No. 78-5381.

TENNON V. RICKETTS, WARDEN. C. A. 5th Cir. Cеrtiorari denied. MR. JUSTICE WHITE would grant certiorari.

No. 78-5482.

WIGGINS V. MURPHY ET AL. C. A. 4th Cir. Certiorari denied. MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, and MR. JUSTICE MARSHALL would grant certiorari.

No. 78-5531.

CARMONA ET AL. v. WARD, CORRECTIONAL COMMISSIONER, ET AL. C. A. 2d Cir. Certiorari denied.

MR. JUSTICE MARSHALL, with whom MR. JUSTICE POWELL joins, dissenting.

In 1973, New York enacted a comprehensive drug law which prescribes mandatory maximum life sentences and varying minimum terms of imprisonment for all class A narcotics felonies. N. Y. Penal Law §§ 70.00 (2)(a), 70.00 (3) (a) (McKinney 1975).¹ The Court today declines to consider whether two mandatory life sentences imposed under this statute, one for possession of an ounce of a substanсe containing cocaine, and the other for sale of 0.00455 of an ounce of a substance containing cocaine, constitute cruel and unusual punishment.

I

In 1975, petitioner Martha Carmona pleaded guilty to possession of an ounce of a substance containing cocaine in violation of N. Y. Penal Law § 220.18 (McKinney Supp. 1978).² The Appellate Division affirmed her conviction, and the New York Court of Appeals denied leave to apрeal.

People v. Carmona, 40 N. Y. 2d 1081, 360 N. E. 2d 965 (1976). She is currently serving a sentence of six years to life, the minimum possible for a § 220.18 violation under the 1973 statute. N. Y. Penal Law §§ 70.00 (2) (a), (3) (a) (ii) (McKinney 1975).³ Prior to a series of events giving rise to the instant charges, petitioner Carmona had no criminal record except for one non-drug-related arrest 19 years earlier.⁴

Petitioner Roberta Fowler was convicted in February 1974, of selling 0.00455 of an ounce of a substance containing cocaine to an undercover agent for $20, in violation of N. Y. Penal Law § 220.39 (McKinney Supp. 1978).⁵ The state trial court sentenced her to four years to life under §§ 70.00 (2)(a)and 70.00 (3)(a)(iii),⁶ and the New York Court of Appeals sustained that penalty over her Eighth Amendment challenge,

sub nom. People v. Broadie, 37 N. Y. 2d 100, 332 N. E. 2d 338, cert. denied,

423 U. S. 950 (1975). At the time of sentencing, Fowler, then age 20, had no prior record of possession or sale of narcotics, or of any violent criminal conduct, although she previously hаd been convicted of possession and use of drug paraphernalia, prostitution, and petit larceny.⁷

In 1975, Carmona petitioned the District Court for the Southern District of New York for a writ of habeas corpus under 28 U. S. C. § 2254, on the ground that the sentencing provision of the 1973 statute was unconstitutional as applied. A month later, Fowler intervened as a petitioner. After a hearing, the District Court held that petitioners’ mandatory maximum lifе sentences were so “grossly out of proportion to the severity of [their] crime[s]” as to constitute cruel and unusual punishment.

436 F. Supp. 1153, 1164 (1977). Accordingly, the court ordered petitioners discharged at the end of their minimum terms unless the State imposed constitutionally appropriate maximum sentences within 90 days.

Id., at 1175.

A divided panel of the Court of Appeals for the Second Circuit reversed. Although agreeing in principle with the District Court that a sanction grossly disproportionate to the gravity of an offense would violate the Eighth Amendment, the majority concluded that petitioners’ sentences were constitutional.

576 F. 2d 405 (1978).

II

Few legal principles are more firmly rooted in the Bill of ‍‌‌‌​‌‌​‌​​​‌‌​​‌​​‌‌‌​​‌‌‌‌‌‌​​‌​‌‌‌​​‌​‌‌‌​​‌​​‍Rights and its common-law antecedents than the requirementof proportionality between a crime and its punishment. The precept that sanctions should be commensurate with the seriousnеss of a crime found expression in both the Magna Carta and the English Bill of Rights.⁸ And this Court has long recognized that the Eighth Amendment embodies a similar prohibition against disproportionate punishment.

In

Weems v. United States, 217 U. S. 349 (1910), the Court struck down as cruel and unusual punishment a sentence under the Philippine Code for falsification of a Government document. Although the sentence was excessive not merely in its length but in its conditions—15 years of hard labor in chains, with lifetime surveillance after release—the duration of the imprisonment and subsequent supervision plainly contributed to the Court‘s conclusion that “[s]uch penalties for such offenses amaze those who . . . believe that . . . punishment for crime should be graduated and proportioned to offense.”

Id., at 366-367. In so ruling, the Court quoted with approval the Massachusetts Supreme Court‘s observation that imprisonment “for a long term of years might be so disproportionate to the offence as to constitute a cruel and unusual punishment.”

Id., at 368, quoting

McDonald v. Commonwealth, 173 Mass. 322, 328 (1899).

Applying the analysis set forth in

Weems, this Court has invalidated punishments that were disproportionate to the nature of the offense charged,

Robinson v. California, 370 U. S. 660 (1962) (imprisonment for the status of drug addiction), and to the penalties imposed in other jurisdictions,

Trop v.Dulles, 356 U. S. 86 (1958) (plurality opinion) (denationalization for wartime desertion). Thus, while recognizing that the power to prescribe punishments rests in the first instance with the legislature, we have not abdicated our constitutional function to draw a meaning from the Eighth Amendment consonant with “the evolving standards of decency that mark the progress of a maturing society.”

Id., at 101.

Most recently, in

Coker v. Georgia, 433 U. S. 584 (1977), the Court refined the test for assessing Eighth Amendment challenges, concluding that

“a punishment is ‘excessive’ and unconstitutional if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the рurposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime.”

Id., at 592.

In holding the Georgia death penalty for rape invalid on the latter ground, the Court followed the approach of

Weems, focusing on the character of the crime, the punishment for the same offense in other jurisdictions, and the penalty for similar crimes in the same jurisdiction.

The Court of Appeals hеre purported to apply the principles enunciated in

Coker and

Weems. Whether it did so in fact is, in my judgment, open to serious question.

III

Under

Coker, the threshold inquiry concerns the character of the offense. In assessing the severity of petitioners’ crimes, the Court of Appeals made the following observations:

“The crime [drug abuse] spawns is well recognized. Addicts turn to prostitution, larceny, robbery, burglary and assault to support their habits. . . .

“The entire system depends upon ultimate disposition by sellers such as [petitioners] here who . . . are, ‘the cruciallink’ in the pernicious cycle spawning the addiction which creates other sellers. We conclude that the legislature could only properly judge the severity of the crime involved by considering the well understood and undisputed operating procedures of the dirty business involved and its disastrous consequences.”

576 F. 2d., at 412 (footnote and citation omitted).

This analysis is problematic for several reasons. Petitioners were convicted of selling a single dose of cocaine and of possessing one ounce of a substance containing cocaine. They were not, as the dissent pointed out, “wholesalers, importers, dealers or distributors of that drug or of heroin.”

Id., at 423 (Oakes, J., dissenting). Yet New York‘s 1973 statute precluded the judges who sentenced Carmona and Fowler from taking into account аny gradations of culpability when imposing the maximum punishment.⁹

To rationalize petitioners’ sentences by invoking all evils attendant on or attributable to widespread drug trafficking is simply not compatible with a fundamental premise of the criminal justice system, that individuals are accountable only for their own criminal acts. Nor is it consistent with the proportionality principle implicit in the Eighth Amendment. As

Coker suggests, a crime that is sometimes accompanied bycollateral offenses cannot constitutionally be punished ‍‌‌‌​‌‌​‌​​​‌‌​​‌​​‌‌‌​​‌‌‌‌‌‌​​‌​‌‌‌​​‌​‌‌‌​​‌​​‍as if it were always so linked. That the rape in

Coker occurred while the defendant was committing armed robbery did not alter the plurality‘s analysis for, “[a]lthough [rape] may be accompanied by another crime, rape by definition does not include the death of, or even the serious injury to another person.”

433 U. S., at 598.¹⁰

Moreover, none of the collateral crimes to which the Court of Appeals adverted carry as severe a punishment as those currently at issue. In New York, the maximum prison term for first-degree robbery and burglary is 25 years, for first-degree assault it is 4 1/2 to 15 years, and for prostitution, 3 months.¹¹ To justify a stringent penalty for an act on the assumption that the act may engender other crimes makes little sense when those other crimes carry less severe sanctions than the act itself. See

576 F. 2d, at 423 (Oakes, J., dissenting). In sum, by focusing on the corrоsive social impact of drug trafficking in general, rather than on petitioners’ actual—and clearly marginal—involvement in that enterprise, the Court of Appeals substantially overstated the gravity of the instant charges.

IV

When comparing petitioners’ sentences with those prescribed for other crimes by New York, and for the same crime in other States, it is first necessary to clarify the precise nature of the penаlty imposed. Although the Court of Appeals professed to acknowledge that the “major question on appeal is whether the mandatory maximum sentence of life imprisonment imposed on [petitioners] is unconstitutional,”

576 F. 2d, at 408, it declined to analyze the sentences in terms of their maximum potential. Rather, the court discounted petitioners’ penalties by the “probability of parole,”

id., at 413, and considered the constitutiоnality of those lesser undefined sentences. This approach is analytically unsatisfying and inconsistent with the position taken by other courts that have considered the constitutionality of maximum life sentences.

Under New York law, the determination to grant parole and absolute discharge from parole is committed to the discretion of the Parole Board. Unless the parolee receives an absolute discharge, he remains in the legal custody of the State for the maximum term of his sentence and may be reincarcerated for violating any of the conditions which normally attach to the grant of parole. N. Y. Exec. Law § 259-i (2) (b) (McKinney Supp. 1978). Since the standard governing absolute discharge from parole, whether such termination would serve the “best interests of society,” § 259-j, affords nearly limitless discretion to the Parole Board, petitioners could not claim any realistic expectation of release from legal custody prior to the termination of their maximum sentences. On similar reasoning, the New York Court of Appeals and the California Supreme Court have both evaluated Eighth Amendment claims by reference to the maximum terms the defendants might serve, notwithstanding the possibility of parole.

People v. Broadie, 37 N. Y. 2d, at 110, 332 N. E. 2d, at 341;

Inre Lynch, 8 Cal. 3d 410, 415-418, 503 P. 2d 921, 924-926 (1972) (en banc).¹²

Had the Court of Appeаls evaluated petitioners’ sentences in terms of their maximum potential, it might well have reached a different result. In New York, the only other crimes with mandatory life sentences are first- and second-degree murder, first-degree arson (intentional damage to an inhabited building by explosion) and first-degree kidnaping (abduction if the victim dies or the purpose is extortion).¹³ Among those crimes carrying a substantially lighter maximum penalty than the $20 sаle and possession of an ounce of cocaine involved here are:

1. first-degree rape (sexual intercourse by force or with a female physically helpless or less than 11 years old) (6-25 years);
2. first-degree manslaughter (homicide with intent to cause serious physical injury) (6-25 years);
3. second-degree kidnaping (abduction) (6-25 years);
4. second-degree arson (intentional damage to an inhabited building) (6-25 years);

5. first-degree robbery or burglary (armed) (6-25 years); and
6. first-degree assault (injury with intent to cause disfigurement or serious physiсal injury) (4 1/2-15 years).¹⁴

Just as the plurality in

Coker found it “difficult to accept the notion . . . that the rapist . . . should be punished more heavily than the deliberate killer,”

433 U. S., at 600, so, too, I find it difficult to accept the concept that the sale or possession of a small amount of cocaine should be penalized more severely than manslaughter or forcible rape.

Compared with the punishment for similar offenses in other jurisdictions, New York‘s drug law is unique in its severity. As both thе District Court ‍‌‌‌​‌‌​‌​​​‌‌​​‌​​‌‌‌​​‌‌‌‌‌‌​​‌​‌‌‌​​‌​‌‌‌​​‌​​‍and the dissent in the Court of Appeals painstakingly demonstrated, no other State prescribes life sentences for the crimes involved here:

“Indeed, only six states have statutes permitting a court to consider imposition of a life sentence on a first felony offender. The most common maximum permitted is between ten and twenty years and not one of the thirty-four states in this range requires imposition of the maximum term. Neithеr Fowler nor Carmona would have faced a mandatory sentence of life imprisonment under the law of any other state. As for Carmona, in thirty-one states the maximum penalty provided by law is less than the minimum sentence which she is serving.”

576 F. 2d, at 424 (footnotes omitted).

Under federal drug laws, Carmona, if charged as a first offender with simple possession, could have received no more than one year of imprisonment and/or a $5,000 fine, 21 U. S. C. § 844 (a).¹⁵ Fowler‘s sale of narcotics, as a first offense, would have

been punishable by probаtion or incarceration for up to 15 years and/or a fine of up to $25,000, coupled with a mandatory special parole term of at least 3 years. 21 U. S. C. § 841 (b)(1)(A).

Although acknowledging that the penalties under the 1973 New York law are harsher than those in any other jurisdiction, the Court of Appeals justified the disparity on the ground that New York City “houses more than half of all the addicts in the entire United States.”

576 F. 2d, at 415. There was no finding to that effect by the District Court. Rather, the majority relied on

People v. Broadie, 37 N. Y. 2d, at 116, 332 N. E. 2d, at 345, which in turn drew upon an estimate in E. Brecher and the Editors of Consumer Reports, Licit and Illicit Drugs 72 (1972). Current evidence, however, indicates that New York City has no more “epidemic” a drug problem than a number of other major metropolitan areas. A study by the National Institute on Drug Abuse reveals that in 1973, the year the statute was passed, Los Angeles, Miami, Detroit, Phoenix, San Diego, and San Francisco all had more heroin addicts per capita than New York City. Person, Retka, & Woodward, A Method for Estimating Heroin Use Prevalence, NIDA Technical Paper 8 (1977).¹⁶

Moreover, even granting that New York has a greater concentration of drug abuse than other States, this does not of itself justify the punishments at issue here. Due to a varietyof geographic, demographic, and socio-econоmic factors, New York has more than its fair share of motor vehicle theft and larceny,¹⁷ but this misfortune could not insulate Draconian penalties for such offenses from constitutional challenge. However serious its narcotics problem, New York cannot constitutionally treat those with peripheral involvement in drug trafficking as if they were responsible for the problem in its entirety.

Throughout its opinion, the Court of Appeals emphasized the need for broad deference to the legislature‘s judgment of how best to deal with a social phenomenon alarming in its current proportions. I do not disagree. It is axiomatic that this Court should approach Eighth Amendment challenges with caution, lest it become “under the aegis of the Cruel and Unusual Punishments Clause, the ultimate arbiter of the standards of criminal responsibility . . . throughout the country.”

Powell v. Texas, 392 U. S. 514, 533 (1968) (plurality opinion). But nеither should the Court abdicate the function conferred by the Eighth Amendment, to determine whether application of a given legislative judgment results in punishment grossly out of proportion to specific offenses. I decline to join the Court in its abdication here.

Accordingly, I would grant the petition for certiorari and set the case for argument.

No. 78-5533.

JACKSON v. FLORIDA. Sup. Ct. Fla.; and No. 78-5763.

WESTBROOK V. GEORGIA. Sup. Ct. Ga. Certiorari denied. Reported below: No. 78-5533, 359 So. 2d 1190; No. 78-5763, 242 Ga. 151, 249 S. E. 2d 524.

MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL, dissenting.

Adhering to our views that the deаth penalty is in all circumstances cruel and unusual punishment prohibited by the