Harmelin v. Michigan – Oral Argument – November 05, 1990

Media for Harmelin v. Michigan

Audio Transcription for Opinion Announcement – June 27, 1991 in Harmelin v. Michigan

del

William H. Rehnquist:

We’ll hear argument now in No. 89-7272, Ronald Allen Harmelin v. Michigan.

Ms. Johnson.

Carla J. Johnson:

Mr. Chief Justice, and may it please the Court:

This case is about the most severe penalty, short of death, coupled with a total lack of discretion at any critical stage in the sentencing process.

The petitioner, Ronald Harmelin, was convicted of possession of over 650 grams of cocaine in Michigan.

He was sentenced to mandatory life in prison with no chance of parole ever.

The question is whether this is cruel and unusual under the Eighth Amendment.

Before we go any further let me make one thing perfectly clear.

Mr. Harmelin is not eligible for parole ever.

Under this statute he will not see the parole board.

The notion that a well-behaved lifer, who is punished by life in prison, will not actually serve life is wrong.

He will serve life in prison with no chance of parole.

Sandra Day O’Connor:

Ms. Johnson, does the State allow commutation of sentences by the Governor or something of that sort?

Pardon or a commutation?

Carla J. Johnson:

Every State in the Nation has commutation by the Governor for any crime, whether it be a mass murderer or a serial rapist.

But–

Sandra Day O’Connor:

Is that ever… is that a provision that is used on occasion in Michigan?

Carla J. Johnson:

–It is… it is… it has never been used in a drug offender scenario by our Governor.

Sandra Day O’Connor:

Is it used in some circumstances in Michigan?

Carla J. Johnson:

It has been used very infrequently in Michigan.

However, this Court in Solem v. Helm has said that the mere ad hoc chance of executive clemency is not enough to preclude Eighth Amendment review, because if it was the Eighth Amendment review would be meaningless.

Our Governor does not have a history of pardoning people, however.

Seven years ago, this Court in Solem v. Helm fashioned a proportionality test to determine whether a sentence is proportional to the crime.

William H. Rehnquist:

Well, Ms. Johnson, Solem against Helm was a 5 to 4 decision, and it cut back on Rummel against Estelle, which was also a 5 to 4 decision.

Do you think the Court has reached equilibrium, or do you think that more changes might take place?

[Laughter]

Carla J. Johnson:

I don’t think that this Court should treat stare decisis too cavalierly.

William H. Rehnquist:

Well, do you think they did treat it… how do you think they treated stare decisis in Solem against Helm?

Carla J. Johnson:

I don’t think that Solem v. Helm reversed or even narrowed Rummel.

I think the facts in Rummel, who was eligible for parole and was going to be paroled within 10 or 12 years, was the whole difference.

Carla J. Johnson:

We’re talking about a case where a person is in mandatory… with mandatory life with no parole ever.

That is a whole different thing than somebody that serves a life sentence and is eligible after 10 years.

I think–

Anthony M. Kennedy:

You see no conflict in the reasoning of the cases?

I must submit I think the cases are difficult to square, so far as their approach and their reasoning are concerned.

Carla J. Johnson:

–Well, the majority in Solem v. Helm said that there was no conflict.

They said that the difference was that in Solem v. Helm the person was… Mr. Helm was sentenced to mandatory life with no parole, which is different in kind than a sentence of life where you can be paroled.

And in Rummel v. Estelle this Court, even the minority in Rummel v. Helm… or, no, the… in Rummel v. Helm the majority of this Court said that a ticket, a parking ticket… if someone was sentenced to life in prison for a parking ticket, that would be disproportionate.

So I don’t think that… if you were to reverse Solem v. Helm, I don’t think you would necessarily have to throw out the whole proportionality test.

But going back to the test, the three factors that were used are the harshness of the penalty, the gravity of the offense, what other States do with your crime and what your State does with other crimes.

Taking those in reverse order, Michigan is way out of line with every other State in the union.

It is way out of line with what the Federal statutes are.

As far as the other States, the majority of the States have sentences for possession of 650 grams somewhere between 0 and 10 years, and all of the States have discretion somewhere to factor in the mitigating factors, whether the person is a first time offender, whether he is a minor participant, whether there is some sort of violence or not, whether the person is a drug addict.

Antonin Scalia:

Maybe–

Carla J. Johnson:

There is some sort of discretion.

Antonin Scalia:

–Maybe Michigan has a bigger problem with drugs than Oregon and most of the other States do.

Isn’t, isn’t a State entitled to feel more deeply about some crimes than other States do?

Carla J. Johnson:

Yes.

I think States certainly can create laws trying to solve problems, and Michigan does have a big drug problem, as do California and D.C., some other States who… that don’t have those–

Antonin Scalia:

And it’s a problem that causes the loss of human life.

Not just the people that use the drugs, but the people who buy and sell it kill one another and innocent by-standers.

Why can’t Michigan feel very strongly about that and say… and say by George, we’re going to put a stop to it?

We don’t care whether other States want to ride along with it.

We’re going to impose a severe penalty so that no one will use drugs.

We can’t impose capital punishment, but we’ll put them to prison for life.

Why is that wrong?

Carla J. Johnson:

–There are a couple answers to that.

One is that a State can propose legislation, but it still has to pass constitutional muster.

In this war on drugs we have to fight it with constitutional weapons.

And if a State is going to legislate against drugs, they should… they should keep it within some sort of rational basis.

Carla J. Johnson:

This legislation has the ability to sentence to life people who are major traffickers, people who are mules, aiders, and abetters, minor participants, or there is always the possibility of somebody who would merely possess the 650.

That is not out of the question.

Oakland County is the richest county.

So what my–

Antonin Scalia:

Most unlikely.

You’re not willing to concede that having that much is very good indication that it’s not being held for personal consumption but for distribution?

Carla J. Johnson:

–The State didn’t prove anything, so my position is that my client has been convicted of mere possession.

Antonin Scalia:

Of an awfully large quantity of–

Carla J. Johnson:

I don’t know if it’s an awfully large quantity.

In the Federal system in order to be a kingpin under the criminal… Continuing Criminal Enterprise statute a person has to have five people working under him, he has to distribute 150 kilos of cocaine in a year, or make $10 million, and have a continuing criminal enterprise going.

So–

William H. Rehnquist:

–Ms. Johnson–

Carla J. Johnson:

–that would be… in the scheme of things, I am not sure… I am sorry.

William H. Rehnquist:

–At page 6 of the joint appendix the presentence report is present.

And the presentence report that the judge had before him, as I gather it, said that police investigators described the defendant as a largescale drug trafficker, delivering down to mid-level dealers.

Now the judge, even in a different jurisdiction, would have taken, been able to take that fact into consideration, wouldn’t he?

Carla J. Johnson:

That is correct.

The presentence report did say that, and the reason it said it is because Michigan defines a large-scale drug trafficker as someone who possesses over 650.

So who is the Oakpark police or the Michigan State police to argue with that?

This presentence–

William H. Rehnquist:

It just… this doesn’t seem to me to rely on the statutory definition.

It says police investigators described the defendant as a large-scale drug trafficker, delivering down to mid-level dealer.

If the statute says that, you don’t need this.

Carla J. Johnson:

–I would… if… if there were a sentencing hearing on this I would object to that language.

Since there was–

William H. Rehnquist:

We’re not talking about a Sixth Amendment case here.

You’re challenging this on the basis of the Eighth Amendment.

It’s a cruel and unusual punishment.

And I think we have to take as a fact what the judge had before him in the presentence report.

Certainly he would have used that in sentencing had he had discretion, wouldn’t he?

Carla J. Johnson:

–I think you have to take as a fact that that was in the presentence report, but I think you have to take it… you have to realize also that because Michigan doesn’t make any… any difference between a major or a minor trafficker… anybody with 650 gets life in prison… it discourages advocacy at the sentencing proceeding.

So something that would have been objected to by counsel was not.

So–

William H. Rehnquist:

How do we know that?

Carla J. Johnson:

–I guess we don’t know that, and that’s the whole point.

You can… you can infer that some things would not be objected to if it didn’t make any reason to object to them.

I don’t think you can… you don’t have any facts in front of you on this case… the facts are pretty bare.

But the fact that Michigan defines a person who is possessing 650 as a major trafficker, then no one argues with that.

There is no reason.

It discourages advocacy at the sentencing level.

John Paul Stevens:

I’m a little puzzled.

This is a mandatory sentence, isn’t it?

Carla J. Johnson:

That is correct.

John Paul Stevens:

I mean, why would you argue about it before the judge, then?

Carla J. Johnson:

That’s my point exactly.

Since it is a mandatory sentence, nobody objected to the presentence report.

Nobody said whether he was a major trafficker or not, because it didn’t matter.

Whether he was a major trafficker, or whether he had it for his own possession, or whether he was a minor participant carrying the package across the street for somebody who owned the package, you still get the same sentence.

William H. Rehnquist:

But you said a moment ago, Ms. Johnson, that you are taking the position your client had only be convicted of possession and that therefore it was at the very bottom end of the scale.

I think the presentence report tends to cut against that.

Carla J. Johnson:

And my position is that the presentence report is inaccurate.

But, whether it is accurate or not, my position is that the very statute on its face, because it is so broad, because it is possible to sentence people who are traffickers, people who are mules, people who are minor participants, or possessors–

Byron R. White:

Well, wouldn’t you, wouldn’t you think that if there was clear proof that here was a real drug kingpin, that this mandatory sentence might be constitutional as applied to him, and yet be quite unconstitutional as applied to somebody else, some minor, some person walking across the street as the delivery boy?

This isn’t a First Amendment case that has over-breadth or anything.

Carla J. Johnson:

–Well, there are some, there are some problems with the over-breadth of the statute and some presumptions in this statute as well.

But this… this definitely would be cruel–

Byron R. White:

Well, would you say, would you say that the statute is necessarily, would necessarily be unconstitutional on its face if this was really a drug kingpin and everybody admitted it?

Carla J. Johnson:

–That would be a closer question.

However, I don’t believe that mandatory life–

Byron R. White:

Well, how would you answer the close question?

Carla J. Johnson:

–I don’t believe that in nondeath cases mandatory life in prison is a constitutional sentence.

I think that–

Anthony M. Kennedy:

For anything?

Carla J. Johnson:

–For anything.

I think that–

Anthony M. Kennedy:

You can imagine no crime… how about first degree murder?

Carla J. Johnson:

–Well, that’s a non… that’s a death case.

Anthony M. Kennedy:

No, no.

Suppose you have a, suppose you have a State which doesn’t have a death penalty?

Carla J. Johnson:

Well, I am sorry.

My definition of a death… of a nondeath case, I am talking about… in Michigan we have a first degree murder statute where we do get mandatory life in prison, and there is no groundswell of judges who are having a problem with that.

Anthony M. Kennedy:

Well, do you have a problem with it?

Carla J. Johnson:

No, I do not have a problem–

Anthony M. Kennedy:

So that there are some statutes… some crimes that in your view can constitutionally be punished with a mandatory life sentence?

Carla J. Johnson:

–Yes.

The intentional taking of a human life.

Anthony M. Kennedy:

All right, so… That’s all?

Carla J. Johnson:

In my view.

In Michigan’s view as well, other than this 650 statute, first degree murder and felony murder are punished with mandatory life in prison with no parole.

But those statutes by their very nature, the very elements of the crime narrow the class of people who can be punished by the elements of the crime.

You have to have premeditation, deliberation, you have to actually take a life and… or in felony murder you have to have, you have to take a life or you have to intend to kill, intend to do great bodily harm, or act with reckless disregard.

So you have that mental culpability in those areas, proof of intent, proof of moral depravity that man… or that would, that would make the sentence of mandatory life with no parole more proportional.

Antonin Scalia:

It’s only about a decade or so ago that we found in the Constitution a prohibition on imposing capital punishment for anything except the killing of a human being, and now you say that we also can’t impose life… it is also unconstitutional to impose life imprisonment for anything except the taking of a human life.

I sense a certain ratchet effect here.

Carla J. Johnson:

Well, you’re… this Court has said that the–

Antonin Scalia:

What, what about 30 years to a 50 year old, or to a 60 year old?

Does that amount to life imprisonment?

Carla J. Johnson:

–I think the Court needs to have some sort of discretion to decide whether the person under this statute, whether they are a major or a minor participant, whether they are a first time offender or just a mule of transport.

But my main problem is with the nonparolability.

Antonin Scalia:

Well, what do you, what do you do about someone who is not likely to live 35 years, and he gets a mandatory 35 years under a statute?

Antonin Scalia:

He’s a… he is 60 years old when he is convicted.

Is… does that come within your prohibition?

You can only give that sentence to someone who has taken a human life?

Carla J. Johnson:

That would be a close question, but outside the realm of these facts.

Antonin Scalia:

Well, I am just, you know, testing what you’re… you’re asking us to create a new constitutional rule that I have not heard of before.

What is… what’s the criterion for it?

Carla J. Johnson:

I think there needs to be some sort of discretion to decide… this statute where there is no discretion to decide the culpability of the person, coupled with the mandatory life with no chance of parole ever, is cruel and unusual.

As to numbers of sentences where the person probably won’t live, I am not sure.

But the fact… they would still serve–

Sandra Day O’Connor:

Well, I thought this Court had made reasonably clear that outside the capital murder context that mandatory sentencing was all right.

You seem to be arguing that no mandatory sentencing scheme can remain in effect.

Carla J. Johnson:

–Well,–

Sandra Day O’Connor:

That the Constitution requires judicial discretion.

And yet I had thought in Sumner and Woodson, and perhaps Rummel, that the Court had made clear that’s not the position this Court has taken.

Carla J. Johnson:

–This Court has said that the sentence of death is different in kind, qualitatively different than any other sentence with a length of years.

But my position is that mandatory life in prison with no chance of parole ever is death in prison.

There is no way out.

He will die in prison.

So for that reason it is qualitatively different.

And I feel that a statute that has no discretion to decide who is going to be punished by that statute, and coupled with the fact that he will die in prison, makes it more like a death penalty case than any other number of years.

And this Court has developed a doctrine of constitutionality in the death penalty cases for individualized sentencing.

As far as mandatory minimum sentencings, if they are small, like 5 or 10 years, I don’t have a position on that because I haven’t really studied that issue.

Byron R. White:

Well, and yet you, I thought you said a while ago that, but there are some crimes that, for which a mandatory life sentence without parole is okay?

Carla J. Johnson:

Yes.

I think the intentional taking of a human life is a crime that is universally held to be that… to show that sort of depravity.

William H. Rehnquist:

Well, what about some very aggravated recidivist situation, someone who four successive times has committed aggravated rape, or has committed mayhem?

Do you think it would be a violation of the Eighth Amendment to sentence them on the conviction for the fourth time to life imprisonment without possibility of parole?

Carla J. Johnson:

I don’t know if that would be a violation.

A State has a different interest in trying to stop recidivist behavior.

And a person who has shown by their behavior that they can’t conform their behavior to societal norms, there’s a whole different interest there than in this drug scenario where we have a first time offender, where we have possibly just a minor participant, and where we have no indication that if he were paroled that he would be any danger of recidivism.

Carla J. Johnson:

So there is a different interest there.

David H. Souter:

I am not sure that I understand the principle on which you are distinguishing mandatory life in a homicide case from mandatory life in a nonhomicide case.

What is the principle?

Carla J. Johnson:

The principle… I believe that society agrees that the intentional taking of human life is the worst possible crime there is.

This Court said in Coker v. Georgia that it was all right to… it was not all right to give the death penalty to a person who raped an adult woman.

This Court drew quite a line there at the intentional taking of human life, and I think that that line still holds.

David H. Souter:

Yes, but we are dealing here with mandatory life imprisonment.

Why… why do you draw the line where you do on this penalty?

Carla J. Johnson:

Because mandatory life in prison is death in prison.

The person has no hope to get out ever.

David H. Souter:

What about–

–So in effect you are saying we must regard it as the equivalent of a death sentence?

Is that what your argument hinges on?

Carla J. Johnson:

Well, that is one of the things my argument hinges on.

David H. Souter:

Well, what if… what if we don’t accept that?

What do you have left?

Carla J. Johnson:

A couple of things.

You have the Solem v. Helm test, where you have to measure the gravity of the offense with the severity of the crime… I mean the gravity of the punishment with the gravity of the crime.

You have to look at what is done with other States.

This Court in Stanford v. Kentucky developed an evolving standard of decency test, where you looked at what the other 50 States did.

And as far as this crime, Michigan has the only statute where there is no discretion and there is no parole.

Michigan has perhaps a big drug problem, but so do other States.

And our drug problem doesn’t seem to be getting any better with… because of this law.

The other States have some kind of discretion so that you can decide whether a person is a minor or a major participant.

There has to be some discretion somewhere.

John Paul Stevens:

Ms. Johnson, let me just see if I don’t understand what you are trying to say but you haven’t quite said it.

Has… the Court has drawn a line between some crimes for which death is a constitutionally permissible punishment and some for which it is not.

And you are saying this is on the side of the line that would not permit death to be imposed.

Carla J. Johnson:

Yes.

John Paul Stevens:

And therefore it… but the punishment nevertheless is different from all… therefore there may well be a different rule for this category of punishment than there would be for crimes for which death would be a permissible punishment.

John Paul Stevens:

And that line has already been drawn by the Court.

Carla J. Johnson:

Yes.

And that would fall in with the Solem v. Helm analysis as well.

In Helm, the seven-time recidivist, this Court found that his sentence was cruel and unusual as to him because the sentence of mandatory life in prison with no chance of parole was so harsh compared to even his seven-time recidivist behavior.

Antonin Scalia:

But we could say in the death penalty cases, as we have many times, that death is different.

You really can’t say that life imprisonment is different.

Life imprisonment for a 20 year old is no different from a 20 year sentence for a 70 year old.

Carla J. Johnson:

Life imprisonment–

Antonin Scalia:

How can we say that… I mean, if the criterion is whether you will die in prison, a mandatory life sentence is no different from a mandatory term of years, depending upon the age of the person convicted.

Carla J. Johnson:

–Well, under a mandatory term of years there is parolability.

There is good time, special good time, all kinds of–

Antonin Scalia:

No, I’m positing a mandatory term of years without any good time, without anything else.

Just 20 years.

You do 20.

Carla J. Johnson:

–Michigan has recently–

Antonin Scalia:

That’s… is that different too?

Does that come within your prescription, depending upon how old the person condemned is?

Carla J. Johnson:

–Michigan has recently struck down cases with what they call basketball scores, where people were given 100 to 200 years.

And they did it with actuarial tables where the sentences had to come into what the life realm, the life span of the defendant would be.

So in Michigan, no matter what kind of years you are given, you still have some hope that some day you will be able to get out.

Whereas in this mandatory life–

Antonin Scalia:

Well, that may be the case in Michigan.

It’s not the case in my hypothetical.

And how do you answer my hypothetical?

Why is… you know, we say death is different, and you tell us that life imprisonment is different.

But life imprisonment isn’t different from a flat term of years for an elderly person, is it?

It’s not different from a very rare occasional hypothetical, no.

[Laughter]

Carla J. Johnson:

–Thank you, Justice Stevens.

Antonin Scalia:

That’s your answer?

Antonin Scalia:

[Laughter]

Carla J. Johnson:

And an excellent one.

[Laughter]

Anthony M. Kennedy:

You want us to say that the taking of a human life is constitutionally different, and that society could not agree on any other crime that was so close to that that mandatory life in prison is correct, and I, as with some of my colleagues, don’t understand the principle for that.

Is it… you say it’s because it’s universal acceptance, or universal condemnation?

I am not sure that all of society doesn’t take some crimes and elevate them to the status of intentional killing: child molestation of a young child, kidnapping.

We have to write the opinion, so we need to know what standard it is that we are supposed to use in order to adopt your view.

Carla J. Johnson:

Well, the standard I would propose, of course, is the standard that this Court fashioned in Solem v. Helm, where you would take–

Anthony M. Kennedy:

Well, we write… it’s just the difference between… I’ve just pointed out that if you, if you say that this is based on some societal consensus, I have no evidence that that consensus exists.

Carla J. Johnson:

–I was taking that from the Coker case, where the… this Court said that rape was different than intentional taking of human life, and so the sentence of death was unconstitutional for a person who was convicted of rape.

That’s where I was drawing that line.

In Michigan it is clear that serious criminal acts, such as rape, second degree murder, and armed robbery, are punished with less severity than possession of cocaine.

So you have vicious people, dangerous criminals who are convicted who can only in Michigan get up to life in prison, but it is not mandatory life, it is life with parole, and it is life with some discretion.

The judge has a chance to look at the mitigating factors and decide what kind of sentence to give a person.

There is discretion somewhere, and there is also parole.

In this case, however, we’ve got no discretion anywhere, we have got people who can be kingpins, people who can be mules, people who can be possessors, and they are all getting mandatory life in prison with no discretion at all.

Thurgood Marshall:

Ms. Johnson, is it true that this hasn’t had any effect in cutting down the number of dope cases?

Carla J. Johnson:

I think the prosecutor in his brief has admitted that the drug problem is getting worse and worse in Michigan.

Every time you put–

Thurgood Marshall:

So it hasn’t had an effect on cutting it down?

Carla J. Johnson:

–No, it hasn’t.

Every time you catch a mule–

Byron R. White:

Well, it might be even worse if it weren’t for this statute.

It looks to me like it’s worse from the–

Carla J. Johnson:

–Every time you put a mule in prison there is someone else to take his place.

So as far as deterrence, this isn’t working.

If that is going to be a… any reason for it.

But–

Anthony M. Kennedy:

–So deterrence is not a reason for sentencing?

Carla J. Johnson:

–Deterrence is a reason for sentencing.

Carla J. Johnson:

What I am saying is that this–

Anthony M. Kennedy:

Well, if there is, if there is a mule ready to take their place every time someone is put in prison, then isn’t it a plausible answer that more deterrence is needed?

If the price… if the profits from doing business in cocaine are so tremendously high that people would take these risks, doesn’t it follow from that that a severe sentence must be required?

Carla J. Johnson:

–Well, most of the people that are taking this, these risks don’t even know what the law is.

This encourages the recruitment of juveniles and young people from the inner city that are the ones that are carrying these packages for the major dealers.

So it isn’t deterring any crime at all.

The drug problem is not such an easy problem.

It’s a problem of unemployment and poverty, and just putting more and more young people in jail is not going to solve anything.

What are you going to do next?

Cut their arms off or put… just sentence them all to death?

There is… you are not solving the problem by doing that.

Antonin Scalia:

Apparently the Michigan legislature thought differently.

I mean, that’s a good argument.

It may well be correct, but I assume it was made to the Michigan legislature when they passed this law.

Carla J. Johnson:

At the time they passed this law, the… some of the opponents of the law realized that what is in reality happening might happen, that the mules of transport would be hired by the kingpins to carry the drugs, and that perhaps those people who are often drug addicts would end up doing this mandatory life in prison.

The proponent of the law now has come out in opposition of it and has said that that is what is happening.

Of the 123 people in Michigan prisons, that’s… and there’s one other point that I would like to make.

When a major trafficker is caught in a State court, the Feds come in, take him over to the Federal courthouse, and give him a chance to cooperate, or a chance to make some sort of a deal to get a lesser sentence.

So the people that we have in our State court are the smaller guys, the ones that don’t know enough to cooperate, don’t have any information to trade.

And they are the ones that are doing this mandatory life.

And that is one–

Sandra Day O’Connor:

Ms. Johnson, is there any prosecutorial discretion still in Michigan for whether to prosecute someone for this particular offense, more than 650 grams?

Could a prosecutor decide the facts warranted prosecution for a smaller amount?

Carla J. Johnson:

–I think they have a… they have the ability to cut deals with people who cooperate.

Sandra Day O’Connor:

Or just not to charge the full potential offense.

Is that right?

Carla J. Johnson:

Yes, I think that’s true.

Sandra Day O’Connor:

So, while there may not be judicial discretion, there still is some built in at the charging stage, in effect.

Carla J. Johnson:

Yes, there is prosecutorial discretion.

That is all there is, and that is one of the problems with the law.

Carla J. Johnson:

Because if, if the person has information they will take him to the Federal courthouse where he can make a deal and get 3 or 4 years, instead of mandatory life.

So the people who have no information, the very, very small people, the mules of transport, are the ones that are getting this mandatory life in prison.

And that is what is wrong with this law.

John Paul Stevens:

Ms. Johnson, may I ask you, at the back of your brief you have a discussion of the pros and cons of the legislation.

What is the official status of that?

It’s called the law librarian.

Do you know what I’m talking about?

Carla J. Johnson:

Yes.

John Paul Stevens:

What… tell me a little bit about that, if you would.

Carla J. Johnson:

The people who were proposing this law thought it would deter crime by putting major traffickers in prison for the rest of their life.

John Paul Stevens:

No, I know what it says, but I mean what is the… is this an official legislative history in Michigan?

Carla J. Johnson:

Yes, yes.

That’s the House legislative history, the proposed bills that were… that were circulated at the time, in committee and at the time that they were making the laws.

John Paul Stevens:

So that when it recites that the Office of the Attorney General opposed the legislation, we can count on that as being an official statement?

Carla J. Johnson:

Yes.

Yes, that is official from the legislative journals in Michigan.

I would like to reserve the rest of my time for rebuttal.

William H. Rehnquist:

Very well, Ms. Johnson.

Mr. Thompson, we’ll hear from you.

Richard Thompson:

Mr. Chief Justice, and may it please the Court:

As you consider the petitioner’s case, I think it is important to keep in mind the potential harm to society of the 672 grams of cocaine that the petitioner possessed at the time he arrest… he was arrested.

That amount is equivalent to 12,000 hits on the street.

That amount makes more than 5,400 rocks of crack, the most addictive and dangerous form of cocaine in use today.

John Paul Stevens:

But Mr. Thompson, it would be the same even if it were diluted, wouldn’t it?

Richard Thompson:

Yes.

Yes, Your Honor–

John Paul Stevens:

And so the number of hits that are possible has nothing to do with the sentence, does it?

Richard Thompson:

–Well, it has something to do–

John Paul Stevens:

I mean, if there is 672 grams, 1 percent cocaine, it would be the same sentence.

Richard Thompson:

–Yes, if that… that is theoretically possible, but it has something to do about why the State legislature used the 650 gram as the mark off for mandatory life in prison.

Richard Thompson:

This was a lot of cocaine, and the State legislature recognized the devastating effect of that much cocaine when it introduced this law and made this part of the law.

The individual culpability of this–

John Paul Stevens:

But you said it, you said it was addictive, that is why they did it.

That is not what the report says.

It says it’s a nonaddictive drug.

Richard Thompson:

–It is an addictive drug as far as its psychological and physiological effects has on the person that takes crack cocaine.

John Paul Stevens:

Is that in the legislative history?

Richard Thompson:

No, Your Honor, it’s not.

John Paul Stevens:

It’s just the opposite in the legislative history.

It is described as a nonaddictive drug.

Richard Thompson:

The law enforcement lab people who are experienced in this, the professionals that handle this, indicate it is a highly addictive drug.

A significant number of people who use crack for the first time become addicts.

That is common knowledge in the law enforcement area.

The other thing I would like to indicate, Justice Stevens, is that the legislative history is not really an official part of the legislature.

That is merely a document that was prepared by the staff of the Senate and the House.

So it is not really something that is in the official records of the legislature.

John Paul Stevens:

It is no more official than your reference to this general understanding about–

Richard Thompson:

That is correct, Your Honor.

[Laughter]

David H. Souter:

–Given the fact that the 650 grams could be diluted down, as Justice Stevens said, isn’t the real point of the 650-point cut off not so much to identify the seriousness of the specific offense, because he could be selling the… the person possessing could be possessing something greatly diluted.

Isn’t the point of it really to, as kind of a surrogate way of identifying a distributor?

In other words, isn’t the statute really saying regardless of what the dilution may be, anybody who possesses this quantity of a substance must be possessing it for something other than personal consumption?

Isn’t that the real point?

Richard Thompson:

Yes, Your Honor, that was a legislative inference I think they made when they decided that cut off, that 650 grams.

Someone does not possess that for personal use.

Someone possesses that with the intent to deliver.

In fact, petitioner admits in his own brief that I am a mule of transport, in an attempt to minimize his culpability.

However–

Sandra Day O’Connor:

Is there a separate State offense for possession with intent to distribute?

Richard Thompson:

–There… it is a separate State offense, Your Honor, but the penalties are the same.

Sandra Day O’Connor:

And here the offense charged and for which the conviction was obtained was mere possession, not possession with intent to distribute?

Richard Thompson:

Yes, Your Honor.

And the prosecutor’s office, with the facts that we had, could easily have charged possession with intent to deliver.

Antonin Scalia:

Which would… which would import the same penalty, life.

Richard Thompson:

Which would import the same penalty, life, but there we would have a different element, an additional element that we would have to prove, which we could have in this case, but which we felt not necessary and not prudent to make it more difficult for us to win a prosecution.

David H. Souter:

Could you have proved it with a lesser quantity?

Let’s say for example you had 500 with intent to distribute.

What would the penalty have been there?

Richard Thompson:

That would be a lesser penalty on that, Your Honor.

It would be mandatory 20 years to a maximum of 30 years.

David H. Souter:

But if we’re dealing with 650 the penalty is the same whether it is mere possession or possession with intent to distribute?

Richard Thompson:

Yes, Your Honor.

Again, going back to the inference–

David H. Souter:

What’s the basis for the distinction then?

Richard Thompson:

–The legislature just developed two laws.

The inference is the same.

If you have 650 grams of cocaine, then that is not for your personal consumption.

That is an indication to the legislature that this was going to be for transport, for delivery.

And in fact in this case the defendant admits in the petition that I was merely a mule.

Now–

David H. Souter:

But let, let me go back to my example.

Does the Michigan law read that if he possesses 650 with intent to distribute, it is life without parole, and if he possesses 650, period, it is life without parole?

Richard Thompson:

–Yes, Your Honor.

David H. Souter:

Well, that pretty much destroys the suggestion I made a moment ago, doesn’t it, that the real point of the law was to identify these people?

Because the, the law seems to be drawing a distinction that does not, that is not consistent with the distinction that I was making.

Richard Thompson:

I think that, not trying to read what the legislature was thinking when they did that, there is no difference as far as the penalty goes.

But I do believe that the legislature was identifying, as you indicated, people who have that much cocaine on their possession do… are going to be involved in the trade.

It is not for personal consumption.

Antonin Scalia:

How did these two statutes come to be?

Was the old… is the intent to distribute statute an older one and this possession statute was simply added to it?

Richard Thompson:

No, Your Honor.

They have had these, those kinds of crimes for a long time.

However, back in 1977 the legislature started to hold hearings, public hearings across the State trying to address the problem of drugs.

And they listened to the community.

Antonin Scalia:

And you say that they enacted simultaneously two statutes, one of which says you get life for possessing 650 grams with intent to distribute, and in addition, at the same time, the same legislature drafted another statute that said you get 650 for possessing 650… or you get–

Richard Thompson:

It was a part of the same act.

However, as you go down further, when you get below 50 grams, then the penalties do change.

Where if you have possession of less than 50, 50 grams, you have a 4-year possibility of sentence, but if you possess with intent to deliver, then the penalty is more.

But at the top level–

Sandra Day O’Connor:

–Mr. Thompson, now suppose there is a grandmother that is keeping a suitcase for her grandson, who is the mule, and it contains cocaine.

He’s gone for the weekend, she keeps it for him.

Life without parole, right?

Mere possession.

Richard Thompson:

–No, Your Honor.

No, Your Honor.

Merely having that suitcase in your closet does not fulfill the requirements of possession.

The person must know the nature of the contents, must have that knowledge plus the intent to establish some control, whether it be constructive or… true control over the–

Sandra Day O’Connor:

The grandson says I hate to tell you this, grandmother, it’s cocaine, keep it for me for the weekend.

[Laughter]

Richard Thompson:

–Your Honor, if we had… if the prosecutor had that kind of information, there is that prosecutorial discretion that could be exercised in deciding whether you are going to charge the grandmother or whether you are going to use the grandmother to testify against the–

Anthony M. Kennedy:

And would that be… would that be exercising the interest of justice?

Richard Thompson:

–I can’t give a definite yes or no on that, Your Honor, because I can see circumstances where–

Anthony M. Kennedy:

Discretion by the prosecutor would be exercised in some cases in the interest of justice.

Richard Thompson:

–Yes.

Yes, Your Honor.

Anthony M. Kennedy:

So that this statutory scheme does permit an exception in the occasional case in the interest of justice by the prosecutor, but not by the judge?

Richard Thompson:

There are checks and balances.

Even… once that, once the warrant is issued, Your Honor, if the prosecutor wants to make an agreement of some kind with the defendant in this level of drug dealing, the prosecutor must get permission from the court.

Because what the legislature–

Anthony M. Kennedy:

–So, the point is you think this is an element in defending the statute, that there is a grounds in some cases not to impose the full sentence.

Anthony M. Kennedy:

But that’s exactly what the petitioner is saying ought to be the case and that you are resisting.

Richard Thompson:

There… we’ll always have… if I understand your question or your statement, we always have discretion in the system someplace.

Sometimes it’s with the prosecutor and sometimes it’s with the court.

In this particular case the legislature said–

Anthony M. Kennedy:

But then–

Richard Thompson:

–we are going to eliminate that discretion from the court.

John Paul Stevens:

–Mr. Thompson, supposing the statute… the legislature passed a statute and said it shall be mandatory duty of the prosecutor to prosecute to the full extent of the law because this problem is so serious, we’ve got to get these people off the street.

You eliminated discretion from the prosecutor for this particular area.

Would that be constitutional?

That doesn’t trouble you, does it?

Richard Thompson:

Well, the prosecutor has, the prosecutor must enforce the law.

John Paul Stevens:

Right.

Richard Thompson:

And in Michigan if there is–

John Paul Stevens:

I find it surprising that you defend the law on the ground that the prosecutor might ignore it, which is what you are saying.

Richard Thompson:

–The prosecutor does not ignore it, Your Honor.

The prosecutor has discretion, as it has in any law that it, the prosecutor is going to enforce.

John Paul Stevens:

Do you think that is essential to sustain the constitutionality of this law?

Richard Thompson:

No, Your Honor.

John Paul Stevens:

Do you think the law would be equally constitutional if instead of 650 grams it was 50 grams?

Richard Thompson:

Yes, Your Honor.

John Paul Stevens:

So… it’s a very simple case, then.

Richard Thompson:

In my view it is, Your Honor.

What we have here is the democratically elected representatives of the people saying… expressing a societal interest in deterring this crime and permanently removing people from society who participate in this crime.

And if we have a–

John Paul Stevens:

Is it correct that for this kind of sentence, unlike most others, the… there is no interest in rehabilitation to justify the punishment?

The sole interest is deterrence?

Richard Thompson:

–Yes, Your Honor.

Deterrence, both general and individual.

Deterrence to prevent other people from getting involved, and deterrence to keep this person from getting back out on the street to purvey his drugs again.

Thurgood Marshall:

Well, on the deterrence point, what about those 1,200 that are in prison now?

Richard Thompson:

The… we have in prison right now 123 individuals charged and convicted under this act, Your Honor.

Those people will never deal their drugs again.

And contrary–

Anthony M. Kennedy:

Is there any evidence that all of them knew of this sentence, of this law?

Richard Thompson:

–Your Honor, it would be merely speculation on my part.

I know that the law–

Anthony M. Kennedy:

And in this case, any evidence that this petitioner knew of the law?

Richard Thompson:

–I don’t know, Your Honor.

Again, it would be speculation on my part.

The defendant did not take the stand.

The defendant, by the way, was given an opportunity to address the court at the time of sentencing, and did not address the court.

The defense counsel was given an opportunity to address the court at time of sentencing, and the defense counsel said I have read the presentence report and it is accurate.

He didn’t deny–

John Paul Stevens:

Mr. Thompson, I just don’t understand this.

What good would it do to address the court under this statute?

I mean, what are you going to say to him, I don’t like the statute?

[Laughter]

Richard Thompson:

–Well, I was responding to the question of what is in–

John Paul Stevens:

I know, I’m not criticizing your response.

But really, are we talking about anything that has to do with the decision of the issue before us?

Richard Thompson:

–No, Your Honor.

David H. Souter:

Was it at the sentencing hearing that the Eighth Amendment issue was raised?

Richard Thompson:

No, Your Honor.

David H. Souter:

When was that raised?

Richard Thompson:

It was at the appeals level, the first appeal… the court of appeals.

At the point, at the trial–

David H. Souter:

Okay.

Richard Thompson:

–it was a trial by a judge, and the only questions there were search-and-seizure questions.

Those were resolved in the prosecutor’s favor, and we had a 1-day trial.

David H. Souter:

At any point was a request made to supplement the record with evidence that might be relevant to the Eighth Amendment issue beyond what was already in the record?

Richard Thompson:

I don’t believe so, Your Honor.

Getting to the petitioner’s culpability in this case, which I think is important, not only did he have a pound and a half of cocaine on his person, pure cocaine, by the way, not mixed, he had on his person also $3,500 in cash, a sifter, which is commonly used to crush cocaine to dilute it with other material, other narcotics.

He has on his person a beeper, a pager.

He had on his person a coded address book.

He had on his person a.38 caliber pistol strapped to his ankle.

This was a person that just did not happen to come upon a pound and a half of cocaine.

This was an individual that was deeply involved in the drug trade.

At the time of his arrest he was, it was at 5:10 a.m. at the time of his arrest, but even before then police observed him going in and out of the motel area between 2:45 a.m. and 5:00 a.m. in a highly… in a high drug trafficking area.

Antonin Scalia:

Mr. Thompson, in addition to the fact that the Governor can grant clemency to this… I gather you agree that the Governor could–

Richard Thompson:

Yes, Your Honor.

Antonin Scalia:

–grant clemency if he wishes.

I assume the Michigan legislature, if it, if it came to the conclusion that this is a stupid law and is in fact not deterring, as counsel asserts it is not, I assume they could repeal the law and could retroactively reduce the sentence?

Could the Michigan legislature do that, or is it writ in stone?

Richard Thompson:

The Michigan legislature could do that.

The Michigan Supreme Court can do that.

They have done it before when a law has become more lenient from the time that the person was convicted of the crime.

But, Your Honor, I think that’s an important point–

Antonin Scalia:

So, so we, we could wait several years to see if the Michigan legislature really believes this things works, and if it doesn’t they might well repeal it and reduce the sentences meted out under it?

Richard Thompson:

–Your Honor, the Michigan legislature has twice visited this law since it was adopted in 1978.

Back in 1987 they amended some of the penalties below the 650 level and reduced them by half.

A year later they revisited again and raised those penalties back up, because they said that the law stopped to have the deterrent effect.

And that is what is important about this.

John Paul Stevens:

I wonder if there was an intervening election.

[Laughter]

Richard Thompson:

I don’t know.

We’re always having elections in Michigan, Your Honor.

But that is an important part.

They are representing the will and the societal interest in this, in this area.

And I think this Court, through its stated concerns about separation of powers and federalism and judicial restraint, ought to leave this case where it is, in the hands of the legislature, who are preeminently involved with the line drawing schemes when you are dealing with crimes and the punishments for those crimes.

Now, Petitioner says I am not a drug kingpin.

Richard Thompson:

Now, I don’t know what a drug kingpin is, because it is not defined in the Michigan statute.

But assuming it is someone that has a lot of drugs, what, what is the level that we have to decide that makes a drug kingpin?

We do know he was involved in a lot of drugs.

This statute, I submit respectfully to the Court, was anchored in the practicalities of the drug distribution network.

We realize that when you are dealing with drugs you have got the street level dealer that has to depend on a large supplier to get the drugs, and you have the large supplier that needs to depend on the street level dealer to get the drugs.

What we were focussing in on was the entire drug distribution network, not the man at the top, because we realize the man at the top doesn’t even get close to the drugs.

And if we had this statute focused in on the kingpin, it would have been doomed to failure from the start.

But what we do have is a focus on the entire distribution network.

And contrary to petitioner’s position, it has had a dramatic impact on the drug distribution problem that we have in Michigan.

Before this act when someone got caught they had a very lenient sentence.

They would serve their time, they would go right back out on the streets and commit their acts again.

It was merely a cost of doing business.

Now when we catch someone under this act, the first thing they do is talk to the prosecutor about making a deal, wanting to turn the bigger man in.

Contrary to what the petitioner says, this has had an impact on us getting the drug kingpin, because this statute was anchored on the practicalities of the drug distribution network in the State of Michigan.

Thurgood Marshall:

What… do you have any figures to back you up?

Richard Thompson:

I have–

Thurgood Marshall:

You’ve said–

Richard Thompson:

–not a part of the record, Your Honor, but the Michigan State Police in their annual report indicated that it does have a deterrent–

Thurgood Marshall:

–I don’t want… I don’t want anything outside the record.

I didn’t ask for it.

Richard Thompson:

–Okay.

Well, I don’t have anything in the record itself, Your Honor.

Thurgood Marshall:

I assumed that what you tell me is in the record.

Richard Thompson:

No, Your Honor.

Thurgood Marshall:

And you haven’t told me a crying thing about the fact that it… the crime of selling drugs has dropped off since this statute was passed.

Richard Thompson:

That is correct.

But as it was observed before, we don’t know how high it would have been without the statute.

And that is where you get into those–

Thurgood Marshall:

But you don’t know anything about what’s happened.

Richard Thompson:

–Not regarding the impact of a particular statute–

Thurgood Marshall:

Right.

Richard Thompson:

–with the entire drug distribution sea out there.

No, Your Honor.

Thurgood Marshall:

You don’t know anything about that part.

Richard Thompson:

We don’t, and it would be very difficult to develop a scientific study about that.

Thurgood Marshall:

Well, what in the world are you arguing about?

Richard Thompson:

Because the purpose… the purpose of this statute was deterrence.

And the State legislature has indicated that, and when they reduced the charge they brought it back up, the penalties, they brought it back up because the State legislature said that we weren’t getting deterrence out of the more lenient sentences.

Sandra Day O’Connor:

What standard do you think we apply to test proportionality under the Eighth Amendment?

Or do we just not make an examination at all?

Richard Thompson:

Your Honor, I think the test that this Court has enunciated in Solem is whether there is gross disproportionality involved.

And a lot has been said about what other States do as far as the drug laws go.

Sandra Day O’Connor:

And does any other State have a similar penalty for mere possession?

Richard Thompson:

Not as tough, Your Honor.

Not… we have, and I will admit we have the toughest penalties, but this Court has said that merely because a State has the toughest penalty in any area does not mean it is grossly disproportionate.

Because under our Federal system there will always be a State that has the distinction of having the severest penalty in some offense.

That’s the beauty of the federal system.

That people can look to the State of Michigan and see what Michigan’s experience is with the drug laws.

And as the Solicitor General has said in his brief, that States are starting to follow Michigan’s lead, that they are making stricter penalties in the drug area.

That in fact the Federal Government in the last 10 years has amended its controlled substance act 3 times, and each time it has made the penalties tougher.

Now, petitioner doesn’t say it’s unconstitutional to create a crime such as we have created, and petitioner admits that this crime is a grave one, admits it in the brief.

The only question that petitioner has is has the State-mandated law gone so high as to make it constitutionally impermissible?

Now, what that issue does is thrust this Court into the line-drawing process which this Court has said on many occasions is preeminently… belongs to the legislative branch of government.

There’s no question about it, Your Honor, that the decision, Your Honors, that the decision in this case will affect the extent to which the State legislatures and the Federal Government can enact tough laws to deal with this grave crisis that our Nation is facing.

And I respectfully request that this Court send a clear signal that under the war on drugs that tough penalties, such as Michigan’s, are constitutionally permissible.

If you have no further questions, thank you, Your Honor.

William H. Rehnquist:

Thank you, Mr. Thompson.

The case is submitted.