People v. Lorentzen

Decision Date09 March 1972
Docket NumberNo. 12,12
Citation194 N.W.2d 827,387 Mich. 167
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eric LORENTZEN, Defendant-Appellant.
CourtMichigan Supreme Court

Thomas G. Plunkett, Pros. Atty. Oakland County, by Dennis Donohue, Chief Appellate Counsel, for plaintiff-appellee.

Justin C. Ravitz, Detroit, for defendant-appellant.

Before the Entire Bench, except BLACK, J.

ADAMS, Justice.

Eric Lorentzen, charged with making an unlawful sale of marijuana, was arrested on November 20, 1969. He was 23 years old, living with his parents, employed at General Motors, and had no prior criminal convictions. Defendant moved to quash the information on the grounds that the statute 1 penalizing the unlicensed sale, dispensation or otherwise giving away of any quantity of marijuana with a mandatory minimum prison sentence of 20 years, violates the equal protection, due process and right to privacy guarantees of the United States and the Michigan Constitutions and also constitutes cruel and unusual punishment in violation of both constitutions. The motion was denied.

Lorentzen was convicted in a trial by jury and was sentenced to imprisonment for 20 to 21 years. His motion for appeal bond was denied. Upon appeal to the Court of Appeals, that court also denied bond pending appeal. Lorentzen appealed that denial to this Court. We ordered the Oakland County Circuit Court to admit him to $2500 bail pending appeal and Sua sponte granted leave to appeal prior to decision by the Court of Appeals. (384 Mich. 806).

In People v. Sinclair, Mich., 194 N.W.2d 878 (1972), decided this same day, the equal protection, due process and right to privacy issues raised by defendant are considered. None of these issues are decided by a majority of this Court favorably to defendant. In this opinion, we consider only Lorentzen's claim that the statute, by providing a mandatory minimum of 20 years' imprisonment for the sale of 'narcotics,' violates the United States and the Michigan constitutional prohibitions against cruel and unusual punishment. 2

I. Cruel and Unusual Punishment--Applicable Constitutional Tests
(a) Proportionate to the Crime

The United States Constitution, Am. VIII, prohibits cruel And unusual punishments. The Michigan Constitution, art. 1, § 16, prohibits cruel Or unusual punishment. 3 The prohibition of punishment that is unusual but not necessarily cruel carries an implication that unusually excessive imprisonment is included in that prohibition.

In Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed.793 (1910), a Philippine statute with a minimum sentence of 12 years at hard and painful labor with additional civil disabilities for making false entries in official documents was held to violate the prohibition against cruel and unusual punishments. Justice McKenna, speaking for the majority, asserted that in America 'it is a precept of justice that punishment for crime should be graduated and proportioned to offense.' (p. 367, 30 S.Ct. p. 549)

Justice McKenna cited with approval the dissent in the earlier case of O'Neil v. Vermont, 144 U.S. 323, 12 S.Ct. 693, 36 L.Ed. 450 (1892), and analyzed that case as follows (217 U.S. p. 371, 30 S.Ct. p. 550):

'In O'Neil v. Vermont, 144 U.S. 323, 12 S.Ct. 693, 36 L.Ed. 450, the question was raised, but not decided. The reasons given for this were that because it was not as a Federal question assigned as error, and, so far as it arose under the constitution of Vermont, it was not within the province of the court to decide. Moreover, it was said, as a Federal question, it had always been ruled that the 8th Amendment of the Constitution of the United States did not apply to the states. Mr. Justice Field, Mr. Justice Harlan, and Mr. Justice Brewer were of the opinion that the question was presented, and Mr. Justice Field, construing the clause of the Constitution prohibiting the infliction of cruel and unusual punishments, said, the other two justices concurring, that the inhibition was directed not only against punishments which inflict torture, 'but against all punishments which, by their excessive length or severity are greatly disproportioned to the offenses charged.' He said further: 'The whole inhibition is against that which is excessive in the bail required or fine imposed, or punishment inflicted."

The Weems court concluded as to the punishment in question that (217 U.S. p. 377, 30 S.Ct. p. 553):

'It is cruel in its excess of imprisonment and that which accompanies and follows imprisonment. It is unusual in its character. Its punishments come under the condemnation of the Bill of Rights, both on account of their degree and kind. And they would have those bad attributes even if they were found in a Federal enactment and not taken from an alien source.'

Michigan cases dealing with the issue of cruel or unusual punishment hold that if the sentence is not in excess of the statute, this Court has no control over the punishment inflicted. Cummins v. People, 42 Mich. 142, 3 N.W. 305 (1879); Luton v. Newaygo Circuit Judge, 69 Mich. 610, 37 N.W. 701 (1888); People v. Morris, 80 Mich. 634, 45 N.W. 591 (1890); People v. Whitney, 105 Mich. 622, 63 N.W. 765 (1895); People v. Cook, 147 Mich. 127, 110 N.W. 514 (1907); People v. Jagosz, 253 Mich. 290, 235 N.W. 160 (1931); People v. Paton, 284 Mich. 427, 279 N.W. 888 (1938); People v. Harwood, 286 Mich. 96, 281 N.W. 551 (1938); People v. Commack, 317 Mich. 410, 26 N.W.2d 924 (1947); In re Doelle, 323 Mich. 241, 35 N.W.2d 251 (1948); In re DeMeerleer, 323 Mich. 287, 35 N.W.2d 555 (1948); People v. Connor, 348 Mich. 456, 83 N.W.2d 315 (1957); and People v. Krum, 374 Mich. 356, 132 N.W.2d 69 (1965).

Other cases dismiss the matter with the assertion that 'cruel or unusual' is synonymous with something inhumane or barbarous. See, for instance, In re Ward, 295 Mich. 742, 295 N.W. 483 (1940); People v. Sarnoff, 302 Mich. 266, 4 N.W.2d 544 (1942). Still others are content to dismiss the matter with the simple assertion that the legislature has the exclusive power to determine the length of imprisonment for a felony. See, for instance, People v. Smith, 94 Mich. 644, 54 N.W. 487 (1893); In re Callahan, 348 Mich. 77, 81 N.W.2d 669 (1957).

In the early case of Robison v. Miner and Haug, 68 Mich. 549, 37 N.W. 21 (1888), the question is given more searching attention. In Robison, a statute provided that a druggist convicted of a violation of the liquor law, upon a subsequent conviction, could not operate a business for five years. This Court, after discussing the earlier concepts of cruel and unusual punishments, went on to say (p. 563, 37 N.W. p. 28):

'It is equally clear that any fine or penalty is excessive which seriously impairs the capacity of gaining a business livelihood. The penalties in this act, which are imperative and not discretionary, must necessarily break up business, and are not measured by any standard of proportion of amount.' (Emphasis added)

In People v. Murray, 72 Mich. 10, 40 N.W. 29 (1888), a new trial was granted because of trial errors but this Court also addressed itself to the severity of the sentence imposed. A young defendant was convicted of rape of a girl under 14 and sentenced to 50 years. This Court said (p. 17, 40 N.W. p. 32):

'But the constitution has not left the liberty of the citizen of any state entirely to the indiscretion or caprice of its judiciary, but enjoins upon all that unusual punishments shall not be inflicted. Where the punishment for an offense is for a term of years, to be fixed by the judge, it should never be made to extend beyond the average period of persons in prison life, which seldom exceeds 25 years.

'We are all of opinion that the present case shows an abuse of the discretion vested by the statute in the circuit judge in this respect.'

See, also, People v. Armstrong, 73 Mich. 288, 41 N.W. 275 (1889).

In People v. Morris, 80 Mich. 634, 45 N.W. 591 (1890), where the provisions in a statute against horse stealing provided for a greater punishment than in the larceny statute for stealing goods of the same value this Court rejected the proposition that cruel and unusual punishment constituted punishment out of proportion to the offense. Nevertheless, it applied that test but concluded horse stealing was a worse crime than a common everyday larceny and, therefore, deserved a greater punishment.

In People v. Mire, 173 Mich. 357, 361, 138 N.W. 1066, 1067 (1912), in considering the constitutionality of a statute which provided for imprisonment for 'not less than 15 years nor more than 30' for 'burglary with explosives,' this Court said:

'Approaching the dividing line, the inquiry as to what does in any particular case constitute cruel and unusual punishment under the constitutional provisions, turns, not only upon the facts, circumstances, and kind of punishment itself, But upon the nature of the act which is to be punished.' (Emphasis added)

This Court concluded (p. 362, 138 N.W.2d p. 1068):

'We are not prepared to hold that the punishment prescribed in this act does not fit the crime, or that The minimum punishment, which is the test, should be regarded as so unusual and cruel, and so disproportionate to the offense as to shock the moral sense of the public.' (Emphasis added)

The following Michigan cases either directly or by inference apply the test of proportionality to the sentence imposed: People v. Huntley, 112 Mich. 569, 71 N.W. 178 (1897); People v. Dumas, 161 Mich. 45, 125 N.W. 766 (1910); People v. Cramer, 247 Mich. 127, 225 N.W. 595 (1929); Steele v. Sexton, 253 Mich. 32, 234 N.W. 436 (1931); In re Southard, 298 Mich. 75, 298 N.W. 457 (1941).

It will be seen from the above discussion of the leading United States Supreme Court case and cases decided by this Court that the dominant test of cruel and unusual punishment is that the punishment is in excess of any that would be suitable to fit the crime. As we shall see, other standards or tests...

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