permitting defendant to challenge on appeal the constitutionality of the statute classifying marijuana as a schedule I substance, even though he pleaded guilty to the charge, because “jurisdictional defects and defenses are not waived by entering a guilty plea.”
How later courts described this case
- permitting defendant to challenge on appeal the constitutionality of the statute classifying marijuana as a schedule I substance, even though he pleaded guilty to the charge, because “jurisdictional defects and defenses are not waived by entering a guilty plea.”
- stating "that jurisdictional defects and defenses are not waived by entering a guilty plea”
- “As to alcohol and tobacco, the legislature’s decision to prohibit some harmful substances does not thereby constitutionally compel it to regulate or prohibit all harmful substances.”
- jurisdictional defects and defenses are not waived by entering a guilty plea
Written by the judges who cited it.
The opinion
SEILER, Judge,
dissenting.
I join in the dissenting opinion of Shan-gler, Sp. J., and I respectfully dissent further as follows:
The offense here was the sale of less than half an ounce of marijuana — a trivial amount — for the trifling sum of $5.00. In my opinion the sentence of seven years incarceration in this case is so excessive as to constitute cruel and unusual punishment.
In Coker v. Georgia, 433 U.S. 584 , 97 S.Ct. 2861, 2869 , 53 L.Ed.2d 982 (1977), the United States Supreme Court declared that “the death . . . sentence ... is a disproportionate punishment for rape” under the relevant standards of the Eighth Amendment’s ban against cruel and unusual punishment. Id. at 599 , 97 S.Ct. at 2869 .
“[T]he Eighth Amendment bars not only those punishments that are ‘barbaric’ but also those that are ‘excessive’ in relation to the crime committed. Under Gregg [v. Georgia, 428 U.S. 153 , 96 S.Ct. 2909 , 49 L.Ed.2d 859 (1976)], 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. A punishment might fail the test on either ground.” Id. at 592, 97 S.Ct. at 2865 .
“[T]he attitude of state legislatures and sentencing juries do not wholly determine this controversy, for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the . penalty under the Eighth Amendment.” Id. at 597 , 97 S.Ct. at 2868 .
“[T]hese Eighth Amendment judgments should not be, or appear to be, merely the subjective views of individual Justices; judgments should be informed by objective factors to the maximum possible extent,” id. at 592 , 97 S.Ct. at 2865 , in part, because the Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society,” Trop v. Dulles, 356 U.S. 86, 101 , 78 S.Ct. 590, 598 , 2 L.Ed.2d 630 (1958).
The penalty at issue — five years to life imprisonment for the first sale of any amount of marijuana — is that mandated by the legislature under § 195.200, RSMo Supp. 1975. It is the nexus of that sanction to the crime which has been committed which, in my judgment, must be the subject of our inquiry. We are compelled, therefore, to survey the “objective indicia” before us, Gregg v. Georgia, 428 U.S. 153, 173 , 96 S.Ct. 2909 , 49 L.Ed.2d 859 (1976), in order to determine whether the nexus is a rational ergo legitimate one.
The majority responds to Mitchell’s Eighth Amendment challenge by quoting our standard for review under the state constitutional ban against cruel and unusual punishment. 1 This standard is not" *29 that adopted by the United States Supreme Court in applying the Eighth Amendment, e. g., Coker v. Georgia, 433 U.S. 584, 592 , 97 S.Ct. 2861 , 53 L.Ed.2d 982 (1977); Gregg v. Georgia, 428 U.S. 153, 171-73 , 96 S.Ct. 2909 , 49 L.Ed.2d 859 (1976); Trop v. Dulles, 356 U.S. 86, 100-01 , 78 S.Ct. 590 , 2 L.Ed.2d 630 (1958); Weems v. United States, 217 U.S. 349, 366-73 , 30 S.Ct. 544 , 54 L.Ed. 793 (1910), which standard, enunciated above, it is our constitutional obligation to apply in this case.
The defendant challenged the rational basis under which the first sale of any amount of marijuana is punished as severely as would be the sale of other Schedule I drugs or compounds under § 195.017, RSMo Supp. 1975, e. g., heroin. The majority’s response is, I respectfully contend, misguided and in error. First, the principal opinion seeks a legal shield behind which it can avoid the objective inquiry, which I believe to be necessary, by reliance upon United States v. Carolene Products Co., 304 U.S. 144 , 58 S.Ct. 778 , 82 L.Ed. 1234 (1938). Carolene Products upheld the constitutionality of the Filled Milk Act of 1923 and in so doing discredited the judicial interference in the Congressional regulation of interstate commerce. There is a great difference between a judgment as to whether Congress can declare that a compound of condensed skim milk and coconut oil is “imitation milk” and a judgment as to whether the legislature can rationally unite marijuana and heroin in a single criminal prohibition. In fact, the decision by Justice Stone in Carolene Products is best remembered not for its text but for its oft-quoted footnote which says: “There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.” Id. at 152 n. 4, 58 S.Ct. at 783 . Carolene Products is thus clearly a distinguishable precedent and does not shield the majority from the duty of making its own objective inquiry into the rational basis of the criminal penalty.
The second response of the majority is to refer without citation to “other authorities which take a contrary view regarding the hazards involved in using marihuana. The present state of knowledge of the effects of marihuana is still incomplete and is marked by much disagreement and controversy . . . [W]e are dealing,” concludes the principal opinion, “with a debatable medical issue."
This contention is unresponsive for two reasons. The first is that however “incomplete” our knowledge may be or how “debatable” the “medical issue” concerning marijuana may be or how much “disagreement or controversy” may surround any discussion concerning the drug, this grants no legislative license to violate one’s constitutional right to be free from cruel and unusual punishment. There is surely less “debate” and “controversy” concerning the assuredly harmful effects of cigarette smoking. Yet were the legislature to prohibit the sale of cigarettes as a crime, I question whether this court would’ be as deferential were the legislature to mandate a penalty of imprisonment from five years to life for the sale of less than half a pack.
The second reason the majority’s view is unresponsive is that it has shielded itself behind alleged factual uncertainty which is the relic of an earlier day. No longer can we realistically claim, as once we could, that the data upon which to judge the effects of marijuana is either unreliable, crudely assembled, or considerably outdated. Substantial private research over the past several years has been joined by two comprehensive government supported efforts, well-financed studies utilizing advanced scientific analysis: our own government’s Report of the National Commission on Marijuana and Drug Abuse and the Canadian Commission of Inquiry into the Non-Medical Use of *30 Drugs. These studies, summarized infra, demonstrably, effectively, categorically, and reliably show that there is no firm evidence that marijuana as presently used in this country is attended with danger to the user or to others. As the Supreme Court of Michigan said in People v. Sinclair, 387 Mich. 91, 104-15 , 194 N.W.2d 878, 881-87 (1972), “Comparison of the effects of marijuana use on both the individual and society with the effects of other drug use demonstrates not only that there is no rational basis for classifying marijuana with the ‘hard narcotics’, but, also, that there is not even a rational basis for treating marijuana as a more dangerous drug than alcohol . . .We can no longer allow the residuals of that early misinformation to continue choking off a national evaluation of marijuana dangers. That a large and increasing number of Americans recognize the truth about marijuana’s relative harmlessness can scarcely be doubted.” See Ravin v. State, 537 P.2d 494, 508 (Alaska 1975); People v. McCabe, 49 Ill.2d 338 , 275 N.E.2d 407, 409-10 (1971).
What, then, are the “objective indicia” which, according to Gregg and Coker , judges are to analyze in making a determination of whether a punishment is “cruel and unusual,” and what do they show in this case?
I would look to four factors: (a) reliable factual data, (b) relevant informed public opinion, (c) the sanction imposed in other jurisdictions, and (d) the penalties in Missouri for other crimes. See Downey v. Perini, 518 F.2d 1288, 1290-92 (6th Cir.), vacated and remanded on other grounds, 423 U.S. 993 , 96 S.Ct. 419 , 46 L.Ed.2d 367 (1975); In re Lynch, 8 Cal.3d 410 , 105 Cal.Rptr. 217, 229-35 , 503 P.2d 921, 933-39 (1972); People v. Lorentzen, 387 Mich. 167 , 194 N.W.2d 827, 829-33 (1972).
(a) The two massive government endowed studies, one each by the American and Canadian national governments, represent modern, comprehensive attempts to determine the effects of marijuana use. These and other studies have reported similar findings which are summarized as follows: use of marijuana does not lead to mental or physical deterioration; the drug is not addicting, producing neither tolerance when used nor withdrawal symptoms when use was discontinued; its use does not cause insanity or death; marijuana does not cause criminal or otherwise violent behavior, or lead to the use of other drugs such as “hard drugs” or narcotics; is not an aphrodesiae nor does it cause brain damage or genetic defects. It is not, in short, a major threat to public health or a danger to public safety. Soler, Of Cannabis and the Courts: A Critical Examination of Constitutional Challenges to Statutory Marijuana Prohibitions, 6 Conn.L.Rev. 601, 608-12 (1974); Hindes, Morality Enforcement through the Criminal Law and the Modern Doctrine of Substantive Due Process, 126 U.Pa.L.Rev. 344, 346 — 47 n. 4 (1977). Indeed, the “most important and widespread ordinary effects of marijuana are a feeling of relaxation, a sense of euphoria, and an impression that one’s senses have somehow been sharpened . [I]t is as yet impossible in the laboratory to devise any mental test that will consistently reveal anyone to be under the influence of marijuana.” Id. Marijuana has also been demonstrated to have extremely valuable uses in the treatment of anorexia nervosa, fever, pain, epilepsy, migraine headache, high blood pressure, psychosis, glaucoma, asthma, and leukemia. Soler, supra at 633.
(b) Though the legislative option of decriminalization of the possession of small amounts of marijuana is not before us, it is nevertheless noteworthy that relevant institutions, we are reliably informed, have indicated their acknowledgement of the relative harmlessness of marijuana by their support of decriminalization, specifically the American Bar Association, the American Medical Association, the Board of Governors of the Missouri Bar, the American Public Health Association, the National Conference of Commissioners on Uniform State Laws, the National Council of Churches, the National Educational Association, the American Civil Liberties Union, the National Association for Mental Health, Consumers Union, American Academy of *31 Family Physicians, the American Academy of Pediatrics, and such mainstream social critics as William F. Buckley, James J. Kil-patrick, Ann Landers and Art Linkletter.
(c) In 1974, only eight states, Arizona, California, Connecticut, Indiana, Missouri, Ohio, Texas and Virginia would have punished a defendant a minimum of five years for the sale of less than one half ounce of marijuana as a first offense. Soler, supra at 721-28. Today, that number is two: Missouri and Virginia, Va.Code § 18.2-248 (Supp.1977). The remaining 49 jurisdictions have penalties for this offense lesser than the one in Missouri.
(d) Under the new Missouri Criminal Code, Act 73,1977 Mo.Legis.Serv. (Vernon), penalties for offenses against persons and property can be compared to this punishment of 5 years-life imprisonment. Those crimes and punishments are as follows: assault in the first degree committed with a deadly weapon or dangerous instrument, 10 years-life, the same committed without the deadly weapon or dangerous instrumentality, 5-15 years, § 565.050; assault in the second degree, 5 years or less, § 565.060; kidnapping, 10 years-life, § 565.110; rape with the infliction of serious physical injury or the display of a deadly weapon in a threatening manner, 10 years-life; rape without such injury or display, 5-15 years,. § 566.030; sexual assault in the first degree with serious physical injury or the display of a deadly weapon in a threatening manner, 5-15 years; first degree sexual assault without such injury or display, 7 years or less, § 566.040; sodomy, or deviate sexual intercourse with another person who is less than fourteen years old, with serious physical injury or the display of a deadly weapon in á threatening manner, 10 years-life, sodomy without such injury or display, 5-15 years, § 566.060; robbery in the first degree, 10 years-life, § 569.020; robbery in the second degree, 5-15 years, § 569.030; arson in the first degree, 5-15 years, § 569.040; arson in the second degree, 7 years or less, § 569.050; burglary in the first degree, 5-15 years, § 569.160; burglary in the second degree, 7 years or less, § 569.170. Under Missouri’s new statute relating to homicide offenses, Act 11, 1977 Mo.Legis.Serv. (Vernon), the crime of murder in the second degree is punishable by imprisonment for 10 years-life, § 4.2. Manslaughter in Missouri is punishable by a sentence ranging from a mere fine of $500 or less than 6 months in the county jail to imprisonment from 2-10 years. § 559.140, RSMo 1969.
We cannot ignore the illogic of the sanction which is here under scrutiny. The “objective indicia” speak loudly to us about the absence of a rational nexus between the crime which has been committed and the punishment which has been assessed. The Eighth Amendment gives us the power and the scope of judicial review over punishments alleged to be cruel and unusual. I, for one, find compelling and powerful the argument that we should invoke the dictates of that Amendment in this case, and I most respectfully regret that a majority of my colleagues do not agree. The punishment inflicted upon this young man for selling less than one half ounce of marijuana for $5.00 — seven years in the state penitentiary — is cruel and unusual, if those two words have any meaning at all. I would reverse the judgment and discharge the defendant.
There is another factor here which I believe objective scrutiny requires that we forthrightly face. The generation of which I am a member experienced an era which was similar, in great respect, to the current one. Prohibition was the law in the 1920s but speakeasys were the fact. From this experience of punishing popular conduct we should appreciate the disrespect for law which follows. Coudert, Anti-prohibition Activities of the Bar: A Justification, 7 N.Y.U.L.Rev. 166, 167-68 (1929); Sawyer, Report on the Enforcement of the Prohibition Laws of the United States, 30 Mich.L. Rev. 7, 10-18 (1931).
When one generation irrationally uses the criminal sanction to coerce and intimidate another into rejecting a relatively harmless drug, marijuana, while openly promoting the use of what we know to be relatively *32 harmful drugs, alcohol and tobacco, 2 respect for law and the legal process suffers. The lives of young people should not be destroyed against an anvil of generational mistrust.
We must reconcile ourselves to a rational legal order.
. That standard is “[A] punishment which is within the statutory limits for the offense . is not cruel and unusual because of its duration unless so disproportionate to the offense committed so as to shock the moral sense of all reasonable men as to what is right and proper under the circumstances." (emphasis supplied) State v. Johnson, 549 S.W.2d 348, 352 (Mo.App.1977).
To make a constitutional right depend upon whether all reasonable men agree it has been violated is to corrupt the very idea of rights. We have rights to shield us against what the majority views may be. We have never addressed this question in Missouri in relation to cruel and unusual punishment. We have always looked at it as though it were a question of whether the jury’s verdict (or the judge’s sentence) was reasonable or not. But this question is much different from the one of whether the punishment prescribed by the legislature is cruel and unusual in relation to the offense involved. No matter how reasonable or unreasonable the judge (or a jury) might *29 have been, the punishment in this case had to be at least five years imprisonment. To apply the traditional Missouri test relied upon by the majority means a challenge such as the present one will always fail.
. “Alcohol is the only powerful self-administrated intoxicant used in the United States with social approval and without fear of criminal sanctions. The subjective effects of alcohol are well-known but the physical and psychological effects of the use of this drug have long been neglected or ignored. Alcohol operates in the body as a central nervous system depressant: its effects are very similar to those produced by the barbiturates. Tolerance develops from continued use, and discontinued use precipitates a severe withdrawal syndrome similar to that of barbiturate withdrawal and marked by hallucinations and delirium tremens which may lead to death. What is commonly called “alcoholism” is actually physical addiction to the drug alcohol. Alcohol abuse causes cirrhosis of the liver, which ranks seventh nationally as a cause of death. It also leads to kidney dysfunction, Korsakoff s psychosis, and hyperthyroid. Because alcohol supplies calories to the body, thus depressing the appetite without supplying needed vitamins and amino acids, alcohol abuse engenders nutritional deficiencies not common to other types of drug abuse. These nutritional deficiencies in turn make it more difficult for the alcoholic to withstand the stresses of the withdrawal syndrome. Perhaps the most dangerous characteristic of alcohol is the effect it produces on the user in his relations to the outside world. The feisty pugnaciousness of the tippler may be a joke; the hostile aggressiveness of the alcohol abuser is not. It has been estimated that of 120,000
American deaths in accidents each year, alcohol is a major factor in up to 70 percent. About 55 percent of all arrests involve alcohol-related offenses such as drunkenness, drunk driving, and violations of alcoholic beverage control statutes; more than half of those arrested for crimes of violence, such as murder and rape, acted under the influence of alcohol.
“Tobacco ranks with alcohol in widespread use among Americans; it is also the single major cause of heart and blood vessel disorders and cancer, which are the two most common causes of death in America. Nicotine, the primary active substance in tobacco, is a central nervous system stimulant similar to the amphetamines in its general effects. The harmful characteristics of nicotine are well-known. In addition to heart and blood vessel disorders and cancer of the lungs, mouth, lamyx and esophagus, tobacco smoking may also cause chronic bronchitis, emphysema and loss of vision (tobacco amplyopia). It is clear that tolerance develops to the use of nicotine and there is strong evidence that the phenomena accompanying discontinued use of tobacco constitute a withdrawal syndrome characteristic of true addiction.” (supporting footnotes omitted) Soler, Of Cannabis and the Courts: A Critical Examination of Constitutional Challenges to Statutory Marijuana Prohibitions, 6 Conn.L. Rev. 601, 617-19 (1974).