Petition for writ of certiorari to the United States Court of
Appeals for the Second Circuit.
The petition for a writ of certiorari is 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).1 The Court today
declines to consider whether two mandatory life sentences imposed
under this statute, one for possession of an ounce of a substance
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 viola-
Page 439 U.S.
1091 , 1092
tion 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 appeal. People v. Carmona, 40 N.Y.2d
1081, 392 N.Y.S.2d 1031, 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. [
Footnote 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)
Page 439 U.S.
1091 , 1093
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, 371 N.Y.S.2d 471, 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 had been convicted of possession and use of drug
paraphernalia, prostitution, and petit larceny. [
Footnote 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 life 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 requirement
Page 439 U.S.
1091 , 1094
of proportionality between a crime and its punishment. The
precept that sanctions should be commensurate with the seriousness
of a crime found expression in both the Magna Carta and the English
Bill of Rights. [
Footnote 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, 53 N.E. 874 (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.
Page 439 U.S.
1091 , 1095
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, 53 L. Ed.
2d 982 (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 purposeless 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 here 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 crucial
Page 439 U.S.
1091 , 1096
link' 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).9 Yet New York's 1973 statute precluded the judges who
sentenced Carmona and Fowler from taking into account any
gradations of culpability when imposing the maximum punishment.
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 by
Page 439 U.S.
1091 , 1097
collateral 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
41/2 to 15 years, and for prostitution, 3 months. [
Footnote 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 corrosive 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.
Page 439 U.S.
1091 , 1098
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 penalty
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 constitutionality 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, 371 N.Y.S.2d, at 474, 332 N.E.2d, at
341; In
Page 439 U.S.
1091 , 1099
re Lynch,
8 Cal. 3d 410,
415-418, 105 Cal. Rptr. 217, 220-222, 503 P.2d 921, 924-926 (1972)
(en banc).12
Had the Court of Appeals 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 sale 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 kidnapping (abduction) (6-25
years);
(4) second degree arson (intentional damage to an
inhabited building) (6-25 years);
Page 439 U.S.
1091 , 1100
(5) first degree robbery or burglary (armed) (6-25 years);
and
(6) first degree assault (injury with intent to cause
disfigurement or serious physical injury) (41/2-15 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 the 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. Neither 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
Page 439 U.S.
1091 , 1101
been punishable by probation 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, 371 N.Y.S.2d, at 479, 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 variety
Page 439 U.S.
1091 , 1102
of geographic, demographic, and socio-economic 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 neither 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.
Footnotes
Footnote 1 Section
70.00(2)(a) provides in part: "For a class A felony the [ maximum]
term shall be life imprisonment." The minimum terms that a court
may impose vary depending on whether the felony is specified as
A-I, A-II, or A-III. Section 70.00(3)(a) provides:
"(i) For a class A-I felony, such
minimum period shall not be less than fifteen years nor more than
twenty-five years.
"(ii) For a class A-II felony, such
minimum period shall not be less than six years nor more than eight
years four months.
"(iii) For a class A-III felony such
minimum period shall not be less than one year nor more than eight
years four months."
Footnote 2 Section 220.18
provides in part:
"A person is guilty of criminal
possession of a controlled substance in the second degree when he
knowingly and unlawfully possesses:
"1. one or more preparations,
compounds, mixtures or substances of an aggregate weight of one
ounce or more containing a narcotic drug . . . ."
Cocaine is classified as a narcotic drug. 220.00(7). N.Y. Pub.
Health Law 3306, Schedule II(a)(4) (McKinney Supp.1978).
Footnote 3 Section 220.18
classifies criminal possession of a controlled substance in the
second degree as an A-II felony. See n. 1, supra.
Footnote 4 Several months
before her indictment in state court for the instant offense,
Carmona was arrested on federal charges of conspiracy and
possession of cocaine with intent to distribute and on state
charges of selling heroin. In satisfaction of the federal charges,
she pleaded guilty to one substantive count of possession and
received a sentence of imprisonment for one year and special parole
for three years, both to run concurrently with the state sentence.
The other state charges were dismissed in return for Carmona's
guilty plea to one count of possession of cocaine.
Footnote 5 Section 220.39
provides in part:
"A person is guilty of criminal sale
of a controlled substance in the third degree when he knowingly and
unlawfully sells:
"1. a narcotic drug . . . ."
Footnote 6 Section 220.39
specifies criminal sale of a controlled substance in the third
degree as a class A-III felony. See n. 1, supra.
Footnote 7 Fowler's criminal
record is set out in full in the District Court's opinion,
436 F.
Supp. 1153, 1159 n. 13 (S.D.N.Y.1977).
Footnote 8 Chapter 20,
renumbered Chapter 14, of the Magna Carta states: "A free man shall
not be amerced for a trivial offence; except in accordance with the
degree of the offence, and for a serious offence he shall be
amerced according to its gravity, saving his livelihood . . . ." J.
Holt, Magna Carta 323 (1965). For a discussion of the evolution of
the Cruel and Unusual Punishments Clause in the English Bill of
Rights, see Granucci , "Nor Cruel and Unusual Punishments
Inflicted:" The Original Meaning, 57 Calif.L.Rev. 839, 855-860
(1969).
Footnote 9 The Court of
Appeals suggested that petitioners were "not aided by the fact that
their convictions were based on cocaine and not heroin. Cocaine is
a dangerous drug that causes damaging psychological and
physiological effects in its users."
576 F.2d
405, 412 n. 11 (CA2 1978). In support of that proposition, the
court cited no findings by the District Court. Rather, the Court of
Appeals relied on a law review article which notes that cocaine use
"does not produce tolerance or physical dependence," McLaughlin,
Cocaine: The History and Regulation of a Dangerous Drug, 58 Cornell
L.Rev. 537, 553 (1973), and on an opinion of the Alaska Supreme
Court which acknowledges that, "[w]hile cocaine has been
anecdotally related to aggressive or criminal conduct, adequate
evidence to assess its possible impact in these areas is absent."
State v. Erickson,
574 P.2d 1, 9
(1978).
Footnote 10 Here there
was no evidence causally linking petitioners' drug offenses to any
violent collateral crimes. And it is questionable whether such
linkage can be presumed. Even if the Court of Appeals could
appropriately rely on a New Yorker Magazine article to establish
that a substantial percentage of New York's prison inmates use
drugs and that many of them turn to robbery or burglary to support
their habits, see 576 F.2d, at 412 n. 12, it cannot be presumed
either that: (1) but for drugs, those defendants would not have
committed crimes; or (2) cocaine sales have a significant causal
relationship to robbery or burglary. See n. 9 supra. Indeed, one of
the Court of Appeal's own sources noted that there is "no reliable
scientific evidence linking cocaine usage to criminal conduct . .
.." State v. Erickson, supra, at 9.
Footnote 11 N.Y. Penal
Law 160.15, 70.00(2)(b) (McKinney 1975); 140.30, 70.00(2)(b);
230.00 (McKinney Supp.1978), New York Penal Law 70.15(2) ( McKinney
1975).
Footnote 12 In In re
Lynch, the California Supreme Court held that an indeterminate
sentence must be evaluated as a maximum sentence of life
imprisonment and that, as such, it was cruel and unusual punishment
for a second offense of indecent exposure.
The Court of Appeals for the Fifth Circuit adopted a contrary
approach in Rummel v. Estelle,
587 F.2d
651 (1978) (en banc). At issue there was the constitutionality
of a sentence imposed under the Texas Habitual Criminal Statute,
which mandates life imprisonment upon a third felony conviction.
Relying in part on the analysis of the Court of Appeals in this
case, the en banc majority upheld the sentence, after taking into
consideration the possibility of parole. Id., at 662. The dissent,
in which six judges joined, refused to discount the defendant's
sentence by "a statistical possibility of clemency, an
unenforceable hope that he may someday benefit from the grace of a
parole board." Id., at 668. (Clark, J., dissenting) (footnote
omitted). That another Circuit has narrowly divided over a question
of critical significance for this case is, in my judgment, further
reason for granting review.
Footnote 13 N.Y. Penal
Law 125.27, 125.25, 150.20, 135.25 (McKinney 1975).
Footnote 14 The crimes
are defined in N.Y. Penal Law 130.35, 125.20, 135. 20, 150.15,
160.15, 140.30, 120.10 (McKinney 1975). The penalties are set forth
in 70.02(3)(a), (b) (McKinney Supp.1978).
Footnote 15 If convicted
of possession as a second offender, Carmona would have been subject
to no more than two years' imprisonment and a $10,000 fine. 21
U.S.C. 844(a). Had she been convicted of possession with intent to
sell, the maximum penalty for a first offense would have been 15
years' imprisonment, a $25,000 fine, and a special parole term of
at least 3 years; for a second offense, it would have been 30
years, $50,000, and at least 6 years' special parole. 21 U.S.C.
841(b)(1)(A). Only if she were found guilty of engaging in a
"continuing criminal enterprise" in concert with at least five
others could she have received a life sentence. 21 U.S.C. 848.
Footnote 16 The report's
latest annual figures, those for 1975, reflect that San Francisco,
Los Angeles, Phoenix, Detroit, Chicago, San Diego, and San Antonio
have a higher heroin addict per capita ranking than New York City.
Person, Retka, & Woodward, at 8.
Footnote 17 See U. S.
Dept. of Justice, FBI Uniform Crime Reports, Crime in the United
States 1977, Table 4 (1978).
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