In this drug offense, petitioner was a 21 year old heroin addict. On September 18th, two agents of the Sheriff’s Department of Louisiana, accompanied by a paid informant, and encountered petitioner. Aware of petitioner’s addiction, they asked him whether he had any heroin. He answered that he did not but agreed to “score a bundle” for them. This jargon describes the purchase of 25 packets of individual doses of heroin, a retail transaction. Petitioner telephoned his “connection” (i.e. his supplier), the agents provided the funds to enable him to make the purchase and he left to accomplish the transaction. He returned with 22 packets. The agents took 19 and allowed him to retain three.
Some months later, a New Orleans Heroin Possession Lawyer said that petitioner was arrested, tried and convicted of distributing heroin. Petitioner testified at trial. He did not deny the facts set forth above, but contended that he was entrapped. He admitted that his addiction required five to six packets of heroin each day, but he was not able to afford that much. He paid $10 to $12 per packet. He was employed as a carpenter earning $3 per hour, but he did not work steadily. He admitted that he had previously been convicted of two felonies, burglary and theft by fraud. His wife testified that, while she also worked, her husband was a good provider for her and their one child. A Drug Crime Lawyer said that petitioner was sentence to life imprisonment without parole for distributing heroin.
The issue in this case is whether petitioner’s sentence is grossly disproportionate to his crime as to contravene the Eighth Amendment’s prohibition of cruel and unusual punishments.
The relevant Supreme Court authority which the Court must apply consists of two decisions. In the first of these, the 1980 case, the Court held that a life sentence imposed after a third non-violent felony conviction passed muster under the Eighth Amendment. Just over three years later, however, in a 1983 case, the Court declared that a life sentence passed after seven felony convictions did not. Nor is this obvious comparative imbalance in number of convictions redressed by examining the crimes themselves, for the 1980 case three had been truly non-violent credit card fraud, forgery, and theft by false pretenses while numbered among the 1983 case seven felonies were three burglaries and a third-time conviction for drunk driving. Yet the Court majority in the 1983 case maintained strenuously that its result was not inconsistent with the 1980 case. How can the two decisions be reconciled?
According to the 1983 case majority, the distinction rests partly upon the fact that the 1980 case punishment was as here imposed not by the judge but by the legislature, and partly upon the troubling factor in today’s case: no parole. The majority instances the first distinction, like the second, in a footnote. Granting relief in today’s case, as in the 1980 case, would require overturning the judgment of the legislator.
As for the second distinction, the 1983 case majority, apparently stung by the dissent’s accusation that it was flouting the recent precedent of the 1980 case, observed: the 1980 case did reject a proportionality challenge to a particular sentence. But since the Court like the dissent today offered no standards for determining when an Eighth Amendment violation has occurred, it is controlling only in a similar factual situation. Here the facts are clearly distinguishable. Whereas the 1980 case was eligible for a reasonably early parole, at age 36, was sentenced to life with no possibility of parole. Thus, we glean from footnotes the two distinctions between the 1980 and 1983 cases offered by the Court, that overturning the 1980 case sentence would have required questioning a legislative judgment, and that parole was available to the 1980 case but not to the 1983 case. Applying to petitioner’s case at bar, one cuts one way, the other another.
With all deference, the Court finds the criteria offered of little assistance. The first of them the Court’s direction to compare the deed to the punishment assessed seems to us little more than a direction to engage in proportionality analysis. The other two are offered by the Court simply as criteria which “may be helpful” or “useful”: the sentences imposed for other crimes by the same jurisdiction as that which imposed the sentence under review and those imposed for the same crime by other jurisdictions. The Court commenced its analysis by applying the two “discretionary” standards as best it can to petitioner’s crime and punishment.
The first of the discretionary criteria invites us to test the consistency and rationality of the indigenous legislature’s scheme of punishment. When we do so, we find that Louisiana classifies heroin distribution with second degree murder, aggravated rape, and aggravated kidnapping. First degree murder can be more severely punished (death), or can receive the same punishment as these. Next in order of severity come such crimes as intentionally killing a child during delivery (life imprisonment at hard labor); forcible rape (up to forty years at hard labor, at least two without possibility of parole); and aggravated arson (six to twenty years at hard labor, two without possibility of parole). Thus, the pyramid of severity of offenses, as viewed by the Louisiana legislature, commences at the top as follows: First degree murder, Second degree murder, aggravated rape and aggravated kidnapping, heroin dealing. Killing child during delivery, forcible rape, and aggravated arson.
Turning to the second discretionary criterion, a comparison of petitioner’s sentence with those imposed for heroin dealing by other jurisdictions, we are asked to determine whether his sentence is within the general range of punishments deemed appropriate by vastly differing legislators treating of widely disparate situations. Life imprisonment is the maximum penalty for the distribution of narcotics in a substantial number of states. Even so, it must be conceded that parole is usually available in these jurisdictions without Louisiana’s requirement of a prior commutation of the sentence to a term of years. It thus appears that, among the States of the Union, Louisiana exacts the most severe penalty for heroin dealing. The United States, however, prior to the Sentencing Reform Act, authorized one even more severe for dealing in significant amounts of certain specified, dangerous narcotics: life imprisonment, with parole in no circumstances whatever. Such sentences are also required by the Sentencing Guidelines for aggravated crimes involving trafficking in substantial amounts of heroin or certain other controlled substances and of multiple offenses involving such trafficking.
It thus appears that petitioner’s punishment, while quite severe by American standards, is not one that is bizarre or outlandish. No one seriously disputes that his was a serious, not a minor, crime or that, while his conviction was his first for drug trafficking, he was in fact a regular trafficker. The United States itself has provided for the sentence imposed upon petitioner in trafficking cases involving multiple offenses or complications. More, in many jurisdictions petitioner’s criminal record would have qualified him as a habitual offender; nor does his $50 to $70 a day heroin habit, noted in our earlier opinion en banc, support a view that he is a minor offender. To the contrary, the record supports the inference that this five or six packet daily habit would, at the time of his crime in 1975, have required him to arrange at least two “bundle” sales per day. At that time, a 25-packet “bundle” went for $175; thus in 1975 petitioner was dealing $350 in heroin per day or more than $125,000 per year. As of 1975, this was a significant amount of heroin to pump into Louisiana’s veins.
And so, having sought refuge in the Court’s discretionary standards and having found little succor there, we return to its central command: that, in the name of the Eighth Amendment, we permit or forbid the Louisiana legislature to exact an (in effect) mandatory life sentence without parole of anyone found guilty of dealing in heroin. Hard cases make bad law, as the legal adage has it; and petitioner’s case is a hard one. At age 21, with a wife and a child, he went up for life at state expense because he was caught contributing to what seems generally agreed to be our country’s major domestic problem: the sale and use of hard drugs. He was a carpenter who worked at his trade from time to time. He was young; and his precocious prior crimes were in all probability, as we have recognized connected with his appetite for drugs.
In this instance, the tiger trap has sprung on a sick kitten; and the point that Louisiana doubtless wished to make by punishing drug dealers in a signal manner finds a pathetic exemplar in the hapless petitioner. Even so, and for several reasons, it is by no means clear to us that because of this we are justified in tampering with Louisiana’s attempts to bring its critical narcotics problem under control. In the first place, to do so would clearly contravene at least the spirit and language of the 1980 case opinion, a decision that the 1983 case Court insisted remains good law.
A life sentence for the crime of distributing heroin serves substantial state interests in the same manner that state interests were served by a life sentence for recidivism in the 1980 case. The state could reasonably treat heroin distribution as a serious crime equivalent to crimes of violence. It could conclude: The drug seller, at every level of distribution, is at the root of the pervasive cycle of drug abuse. Measured thus by the harm it inflicts upon the addict, and, through him, upon society as a whole, drug dealing in its present epidemic proportions is a grave offense of high rank. Petitioner willingly participated in the system of distribution, knowing the effects of the drug he procured.
In the second, invalidating petitioner’s sentence would require a substantial extension of the 1983 case. Time and again in that opinion, as we note above, the Court minimized offenses referring to them as minor and emphasizing that despite their comparative insignificance they had received the severest punishment imposable at that time in South Dakota for any offense whatever. In the same breath, however, the Court placed repeated heroin dealing in the category of “very serious offenses,” going on in a footnote to observe that “no one suggests that it may not be applied constitutionally to fourth-time heroin dealers or other violent criminals.” It is one thing for a court such as we to contemplate an extreme case such as the felonizing of overtime parking, striking down such an action as outlandish, and quite another for us to interfere in the various gradations of punishment specified by the legislator for crimes which no one disputes are serious ones and to do so on Constitutional grounds, at that. We may be competent to contemplate outrageous disproportion and declare that it cannot be; certainly, however, we are not equipped, nor do our procedures lend themselves to equipping us, with the factual knowledge and common sense of what is proportional, what punishments should be administered for particular offenses, and along what general lines the positive legislative attack on criminality should proceed.
Thus, it is perfectly consistent for us to conclude that according to our lights petitioner’s punishment was too severe, was not well proportioned to his crime, but that according to the Constitution’s ban on “cruel and unusual” punishment petitioner’s punishment was not disproportionate to his crime. Finally, for whatever it may be worth, we do not lack sympathy for petitioner; and, in our view, his sentence is a harsh one indeed. The fact remains, however, that certain offenses are so sufficiently serious as to merit severe punishment regardless of who commits them.
And so we come to the end of our survey. From it we deduce that Louisiana’s penalty for heroin trafficking is very likely the most severe of any American jurisdiction, although less so than that of several foreign states, and that insofar as we are capable of comparing such diverse matters it is not disproportionate to those exacted by Louisiana for crimes of comparable seriousness.
Plainly the judgment of the Louisiana Legislature, grounded in the legislators’ intimate knowledge of local conditions, is that the best way to deal with the state’s narcotics problem is to serve notice on all and sundry that dealing in any amount of certain specified, especially-noxious drugs carries the risk of life imprisonment a “life” imprisonment which, like one imposed under the new Federal Sentencing Guidelines, is authentically for life. As we observed in our former en banc opinion in this case, the Court upheld life sentence for recidivism “because the imposition of a life sentence served an obvious and substantial state interest and hence was not, in fact, grossly disproportionate.”
The same is true of the sentence in this case. To be sure, petitioner’s sentence is more severe than the 1980 case, but so was his crime. In addition, petitioner’s sentence is the same as that stricken down by the Court in the 1983 case, but crimes were all characterized by the Court as minor, while that of petitioner is thought to be such by no one. If Louisiana’s hands are to be tied in the face of the present assault on its society and citizens by the drug menace, some other Court will have to do it. We decline to do so. Accordingly the Court held that the judgment is affirmed.
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