Petition — Mallery v. Blackburn

FILED

MAR 18 1979

IN THE BAAS. RODAK, JR., CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 1978

*8~1397

No.

ALVIN F. MALLERY, JR.

Petitioner

versus

FRANK BLACKBURN, In

His Capacity as Warden,

Respondent

PETITION FOR WRIT OF

CERTIORARI TO THE

SUPREME COURT OF LOUISIANA

PAUL A. BONIN

LEONARD L. LEVENSON

JOHN J. LEE. JR.

International Trade Mart

-P. O. Box 30127

New Orleans, Louisiana 70190

(504) 586-0064

Counsel for Petitioner

OPINION BELOW.

INDEX

JURISDICTION . . ~. « « « «

QUESTION PRESENTED

CONSTITUTIONAL PROVISIONS

AND STATUTES

STATEMENT OF THE CASE. .

FACTS. ..

REASONS FOR GRANTING THE WRIT.

CONCLUSION

CERTIFICATE

APPENDIX

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1978

No.

ALVIN F. MALLERY, JR.

Petitioner

vs

FRANK BLACKBURN, etc,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF LOUISIANA

The petitioner Alvin F. Mallery, Jr.,

respectfully prays that a writ of

Certiorari issue to review the judgment and

opinon of the Supreme Court of Louisiana

entered in this proceeding on November 13,

1978.

OPINION BELOW

The opinion of the Supreme Court of

Louisiana, which appears in the appendix

hereto, infra, is reported at 364 So.2d

1283 (1978).

JURISDICTION

The judgment of the Supreme Court of

Louisiana, denying petitioner relief from

the life sentence, was entered on November

13, 1978. A petition for rehearing, timely

made, was denied on December 14, 1978.

This Petition for Certiorari is

being docketed in this Court within 90 days

from the denial of rehearing below. The

jurisdiction of this Court is invoked

under 28 U.S.C. §1257(3).

QUESTION PRESENTED

Whether La. Rev. Stat. 40:966B(1),

requiring the mandatory imposition of life

imprisonment for the crime of distribution

of heroin, is violative of the cruel and

unusual punishment clause of the Eighth

Amendment to the United States Constitution

on account of its mandatory application to

all offenders convicted of this offense as

2

er et

ee — - een eene. -

eee —

well as on account of its resulting

excesciveness when applied to this

offender under the mitigating factors

present in this case.

CONSTITUTIONAL PROVISIONS

AND STATUTES

Eighth Amendment, U.S. Constitution:

"Excessive bail shall not be required,

*** nor cruel and unusual punishments

inflicted."

La. Rev. Statute 40:9668(1):

"[U]pon conviction [a violator] shall

be sentenced to life imprisonment at hard

labor Fe e.*

STATEMENT OF THE CASE

The petitioner, Alvin F. Mallery, Jr.,

was originally tried by jury and found guilty

of the offense of distributing heroin. The

sentencing judge, in accordance with

statutory law, imposed the mandatory

sentence of life imprisonment on petitioner.

An appeai was perfected to the

Supreme Court of Louisiana which affirmed

3

the conviction without written opinion at

347 So.2d 847 (La. 1977). Thereafter, he

filed an application for a writ of habeas

corpus contending that the sentence was

unconstitutional.

The district court rejected the

claim and, pursuant to Louisiana procedure,

Mallery sought a Writ of Certiorari to the

Supreme Court of Louisiana. The Court

granted certiorari, but ultimately

affirmed the district court's ruling,

thereby maintaining the life sentence. The

vote of the Court was a three man majority

with two others concurring and two

dissenting.

Mallery then caused to be filed a

timely Petition for a Writ of Certiorari in

this Court.

FACTS

The underlying facts are essentially

undisputed. Mallery was 25 years old at the

time of the offense. He was an addict who

was receiving methadone treatment, but

nevertheless continued his habit. He was

approached by a fellow addict, who was

4

working for the police. This fellow

addict appeared to be in withdrawal and

begged Mallery to secure heroin for him,

Mallery agreed and obtained eight doses

for the police agent for which he

received two doses to supply his habit.

Prior to this offense, Mallery had

no previous criminal record. His suppliers

who were observed by the police were never

pursued.

Nevertheless, upon his conviction

the sentencing judge was required to

impose the only sentence available, that

is life imprisonment, Mallery continues

to serve this sentence at the Louisiana

State Penitentiary at Angola, Louisiana,

REASONS FOR GRANTING THE WRIT

The sentence of life imprisonment is

the penultimate punishment. Hart v Coiner,

483 F.2d 136 (CA4, 1973). As this Court

has regulated the application of the

imposition of the ultimate, death

penalties, more legislatures are resorting

to the imposition of this punishment.

5

In the end, it is this Court's task

to determine whether and when such a

penalty may be unconstitutional. The life

sentence, under these facts and in this

case, has two vices which render it

violative of the Eighth Amendment. The

two defects, drawn from the death penalty

decisions, are, first, the mandatoriness

of the imposition of the sentence and,

second, the excessiveness of the imposed

sentence.

Under the Louisiana statutory

scheme, a sentencing judge has polar

alternatives in a case involving

distribution of heroin. He may, on the

one hand, impose on the offender the

statutorily mandated sentence of life

imprisonment and order that the offender

serve the entire sentence. La. R. S.

40:966 B(1l). On the other hand,

exercising his only other option, he may

impose the sentence of life imprisonment

and suspend the execution of it. Art,

895 B, Louisiana Code of Criminal

Procedure. If he exercises his second

option, he cannot require the offender

to serve more than one (1) year in prison.

6

Louisiana has determinate sentencing.

Art. 879, La. Code of Criminal Procedure...

Further, under state law once a lawful

sentence has been imposed and the

execution of it commenced, no court may

change it. Art. 881, La. Code of Criminal

Procedure. The only manner in which a

life sentence can be reduced is through

executive intervention.

Regardless of which alternative the

sentencing judge makes, he must impose

the life sentence. But, more critical

to this inquiry, is that under this

scheme, the court is given "no

meaningful opportunity" to consider the

particular crime and the individual

offender. Roberts v Louisiana, 428 U.S.

337, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976).

The range of years greater than one

and less than natural life is excised

from the sentencing judge's purview

as a possible sentence.

Such a mandatory sentence results

in the treatment of the offenders

"as members of a faceless,

undifferentiated mass to be subjected

to the blind infliction of the penalty

7

* * *," Woodson v North Carolina, 428 U.S.

280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976).

Indeed, Mr, Justice Tate of the Supreme

Court of Louisiana observed in a

concurring opinion: "The present is

just one of the score or so of life

sentences we have in the present month

affirmed for the distribution offense."

State of La. vs. Terrebonne, 354 So.2d

1356 (La. 1978).

The vice of the mandatory sentence

is that it provides no method of

"particularizing" the punishment. The

statutory inability to particularize

the sentence in a meaningful way is a

"constitutional shortcoming."

Woodson, supra.

Under this scheme Mallery is

indistinguishable from a professional,

profitering distributor of heroin. He

is indistinguishable from a career

criminal who has been convicted of

violating the law on previous occasions.

He is indistinguishable from one who

acted, not out of sympathy or need, but

out of contempt and greed.

8

The State of Louisiana is

challenged to provide this Court with

a single instance of a person convicted

of heroin distribution who received

the suspended sentence but did not

co-operate with the police. Clearly,

in Louisiana the absence of meaningful

sentencing discretion in these cases

results in an unconstitutional sentence.

The second constitutional

defect is found in the length of this

sentence to the facts of this case.

Unquestionably, in the external or

objective forum, petitioner is guilty

of the crime of distribution of heroin.

His legal guilt is the same as the

profiteering distributor.

Yet, the pun.shment for a single

transaction, for which petitioner

received two doses of heroin to supply

his own addiction, of life imprisonment

is excessive.

In only six other states is the

sentence of life imprisonment even

available for this offense. Each of

those either has indeterminate

9

sentencing (e.g., New York) or there is

a comprehensive range of sentences

(e.g., Missouri). In at least one

state, Rhode Island, an addict, like

Mallery, could not receive the penalty

of life imprisonment, even though such

a penalty is available for the non-addict/

distributors. (R. I. Stat. 21-28-4.01).

The maximum penalty under the laws

of the United States for this very same

offense is 15 years, which itself is

discretionary,

An excessive punishment is

unconstitutional. Gregg v Ga.,

428 U.S. 174, 96 S.Ct. 2909. A

punishment is excessive when it is

unnecessary. Furman v. Ga.,

408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d

346 (1972).

Excluding from consideration

those states which permit the life

sentence, the following can be said,

concerning the balance of the states'

maximum allowable punishment for this

offense: the mean average is 18.5 years;

the median is 15 years. 15 years and

10

LT

20 years are bi-modal numbers. Again,

all of these are either discretionary

maximum or the maximum in an indeterminate

sentencing scheme,

Thus, in no other state in the

union, would this offense require such

a harsh penalty. No other legislature

in a determinate sentencing state has

found it necessary to mandate such a

penalty for all distributors, regardless

of the level of criminal involvement.

Congress does not consider the life

sentence necessary in any distribution

case.

‘Under Louisiana's statutory

scheme, the minor, addict distributor of

heroin is required to be punished more

severely than the armed robber

(La. R. S. 14:64 - 99 years), the

forcible rapist (R. S. 14:43.1 - 40

years), the aggravated arsonist

R. S. 14:51 - 20 years), and the

aggravated burglar (R. S. 14:60 - 30

years), all persons who potentially use

violence against the bodily intergrity

of another person. All these

maximum sentences are discretionary.

ll

More telling is that petitioner

is punished exactly the same as the

second-degree murderer (R. S. 14:30.1)

and the aggrevated kidnapper (R. S. 14:44),

both persons who, in fact, do violence to

their victims.

This is the evidence of disparity of

treatment; the Louisiana punishment

is inappropriate for petitioner's

crime.

The severe punishment imposed

upon Mallery should be set aside. It

is unnecessary to achieve anv

purposeful societal aim other than to

satisfy the "more is better"

syndrome.

CONCLUSION

Mallery is not alone. Hundreds of

others are imprisoned in Louisiana as a

result of the blind imposition of this

penalty. Unless this Court intervenes to

require the application of sentencing

principles to the case at bar, hundreds

and, eventually, thousands shall be

12

imprisoned under this law and its

successor (which has abolished even the

theoretical possibility of the sentencing

judge to suspend the life sentence).

Of those numbers many, if not most,

will be the periphery of narcotics

traffickers. As was noted by the

justices of the Louisiana Supreme Court

in this case, and two companion cases

decided that same date, the major

distributors in each of these cases were

never pursued by the police. It was

only the peddling addict who was

arrested and sentenced to life. (See

State of La. v Terrebonne, 364 So.2d 1290

(La. 1978) and State of La. v Sykes, 364

So.2d 1293 (La. 1978).

Here this Court has the opportunity

to apply the holdings of the death penalty

cases to this next-to-death punishment.

For these reasons, a writ of

certiorari should issue to review the

judgment and opinion of the Supreme Court

of Louisiana

13

Respectfully submitted,

PAUL A. BONIN

LEONARD L, LEVENSON

JOHN J. LEE, JR.

International Trade Mart

Number 2, Canal Street

New Orleans, Louisiana

70130

March, 1979 Telephone (504) 586-0064

COUNSEL FOR PETITIONER

CERTIFICATE

I certify that a copy of the fore-

going petition has been mailed to the

nal APPENDIX

Attorney General of Louisiana and to the

District Attorney of the Parish of

Orleans,

JOHN J. LEE, JR.

14

| 15

STATE of Louisiana

vs

Alvin F. MALLERY, Jr.

No. 62542

Supreme Court of Louisiana

Nov. 13, 1978

Rehearing Denied Dec. 14, 1978

SUMMERS, Justice.

Alvin F. Mallery was indicted by the

Orleans Parish Grand Jury for the April

28, 1976 distribution of heroin, a crime

punishable at that time by a statute which

mandated "life imprisonment at hard labor

and, in addition, (the offender) may be

required to pay a fine of not more than

fifteen thousand dollars." La.Rev.Stat.

40:966. See Act 207 of 1973. The penalty

provision was later amended by Act 631 of

1977 to add “without benefit of probation

or suspension of sentence." Consideration

of this case will therefore invoive the

statute as it existed at the time of the

offense, prior to the 1977 amendment.

Mallery was represented by retained

counsel. He was tried by a jury, found

guilty as charged and sentenced to life

imprisonment at hard labor. On appeal

the conviction was affirmed on July l,

1977. State v. Mallery, 347 So.2d 847

(La.1977).

An application to the district court for

a writ of habeas corpus was filed on May

11, 1978. After a hearing on the motion

it was denied. Mallery's application to

Court for review of the trial court ruling

was granted on July 3, 1978. Although the

application for habeas corpus was based

upon the contentions that Mallery had in-

effective counsel at trial and that the

mandatory penalty of life imprisonment was

excessive, certiorari was granted principally

to consider the claim that the sentence im-

posed was excessive.

The trial judge was without discretion

in sentencing Mallery. The statute's

mandate required the sentence imposed.

However, it was not and is not mandated

by Louisiana law in this case that Mallery

serve a life sentence, he could have re-

ceived probation and a suspended sentence.

La.Rev.Stat. 40:966; La.Code Crim.Pro.

art. 893. Moreover he continues to be

eligible for commutation of sentence and

parole. La.Rev.Stat. 15:574.4.

In order to grant Mallery the relief he

seeks the mandatory life sentence provision

of the statute must be declared repugnant

to the requirement of Section 20 of Article

I of the Louisiana Constitution which de-

clares that "No law shall subject any

person to euthanasia, to torture, or to

cruel, excessive, or unusual punishment,"

or to the proscription against the inflic-

tion of "cruel and unusual punishments”

embodied in the Eighth Amendment to the

United States Constitution.

Research fails to disclose that the

United States Supreme Court has ever

declared life imprisonment as such un-

constitutional. Nor has this Court ever

decided that life imprisonment was cruel

and unusual punishment whenever imposed.

To the contrary, on at least three oc-

casions in writtin opinions in which the

law and facts were adduced, the constitu-

tionality of this penal clause has been

upheld. State v. Hopkins, 351 so.2d 474

(La.1977); State v. Whitehurst, 319 so.2d

907 (La.1975) and State v. Stetson, 317

So.2d 172 (La.1975). Today in State v.

Terrebonne, 364 So.2d 1290, this Court

again upholds the statute against an

attack that it offends the Louisiana Con-

stitution's prohibition against cruel,

excessive, and unusual punishments. The

law and reasons contained in that opinion

are equally applicable to the case at bar.

The federal courts have also upheld the

constitutionality of the statute. See,

e.g., La. Affiliate of NORML v. Guste,

380 F.Supp. 404 (E.D. LA.1974); affirmed,

511 F.2d 1400 (5th Cir.1975); cert.denied

423 U.S. 867, 96 S.Ct.129, 46 L.Ed.2d

96 (1975).

As we understand Mallery's contention,

he takes the position that the penalty

provision of the statute is excessive as

applied in this case because he had no

previous convictions, he was not quite

twenty-six years old and at the time of

the offense he was a heroin addict being

treated at a New Orleans Methadone Clinic.

Even if these facts are accepted as estab-

lishedthe contention is without merit.

A principal argument of the defense

based on these facts is that the mandatory

character of the sentence leaves no room

to individualize the punishment. Justice,

the defense argues, unless individualized

is not justice at all. This argument

overlooks the broad statutory standards

in which probation, suspended sentences,

commutation and parole are permissible in

this case. All of these enactments are

designed to "individualize” the punishment

to the crime.

According to the defense a guarantee

that the sentence be proportioned to the

offense is to be found in Gregg v. Georgia,

428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859

(1976). Such a proposition is in the first

instance a matter which falls squarely

within the constitutional prerogative of

the Legislature. Except as limited by the

constitution its authority is plenary. Its

determination is clothed with a presumption

of constitutionality which persists until

a finding is made, supported by adequate

evidence, that the enactment prescribing

punishment has transcended the limitation

on legislative power set forth in con-

stitutional enactments of equal or superior

dignity. La. Const. arts. I, II, III & V;

La.Civil Code art. J

It is a matter of common knowledge,

and it is a fact, that social conditions

in this state are adversely affected by

the pervading traffic in and use of drugs.

This condition is a serious menace to good

social order, which law seeks to protect

and maintain. La.Rev.Stat. 15:422. In

light of these conditions the facts relied

upon by the defense do not demonstrate

that the legislative wisdom expressed in

the contested statute violates any con-

stitutional limitation on its power, par-

ticularly that which proscribes cruel and

unusual punishment.

It is no defense to this prosecution

that distribution of drugs is not a violent

crime and consequently punishment for this

offense should not be on a par with second-

bt J

degree murder and aggravated kidnapping.

Assuming the punishments are equal, traf-

fic in narcotics is an insidious crime

which, although not necessarily violent,

is surely as grave. Indeed, the effect

upon society of drug traffic is pernicious

and far-reaching. For each transaction

in drugs breeds another and in the case

of heroin the degeneracy of the victim is

virtually irreversible. Compared to the

effect of drug traffic on society, isolated

violent crimes may well be considered the

lesser of the two evils.

And, as a reference to our decision today

in State v. Terrebonne, will demonstrate,

Louisiana is not unique in its determination

to stem the tide of drug abuse to the extent

which serious penalties may deter. Compar-

able legislation has been enacted in at

least six other states.

For the reasons assigned, the ruling of

the trial judge is affirmed.

DIXON, J., concurs.

CALOGERO, J., concurs for reasons

assigned in State v. Terrebonne, La.,

364 so.2d 1290, decided this date.

TATE, J., dissents and assigns

reasons.

DENNIS, J., dissents for the reasons

assigned by TATE, J.

TATE, Justice, dissenting.

The defendant was convicted of dis-

tribution of heroin and sentenced to

life imprisonment, as mandated by

statute. La.R.S. 40:966 (1973). +

His conviction was affirmed

upon appeal. 347 So.2d 847 (La.1977).

Upon his post-conviction application,

we granted certiorari, 360 so.2d 875 (1978),

primarily to review his contention that the

life sentence imposed was unconstitutionally

excessive, in violation of the Eighth Amend-

ment to the United States Constitution and

also, especially, of the prohibition against

"cruel, excessive, or unusual punishment"

provided by Article 1, Section 20 of the

Louisiana Constitution of 1974,

I dissent from our majority holding

that the sentence in this case was not

excessive as defined by constitutional

standards. Before stating the legal princi-

ples applicable, it may be well to note the

facts in the instant case, as reflected by

the post-conviction hearing and by the record

in the applicant's direct appeal, our docket

number 59,331.

1. .

The applicant was a young man of 25,

without previous criminal record or arrest.

He was a plumber by trade, with a wife and

three children. About three years before

the incident, he had become a heroin addict.

A year later, he entered a methadone pro-

gram to break his addiction, and he had

been able to reduce his previous use of

six bags of heroin a day. Nevertheless,

at the time of the offense, he still used

heroin intermittently, about two bags a day.

The particular transaction at issue

occurred as follows, according to the police

witnesses for the state:

Narcotics agents were informed by

"Sunny," a confidential informant, that a

drug buy would take place. An officer went

with Sunny, met with the defendant, and

agreed with the latter to buy some heroin.

The defendant made a telephone call from a

public pay station. They then went to

another location, where the defendant met

a woman, apparently transferred the of-

ficer's $150 to her for ten bags of heroin,

turned eight of them over to an undercover

police officer, and received two of them

for his help in arranging the transaction.

About a month later the accused was

arrested for the distribution offense.

The woman (wholesaler) from whom he obtained

the drugs was never charged, nor was anyone

else except the defendant.

The defendant denied various details of

the transaction, but he admitted he had

helped arrange for the purchase. According

to him, Sunny (the police informant) had

come to his home, complaining of withdrawal

symptoms, and had asked for help in Deasetec

some drugs. The defendant told Sunny he

was not sure if he could help, but he tele-

phoned someone named "Man," and Sunny and

he drove to a location where Sunny met a

third man (the undercover police agent)

and the defendant met Man. (According

to the defendant, Man handled all further

participation in the transaction, including

obtaining the drugs from the lady after

Man had made a telephone call.)

The purchasers gave the defendant two

bags of heroin for his help, for his per-

sonal use.

Under these facts, the defendant was

undoubtedly guilty of the offense of dis-

tribution of heroin. Although he was moti-

vated by sympathy for a fellow-addict's

needs and by his own addiction, according

to him, nevertheless this does not exculpate

him from guilt.

Nor (under presently accepted standards

of entrapment) does the circumstance that

the crime was instigated and set up by an

addict-informer, possibly to justify his

own continued employment as an informer

- wel

and his own continued immunity from arrest

and prosecution as a heroin possessor,

lessen the defendant's legal guilt of the

crime. And it is further irrelevant to the

accused's guilt that he is punished for

what under the record is a one-time par-

ticipation in a distribution, whereas

apparently the wholesalers for whom he

was an intermediary were not pursued or

prosecuted.

In my opinion, what these attenuating

circumstances do suggest, irrelevant as

they may be to the defendant's legal guilt

of the crime charged, is that the mandatory

life sentence is excessive for this single

non-professional distribution by this other-

wise law-abiding (except for his heroin-use)

addict.

II.

I concede that great deference must be

given to the legislative determination of

the appropriate penalty and that, in view

of the enormous social evil at stake,

severe penalties may undoubtedly be ap-

propriate for those engaging in heroin

traffic for gain. I further concede that

a life sentence for a commercial distributor

of heroin in large quantities might not

be excessive.

What I do suggest, however, is that a

mandatory life sentence for a person for a

single act of distribution of heroin, how-

ever small or insignificant the amount of

the drug or the offender's participation,

is excessive under accepted constitutional

standards. If so, the courts in the per-

formance of their constitutional function

cannot blindly defer to the legislative

characterization, when to do so offends

the constitutional prohibition against

excessive punishment of individuals for

transgressions. It is the very function

and duty of the courts to enforce consti-

tutional protections of individuals against

governmental excesses prohibited by our

constitutions, however popular with the

majority of the moment may be its govern-

ment's action against these individuals,

and however despised the latter may be by

the majority at the time.

In determining what is excessive pun-

ishment under the federal Eighth Amendment's

prohibition against cruel and unusual

punishment, the federal courts have adopted

a standard that a sentence is excessive

when it is grossly out of proportion to

the severity of the crime. Coker v. Georgia,

433 U.S. 584,97 S.Ct. 2861, 53 L.Ed.2d 982

(1977); Gregg v. Georgia, 428 U.S. 153,96

S.Ct. 2909, 49 L.Ed.2d 859 (1976); Rummel

v. Estelle, 568 F.2d 1193 (C.A.5, 1978);

Downey v. Perini, 518 F.2d 1288 (A.A.6,

1975); Hart v. Coiner, 438 F.2d 136 (C.A.4,

1973), certiorari denied 415 U.S. 983, 94

S.Ct. 1577,39 L.Ed.2d 881 (1974). Uncon-

stitutional excessiveness may also result

from the automatic imposition of a harsh

penalty for all transgressions whatever

the circumstances of the crime or the

background of the individual offender.

Woodson v. North Carolina, 428 U.S. 280,

96 S.Ct. 2978, 49 L.Ed.2d 944 (1976).

Thus, recognizing these principles, the

federal courts in Rummel and Hart, cited

above, set aside, as unconstitutional,

statutorily mandated life sentences im-

posed upon multiple offenders, when grossly

disproportionate to the underlying crimes

upon which the convictions were based.

Although the statutes themselves were not

declared facially unconstitutional and

whenever applied,” they were declared

unconstitutional insofar as applied to

require the imposition of mandatory life

sentences when grossly disproportionate to

Aen

the underlying offenses of the particular

offender. Nor does the availability

of parole as a matter of administrative

grace save from unconstitutionality

a sentence excessive as grossly dis-

proportionate to the crime charged.

Rummel at 568 F.2d 1196.

The Downey decision, above cited, for

similar reasons held to be unconstitution-

ally excessive mandatory minimum sentences

of 10-20 years for possession of mari-

juana and 20-40 years for. sale of mari-

juana, when applied to a first offender. >

On the other hand, the United States

Second Circuit upheld the constitutionality

of mandatory sentences of 4 years to life

and of 6 years to life for the sale of

cocaine, and for the possession of cocaine

with intent to distribute it, respectively;

partly because of the recognized proba-

bility of parole under the New York statute

involved. Carmona v. Ward, 576 F.2d 405

(C.A.2, 1978) .4

Other state high courts have also in-

validated mandatory sentences as dis-

proportionate to the gravity of the offense

and as violating state and federal con-

stitutional prohibitions against cruel

and unusual punishment.

The California Supreme Court found that

punishment relating to drugs other than

marijuana, when it precluded parole for

a minimum period of ten years as to an

offender with prior drug convictions with-

out regard to mitigating circumstances,

constituted cruel and unusual punishment

in violation of its state constitution.

A test similar to Carmona and Hart was

applied: an examination of the nature of

the offense and the offender, an examina-

tion of other punishments for more serious

crimes in California, and an examination

of other jurisdictions. In re Foss, 10

Cal.3d 910, 112 Cal.Rptr. 649,519 P.2d

1073 (1974); see also In re Lynch, 8

Cal.3d 410, 105 Cal.Rptr. 217,503 P.2d

932 (1972).

In People v. Lorentzen, 387 Mich. 167,

194 N.W.2d 827 (1972) (20 years mandatory

minimum sentence for selling marijuana),

the Michigan Supreme Court employed a

broader test. Besides comparing other

statutes, the court determined whether

any of the valid goals sought to be

achieved by the imposition of the punish-

ment is served by the sentence imposed

and found the mandatory penalty excessive.

The court remanded the case for re-sentencing

to a lesser penalty.

Zale

The jurisprudence on proportionality

uses several criteria to determine if a

penalty imposed by the legislature is cruel

and unusual under the federal Eighth

Amendment. These include the nature of

the offense and the legislative purpose

behind the statutory punishment, an ex-

amination of the offender, a comparison of

how the defendant would be punished in

other jurisdictions, a comparison of pun-

ishments in the same jurisdiction for

other offenses.

Examining these criteria with reference

to La.R.S. 40:966 B(1) (1973):

1. The nature of the offense: Unques-

tionably, for reasons stated by the major-

ity, a life sentence for the distribution

of heroin is not excessive under all

circumstances. The commercial distribution

of heroin is vicious social evil, in the

degradation of human lives and in the

other crimes spawned by its addicts who

acquire the addiction. Undoubtedly,

severe penalties are justified by the

legislative purpose to deter similar

offenses and to punish such perpetrators

of serious social evil.

2. The particular offender and his

participation in the offense: Despite

the seriousness of the offense, however,

a mandatory all-inclusive sentence may be

unconstitutionally excessive insofar as

applied to a particular offender, when

imposed witheut a rational gradation of

his culpability as compared to the more

serious offenders punishable by the

statute.

Thus, the California Supreme Court

stated in In re Foss, cited above at 112

Cal.Rptr. 655, 519 P.2d 1079: "Heroin

is an opiate based drug which causes a

strong psychological and physiological

addiction, or drug dependence, through

continued use. We have no doubt that

heroin abuse presents a serious problem

to our society or that harsh penalties

may be necessary to restrict the supply,

sale and distribution of this substance.

In enacting additional penalties for

repeated offenses, however, consideration

should be given to the particular cir-

cumstances of the offenses committed,

such as the quantity of narcotics involved,

and whether the transactions were those

of an addict to support his habit, as is

the case here, or were sales for profit

made by other suppliers of heroin.”

The Louisiana statute here at issue

imposes the same punishment of life im-

prisonment "regardless of the circumstances

of the crime or of the offender, or of

the degree of guilt as a retailer or

wholesaler or mere giver of drugs, however

large or small in quantity." State v.

Terrebonne, 354 So.2d 1356, 1357 (La.1978)

(concurring opinion).

Here, accepting for the moment the

showing in the record,” we have a first

offender, never before arrested, who was

an addict and who had engaged in the

distribution of heroin only as an isolated

offense. Rather, solicited by a govern-

mental agent who pretended to be another

addice in need, the defendant helped him

obtain some heroin--to satisfy the addict's

need, as well as (from his tip for per-

forming the service) his own need of the

deadly drug. The record also seems to

indicate that he had never before been

engaged in or even been suspected of par-

ticipating in a drug sale.

(Rather surprisingly, as in State v.

Sykes, 364 So.2d 1293, decided on rehearing

this date, no attempt was made by the

several governmental agents on the scene

to apprehend/prosecute the wholesaler or

retailer who actually supplied the drugs,

or whom the present addict served only as

an ad hoc conduit.)

3. A comparison of other states’

penalties for drug-related offenses shows

that the Louisiana penalty is the most

severe. Only the New York law provides

for a mandatory life sentence, but even

that is of an indeterminate nature of four

(or six) years to life; and (unlike in

Louisiana) even that life sentence may not

be applicable if only a small amount of

the drug is involved. The other states

provide for maximum terms of ten years,

fifteen years, twenty years, or permit

the sentencing judge to establish a maximum

sentence of any length up to life but do

not require it. Note, "Drug Abuse, Law

Abuse, and the Eighth Amendment," 60 Cornell

L.Rev. 638, 665-668 (1975). See also

footnote 4.

4. A comparison of other crimes in

Louisiana and their punishments shows

that the penalty of R.S. 40:966B is one of

the most severe.

First degree murder (La.R.S. 14:30),

second degree murder (La.R.S. 14:30.1),

and aggravated rape (La.R.S. 14:42) have

mandatory sentences of life imprisonment

at hard labor without benefit of parole,

probation or suspension. (La.R.S. 14:30.1

grants parole power after forty years.)

Aggravated kidnapping (La.R.S. 14:44) im-

poses a penalty of life imprisonment if the

victim is liberated prior to imposition of

sentencing.

A person convicted of armed robbery

(La.R.S. 14:64) can receive a sentence of

5-99 years of hard labor without parole,

probation or suspension. Other violent

crimes do not impose a life sentence: See,

C9, La.R.S. 14:31, manslaughter--21 years;

La.R.S. 14:51, aggravated arson--5-20 years;

La.R.S. 14:60, aggravated burglary--1-30 |

years.

It thus appears that the mandatory life

sentence for the distribution of heroin,

however small in quantity or amateur the

participant, is unusually severe compared

with the statutory penalties for violations:

of other crimes in Louisiana.

Summary: Measured by all these criteria

except the first, the life sentence here

imposed is grossly disproportionate to the

particular offense and offender here in-

volved. While the first criteria (the

nature of the crime and the legislative

purpose) undoubtedly justifies a severe

penalty for deterrence and punishment

factors, the severity of a mandatory life

sentence in this case is excessive because

it does not, insofar as the present offender

at least, make the severity of such life

sentence depend upon a rational gradation

of the offender's culpability, which is

here that of a petty one-time offender

rather than that of a commercial distrib-

utor as a consistent course of conduct or

one who distributed large quantities for

the market.

IV.

Until now, the writer has discussed

the criteria of the excessiveness of the

present life sentence in terms of its un-

constitutionality as "cruel and unusual"

punishment prohibited by the Eighth Amend-

ment to the United States Constitution.

All the more so does this life sentence,

under present circumstances, violate the

explicit prohibition of our own state

constitution against not only "cruel" or

"unusual" punishment, but also against

"excessive" punishment. Article 1, Section

20, Louisiana Constitution of 1974,

This additional language in our new

state constitution deliberately added a

new dimension of judicial review as to the

excessiveness of sentences, whether im-

posed by the legislature or by judges.

See summary of constitutional history of

the provision and of the authoritative

commentary concerning it in State v. Wil-

liams, 340 So.2d 1382, 1384 (La.1976)

(concurring opinion).

As there noted, the provision was de-

signed to give the courts the power to

determine that sentences~"'though not

cruel or unusual, are too severe as pun-

ishment for certain conduct and thus un-

constitutional.'" 340 So.2d 1385. One

commentator noted "Mandatory penalties

are particularly suspect because they

frequently have no relation to the magni-

tude of the offense.'" 340 So.2d 1385.

In this regard, the general principles

for sentencing statutes set forth by the

authoritative American Bar Association

Standards of Criminal Justice are illumin-

ating. Standard 2.1, Sentencing Alterna-

tives and Procedures, outlines the fol-

lowing general principles. which should be

applicable:

"(a) All crimes should be classified

for the purpose of sentencing into cate-

gories which reflect substantial differences

in gravity. The categories should be

very few in number. Each should specify

the sentencing alternatives available for

offenses which fall within it. The penal

codes of each jurisdiction should be

revised where necessary to accomplish this

result.

"(b) The sentencing court should be pro-

viced in all cases with a wide range of

alternatives, with gradations of supervisory,

supportive and custodial facilities at its

disposal so as to permit a sentence approp-

riate for each individual case.

"(c) The legislature should not specify

a mandatory sentence for any sentencing

category or for any particular offense.

"(d) It should be recognized that in

many instances in this country the prison

sentences which are not authorized, and

sometimes required, are significantly

higher than are needed in the vast majority

of cases in order adequately to protect

the interests of the public. Sentences of

twenty-five years or longer should be

reserved for particularly serious offenses

or, under the circumstances set forth in

sections 2.5(b) and 3.1l(c) (special term),

for certain particularly dangerous offenders.

For most offenses, on the other hand, the

maximum authorized prison term ought not to

exceed ten years except in unusual cases

and normally should not exceed five years."

Measured by this or almost any other

standard now available, the life imprison-

eee ee ee

ae

ment mandatorily imposed for this drug

offense under these circumstances is

clearly excessive.

V.

I would therefore, on the present show-

ing, set aside the present life sentence

as unconstitutionally excessive. Upon

sentencing hearing upon the remand (see

footnote 5), however, it may be shown that

the offender is a commercial distributor

of heroin in large quantities (rather than

the present being, as it seems on the

present record, an isolated transaction

by him, involving a relatively small quan-

tity).

In the absense of such showing, the

present mandatory life sentence is uncon-

stitutionally excessive insofar as the

present offender, and I would order the

offender then to be resentenced under the

graduated penalties permissible for the

al

next lesser included crime at the time of 1. As amended by act 207 of 1973, La.R.S. 40:966

B(1) provided for mandatory life sentence upon

conviction of the offense. After the offense

| the statute was again amended by Act 631 of 1977

distribution, La.R.S. 14:27D(1) (1975), so to provide a mandatory penalty, upon con-

viction, of "life imprisonment at hard labor,

without benefit of probation, or suspension of

sentence."

this 1976 offense, cf. State v. Craig,

340 So.2d 191 (La.1976)--i.e., attempted

which provides for imprisonment at hard )

labor “for not more than fifty years."

The trial court would thus be permitted

2. The same court which invalidated the mandatory

life sentence in Hart, as excessive because

grossly disproportionate to the underlying of-

unconstitutionally excessive as grossly fenses there, maintained the life sentence when

the underlying offenses involved the potentiality

of violence and danger to life. Griffin v. Warden,

West Virginia, etc., 517 F.2d 756 (C.A.4, 1975).

to impose a substantial penalty for this

serious crime, but one which would not be

disproportionate to the circumstances of

the present offense.

3. The decision was vacated and remanded for re-

consideration in the light of an amendment to

the state statute involved. Perini v. Downey,

423 U.S. 993, 96 S.Ct. 419, 46 L.Ed.2d 367 (1975).

4. In holding the life sentence unconstitutionally

excessive for the minor drug offenders involved,

the district court had discounted as irrelevant

| this probability and had judged the excessiveness

: on the basis of the maximum (i.e., life) sentence

possible under the judgment of the court imposing

the legislatively mandated sentence. Carmona v.

Ward, 436 F.Supp. 1153, 1165 (U.S.D.C., S.D.,

N.Y., 1977). In analyzing the drug violation

statutes of the other American states, the court

found that, aside from New York, only Louisiana

retains a mandatory life sentence for certain

narcotic sentences. 436 F.Supp. 1166-67. The

life sentences permitted in six other states,

see Carmona at 576 F.2d 424 (dissent), permit

the sentencing judge to impose sentence on the

basis of a rational gradation of culpability in

determining the punishment mandated for the

crimes involved.

5. There was no sentencing hearing or post-con-

viction evidentiary hearing on the issue of

proportionality. Before this life sentence is

set aside, an evidentiary hearing might be

required, in the event undisclosed sentencing

factors would negate the present apparent lack

of provortionality of the sentence to the crime

and to the present offender.