People v. McCabe
| Decision Date | 15 October 1971 |
| Docket Number | No. 42674,42674 |
| Citation | 49 Ill.2d 338,275 N.E.2d 407 |
| Parties | , 50 A.L.R.3d 1149 The PEOPLE of the State of Illinois, Appellee, v. Thomas McCABE, Appellant. |
| Court | Illinois Supreme Court |
Thomas P. Sullivan and Douglas C. Nohlgren, Chicago (Jenner & Block, Chicago, of counsel), for appellant.
William J. Scott, Atty. Gen., Springfield, and William P. Ketcham, State's Atty., Elgin , for the People.
Following a jury trial in the circuit court of Kane County the defendant, Thomas McCabe, was found guilty of the unlawful sale of marijuana in violation of the Criminal Code of Illinois. (Ill.Rev.Stat.1969, ch. 38, par. 22--3). Pursuant to the provisions for mandatory minimum penalties for the unlawful sale of a narcotic drug (Ill.Rev.Stat.1969, ch. 38, par. 22--40) the defendant, who had no prior convictions, was sentenced to the penitentiary for a period of ten years to ten years and a day. On this appeal he raises these grounds for reversal: (1) the classification of marijuana in the Narcotic Drug Act (Ill.Rev.Stat.1969, ch. 38, par. 22--1 et seq.), with mandatory minimum statutory penalties for a first conviction, deprives the defendant of due process and equal protection of the law in violation of the constitution of the United States; (2) the Narcotic Drug Act's mandatory minimum ten-year sentence and its prohibition of probation or the suspension of sentence upon a first conviction for the sale of even a trifling amount of marijuana to an adult constitutes cruel and unusual punishment in violation of the constitution of Illinois (S.H.A. Const. of 1870, art. II, sec. 11) and the constitution of the United States (U.S. Const., amend. VIII); (3) the defendant was deprived of equal protection of the law in that no meaningful post-trial hearing in mitigation was held; (4) the trial court erred in numerous evidentiary rulings; (5) the closing argument of the prosecutor was improperly prejudicial to the defendant; (6) the trial court erred in instructing the jury; and (7) the mandatory minimum penalty provision of the Narcotic Drug Act unconstitutionally interferes with the prerogative and the duty of the judiciary to impose sentence as the exercise of sound discretion may direct.
To begin it will be helpful to exclude some of the potential questions the defendant does not raise regarding the classification of marijuana. It is not denied, for example, that the State has authority under its general police power to prohibit the sale, use, or possession of marijuana. Nor does the defendant contend that the State must limit its exercise of that power to the regulation, as opposed to the prohibition, of the drug. Finally, the defendant does not claim that the State, having chosen to proscribe the use, possession, and sale of marijuana, must similarly act in the cases of substances such as alcohol, tobacco and caffeine, whose use may be harmful.
The equal-protection argument which is raised is narrow and limited. It simply is that the present placing or classifying of marijuana under the Narcotic Drug Act rather than classifying it under the Drug Abuse Control Act (Ill.Rev.Stat.1969, ch. 111 1/2, par. 801 et seq.) with the 'stimulant or depressant' drugs is constitutionally invalid as an improper classification, considering the present state of knowledge concerning the comparative natures and effects of the drugs named in the two statutes. Unlike the Narcotic Drug Act, which provides for a mandatory ten-year minimum sentence upon a first conviction for the sale of marijuana, the Drug Abuse Control Act provides, upon a first conviction for the sale of drugs named in it, a maximum jail term of but one year and probation is not prohibited. The defendant says that there is no rational basis for distinguishing a first sale of marijuana from the first sale of a stimulant or depressant drug under the Drug Abuse Control Act and that the gross disparity between the penalties violates his rights under the equal-protection clause.
In determining whether a statutory classification violates the equal-protection clause, we must begin with the presumption that the classification is valid and must impose the burden of showing invalidity on the party challenging the classification. (City of Rockford v. Grayned, 46 Ill.2d 492, 263 N.E.2d 866; Thillens, Inc. v. Morey, 11 Ill.2d 579, 591, 144 N.E.2d 735; People ex rel. Vermilion County Conservation District v. Lenover, 43 Ill.2d 209, 219, 251 N.E.2d 175). The equal-protection clause does not deny the States the power to classify in the exercise of their police power and it recognizes the existence of a broad latitude and discretion in classifying. (Begich v. Industrial Com., 42 Ill.2d 32, 36, 245 N.E.2d 457). If any state of facts may reasonably be conceived which would justify the classification, it must be upheld (see Begich v. Industrial Com., 42 Ill.2d 32, 245 N.E.2d 457). The right of judicial questioning of a classification under the equal protection clause is thus limited. As this court put it in Thillens, Inc. v. Morey, 11 Ill.2d 579, 593, 144 N.E.2d 735, 743, 'whether the enactment is wise or unwise; whether it is based on sound economic theory; whether it is the best means to achieve the desired results, and whether the legislative discretion within its prescribed limits should be exercised in a particular manner are matters for the judgment of the legislature, and the honest conflict of serious opinion does not suffice to bring them within the range of judicial cognizance.' But it is required that there be a reasonable basis for distinguishing the class to which the law is applicable from the class to which it is not. (People ex rel. County of Du Page v. Smith, 21 Ill.2d 572, 578, 173 N.E.2d 485.) Appropriate respect should be given to the fact of a legislative classification, but there is a judicial obligation to insure that the power to classify has not been exercised arbitrarily and, if it has been, the legislation cannot be justified under the label of 'classification.' (Begich v. Industrial Com., 42 Ill.2d 32, 36, 245 N.E.2d 457). It was observed recently: '[A] state may not, under the guise of classification, arbitrarily discriminate against one and in favor of another similarily situated.' Lake Shore Auto Parts Co. v. Korzen, 49 Ill.2d 137, 148, 273 N.E.2d 592.
Measuring by these criteria we must determine whether any rational basis exists to justify the substantially greater penalties imposed for a first conviction for the sale of marijuana than for a first conviction for the sale of a drug named in the Drug Abuse Control Act. This consideration will require an assessment of the relevant scientific, medical and social data found, including the voluminous materials assembled by the parties here, which are pertinent to support and to defeat the classification. We are aware that any compilation and examination of materials cannot comprehend all studies that have been made. We know, too, that knowledge in this whole area is not nearly complete. We proceed not to determine scientific questions, but to judge whether the data presently available provides a reasonable basis for the described classification of marijuana. (Cf. Precision Connecting Rod Service v. Industrial Com., 40 Ill.2d 277, 281, 239 N.E.2d 823). The consideration of this data, of course, will not extend to the wisdom or unwisdom of the legislative classification. We confine our examination to the question whether the challenged classification can be supported on any rational basis.
Knowledge of the characteristics and effects of the drug commonly called marijuana, which is obtained from the leaves of the female hemp plant, cannabis sativa, has developed rapidly in the last decade. Studies by Presidential commissions, whose memberships have included psychiatrists, pharmacologists, sociologists and law enforcement officials as well as intensified research in the medical and scientific communities have contributed to this advancement. The consensus is that although marijuana has been commonly associated with the opiates, such as morphine and heroin, there are important differences between the so-called abuse characteristics of the two. Heroin and morphine are true narcotic analgesics in the sense that their use produces a marked indifference to pain. In addition, when injected intravenously a warm flushing of the skin and intense pleasurable sensations in the lower abdomen will result. Repeated usage of these drugs in a comparatively short time will result in the development of a tolerance, that is, a state which requires a gradually increasing dosage to permit the drug to attain the effect desired. Both a psychological and compelling physical dependence result from the use of 'hard narcotics.' The physical dependence develops in intensity with continued use and requires the continued administration of the drug to avoid withdrawal symptoms. It appears that the subjective action of the morphine-type drugs also involve changes in mood, an inability to concentrate and the development of apathy. Physical degeneration occurs, arising from drug preoccupation, personal neglect, malnutrition and susceptibility to infections. Overdosage can cause death through excessive respiratory depression.
Early withdrawal symptoms include lacrimation, nasal discharge, yawning and perspiration. Later, dilated pupils, loss of appetite, gooseflesh, (thus, the expression 'cold turkey') restlessness and increased irritability and tremor will appear. At its peak intensity, the syndrome includes high irritability, insomnia, violent yawning, severe sneezing and lacrimation. Nausea and vomiting are common, as are intestinal spasms and diarrhea. Increased heart beat and elevated blood pressure, as well as muscular spasms, abdominal cramps and pains in the bones and muscles of the back are common. Death...
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