Commonwealth v. Sutley

ROBERTS, Justice,

dissenting.

In 1972, the Legislature enacted the Controlled Substance, Drug, Device and Cosmetic Act [Controlled Substance Act], 1 which replaced the Drug, Device and Cosmetic Act. 2 The Controlled Substance Act substantially reduced the penalties for possession of marijuana. Compare section 13(g) of the Controlled Substance Act 3 (imprisonment not to exceed *276 thirty days for possession of a small amount of marijuana for personal use) with section 20(c) of the Drug, Device and Cosmetic Act 4 ("imprisonment by separate or solitary confinement at labor of not less than two (2) or more than five (5) years” for possession of marijuana, including possession of a small amount for personal use). When it enacted the Controlled Substance Act, the Legislature made the reduced penalties of the Act applicable not only to crimes committed after its effective date, but to crimes committed earlier if the convictions were not yet final on the Act’s enactment date. 5 35 P.S. § 780-139 (Supp.1977); 6 Commonwealth v. Thomas, 450 Pa. 548 , 301 A.2d 359 (1973). In 1973, the Legislature enacted an amendment to the Controlled Substance Act [Resentencing Amendment] 7 which made the reduced penalties of the Controlled Substance Act applicable to persons whose convictions became final before the adoption of the Controlled Substance Act.

*277 The Resentencing Amendment reflects a legislative decision that, to the fullest extent possible, all persons should be treated equally for the same substantive conduct. The majority holds that the Resentencing Amendment is an unconstitutional infringement on the powers of the judiciary. I dissent because the Resentencing Amendment is a proper exercise of legislative power, which in no way interferes with or infringes upon the powers of the judiciary.

I

The separation of powers among the legislative, executive, and judicial branches of government is central to our constitutional scheme. Yet the dividing lines among the three co-equal branches “are sometimes indistinct and are probably incapable of any precise definition.” Stander v. Kelley, 433 Pa. 406, 421-22 , 250 A.2d 474, 482 (1969) (plurality opinion). The Constitution does not comprehend the total separation of the three branches of government. Buckley v. Valeo, 424 U.S. 1, 121 , 96 S.Ct. 612, 683 , 46 L.Ed.2d 659 (1976). As Justice Holmes wrote:

“The great ordinances of the Constitution do not establish and divide fields of black and white. Even the more specific of them are found to terminate in a penumbra shading gradually from one extreme to the other.

It does not seem to need argument to show that however we may disguise it by veiling words we do not and cannot carry out the distinction between [the powers of the separate branches] with mathematical precision and divide the branches into water tight compartments.”

Springer v. Philippine Islands, 277 U.S. 189, 209-11 , 48 S.Ct. 480, 485 , 72 L.Ed. 845 (1927) (dissenting opinion).

The impossibility of making a neat separation among legislative, executive, and judicial powers requires accommodation among the three branches:

“Under the system of division of governmental powers it frequently happens that the function of one branch may overlap another. But the successful and efficient adminis *278 tration of government assumes that each branch will cooperate with the others.”

Leahey v. Farrell, 362 Pa. 52, 57 , 66 A.2d 577, 579 (1949) (emphasis deleted). This need for accommodation, while preserving the essential features of the separation of powers, requires a close inquiry, on a case by case basis, into actions alleged to violate the principle of separation of powers. The problem does not easily lend itself to rigid, simplistic rules. Unlike the majority, I do not believe this case can be decided without careful consideration of the principles which underlie the separation of powers doctrine.

To decide whether legislative action offends the principle of separation of powers, we must look to the purposes of the doctrine.

“This ‘separation of powers’ was obviously not instituted with the idea that it would promote governmental efficiency. It was, on the contrary, looked to as a bulwark against tyranny.”

United States v. Brown, 381 U.S. 437, 443 , 85 S.Ct. 1707, 1712 , 14 L.Ed.2d 484 (1965). In reviewing legislative actions alleged to infringe on the province of the judiciary, we must be especially mindful of the need to preserve a separation of powers in order to protect the rights of the individual:

“ ‘ “Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator.” ’ ”

Buckley v. Valeo, 424 U.S. at 120 , 96 S.Ct. at 683 , quoting The Federalist No. 47 (J. Madison), quoting Montesquieu (emphasis in original).

Legislative infringement on the province of the judiciary, and the concomitant threat to individual liberties, may take one of two forms. First, the Legislature may take action which impairs the independence of the judiciary, either by requiring the performance of non-judicial functions, see United States v. Ferreira, 54 U.S. (13 How.) 40 , 14 L.Ed. 42 (1852), or by interfering with the power of the judiciary to perform its essential functions, see Commonwealth ex rel. *279 Carroll v. Tate, 442 Pa. 45 , 274 A.2d 193 (1971) (plurality opinion); Stander v. Kelley, 433 Pa. at 427-28 , 250 A.2d at 486 (1969) (Concurring Opinion of Roberts, J., joined by Jones and Pomeroy, JJ.). Second, the Legislature may usurp the power of the judiciary by taking it upon itself to judge individual cases. This latter infringement on the province of the judiciary is specifically prohibited by the bill of attainder clause. U.S.Const. art. I, § 10; Pa.Const. art. I, § 18. See also U.S.Const. art. I, § 9, cl. 3.

The Legislature’s effort in the Resentencing Amendment to equalize sentences among individuals convicted for marijuana possession does not offend these principles. The Re-sentencing Amendment does not involve an attempt by the Legislature to judge individual cases. Nor does it impair the independence of the judiciary: the courts are not required to perform non-judicial functions, and the courts’ capacity to perform their essential functions is not affected.

The Resentencing Act is a statute of general application, representing a policy determination that the sentences being served by a certain class of offenders should be reduced to be comparable to those of other offenders found guilty of the same conduct but sentenced under a later statute. Enactment of such a rule of general application is a proper legislative function:

“ ‘It is the peculiar province of the legislature to prescribe general rules for the government of society; the application of those rules to individuals in society would seem to be the duty of the other departments.’ ”

United States v. Brown, 381 U.S. at 446 , 85 S.Ct. at 1713 , quoting Fletcher v. Peck, 10 U.S. (6 Cranch.) 87, 136, 3 L.Ed. 162 (1810). As a general rule which leaves to the judiciary the power to impose sentences on the individuals to whom it applies, the Resentencing Amendment does not violate the separation of powers. Rather than impairing or usurping the power of the judiciary, enactment of legislation such as the Resentencing Amendment is peculiarly within the province of the Legislature.

*280 II

The distribution of power among the three branches of government assigns to the Legislature the power to define criminal offenses and determine what punishments would be imposed. As this Court stated in Commonwealth v. Glover, 397 Pa. 543, 545 , 156 A.2d 114, 116 (1959):

“There is no question that it is within the province of the legislature to pronounce what acts . . . are crimes and to fix the punishments of all crimes . ■ . The legislature has the right to fix the maximum and likewise can, if it sees fit, name the minimum. If it does so it does not thereby violate Article V, Section 1 of the Constitution, vesting judicial power in the courts.”

Subject to specific constitutional protections, such as the prohibition against cruel and unusual punishment, U.S. Const, amend. VIII, XIV; Pa.Const, art. I, § 10, and the prohibition against ex post facto laws, U.S.Const. art. I, § 10; Pa.Const. art. I, § 17, the Legislature may, through the enactment of standards of general applicability, exercise complete control over sentencing. See United States v. Lewis, 300 F.Supp. 1171 (E.D.Pa.1969).

The Legislature’s power to define criminal offenses, and determine the range of punishments which may be imposed, encompasses the power to decide that the punishment for certain conduct should be, reduced or eliminated. It also encompasses the power to reduce or eliminate the punishment of classes of offenders who have been convicted and sentenced, but whose convictions have not yet become final. See Commonwealth v. Thomas, 450 Pa. 548 , 301 A.2d 359 (1973). Finally, I believe that the Legislature has the power to enact legislation which reduces the punishment of classes of offenders whose convictions have become final, or which pardons such offenders, exempting them from further punishment and relieving them from any legal disabilities resulting from conviction. See United States ex rel. Malesevic v. Perkins, 17 F.Supp. 851 (W.D.Pa.1936); United States v. Hughes, 175 F. 238 (W.D.Pa.1892); United States v. Hall, 53 *281 F. 352 (W.D.Pa.1892) (verbatim repetition of Hughes ). 8 See generally Comment, Today’s Law and Yesterday’s Crime: Retroactive Application of Ameliorative Criminal Legislation, 121 U.Pa.L.Rev. 120, 147 (1972).

Historically, general pardons have more commonly been granted by legislatures than by the executive. Weihofen, Legislative Pardons, 27 Calif.L.Rev. 371, 375 (1939). As a grant of a general pardon involves the adoption of a general rule applicable to a class of offenders, it is appropriate that this power be exercised by the Legislature:

“[T]he power to exercise clemency in a particular case, and in favor of an individual or individuals, charged with the offense [is] an executive act of a quasi judicial kind, . . . while an amnesty act establishes a general rule . . . applicable to all persons or persons of a given class, [which is] more especially an act legislative in nature.”

State v. Bowman, 145 N.C. 452, 454 , 59 S.E. 74, 75 (1907); see Brown v. Walker, 161 U.S. 591 , 16 S.Ct. 644 , 40 L.Ed. 819 (1896).

The Pennsylvania Constitution does not prohibit legislative pardons, at least where the pardon is pursuant to a law of general applicability, rather than special legislation enacted only to benefit particular offenders. 9 See Lusky, Con *282 gressional Amnesty for War Resisters: Policy Considerations and Constitutional Problems, 25 Vand.L.Rev. 525 (1972). Compare Weihofen, Legislative Pardons, 27 Calif.L. Rev. 371 (1939) (legislatures have power to pardon) with Radin, Legislative Pardons: Another View, 27 Calif.L.Rev. 387 (1939) (distinction must be made between general pardons — or amnesties — and individual pardons, 10 and the power of the legislature does not extend to the latter).

It is the Legislature which is constitutionally empowered to set the punishment for criminal conduct. Since the Legislature’s control over the determination of what conduct should be made criminal, and what punishments should apply, includes the power to grant a general pardon, it must also include the authority to provide for reduced sentences for a class of offenders convicted of a particular crime.

Unquestionably, the Legislature has the power to provide for reduced sentences for marijuana possession, as it did in the Controlled Substance Act. The subsidiary judgment as to whether individuals whose convictions have become final should benefit by such a change in legislation is appropriately a matter of legislative choice. See Comment, Today’s Law and Yesterday’s Crime: Retroactive Application of Ameliorative Criminal Legislation, 121 U.Pa.L.Rev. 120, 147 *283 (1972). See also Pa.Const. art. I, § 17. 11 The Resentencing Amendment was enacted to permit those whose sentences were imposed before the Controlled Substance Act was adopted to be resentenced so that their sentences would conform, as nearly as possible, with sentences imposed on those convicted after the adoption of the Controlled Substance Act. While the Pennsylvania Constitution does not require that those sentenced before the adoption of ameliorative legislation receive the benefits of that legislation, it should not be interpreted to prohibit the Legislature from equalizing the treatment of such offenders when it considers such treatment to serve the public interest. The power to determine what classes of offenders should benefit by the reduced penalties provided for in the Controlled Substance Act is a necessary incident to the Legislature’s power to enact legislation, such as the Controlled Substance Act, which changes the penalties for certain crimes.

III

The majority concludes that the Resentencing Amendment is an unconstitutional violation of the separation of powers because it has the effect of altering final judgments. I cannot agree.

The majority relies on a general rule recognizing “the inviolability of final judgments of the judiciary.” There is no such general rule. Rather, the Pennsylvania Constitution has several specific prohibitions which restrict the power of the Legislature to alter final judgments. E. g., Pa.Const. art. I, § 10 (no taking without just compensation); art. I, § 17 (no law may impair the obligation of contracts); art. Ill, § 32 (the Legislature may not pass any local or special *284 law remitting fines, penalties and forfeitures). Thus, when the private rights of parties have become vested in the judgment of a court, that judgment ordinarily cannot be taken away by subsequent legislation without violation of some specific constitutional provision. 11 Where the private rights of individuals are not infringed, however, and none of the specific prohibitions of the Pennsylvania Constitution has been violated, the Legislature has the power to enact legislation which mitigates the consequences of a final judgment.

“[A] suit brought for the enforcement of a public right . even after it has been established by judgment *285 of the court, may be annulled by subsequent legislation and should not thereafter be enforced .”

Hodges v. Snyder, 261 U.S. 600, 603 , 43 S.Ct. 435, 436 , 67 L.Ed. 819 (1923).

The enforcement of the sentences upon persons convicted before the adoption of the Controlled Substance Act constitutes “the enforcement of a public right.” Judgments of sentence are enforced to vindicate the public’s interest in obedience to the law, and to protect the public against future violations. It is also clear that the Resentencing Amendment does not offend any of the specific prohibitions in the Pennsylvania Constitution which restrict the power of the Legislature to alter final judgments. Because only public rights are involved, and the Legislature has decided that the harsh penalties formerly applicable no longer serve the public interest, the Legislature’s decision to provide for resentencing should be respected.

I see no reason to adopt a sweeping prohibition, applicable even though none of the specific prohibitions in the Pennsylvania Constitution is implicated, against statutes which may alter final judgments. The Pennsylvania Constitution does not expressly provide for such an indiscriminate rule, and I do not believe that this Court should fashion one on the basis of the separation of powers doctrine. As explained in Part I of this opinion, the separation of powers principle is in no way offended when the Legislature provides, pursuant to a statute of general application, that persons convicted under prior laws should be resentenced by the courts in accordance with the lesser penalties provided for by the statute currently in force. 12 In enacting the Resentencing Amendment the Legislature is not reviewing a finding of guilt. Nor is the Legislature deciding that the trial court’s choice of sentence *286 in a particular case, although within the limits still recognized by the Legislature as proper, was an abuse of discretion. Rather, the Legislature has revised its own determination of the appropriate sentence for the offense in question. The decision to reduce punishment for a class of offenders is a matter within the province of the Legislature. It evinces no disrespect for the decisions of the judiciary, and does not impair the ability of the judiciary to reach its decisions. Simply because final judgments may be affected does not mean that the Legislature has infringed on the province of the judiciary.

The majority relies on Commonwealth ex rel. Banks v. Cain, 345 Pa. 581 , 28 A.2d 897 (1942), for the proposition that legislation may not alter the sentence which has been imposed after judgment has become final. This reliance is misplaced, for Banks upheld the power of the Legislature to provide that convicted criminals sentenced to imprisonment may instead be released on parole. Thus, Banks demonstrates that the Legislature has the power to provide for the application of ameliorative legislation to convictions which have become final.

There is dictum in Banks, relied on by the majority, that legislation may not affect the duration of a sentence. I do not believe that such a rule would be sound, or that it could be reconciled with the holding in Banks. The parole legislation upheld in Banks, which provided that convicted criminals sentenced to imprisonment, in some cases at solitary confinement, could be released into the community, clearly had the effect of altering final judgments of the judiciary. While the freedom granted a parolee may be less than that given by a reduction in sentence, the difference is only a matter of degree and is not of constitutional significance. In either case, the effect is to alter a final judgment.

In support of its dictum that legislation may not affect the duration of sentences, Banks relied on the proposition that “[t]he fixing of the term of the sentence is exclusively a judicial function.” 345 Pa. at 589 , 28 A.2d at 901 . This statetnent is correct insofar as it refers to the sentence to be *287 imposed upon a particular offender when the Legislature provides for a range of permissible sentences. It is the province of the Legislature, however, to determine the range of permissible sentences for an offense. Commonwealth v. Glover, 397 Pa. 543 , 146 A.2d 114 (1959); see United States v. Lewis, 300 F.Supp. 1171 (E.D.Pa.1969). Indeed, with the abolition of common law crimes, 18 Pa.C.S.A. § 107(b) (1973), the judiciary has no power to fix penalties for criminal offenses unless they have been provided for by the Legislature. See Commonwealth ex rel. Varronne v. Cunningham, 365 Pa. 68 , 73 A.2d 705 (1950). 12a

The Court in Banks stated that the parole legislation did not alter the sentence which had been imposed, relying on the fiction that the parolee was in fact being imprisoned *288 while on parole: “ ‘The parole authorized by statute does not suspend service or operate to shorten the term. . [I]t is in legal effect imprisonment.’ ” Commonwealth ex rel. Banks v. Cain, 345 Pa. at 588-89 , 28 A.2d at 901 , quoting Anderson v. Corall, 263 U.S. 193, 196 , 44 S.Ct. 43, 46 , 68 L.Ed. 247 (1923) (emphasis supplied in Banks). This theory, however, cannot be reconciled with subsequent cases, e. g., Commonwealth ex rel. Rambeau v. Rundle, 455 Pa. 8 , 314 A.2d 842 (1973), which held that, after parole revocation, a prisoner is not entitled to have credited against the time he must serve in prison the time spent while at liberty on parole. 13

The dictum in Banks, that legislation may not affect the duration of sentences, apparently was an effort to avoid overruling Commonwealth ex rel. Johnson v. Halloway, 42 Pa. 446 (1862). In Johnson, a majority of the Court expressed its belief that legislation could not interfere with a judicially imposed sentence by providing for the discharge of prisoners before the expiration of their terms on the basis of “good time” credits. 14 I believe the time has come for this Court to recognize that the reasoning of Johnson is unsound. Johnson reasoned that criminal sentences may be fixed “only by the exercise of that judicial discretion which the constitu *289 tion has vested in the judiciary.” Id. at 449 . Even assuming that this proposition may once have been valid as to common law offenses, it has no application to offenses created by statute. See generally Commonwealth ex rel. Varronne v. Cunningham, 365 Pa. 68 , 73 A.2d 705 (1950). When it imposes sentence, the judiciary only has such discretion as has been granted to it by the Legislature, Commonwealth v. Glover, 397 Pa. 543 , 156 A.2d 114 (1959), and there is no requirement that the judiciary be granted any discretion over the sentence to be imposed, United States v. Lewis, 300 F.Supp. 1171 (E.D.Pa.1969).

Although Banks tried to distinguish Johnson, the cases cannot be reconciled. The fiction employed in Banks does not change the fact that the legislation upheld in Banks reduced the punishment imposed by final judgments of the judiciary. This Court should follow Banks' sound result, and recognize that the Legislature has the power to enact a statute of general applicability providing for the mitigation of the punishment imposed pursuant to existing judgments.

IV

I would uphold the Resentencing Amendment as a valid exercise of legislative power. The need to preserve the independence of the judiciary and to protect the people against overreaching by the Legislature neither requires nor justifies a decision holding the Resentencing Act unconstitutional. Indeed, for the majority to strike down such legislation, which the Legislature has the power to enact and which presents no real danger to the separation of powers, is an unwarranted judicial invasion of the province of the Legislature.

. Act of April 14, 1972, P.L. 233, §§ 1 et seq., 35 P.S. §§ 780-101 et seq. (Supp.1977).

. Act of September 26, 1961, P.L. 1664, §§ 1 et seq., as amended, formerly codified in 35 P.S. §§ 780-1 et seq. (1964), repealed, 35 P.S. § 780-143(a) (Supp.1977).

. 35 P.S. § 780-113(g) (Supp.1977).

. Act of September 26, 1961, P.L. 1664, § 20(c), as amended, formerly codified in 35 P.S. § 780-20(c) (1964), repealed, 35 P.S. § 780-143(a) (Supp.1977).

. Thus, if appellant Parker had gone to trial instead of pleading guilty, and as a result had been sentenced after April 14, 1972 instead of on March 3, 1972, the reduced penalties of the Controlled Substance Act would have applied. Similarly, if appellant Sutley, who was sentenced on July 2, 1971, following his guilty plea, had gone to trial and appealed to the Superior Court, it is likely that his conviction would not have become final until after April 14, 1972, and the reduced penalties would have applied. See Commonwealth v. Thomas, 450 Pa. 548 , 301 A.2d 359 (1973).

. While other sections of the Controlled Substance Act became effective on June 14, 1972, this section became effective immediately - on the Act’s April 14, 1972 enactment date.

. Act of July 25, 1973, P.L. 219, § 1, 35 P.S. § 780-138 (Supp.1977). This section provides, in pertinent part:

“That in any case final on or before June 12, 1972 in which a defendant was sentenced for the commission of acts similar to those proscribed by subsection (16) [possession of a controlled substance] or (31) [possession of a small amount of marijuana for personal use] but not (30) [manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance], of section 13(a) of this act [18 P.S. § 780-113(a)], such defendant shall be resentenced under this act upon his petition, if the penalties hereunder are less than those under prior law . . .”

. These federal cases deal with legislative pardons granted pursuant to the Act of March 31, 1860, P.L. 382, § 181, 19 P.S. § 893 (1964); repealed in part, Act of June 24, 1939, P.L. 872, § 1201, 18 P.S. § 5201 (1963). The pardons did not take effect until after the individuals pardoned had served their sentences, and the pardons therefore only had the effect of removing the disabilities resulting from conviction. Nevertheless, these cases treated the Pennsylvania statute as legislation granting pardons, and recognized the power of the Pennsylvania Legislature to grant legislative pardons.

. A legislative provision for resentencing applicable to a general class of offenders does not infringe on the executive’s power to pardon and commute sentences. The constitutional provision granting the executive power to pardon, Pa. Const, art. IV, § 9, is not exclusive by its terms, and there is no reason to construe it as exclusive. The executive’s pardon power, with its requirement of a recommendation by the Board of Pardons after a full hearing, see id., is best suited to decide whether particular individuals should be *282 pardoned or have their sentences commuted. The Legislature is better equipped to decide the issues pertaining to general pardons. Thus, the executive’s power to pardon does not impliedly prohibit the Legislature from enacting statutes in the nature of general pardons:

“Although the Constitution vests in the President ‘power to grant reprieves and pardons for offenses' against the United States, except in cases of impeachment,’ this power has never been held to take from Congress the power to pass acts of general amnesty

Brown v. Walker, 161 U.S. at 601 , 16 S.Ct. at 648 .

. “Amnesty, or general pardon, and pardon proper, result in the same thing. . . The difference between amnesty and pardon —‘general’ or ‘special pardon,’ if one likes — lies ... in the character of the act. The one [pardon] remits punishment to a named person. The other [amnesty] remits punishment of an offense, without particular reference to those who committed it.”'

Radin, Legislative Pardons: Another View, 27 Calif.L.Rev. 387 (1939).

. The ex post facto clause, Pa.Const. art. I, § 17, prohibits the imposition of increased penalties once sentence has been imposed. Indeed, it prohibits imposition of any increase in criminal penalties which is enacted after the crime is committed. Yet this clause was intended to work only one way; it does not prohibit imposition of reduced sentences for crimes committed after an ameliorative statute becomes effective. The framers found a need to protect the individual from increased penalties of which there was no warning, but saw no need to protect the people from acts of legislative mercy.

a. As Mr. Justice Manderino points out in his dissenting opinion, this explains many of the opinions relied on by the majority. For example, in Pennsylvania Co. v. Scott, 346 Pa. 13 , 29 A.2d 328 (1942), the Court stated:

“It is elementary that the legislature may not, under the guise of an act affecting remedies, destroy or impair judgments obtained before the passage of the act, and this principle prohibits not only a statutory re-opening of cases previously decided by the court but also legislation affecting the inherent attributes of judgments or annulling or substantially interfering with the right to issue execution and to collect the amount due thereon. There are two reasons for this limitation on legislative power; one, that a judgment is property of which, under state and federal constitutional prohibitions, the judgment creditor cannot be deprived without due process of law; the other that under our system of the division of governmental powers the legislature cannot invade the province of the judiciary by interfering with judgments or decrees previously rendered.”

Id. 346 Pa. at 16-17 , 29 A.2d at 329-30 (citations and footnotes omitted, emphasis added). As the quoted passage makes clear, the Court was very much concerned with the effect that altering final judgments would have on private property rights. Because private rights were..implicated, there is no justification for fashioning a sweeping prohibition based on the broad language excerpted by the majority. Constitutional adjudication demands more careful attention to the interests which in fact are at stake.

It is also noteworthy that the Court in Pennsylvania Co. v. Scott, id., upheld the retroactive application of the Deficiency Judgment Act, Act of July 16, 1941, P.L. (1941) P.L. 400, §§ 1 et seq., 12 P.S. §§ 2621.1 et seq. (1967), to judgments entered and executed upon before the Act was enacted. Thus, I cannot agree with the majority that the case supports “the proposition that a legislative attempt to alter the effect of final judicial action imposed under prior law” necessarily “is a direct assault upon the power of the judicial branch.”

. This is not a case where the Legislature has undertaken to review judgments on an individual basis. See generally Bator, Mishkin, Shapiro & Wechsler, Hart and Wechsler’s The Federal Courts and the Federal System 85-102 (2d ed. 1973). The asserted dangers of such legislation may be addressed if the Legislature ever enacts such legislation. Here, it is enough to recognize that this Court is capable of separating such private legislation, for the benefit of specific individuals, from the legislation in question here.

. The majority relies heavily on the judicial discretion involved in imposing sentence in support of its conclusion that the Resentencing Amendment is unconstitutional. The Resentencing Amendment does not eliminate that discretion, however. The court has the same discretion in imposing sentence under the Resentencing Amendment as it does in imposing sentence on persons convicted of violating the Controlled Substance Act. Even if the court had no discretion, however, this would not mean that the Resentencing Act was unconstitutional. See United States v. Lewis, 300 F.Supp. 1171 (E.D.Pa. 1969) (mandatory sentencing provisions of narcotics statute do not violate separation of powers).

The majority also relies on the possibility that, although appellant Sutley pleaded guilty to a charge of possession of marijuana, the sentencing judge concluded that Sutley was in fact guilty of sale of marijuana. The majority asserts that it is common to accept a plea to a lesser offense, then impose the same sentence as would be imposed if the defendant had been found guilty of the greater offense. I am not prepared to take judicial notice that such a practice is widely followed. As the judge who sentenced Sutley was not the judge who accepted the plea, a claim that the practice was followed here would be pure speculation. Assuming the practice is a common one, it raises some troublesome issues. It is certainly arguable that it would be improper to sentence a person as though he had been convicted of the greater offense, when he has only been convicted of a lesser offense. In some cases, the practice might raise doubt as to the validity of the plea. The propriety of the practice is not before us, however. It is enough to conclude that the possible existence of the practice is not a sufficient basis to hold that the Resentencing Amendment is unconstitutional. Any argument that the Resentencing Amendment will reduce the punishment of some individuals who ought to be punished more severely goes to the wisdom of the Resentencing Amendment, not to its validity.

. “It has become a routine exercise to discredit the custody theory on the basis of its conflict with the forfeited release-time concept. The parolee is supposedly still serving his sentence. If he violates his parole, however, all of his parole time is forfeited as if he had not been in custody during that time. Beyond this direct conflict, if the prisoner is considered to be in custody, this practice is roughly analogous to the bizarre possibility of allowing a warden to extend prison terms beyond the prescribed maximum.”

Comment, The Parole System, 120 U.Pa.L.Rev. 282, 291-92 (1971) (footnote omitted).

. In his dissenting opinion, Mr. Justice Manderino concludes that the discussion of the constitutionality of the legislation in Johnson was not a holding of the Court. I agree with this conclusion. Although the Court in Johnson stated that it thought the act was unconstitutional, it decided the case “independently of the constitutional objection, which is not decisive to all of us.” 42 Pa. at 449 . However, despite this clear indication that the constitutional discussion in Johnson was dictum, this Court in Banks treated this discussion as a holding of the Court and felt constrained to reconcile its holding with Johnson.