# Petition — Mallery v. Blackburn > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2604%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 442 U.S. 940 ## Text 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2604%3A1. Public record. Not legal advice.