing it. The Redwines the officer's contend opinion identity of the not sufficient plant was support finding probable They suggest cause search. Further, they that a chemical test should have been made. maintain that information which from the officer received an informant was not shown to be reliable.
We find no The officer satis- merit these contentions. familiarity fied magistrate that he had sufficient marijuana plants recognize one when he stood within it, feet of as he did There is no suggestion case. *19 marijuana plant is not enough recognized distinctive reliability informant, as such. As for the of the officer's by is rendered immaterial the fact that the officer himself plants growing. observed the
Federal and state constitutional
requirements
has,
search
issuing magistrate
warrants are met when the
considering
ail the facts
circumstances
sworn to
the
warrant,
police
seeking
officer
the
good reason to believe
Patterson,
has occurred. activity
that criminal
there,
Wn.2d
Where, here, the officer himself has observed the evidence, incriminating reliability the element of is estab- lished, assuming magistrate has confidence integrity the officer. judicial
The issuance of a search warrant is a matter of discretion, only court its for abuse. and this reviews exercise magistrate can but was question
There be no justified accepting opinion the officer's that what he had growing yard marijuana. testimony seen was This unnecessary the informant was to establish this fact. showing was sufficient to obtain a warrant to search the house we yard. justified Whether it also a search of the not evidence were 178 need decide. The shows that there notice that plants growing yard. judicial in the We can take grams plants produce this number of would more than case was drugs. prima of usable Thus the State's facie plants grow- number of established the evidence admittedly in ing yard, which were Thus, though even the admission the defendants Redwine. error, which we of the fruits of search of the house was decide, do not harmless error. was also, a further con- For this reason we need consider unoccupied was rend- tention that the search house involved failed to ered invalid because one the officers entering. knock before
Finally, their lacked an the Redwines contend sentences appearance in of fairness and were fact unfair because the inspired by suspicion sentences were the Redwines were drugs. dealing in
Appellate may imposi courts review a trial court's tion of for sentence abuse of discretion. Discretion only person abused when it no can be said reasonable adopt adopted would court. the view was the trihl App. v. Derefield, 5 Wn. P.2d 5-year given Both Redwines were deferred sentences placed state correctional institutions. David Redwine was probation years days on for in and was sentenced to 365 jail Loralyn placed proba and fined $500. Redwine was on years days jail. tion for and sentenced to 90 in In both right suspend portion cases, the court reserved the jail They sentence and indicated that it would do so. judge customarily impose state that the did not a sentence days possession marijuana. of more than 60 for It is con judge tended that the was influenced his belief that the dealing drugs, alleged Redwines were in which it is was not judge's sentencing the case. The remarks on indicate prior juvenile he was concerned with David Redwine's marijuana being record, as well as with the amount of grown by imposed jail the Redwines. He sentences because he believed that a fine alone would not deter further viola tions. say having that, mind,
We cannot in this consideration judge prescribing the trial abused in his discretion sentences.
The convictions are affirmed. JJ.,
Stafford, Wright, Brachtenbach, Horowitz, concur. (concurring dissenting part) C.J. part; —I
Utter, in affirming concur with the conviction majority Anderson's of RCW delivery for a controlled substance violation 69.50.401(a). challenge to the Anderson's constitutional privacy to a claim of the perfor- conviction is limited pri- mance of the unlawful conduct. Whatever vacy possession claim of individuals use, personal protect does not those who would claim manufacture deliver substance.
I do the convictions agree Justice Dolliver and the Redwines for under Smith 69.50.401(d)) 69.50.401(c) (now the terms of RCW RCW on and unusual prohibitions violate federal and state cruel punishments.
I protection privacy do not reach claims equal nor the alter- marijuana, those convicted delivery claims which are regarding native constitutional not before us. *21 (concurring dissenting part)— J. in part;
Dolliver, It Marijuana major an intoxicant. one of three recrea- is is States; other two are drugs tional used in the United regularly by nearly 15 tobacco and alcohol. It is smoked Americans; of million million in excess citizens probably Abuse, Secretary it. National Institute on Drug have tried Welfare, Health, Report and 6th Annual Education (1976). In Marihuana and Health Congress, United States for the of mar- every penalty state there some Conference Research and ijuana. 3 National Governors and Study A State Policies Studies, Marijuana: Case (1977). 'crime' Penalties 99-104 It is "no other probable it is rarely in relation to the number times prosecuted so committed, consistently rejected no other conduct is so and Cannabis Soler, many being by people." 'criminal' so as Of Constitutional and the Courts: A Critical Examination of Prohibitions, Conn. Challenges Statutory Marijuana (1974). pos- who Washington, person L. Rev. ounce) (28 grams grams equals more than 40 sesses felony may and convicted of a with a arrested years up a fine of prison, maximum sentence of 5 a state 69.50.401(c)) (now (RCW $10,000, RCW 69.50- or both See, e.g., RCW 29.01- .401(d)), rights. and will lose certain .080, 42.04.020, and Const. art. 3. RCW RCW 4.44.160 § Collateral generally Consequences See Grant, Conviction, Criminal L. 23 Vand. Rev. 929 rights I constitutional agree majority RCW privacy are offended equal protection (c). 69.50.401(a), not, however, I with the agree majority do to the eighth amendment inapplicability as Const, I United States Constitution and art. 14. would § 69.50.401(c) hold RCW applies mere marijuana to violate these constitutional provisions I prohibit cruel and unusual do not contend punishment. 69.50.401(a), manufacture, RCW which makes it a crime "to deliver, deliver, possess with intent to manufacture or substance", controlled violates either the federal or state constitutions. history of majority
While the recites both the cruel and unusual general view taken restraint, application courts for of the constitutional it fails fully developed by trigger to delineate the tests courts to or to application requirements the constitutional 69.50.401(c) RCW against measure those tests.
Although legal literature and cases on the use of the Eighth general Amendment some meager, principles are See, e.g., Note, Pun The Cruel Unusual have evolved. Law, ishment Clause and the Substantive Criminal Comment, supra (1966); Soler, 676; Harv. Rev. 635 at Amendment, Beccaria, Eighth Enlighten and the ment; v. United An Historical the Weems Justification for *22 Doctrine, 24 States Excessive Punishment L. Rev. Buffalo and the Marijuana Possession (1975); Comment, 783 or Unusual Constitutional Prohibition Cruel California v. Punishment, (1974); Coker 21 U.C.L.A. L. Rev. 1136 Georgia, 584, 982, Ct. L. Ed. 2d 97 S. 2861 433 U.S. 53 Lorentzen, v. 167, 194 827 People (1977); Mich. N.W.2d 387 356 In 410, 921, Lynch, re P.2d 105 Cal.
(1972);
8 Cal. 3d
503
as Vio
generally Length
Sentence
see
(1972);
Rptr. 217
and
Prohibiting
Provisions
Cruel
lation
Constitutional
Punishment, Annot.,
(1970).
Unusual
It as a of the offense committed as be gravity with the so incommensurate penalty provi- to be violative of this provi- of the kindred of the state constitution and sion to the Federal amendment eighth sion contained constitution. punishment only proportionality
Not must "in considered, it must be considered the offense be v. knowledge". Robinson human light contemporary 660, 666, L. 82 S. Ct. California, Ed. 2d Dulles, v. 86, 2 L. Trop See also U.S. Ed. (1958). In recent review of the Ct. 2d 78 S. Amendment, Supreme Court said: Eighth only punish- those Amendment bars Eighth [T]he "exces- but also those that are that are "barbaric" ments Gregg Under crime committed. in relation to the sive" 2d 96 S. [Gregg Georgia, Ed. 428 U.S. punishment uncon- (1976)], is "excessive" Ct. 2909 (1) contribution if it makes no measurable stitutional nothing is and hence goals punishment acceptable imposition and needless purposeless more than (2) of proportion out pain suffering; grossly might A fail crime. severity ground. on either test Georgia, case, only ques- supra
Coker at 592. is relevant. proportionality tion of reg- or should not whether the state can question clearly both are marijuana; use of discourage ulate us the social before question Nor is the power. within its
357 desirability of discouraging Rather, the use of marijuana. punishment whether the by chosen legislature the for violating statutory its regulations as to the grams over 40 of marijuana is disproportionate offense when against tested "evolving standards Dulles, Trop v. decency". supra at 101. to question
As of cruel and punishment, unusual trial court concluded:
Finally, the argued statute, defense has felony in providing for a prison years, sentence of five consti- tutes cruel and punishment. unusual Again, authori- by ties cited counsel do not establish that defendant standing has to make this argument prior to conviction and sentence. Notwithstanding, as with the other consti- tutional arguments raised defendant, the hazards presented society by the of marijuana use do not per- mit 69.50.401(c) this court to conclude that RCW is not fairly and substantially legitimate related legislative purpose.
The trial court's use of the rational relationship test have been appropriate for determining whether the statute equal violated protection guaranties. not, however, It appropriate for determining whether the sentence imposed under the statute is grossly disproportionate to the crime and constituted cruel or unusual punishment. proper analysis to determine felony whether classification for conviction and the 5-year $10,000 maximum sentence and fine is or overly excessive severe is a threefold test which appears generally accepted for determining if the punishment is disproportionate to the crime and thus vio- prohibitions lative against cruel and punish- unusual ment. See In re Lynch, Jones, supra; re App. 35 Cal. 3d 531, Grant, In re (1973); 110 Cal. Rptr. 765 18 Cal. 3d Perini, 553 P.2d Downey (1976); 132 Cal. Rptr. (6th vacated and remanded on 1975), F.2d 1288 Cir. grounds, other Ed. 2d Ct. 96 S. Mitchell, State v. (1975); (Mo. 1978) 563 S.W.2d (Seiler, J., supra at 1146. dissenting); Rev., U.C.L.A. L. (only Those tests the last which is even mentioned are: majority) 1. degree danger subject offender offense, marijuana, present of the matter this case society;
2. punishment A for comparison of the more crimes punishment serious nature; for offenses of a similar comparison posses-
3. A *24 in for the Washington sion same in jurisdictions. offense other
I majority I nothing gained by arguing with the see to dangers trial court over the evidence as necessary nor is it do so. views of the marijuana plaintiffs fully were before the and defendants documented court, thorough trial review trial court made evidence, in memorandum findings and its contained following are documents were decision sufficient. in court: before the trial National Insti admitted evidence Health, Abuse, Drug Department tute on United States Findings: Research Marijuana Education, Welfare, and Recon Grinspoon, Marijuana (Petersen 1977); L. ed. (2d Abuse, sidered 1977); Drug ed. Institute on National Welfare, Health, Education, through 4th Secretary of and Mari Reports Congress, 6th Annual to the United States juana and Health Commission on (1974-76); National Marihuana: A Abuse, Report, and 1st Drug Marihuana Misunderstanding (Shafer 1972); Signal of Rep., National Abuse, Report, 2d Drug on Marihuana Commission (Shafer in Drug Perspective in America: Problem Use Drugs Licit & Illicit 1973); Report, Union Rep., Consumers (Brecher Inquiry 1972); Report ed. the Commission (Canada Cannabis Drugs, into Use of the Non-Medical on Human Behavior Marijuana Miller, 1972); L. Effects Investigate (1974); Hearings Before Subcommittee Act and other Security the Administration of the Internal Committee on the Security Laws of the Senate Internal Epi Marihuana-Hashish Sess., 2d Judiciary, Cong., 93d Security (1975); G. Impact and Its on United States demic Mari the Grass (1976); Tinklenberg, J. Keep Off Nahas, Szara, 1 & and Health Hazards (1975); M. Braude S. juana Marihuana, Pharmacology Monograph A Mari Nahas, (1976); G. on Abuse Drug National Institute and Cellular Chemistry, Biochemistry, huana Effects decision, court said: its the trial both presented by It from the evidence apparent grossly in has been proceeding sides misunderstood this many low by high Americans of both in life. stations
Despite profession exhaustive research the medical country and abroad recent and other scientists this years, and observations entire cultures world, generations there does smokers over around appear single permanent not physiological to be a documented case of drug. from this psychological harm Clearly, marijuana psychological is most notable for the a form of intoxication produces, some "high" similar respects "euphoria" to that alcohol. It is this produced people which has million encouraged excess it, country try keeps perhaps and which half of *25 coming that number back. intensity drug dependent of the effect of the is consumed, it that
upon tolerance to the quantity although accepted is use, drug developed regular is with levels. seeking higher dosage there often is a moderate However, quality, psy- there is not an addictive and even dependency very is unusual. The rare case chological anything to occur symptoms related to withdrawal seems only extremely heavy with and even then moder- usage, irritability only apparent symptom. to be the ate seems theory "stepping-stone" as a characteristic is no evidence marijuana simply use is not true. There drugs. No leads one on to the use other marijuana that that certain relationship effect exists. The fact cause and personality other on to types may marijuana go use and then any of mari- drugs cannot bolster condemnation many to that logical suggest It would seem more juana. relatively might dangerous people out more who seek "discovery" drugs do not do so virtue of their mari- juana. Marijuana user more violent or does not make the contrary, marijuana aggressive. the effect of To the aggressive. is to relax and make one less intoxication developed to substantiate the No evidence has been marijuana frequently increase lent crime. effect that use causes an stated belief any activity kind, much vio- in criminal less say However, to there is no cause and that marijuana relationship and crime is not to between say enjoy marijuana people will who use and that some buy to obtain the funds which to not steal and rob the marijuana Particularly young people, drug. testimony inexpensive, uncontroverted and there is drug regularly that stole to of one former user this record obtain buy marijuana. the wherewithal say may Although or even be safe to that moderate moderately heavy has not been shown use organism, that is not the to same harmful to the human thing saying that not soon show that science techniques and research
it does cause harm as studies improve. ently drug pres- Marijuana psychedelic and it is is a it does have a measurable well established on humans and animals. Already, reputable scien- effect burning vegetable matter of that the tists are convinced which producing composed cancer will be shown be' way However, as tobacco. in much the same by the fact that is moderated somewhat this concern day joints per com- is not of two or three moderate use consumption typical cigarette parable twenty smoker's day. forty cigarettes per Marijuana harder, the heart work use does make oxygen. It has been shown the demand increases patients, pain angina a real risk and carries increase patients, those who are unaware and for for heart they pressure. problems. It reduce blood heart does have open lung smoking Although dilate or low does dose regular passages, does use over several weeks continued bronchitis, both of cause cellular irritation impair lung function. sys- response body's Although immune effects on the system have been chromosomes, tem, and endocrine yet usage no is as demonstrated, there normal levels at *26 likely user is to clinical evidence that the more contract non-using children the illness or conceive defective than contradictory population, despite studies, and there some heavy long-term is no evidence that even use reliable any permanent damage per- marijuana manent or causes brain impairment function. brain important It which to note that the studies have very permitted largely foregoing the been conclusions have upon healthy subjects in based male studies prime Very life. little research been done on has groups reality. their child marijuana prove whom harm from use especially women, These would include those years. bearing especially Children, and those just achieving maturity, sexual have not been studied. years Also, with those advanced those known bodily infirmities have not received attention. careful Finally, drug little is known about interaction of this drugs body, deserving other an area of sub- stantial additional attention. foregoing suspected known review of the or harm marijuana provide inadequate from foundation would seem an felony on which to base statute. remote prospect of some future harm does not seem constitute a fair and substantial for such If basis an enactment. justification stand, statute is its must be found in the drug, or acute immediate effect those effects will now be examined. alleged
Thus, trier of fact found the "harm" sus- pected from was not use a sufficient basis for a grams statute which made of more than 40 felony. upholding Rather, trial statute the court relied on what it called "acute or effect of immediate drug". concluding summary, In its the trial court detailed these effects as follows:
Marijuana euphoric creates a state of intoxication impairs learning, efficiency, incentive, motor coord- clearly affecting ination, and welfare health, matters education people state. summary, Marijuana the trial found: has court never physiological psychological been shown to cause harm. It symptoms. is not addictive. Users do not suffer withdrawal There is no evidence the use leads the use *27 drugs. of other not the user more Marijuana does make aggressive. violent or There is no cause and effect relation- ship marijuana activity. and criminal is no between There likely user more to marijuana clinical evidence that a is ill or become conceive defective children than nonusers. heavy, There no evidence that even long-term reliable any marijuana damage use of brain permanent causes also State v. functions. See of brain permanent impairment Zornes, (1970). Wn.2d P.2d not impressive catalog marijuana
This is an of what does directly trial the findings do. The of the court strike at many as to the superstitions emotional assertions and to marijuana nature use and show them marijuana of and find, however, marijuana be false. The court did that does learning, of intoxication which euphoric create a state incentive, efficiency motor are impaired. coordination marijuana user and the degree danger Does this of to a society any way years a state surrounding justify 5 I $10,000 of a person's rights? fine and the loss prison, a disagree it I do there are some cannot believe does. not that marijuana and the dangers associated with the use of may legislative process, respond the people, acting through I to dangers. policies programs those Nor do contend to inappropriate of are discourage the use Furthermore, it well be there are some as improper. it dangers. But yet long-term and unverified undiscovered society hardly of nor is seems like the hallmark a civilized contemporary "in of human knowl- light constitutional the (Robinson 666) obtain pub- California, supra at to edge" unknown, of dangers, known or lic awareness for the mere persons posses- felons branding substance, subjecting of the anything grams sion over $10,000 years in prospect prison, to a state them vote, fine, to certainty right and the loss office, rights". "civil public and other right hold posses- decided with reference long We have since substances, ingestion of causes of other sion effects, felony appropriate. are harmful statutes easily drugs Such common and household as alco- available hol, long-term tobacco and caffeine —the deleterious effects of which are well and well known —come read- documented See Cannabis and the Courts: A Soler, ily to mind. Of Challenges Critical Examination Constitutional Prohibitions, Statutory Marijuana 6 Conn. Rev. superstition 617-19 Once the underbrush swept ably false has been so information been aside as has court, given danger done trial penalty, society, totally offender out proportion and to offense. To language majority, "punish- use ment is . . . shocking justice". to the sense connection,
In this it may be noted is another veg- there etable substance common to Washington possessed vary- *28 ing quantities invariably over 40 grams by large — — numbers of poisonous ingested our citizens. It if and can cause death. See 6 Encyclopaedia Britannica, Macropaedia (15th Noxious Ericads 1974). response ed. this state has been people prison possession send for of plant, and, this but rather against danger to warn them legislature, action of the declare the State Flower. It is the rhododendron. See RCW 1.20.030.
II Next, how does punishment of over 40 grams of marijuana compare for more state, serious or for crimes of a offenses similar nature? No mention of this test is made the majority. Even cursory reading a of 9A gives convincing RCW evi- 69.50.401(c). dence of disproportionate nature RCW All offenses, of the following each far more serious than possessing grams marijuana, over are class C felonies and subject guilty person years peniten- a to 5 in the state tiary $5,000 or a maximum second-degree fine both: when, manslaughter, negligence, with criminal the death of caused, 9A.32.070; assault, third-degree another RCW 9A.36.030; theft, 9A.56.040; RCW RCW second-degree 9A.40.040; unlawful imprisonment, RCW extortion 9A.56.130; degree, first-degree second RCW reckless burn- mischief, ing, 9A.48.040; second-degree RCW malicious 9A.48.080; deadly weapon, RCW riot with a RCW 9A.84- 9A.60.020; vehicle, .010; taking RCW of motor forgery, incest, 9A.56.070; 9A.64.010; RCW bigamy, RCW RCW 9A.64.020.
I find it include the mere grossly disproportionate in the grams marijuana of over 40 same cate- Furthermore, except for gory cataloged as the crimes above. liquor a third conviction for unlawful use the official (RCW 66.44.120), penalties control board seal none (RCW beverage the alcoholic control statutes violating 66.44) The known gross is more than a dan- misdemeanor. society, which far gers of alcohol to an individual marijuana" are too exceed "acute or immediate effect If, hand, on the other require well known to review here. overthrowing the meeting home had a aimed at person at (RCW 9.05.040); possessed a collection government by force (RCW 9.41.250) or dan- brass knuckles switchblades (RCW 9.47A.050); beaten for sale had gerous inhalants (RCW 9A.36.040); or dis- in a simple someone assault (RCW 9.41.230); or gun neighborhood had charged intoxicated, clearly public on the while highway driven (RCW 46.61.515), felony no endangering the lives others 69.50.401(c) does not meet would be made. RCW charge constitutionality. test for second
Ill with other compare penalty Washington How does the *29 in majority comparing used states? While data accurate, from question approaches is it state statutes to list illuminating It far more wrong is perspective. possession of the amount where the mere those states less, law by Washington proscribed which is marijuana, years in in penalty the first a 5 can result on offense states, Washington, or only including 10 There are prison. In only 6 penalty. which have such a severe percent, 20 (12 is the fine for including Washington, percent), states
365 offense, term, $10,000 regardless the first prison Additionally, more. while distinguishes RCW 69.50.401 various activities associated with in our soci- use ety, it impose not stringent penalties does less mere possession of controlled substance. Most other states impose greater penalties for sale and intent (12 Only distribute than for possession. mere 6 states percent), including Washington, fail to make this distinc- In tion. majority, contrast to the views of the appear does Washington minority that among a small the states severity penalties of its mere of mari- juana.
The majority
1,
contends
strictures of
sec-
the article
tion 14 provision should
apply
not
unless the punishment
unusual;
inflicted is
fact cruel and
conviction
mere
Fairbanks,
State v.
enough.
686,
25 Wn.2d
171 P.2d
(1946). In
845
raising
proportionality
challenge under
Amendment,
Eighth
a defendant
the sen-
challenge
actually imposed
tence
on him
unconstitutionally
dis-
See,
proportionate
e.g.,
the offense which he
committed.
Fairbanks,
v.
Davis,
Davis v.
supra;
Defendaint Smith both types raises (1) case. He claims that on penalty actually imposed imposition felony him —the consequent status loss civil unconstitutionally disproportionate liberties —is (2) 69.50.401(c) committed; offense he RCW (now (d)), on Eighth its face violates Amendment *30 366 statutorily prescribed penalty (imprisonment
because $10,000) is years unconstitutionally dispropor- for 5 and/or simple of more than 40 tionate to the offense grams marijuana. per is term
I
the better
rule
the maximum
believe
years
rather
by
mitted
statute —5
be considered
—must
imposed by the
or the action
judge
the actual sentence
than
(see
Lynch,
In re
of the Board of Prison Terms and Paroles
Coiner,
Perini, supra;
v.
Hart v.
Downey
F.2d
supra;
483
denied,
(4th
1973), cert.
983,
39 L. Ed. 2d
Cir.
415 U.S.
136
Lee,
see also State
(1974);
495,
Ct. 1454
87 Wn.2d
94 S.
932,
Even if
maximum sentence is
P.2d 236
558
"
. . .
imposed,
prescribed
not
the sentence
[i]f
[the]
meaning
unusual within the
of the
statute
is cruel and
Amendment,
unconstitutional
the statute
itself is
Eighth
any
must be set aside".
imposed
and
thereunder
sentence
(9th
1960).
States,
914,
Gallego v. United
Cir.
276 F.2d
any expectation
for a
unable
to enforce
Defendant
and
There
probation.
execution of the sentence
deferred
fore,
maximum
court must
sentence
look
any
defer
liable and not to
conditional
defendant
Estelle,
the trial court. Rummel
ral
granted
and see also
(1980),
L.
2d
I 69.50.401(c) (d)) would RCW declare unconstitu- tional and reverse all convictions under this section I statute. would affirm the other convictions. JJ., concur with J. Williams, Dolliver,
Hicks