# State v. Mitchell > Supreme Court of Missouri · March 24, 1978 · 563 S.W.2d 18 URL: https://www.frixlaw.com/law-library/cases/9778120 ## Case - **Full name:** STATE of Missouri, Respondent, v. Jerry MITCHELL, Appellant - **Court:** Supreme Court of Missouri - **Decided:** March 24, 1978 - **Citations:** 563 S.W.2d 18 - **Precedential status:** Published - **Opinion:** Dissent by Shangler - **Judges:** Bardgett, Shangler, Morgan, Finch, Shan-Gler, Donnelly, Henley, Seiler, Rendlen - **Cited by:** 43 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9778120 ## How later opinions describe it (automated extraction) - stating "that jurisdictional defects and defenses are not waived by entering a guilty plea” ## Opinion text SHANGLER, Special Judge, dissenting. On full consideration, I cannot agree with the principal opinion. The two questions which the appeal calls on us to decide are: (1) the validity of Schedule I of § 195.017 which classifies marihuana with heroin and other opiates and constitutes possession, transfer or sale of the substance a crime, and (2) whether the punishments for sale of marihuana under § 195.200 bear no rational relationship to the seriousness of the conduct and are, for that reason, unconstitutional, and as applied to defendant Mitchell cruel and unusual punishment. The majority rules in favor of the validity of each of these enactments and of the punishment actually imposed. I disagree and dissent. The first ground for appeal, more precisely, contends that marihuana bears no rational relationship to heroin or other opiates, and so Schedule I of § 195.017 which classifies the substances together — without distinction — as drugs with “high potential for abuse” punishes innocent and criminal conduct alike in violation of the equal protection clause of the United States Constitution. The majority uses the rational relationship test as the standard to determine whether a statute infracts equal protection. In contemporary terms, the analysis laid down by the United States Supreme Court sustains a legislative classification “if the classification itself is rationally related to a legitimate governmental interest.” United States Department of Agriculture v. Moreno, 413 U.S. 528, 533 , 93 S.Ct. 2821, 2825 , 37 L.Ed.2d 782 (1973). The purpose of our Narcotic Drug Act [Chapter 195] does not appear, in terms, from the enactment, and *33 so — as the principal opinion suggests — we look to the federal Comprehensive Drug Abuse Prevention and Control Act of 1970 which our Act follows for expression of the legislative interest. The federal Act publishes the Principal Purpose of the Bill as a design to “deal in a comprehensive fashion with the growing menace of drug abuse in the United States” through efforts in drug abuse prevention and rehabilitation of users and, among other means, “by providing for an overall balanced scheme of criminal penalties for offenses involving drugs.” The rationality of § 195.017 as it relates to the control of marihuana, therefore, depends upon the statutory postulate [§ 195.-017.1(1)] that the substance “has high potential for abuse” so that unless prohibited by criminal sanction the substance presents a menace to the public safety comparable to that which results from the use of heroin or other opiates with which marihuana is classified. The simple question, therefore, is whether marihuana shares those qualities of heroin and other opiates known to cause destructive and dangerous behavior so as to justify the same legislative disapproval. A criminal statute is clothed with a presumption of validity. At the outset of inquiry, a court assumes that a classification made by a criminal statute rests on a state of facts which supports that legislative determination. Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78 , 31 S.Ct. 337 , 55 L.Ed. 69 (1911). The judicial inquiry into constitutionality, however, is not confined to that information available to the lawmaker at the time of enactment, but also on what since becomes available. And — as in this case — “when the validity of the law depends upon the truth of what is declared” [that marihuana affects behavior as an opiate and so has a high potential for abuse] the court has the duty to examine recent empirical data as that may bear on the presumption of the validity of the statute. Leary v. United States, 395 U.S. 6, 53 , 89 S.Ct. 1532 , 23 L.Ed.2d 57 (1969); Brown v. Board of Education, 347 U.S. 483 , 74 S.Ct. 686 , 98 L.Ed. 873 (1954). The courts, no less than the populace, are victim to the mythology that marihuana is merely a prelude to immorality, criminal behavior and to the use of truly dangerous drugs. Soler, Cannabis and the Courts, 6 Conn.L.R. 601, 646 (1974). The earliest opinions reflect this mythos from the 1930 era to sustain classification of marihuana as a narcotic drug on those assumptions alone. State v. Navaro, 83 Utah 6 , 26 P.2d 955 (1933); United States v. Eramdjian, 155 F.Supp. 914, 919 (S.D.Cal.1957). Although massive scientific studies 1 have since determined that marihuana, unlike a true opiate, is neither addictive, nor induces withdrawal symptoms, nor leads to a tolerance — but at worst leads to a psychological dependency less severe than that induced by alcohol— most courts continue to sustain the validity of the classification of marihuana with opiates on nothing more than the presumption of validity which clothes a criminal statute. State v. Rao, 171 Conn. 600 , 370 A.2d 1310, 1314 [6-9] (1976); State v. Wadsworth, 109 Ariz. 59 , 505 P.2d 230, 234 [2] (banc 1973); Boswell v. State, 290 Ala. 349 , 276 So.2d 592, 596 [5] (1973); People v. Stark, 157 Colo. 59 , 400 P.2d 923, 927 [6] (1965); State v. Leppanen, 252 Or. 352 , 449 P.2d 447 (1969). The empirical evidence now available dispels the concern that marihuana conduces to criminal behavior. The authorities agree that marihuana is not a narcotic. There is no tolerance from use which requires progressively larger quantities for satisfaction, nor the agony which accompanies withdrawal from an opiate. In short, there is no addiction to feed, nor the urgency for money for that purpose, if need be from illicit sources. Grinspoon, Marihuana Reconsidered I, note 1 at pp. 256-7 (1971); Pet *34 and Ball, Marihuana Smoking in the United States, 32 Federal Probation 8 (No. 3,1968). The postulations which classify marihuana with the opiates or even amphetamines and barbiturates, therefore, have lost whatever validity was ever due them. People v. McCabe, 49 Ill.2d 338 , 275 N.E.2d 407, 411 (1971); People v. Summit, 517 P.2d 850 (Colo.1974). The trial courts have been more faithful than the appellate courts in cases for the equal protection of the laws against arbitrary classification of marihuana with narcotics to the injunction of the United States Supreme Court that the proof of a statutory presumption is “highly empirical” [ Leary, supra, 395 U.S. l.c. 38, 89 S.Ct. 1532 ; Brown, supra, 347 U.S. l.c. 494, 74 S.Ct. 686 ] and so open to the scrutiny of modern authority. In State v. Rao, 171 Conn. 600 , 370 A.2d 1310 (1976) [relied on by the majority opinion] the Supreme Court of Connecticut went so far as to declare that the trial court had [l.c. 1314] “misconceived its function” by the determination of fact on expert witness testimony “the debatable medical issue” that “marihuana has virtually no harmful effect on the human system.” The court went on to conclude that judicial determination that “a legislative enactment is invalid cannot rest upon a judicial determination of a debatable medical issue.” In State v. Wadsworth, 109 Ariz. 59 , 505 P.2d 230 , l.c. 233 (banc 1973), the Supreme Court of Arizona conceded that marihuana did not fall within the scientific definition of narcotics but nevertheless refused to find a statute which classified them without distinction invalid on the premise that the mere legislative intent to proscribe marihuana was a sufficiently reasonable basis for criminal sanction and did not deny the purveyor of marihuana the equal protection of the laws. This “rationale” was expressly adopted in Boswell v. State, 290 Ala. 349 , 276 So.2d 592, 597 (1973). Each of these decisions — approved specifically or by reference in the majority opinion — effectively employs the presumption of the validity of a criminal statute to sustain that very validity. They, thus, contradict the principle that “the constitutionality of a [criminal] statute predicated upon the existence of a particular state of facts may be challenged by showing to the court that those facts have ceased to exist.” United States v. Carolene Products Co., 304 U.S. 144, 153 , 58 S.Ct. 778, 784 , 82 L.Ed. 1234 (1938). The effect of the practice which excludes scientific evidence from the determination of whether the factual postulate for a criminal sanction remains valid is to place any equal protection of the laws challenge to a criminal statutory classification beyond the reach of judicial inquiry — unless it appears as a matter of law. Those jurisdictions — increasing in number — which have given full consideration to the available empirical evidence on the issue have concluded with emphasis that by any reasonable standard marihuana cannot be classified as a narcotic. State v. Zornes, 78 Wash.2d 9 , 469 P.2d 552 (banc 1970) 2 . That method was used in People v. McCabe, 49 Ill.2d 338 , 275 N.E.2d 407 (1971) to strike down as unconstitutional the classification of marihuana with narcotics under the state Narcotic Drug Act. The precise question involved was whether punishment of marihuana under that Act rather than under the Drug Abuse Control Act, both of which proscribed the sale of marihuana, but which punished that offense disparately, violated the equal protection of the laws. The Narcotics Act imposed a mandatory minimum sentence of ten years for the first offense sale of marihuana, whereas the Drug Abuse Control Act which governed stimulant and depressant drugs imposed a maximum one year sentence for the same offense. The defendant was sentenced to a term of ten years imprisonment under the Narcotics Drug Act. In the course, of decision that the sentence denied the defendant the equal *35 protection of the laws, the court first undertook [l.c. 409] “an assessment of the relevant scientific, medical and social data . to judge whether the data presently available provides a reasonable basis for the described classification of marihuana.” The court went on to a careful and meticulous evaluation of the evidence and discussed the effects of use of narcotics, noted the immediate effects of the drugs, the onset of addiction in the development of tolerance and withdrawal symptoms, the long-term physiological dangers from use, including death, and the relationship between narcotics use and crime. The court concluded [l.c. 410 — 411] “although marihuana has been commonly associated with the opiates . there are important differences between the so-called abuse characteristics of the two . . . Almost all authorities agree that marihuana is not a narcotic or addictive in the sense that the term is precisely used. Unlike the opiate drugs, it does not produce a physical dependence, and upon abstention there are no withdrawal symptoms. A tolerance to the drug does not develop.” On these considerations, the court found that neither the chemical qualities of the drugs nor their effects on the behavior of users provides any justifiable or reasonable basis for the classification as to conduct or penalty with the opiates. The Supreme Court of Michigan in People v. Sinclair, 387 Mich. 91 , 194 N.W.2d 878 (1972) agreed with McCabe that the true basis for the Michigan statute which classified marihuana with narcotics was to be determined by the available empirical data. After discussion of the extensive proof before the court on the comparative effects of marihuana use on the person and community as compared with the effects of other drug use, the court concluded [l.c. 881, 886 et seq.] there is no rational basis for classifying marihuana with the “hard narcotics,” but, also, that there is not even a rational basis for treating marihuana as a more dangerous drug than alcohol. We can no longer allow the residuals of that early misinformation to continue choking off a rational evaluation of marihuana dangers. That a large and increasing number of Americans recognize the truth about marihuana’s relative harmlessness can scarcely be doubted. The judicial willingness to consider the instruction of science and experience on the effects of marihuana and its proper status within our system of law has gained impetus. English v. Miller, 341 F.Supp. 714 (E.D.Va.1972), rev’d sub nom. English v. Virginia Probation & Parole Board, 481 F.2d 188 (4th Cir. 1973); State v. Carus, 118 N.J.Super. 159 , 286 A.2d 740 (1972); Sam v. State, 500 P.2d 291 (Okl.Cr.1972). These decisions have rejected the traditional classification of marihuana with the narcotics on the instruction of present knowledge. The majority opinion fails because it neglects to determine the true state of facts upon which the classifications of § 195.017 rests. The opinion acknowledges, but gives no effect to the considerable data appellant Mitchell has submitted on the issue. That evidence demonstrates that marihuana is a substance of relatively harmless character — certainly more benign than cigarette and alcohol use — and so is unreasonably classified by § 195.017 with the opiates and barbiturates. The court avoids this inquiry by the conclusion that “[a] body of knowledge does exist upon which the legislature could have rationally relied in deciding to classify marihuana in schedule I.” The attack appellant Mitchell makes, however, is to the present [that is, at the time of the offense] justification for the classification, and not at the time of the enactment. The appellant offers to show that present state of facts [United States v. Carolene Products, Inc., supra, 304 U.S. l.c. 153, 58 S.Ct. 778 ] no longer support the assumptions of the original enactment. The majority opinion does not say what the purpose of the classification was at adoption nor how the evidence does not sustain the appellant on that issue. The determination that the classification remains justified and so should persist — as the majority holds — can only come after full consideration of the most contemporary and informative data. *36 The declaration of law can rest only on a state of facts found and decided. Otherwise any plausible assumption in favor of statutory validity, however hypothetical or fanciful, would be enough to foreclose judicial inquiry and defeat the equal protection the United States Constitution gives against an arbitrary criminal law. I am convinced on impressive empirical authority that marihuana poses no threat to the public safety and welfare and less a danger to the person than that posed to the user of cigarettes and alcohol. There can be no reasonable basis to classify marihuana with narcotics or to penalize them alike. I would find that § 195.017 in its classification of marihuana violates the equal protection clause of the Fourteenth Amendment to the United States Constitution and is invalid. At the very least, I would remand the proceedings to the trial court to allow appellant Mitchell to present full evidence on the qualities of marihuana as compared to the narcotics and other substances with which they are classified, the comparative effect of these substances on the persons of the users and the members of the community, and all other pertinent present state of facts which bear on the ultimate question of law: the validity or lack of validity of the classification. On such a record, an appellate court could then declare the law. I believe there is sufficient knowledge from authentic sources to make that declaration now, confidently, against the validity of the classification. I would answer, also, the premise of the majority opinion that the category given to heroin and the opiates by separate subsection within Schedule I dispels inference of a common classification with marihuana. This overlooks that marihuana, heroin and the other substances within Schedule I are brought together within the statutory scheme according to the common descriptions [§ 195.017.1] that each: (1) has high potential for abuse, and (2) has no accepted medical use in treatment . These are the fundamental characteristics the legislature requires a substance to possess precedent to the proscription under the law. The Act defines opiate as “any substance having an addiction-forming or addiction-sustaining liability.” The opiates increase tolerance and require more and more quantity for satisfaction; the withdrawal symptoms are severe enough to induce illicit behavior for the purchase of drugs. Marihuana, on the other hand, is non-addictive and induces no aggressive behavior. It is simply irrational that marihuana should be classified with the opiates as substances of a like “high potential for abuse.” It is altogether inappropriate to say of marihuana that the substance “has no accepted medical use in treatment” — the other quality precedent to proscription under Schedule I of § 195.017. The cannabinoids have had very valuable uses in the treatment of numerous disorders: anorexia ner-vosa, glaucoma, high blood pressure, leukemia, among others. Soler, Cannabis and the Courts, 6 Conn.L.R. 601, 633 (1974). The legislature of New Mexico has very recently enacted a statute which permits a citizen access to marihuana for certain medicinal purposes such as treatment for glaucoma and as an aid to counteract the nausea of chemotherapy. [Controlled Substance Therapeutic Research Act, House Bill 329 33rd Legislature. Signed by the Governor, February 21, 1978]. The conclusion cannot be escaped that the classification scheme which includes marihuana within Schedule I of § 195.017 is arbitrary and irrational. I dissent also because the sentence imposes constitutes cruel and unusual punishment. I comment on this only briefly but concur altogether in the thoughtful dissent of Judge Seiler. The majority allows to stand a seven year prison sentence for the sale of less than half an ounce of marihuana. The court, presumably, would redress the severity of the sentence had it found it “so disproportionate to the offense commit-, ted so as to shock the moral sense of all reasonable men as to what is right and proper under the circumstances.” I believe the sentence given Mitchell produces that *37 shock. As the separate dissent of Judge Seiler says so well, the protection of the Eighth Amendment extends to sentences disproportionate to the crime committed on objective considerations, as well as those which offend the sense of decency. Although I welcome the departure by the majority from the prior rule that a punishment meted within the statutory limits shows per se validity, I believe the rule announced in State v. Johnson, 549 S.W.2d 348 (Mo.App.1977) and adopted by the majority falls short of the protection the Constitution gives. In terms of public awareness, the sentence merely shows how vengefully the law treats a person who offends the “decency” of society as compared, for instance, with those who violate the trust of high public office. What makes this punishment even more stark is that a youth of the age of Mitchell — perhaps in circumstances not present — is frequently allowed the leniency of a probation which, when uneventfully served, expunges and forgets the judgment altogether. I dissent and join in the separate dissent of Judge SEILER. . National Commission on Marihuana and Drug Abuse, Marihuana: A signal of Misunderstanding (1972) [The Shafer Report]; Second Annual Report to Congress from the Secretary of Health, Education and Welfare (1972 and 1973) [Second and Third HEW Reports]; Canadian Commission of Inquiry into the Non-Medical Use of Drugs (1972) [LeDain Report]. The Swedish, British and Australian Governments, among others, have also published commission reports on the role of marihuana and drug abuse. . The defendants Zornes had been convicted under a statute which classified marihuana as a narcotic. While the appeals pended the Washington legislature enacted a new drug control statute which applied to “addiction-forming liability” drugs but which specifically excluded marihuana from its provisions. That statute gives legislative recognition to the latest state of knowledge that marihuana is a relatively benign substance. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9778120. Public record. Not legal advice.