Opinion of the Justices to House of Representatives

• Decision Date: 06 July 1979
• Citation: 393 N.E.2d 313,378 Mass. 822
• Parties: OPINION OF THE JUSTICES TO the HOUSE OF REPRESENTATIVES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 313

393 N.E.2d 313

378 Mass. 822

OPINION OF THE JUSTICES TO the HOUSE OF REPRESENTATIVES.

Supreme Judicial Court of Massachusetts.

July 6, 1979.

To the Honorable the House of Representatives of the Commonwealth of Massachusetts:

The Justices of the Supreme Judicial Court respectfully submit their answers to the questions set forth in an order adopted by the House of Representatives of May 21, 1979, and transmitted to us on May 23, 1979. The order recites that certain bills are pending before the General Court, identified as Senate No. 777, Senate No. 813, Senate No. 814, and House No. 507, all of which provide for mandatory prison sentences for major drug dealers, and that grave doubts exist as to their constitutionality if enacted into law. Copies of the bills were transmitted to us with the order. Typical of these bills is Senate No. 777, which would amend G.L. c. 94C, § 32, by adding the following paragraph: "Notwithstanding any other penalty provision of this section, except as authorized by this chapter, whoever knowingly or intentionally manufacturers, distributes, dispenses or possesses with intent to distribute a controlled substance in Classes A to D, inclusive, of section thirty-one in an amount having a street value in excess of twenty-five thousand dollars in violation of this section shall be punished by imprisonment in the state prison for not less than twenty-five years. Any sentence so imposed shall not be suspended, nor shall any person so convicted be eligible for probation, parole or furlough or receive any deduction from his sentence for good conduct. Prosecution under this section shall neither be continued without a finding nor placed on file by the court." The texts of the other bills are reprinted in the margin. ¹

Two questions are presented to us:

"1. Would the enactment of Senate, No. 777, Senate, No. 813, Senate, No. 814 and House, No. 507 be unconstitutionally vague, as to the definition of 'sales value (street value) in excess of twenty-five thousand dollars'?"

"2. Would the enactment of said bills result in cruel and (Sic ) unusual punishment in violation of Article XXVI of the Massachusetts Declaration of Rights, ² in that Senate, No. 777 prescribes a penalty of a twenty-five year mandatory imprisonment with no probation, parole, furlough, or reduction of sentence for good conduct; Senate, No. 813 which provides for a penalty of a twenty-five year mandatory imprisonment with no probation, parole, furlough or reduction of sentence for good conduct; Senate, No. 814 which provides for a mandatory sentence of one year for each one thousand dollars in illegal sales value which is in possession of the defendant at the time of arrest, without probation, parole, furlough, or deduction of sentence for good conduct; and House, No. 507 which provides a penalty of a twenty-five year mandatory imprisonment with no probation, parole, or furlough or any reduction from his sentence for good conduct?"

Responding to our invitation for briefs from interested persons, the Massachusetts Trial Lawyers Association, the National Lawyers Guild, the Massachusetts Bar Association joined by the Massachusetts Defenders Committee, and the Civil Liberties Union of Massachusetts joined by the Massachusetts Association of Criminal Defense Lawyers, have argued that the questions should be answered in the affirmative.

We answer both questions in the negative. In so responding, we, of course, make no comment as to the wisdom of the proposed legislation or whether it would tend to derogate from the even-handed administration of justice. Compare Commonwealth v. Jackson, 369 Mass. 904, 908, 344 N.E.2d 166 (1976). Also, in so responding, we point out that our views on these issues are based solely on a facial examination of the proposed legislation, and that, even as to facial constitutionality, our examination is confined to the two narrow questions submitted to us. Thus, for example, we do not indicate any other opinion, although certain briefs filed with us urged that we do so, regarding the bills' constitutionality under the due process or equal protection clauses of the Fourteenth Amendment to the United States Constitution.

Furthermore, we do not foreclose arguments by defendants that the proposed statute is unconstitutional as applied in specific cases. Hence, we do not preclude the possibility that in particular instances a defendant's inability to obtain expert testimony regarding the "street value" of drugs linked to him may be a basis for relief under the Sixth Amendment. Indeed, it may even be possible that, on the evidence in particular cases, some of the drugs presently included within the reach of the proposed criminal statute are not susceptible to readily computable "street values." Also, we observe that all bills, except Senate No. 814, are unclear as to whether cumulative events (such as successive sales or possessions) may be aggregated in order to subject a defendant to the mandatory penalty provisions. We offer no opinion on these and other problems that might arise if the legislative proposals are enacted.

1. Vagueness. It is a central tenet of our constitutional law that, as a matter of due process, a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden should be deemed void for vagueness. ³ Colautti v. Franklin,439 U.S. 379, 390, 99 S.Ct. 675, 683, 58 L.Ed.2d 596 (1979). Commonwealth v. Bohmer, --- Mass. ---, ---, ^A 372 N.E.2d 1381 (1978). Commonwealth v. Gallant, 373 Mass. 577, ---, 369 N.E.2d 707 (1977). Commonwealth v. Orlando, 371 Mass. 732, ---, 359 N.E.2d 310 (1977). Commonwealth v. Slome, 321 Mass. 713, 715, 75 N.E.2d 517 (1947). Cf. Aristocratic Restaurant of Mass., Inc. v. Alcoholic Beverages Control Comm'n (No. 1), --- Mass. ---, ---, ^B 374 N.E.2d 1181 (1978), appeal dismissed, 439 U.S. 803, 99 S.Ct. 58, 58 L.Ed.2d 96 (1978). Thus, if the term "street value" were to appear so ambiguous as to impose a substantial cloud on the definition of the crime the Legislature was attempting to delimit, it would be our duty to declare the proposed enactments invalid. A facial examination of the intended language here, however, reveals no such imprecision. We discern no reason at this time to pronounce these bills infirm on account of vagueness.

It is appropriate to restate our understanding of the requirement that criminal conduct must be delineated with a reasonable degree of definiteness. Commonwealth v. Reilly, 248 Mass. 1, 142 N.E. 915 (1924). Commonwealth v. Pentz, 247 Mass. 500, 143 N.E. 322 (1924). Fundamental is the premise that a penal statute must be sufficiently well-expressed that those who may be subject to its penalties should not be forced to guess at its meaning. McQuade v. New York Cent. R. R., 320 Mass. 35, 40, 68 N.E.2d 185 (1946). Yet, a statute does not fail to satisfy constitutional requirements merely because it uses general terms. Jaquith v. Commonwealth, 331 Mass. 439, 442, 120 N.E.2d 189 (1954). If the language which is challenged as being vague conveys a definite warning of proscribed conduct when measured by common understanding and practices it is constitutionally adequate. Commonwealth v. Jarrett, 359 Mass. 491, 496-497, 269 N.E.2d 657 (1971). Language of statutes, criminal statutes included, may also be given definite meaning when viewed in light of common law interpretations or against the background of the terms' statutory history. Commonwealth v. Balthazar, 366 Mass. 298, 300, 318 N.E.2d 478 (1974). Commonwealth v. Brasher, 359 Mass. 550, 553, 270 N.E.2d 389 (1971).

In short, the constitutional burden imposed by the vagueness doctrine requires simply that the statute be drafted in such form as to present " ascertainable standards of guilt." Winters v. New York, 333 U.S. 507, 515, 68 S.Ct. 665, 92 L.Ed. 840 (1948). United States v. Herrera, 584 F.2d 1137, 1149 (2d Cir. 1978). The fact that close questions may arise in determining guilt does not render the statute unconstitutionally vague. United States v. Douglass, 579 F.2d 545, 548 (9th Cir. 1978).

Approaching the specific question asked us by the House of Representatives, we note initially that none of the bills makes criminal conduct that has been heretofore lawfully permitted. General Law c. 94C, § 32, as it currently stands, already punishes the unauthorized manufacture, distribution, dispensing, or possession with intent to distribute, of drugs in Classes A through D; notably, in certain instances offenders may be sentenced to imprisonment in the State prison for a term of twenty-five years and given a fine of $30,000. If enacted, however, the proposed legislation would increase greatly the penalty for many § 32 offenders now subject to considerably less stringent punishments.

As the proposed legislation is presented to us, we do not discern that any of the bills is facially vague. The expression "street value," we think, possesses a clear meaning, one that has been implicitly recognized in common speech as well as in numerous judicial decisions both in this Commonwealth and elsewhere. ⁴ When used in the context of the sale of contraband, particularly narcotics, "street value" refers to the reasonable price that can be obtained through the sale to ultimate users. ⁵ The term is well-known shorthand for "retail" value, see United States v. Hollman, 541 F.2d 196, 200 (8th Cir. 1976), an amount fully incorporating the cost of middlemen. It is to be distinguished from "wholesale value," a lesser amount which reflects the absence of certain of the transaction costs that figure into "street" or "retail" value. See United States v. Jackson, 588 F.2d 1046, 1050 (5th Cir. 1979); Guidi v. Superior Court of Los Angeles County, 10 Cal.3d 1, 9, 109 Cal.Rptr. 684, 513 P.2d 908 (1973); People v. Nowak, 46 App.Div.2d 469, 470, 363 N.Y.S.2d 142 (N.Y.1975). Therefore, viewing the bills for facial vagueness, we harbor...