Com. v. Jackson

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation344 N.E.2d 166,369 Mass. 904
Decision Date15 March 1976

Clyde D. Bergstresser, Boston (Lawrence D. Shubow, Morris S. Shubow and Jeremy A. Stahlin, Boston, with him), for defendant.

Richard A. Voke, Asst. Dist. Atty. (George E. Foote, Jr., Cambridge, with him), for the Commonwealth.

J. John Fox, pro se.

Jenne Baker, Richard L. Neumeier, Harvey Silverglate, Boston, and John Reinstein, Cambridge, for Civil Liberties Union of Massachusetts, amicus curiae, submitted a brief.


HENNESSEY, Chief Justice.

The defendant was convicted of carrying a pistol without a license and received the mandatory minimum sentence of one year in a house of correction as provided by G.L. c. 269, § 10(a), set forth below. 1 On appeal he challenges the constitutionality of this statute on the grounds that a mandatory one-year jail sentence on conviction constitutes cruel and unusual punishment, denies him due process of law and violates the separation of powers doctrine embodied in art. 30 of the Declaration of Rights of the Massachusetts Constitution.

We conclude that the § 10(a) mandatory minimum sentence of one-year imprisonment does not constitute an unconstitutional exercise of legislative power, and accordingly we affirm the judgment below.

The defendant, having been convicted and sentenced by a District Court judge, entered an appeal in the Superior Court for Suffolk County. A motion to dismiss challenging the statute's constitutionality was denied by a Superior Court judge. On the basis of a statement of agreed facts warranting a finding of guilt, the defendant was convicted and sentenced to one year in a house of correction, execution of which was stayed pending appeal.

The statement of agreed facts, which was adopted as findings of fact by the trial judge, indicates that on the evening of July 5, 1975, the defendant and another male were observed by two police officers. Seeing the officers, the defendant's companion dropped a bag containing a revolver. The defendant attempted to flee, but was apprehended by an officer who found a second gun, a .25 caliber pistol, in the defendant's possession. In response to questioning by police, the defendant admitted that he had neither a license to carry the gun nor an identification card.

Prior to amendment in 1974, G.L. c. 269, § 10, provided that a defendant who was convicted for the first time of carrying a firearm without a license could be sentenced to not less than six months in jail and not more than five years in State prison, but if he had not been previously convicted of a felony, a fine of not more than $50 or imprisonment not exceeding two and one-half years could be imposed. This provision was struck by St.1974, c. 649, § 2, and inserted in its place was § 10(a) which establishes a one to five-year sentence, the one-year jail sentence being a mandatory minimum. The sentencing judge is precluded from placing a defendant on probation, suspending the sentence, filing the case or continuing it without a finding, and a defendant is ineligible for parole, furlough or good conduct deductions. 2

In upholding this statute, we do not pass on the wisdom of the Legislature's acts. Although we recognize that the defendant advances many arguments that raise serious doubts as to the efficacy of this statute, we must limit our discussion to those that relate to its constitutionality, for our function is to determine whether the act before us complies with constitutional mandates. We do not, for instance, address the defendant's argument that the effect of § 10(a) will be to take sentencing discretion away from the judge and to place it, instead, in the hands of the police, thereby making the criminal process less visible, and perhaps more arbitrary. Nor should we engage in the on-going debate concerning the effectiveness of substituting mandatory sentences for flexible sentencing and of emphasizing deterrence over rehabilitation. Neither may we concern ourselves with the potential unfairness of a statutory scheme that permits judges to impose probations and suspended sentences in cases of serious (even violent) crimes, and yet requires incarceration of one convicted under the instant statute. Although it is argued that a system of justice that does not provide the necessary flexibility will ill serve the needs of our citizens, such a policy argument is not properly before us, but rather should be addressed to the Legislature. 3

It follows that the questions that we decide today concern only the statute's constitutionality, namely, whether this enactment constitutes cruel and unusual punishment or denies due process in contravention of the United States and Massachusetts Constitutions or violates art. 30 of our Declaration of Rights. We turn now to those questions.

1. The defendant contends that § 10(a), by imposing a mandatory minimum one-year sentence, prescribes punishment so disproportionate to the offense as to constitute cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution, and art. 26, the parallel provision of our Declaration of Rights. Although we acknowledge that this statute imposes severe and inflexible penalties, it is not cruel and unusual in a constitutional sense.

We note at the outset that the Legislature has great latitude to determine what conduct should be regarded as criminal and to prescribe penalties to vindicate the legitimate interests of society. Commonwealth v. Morrow, 363 Mass. 601, 610--611, 296 N.E.2d 468 (1973); McDonald v. Commonwealth, 173 Mass. 322, 328, 53 N.E. 874 (1899). 'The function of the legislature is primary, its exercise(s) fortified by presumptions of right and legality, and is not to be interfered with lightly, nor by any judicial conception of their wisdom or propriety.' Weems v. United States, 217 U.S. 349, 379, 30 S.Ct. 544, 554, 54 L.E. 793 (1910). It is thus with restraint that we exercise our power of review to determine whether the punishment before us exceeds the constitutional limitations imposed by the Eighth Amendment and by art. 26.

This court has recognized that 'it is possible that imprisonment in the state prison for a long term of years might be so disproportionate to the offense as to constitute a cruel and unusual punishment.' McDonald v. Commonwealth, supra, 173 Mass. at 328, 53 N.E. at 875. This same principle was echoed by the United States Supreme Court in Weems when it stated that it is 'a precept of justice that punishment for crime should be graduated and proportioned to offense.' 217 U.S. at 367, 30 S.Ct. at 549. Although punishment may be cruel and unusual not only in manner but length, 'a heavy burden is on the sentenced defendant to establish that the punishment is disproportionate to the offense for which he was convicted.' Commonwealth v. O'Neal, --- Mass. ---, --- a 339 N.E.2d 676, 680 (1975), (O'Neal II) (Tauro, C.J., concurring). It must be so disproportionate to the crime that 'it shocks the conscience and offends fundamental notions of human dignity.' In re Lynch, 8 Cal.3d 410, 424, 105 Cal.Rptr. 217, 226, 503 P.2d 921, 930 (1972).

Courts, in an effort to avoid a subjective approach, have developed guidelines to determine whether punishment is constitutionally disproportionate. See, e. g., Weems v. United States, supra; In re Foss, 10 Cal.3d 910, 112 Cal.Rptr. 649, 519 P.2d 1073 (1974); In re Lynch, supra; People v. Broadie, 37 N.Y.2d 100, 371 N.Y.S.2d 471, 332 N.E.2d 338 (1975). The tripartite analysis, set forth explicitly by the California Supreme Court in In re Lynch, supra, 8 Cal.3d at 425--427, 105 Cal.Rptr. 217, 503 P.2d 921, serves as a useful tool.

The first prong of the disproportionality test considers the nature of the offense and the offender in light of the degree of harm to society. The penological purposes of the prescribed punishment are also relevant to this analysis, see In re Foss, supra, 10 Cal.3d at 919--920, 112 Cal.Rptr. 649, 519 P.2d 1073; People v. Broadie, supra, 37 N.Y.2d at 114, 371 N.Y.S.2d 471, 332 N.E.2d 338, for, as stated by Mr. Justice Brennan in his concurrence in Trop v. Dulles, 356 U.S. 89, 111, 78 S.Ct. 590, 603, 2 L.Ed.2d 630 (1958), 'Clearly the severity of the penalty, in the case of a serious offense, is not enough to invalidate it where the nature of the penalty is rationally directed to achieve the legitimate ends of punishment.'

It is clear that § 10(a) inhibits consideration of the threat posed by the offender to society, for a judge may not take into account mitigating circumstances or the offender's past history. Although this inflexible approach, which limits a court's ability to graduate the punishment to the offender, is open to criticism, this is not sufficient to permit us to invalidate the present statute in view of the harm to society sought to be minimized by this legislative enactment.

At a time when we face a frightening rise in crime, our Legislature must be able to experiment in finding solutions to this pervasive problem. One such attempt, § 10(a), seeks to control the carrying of firearms so as to 'protect the public from the potential danger incident to . . . (their) unlawful possession . . ..' Commonwealth v. Bartholomew, 326 Mass. 218, 219, 93 N.E.2d 551, 552 (1950). There is no question that firearms play a significant role in crime. In 1974 firearms were used in 68% of the homicides (handguns accounted for 54% of the homicides) and 25% of the serious assaults in this country. F.B.I. Uniform Crime Reports for 1974, at 15, 20. In the Northeast in that same year, a handgun was used in 34% of all robberies. Id. at 26. Some statistics further indicate that, when a gun is used in an attack, the chances of death are about five times as great as when a knife is used, and, as the number of...

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