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August 5, 1977

BENJAMIN WARD, Commissioner of the New York State Department of Correctional Services; FRANCES CLEMENT, Superintendent, Bedford Hills Correctional Facility, Bedford Hills, New York; EDWARD HAMMOCK, Chairman of the New York State Board of Parole; and the NEW YORK STATE BOARD OF PAROLE, Respondents

The opinion of the court was delivered by: MOTLEY



 This is a habeas corpus proceeding brought by three women *fn1" challenging the constitutionality of their confinement pursuant to judgments of conviction in the New York courts. Specifically, they attack, root and branch, the constitutionality of certain sections of the New York Penal Law, Criminal Procedure Law, and Correction Law, as amended in 1973, *fn2" which govern the treatment of class A felony drug offenders, and pursuant to which they have been sentenced. The court finds it unnecessary, for reasons set forth infra, to discuss all the arguments which they raise. The court holds that Ms. Carmona's and Ms. Fowler's sentences are so disproportionately severe in relation to the gravity of the offenses charged as to constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution. However, the court finds no constitutional infirmity in Ms. Foggie's conviction and sentence.


 Petitioner Martha Carmona is presently serving a sentence of six years to life imprisonment for the crime of criminal possession of a controlled substance in the second degree, to wit, possession of more than one ounce of cocaine, an A-II felony under the 1973 drug law. *fn3" The sentence is the minimum possible under the law. *fn4"

 Ms. Carmona is a forty-one year old woman who, though born in Puerto Rico, has lived in New York City since early childhood. As a child, she was given by her married parents to an aunt, who emigrated to New York and raised her in that city. In 1953, she dropped out of high school, assertedly in order to earn money to send to her parents in Puerto Rico. After dropping out of school, she had worked from 1960 to 1973 as a sewing machine operator for a garment manufacturer, and from 1973 until her arrest in 1974, she worked part time for a beauty salon in Manhattan. Though presently unmarried (she was married at age 18 and divorced a year later), she has a daughter approximately twenty-one years old whom she was supporting until her arrest on the instant charges in 1974. The daughter subsequently had to resort to public assistance.

 Prior to the events which gave rise to the instant charges, Ms. Carmona had never been convicted of a crime and had only once been arrested -- in 1956 -- when a dispute with a neighbor resulted in the arrest of all parties on assault charges which were ultimately dismissed.

 In 1974, Ms. Carmona was arrested on a series of drug-related charges although she herself was not an addict. In May, she was indicted on federal charges of conspiracy and two substantive counts of possession of cocaine with intent to distribute it. The charges were ultimately satisfied by a guilty plea to one substantive count. On August 13, 1974, Ms. Carmona was indicted by a state grand jury in Bronx County on charges based upon the results of a search of her apartment conducted on July 30, 1974. The indictment charged her with violation of several penal statutes due to her alleged possession of items of drug paraphernalia, a small quantity of marijuana, and 3 and 3/8 ounces of cocaine, the latter offense (criminal possession of a controlled substance in the first degree) constituting an A-I felony in New York *fn5" with a mandatory sentence of at least fifteen years to life. *fn6" At the time of her arrest, she made a recorded statement to the Assistant District Attorney in charge of the case admitting possession of the cocaine which she had been given by another man on consignment for future sale. Ms. Carmona had earlier in 1974 been charged in two state indictments which, together, alleged that she had sold some 7 and 7/8 ounces of heroin to undercover agents.

 On several occasions after her arrest, Ms. Carmona indicated to police and prosecutorial officials that she wished to cooperate with them by supplying information and thereby becoming eligible for the District Attorney's recommendation that she be placed on lifetime probation, rather than facing the harsh penalties attendant to the offenses for which she was charged. *fn7" However, all the information which she provided the authorities was already known to them and, therefore, of little utility. When she was asked to introduce an undercover agent to her source of narcotic supply, she declined to do so on the ground that she feared for the physical safety of herself and her daughter. Because of her failure to provide any material assistance to the District Attorney's office, Ms. Carmona was not considered an appropriate subject for the probation recommendation. In consequence, after consultation with retained counsel, she accepted an offer to plead guilty to the A-II charge of possession of a controlled substance (cocaine) in the second degree, in satisfaction of all the outstanding charges against her. On January 31, 1975, her plea was accepted by Justice Joseph Cohen of the Supreme Court, Bronx County and, on March 10, 1975, she was sentenced to the term of imprisonment previously set forth. Her appeal was denied by the Appellate Division, First Department in late 1976, and leave to appeal to the New York Court of Appeals was denied. She is presently incarcerated in the Bedford Hills Correctional Facility, of which respondent Frances Clement is Superintendent.

 Petitioner Donna Foggie is presently on mandatory lifetime parole, *fn8" having been discharged from incarceration after serving roughly one year of a one year to life sentence for the crime of criminal possession of a controlled substance in the third degree, to wit, sale of 18 grains ($40.00 worth) of cocaine, an A-III felony under the 1973 drug law. *fn9" The sentence is the minimum possible under the law. *fn10"

 Ms. Foggie is a twenty-five year old woman born and raised in New York City. After her parents separated when she was three years old, she was raised by her mother, with whom she maintains a close relationship. She also remains close to her brother, who is a Sergeant in the Air Force. She dropped out of high school in Brooklyn during her tenth grade, and soon thereafter was married in 1969. Although she was separated from her husband in 1970, she retained custody of their child, a son who is now about eight years old. After leaving high school she held a number of jobs for short periods of time. However, from 1970 until the time of her arrest, she was receiving public assistance.

 Ms. Foggie first became a heroin addict at the age of 15, and used heroin intermittently subsequent to that time. On August 20, 1970, she voluntarily committed herself to a drug treatment program at the Drug Abuse Service Bushwick Center in Brooklyn. She was discharged from the program on July 24, 1974, having reported regularly while on after-care treatment and having made a "satisfactory adjustment". After her discharge from the program, she continued her rehabilitation therapy in two other methadone programs.

 Prior to 1974, Ms. Foggie had never been convicted of a criminal offense. In February of 1970, she had been arrested and charged with possession of a dangerous drug in the sixth degree and petit larceny; however, those charges were dismissed in Kings County Criminal Court in 1971.

 On August 8, 1974, Ms. Foggie was arrested. An indictment was filed on August 16, 1974 charging her with two counts of criminal sale of a controlled substance in the third degree, two counts of possession of a controlled substance in the third degree, and two counts of possession of a controlled substance in the seventh degree. The charges arose from two separate events: a sale of $50 worth of a substance containing cocaine on or about May 8, 1974, and a sale of $40 worth (18 grains) of a substance containing cocaine on or about May 17, 1974, on each occasion to an undercover agent. The charges resulting from the May 8, 1974 transaction were dismissed by the court upon the prosecutor's refusal to produce the informant who introduced Ms. Foggie to the undercover officer to whom she allegedly made the sale. After a jury trial before Justice Eugene R. Canudo of Supreme Court, Kings County, she was convicted on one count of the indictment, which charged her with the sale occurring on May 17, 1974. On April 28, 1975, she was sentenced to a term of one year to life by Judge Canudo, who indicated that his sentence, the most lenient permitted by the 1973 drug law, was in accordance with both the contents of the probation report and the recommendation of the Assistant District Attorney in charge of the case. Her appeal, alleging a number of trial errors, was denied by the Appellate Division, Second Department, on June 3, 1977, some time after she had already been released on lifetime parole.

 Petitioner-intervenor Roberta Fowler is presently serving a sentence of four years to life imprisonment in Bedford Hills Correctional Facility for the crime of criminal sale of a controlled substance in the third degree, *fn11" to wit, approximately one individual dose of a substance containing cocaine.

 Ms. Fowler, now approximately twenty-three years old, had spent her entire life prior to her arrest in Albany and Sidney Center, New York. Her mother died while she was a teenager, and she received psychiatric counseling for some time thereafter. She completed eleven years of school and, while in prison, has since taken the high school equivalency examination. She has, for varying periods of time, been employed by the New York State Department of Labor, the Eden Park Nursing Home, and the New York Telephone Company. In 1969, she was married to Billie Fowler, and she now has two children who, during her incarceration, reside with her father in Albany. Since her imprisonment for the instant offense, she has apparently made diligent efforts to maintain close contact with her children. On her initiative, both nuns and guidance counselors from the day care center which her children attend have come to Bedford Hills to discuss the children's progress with her. The children have visited her relatively frequently.

 The offense for which Ms. Fowler is incarcerated occurred on September 25, 1973. At trial, the Government established that, on that date, one James Werthmuller, an undercover agent, observed the petitioner at an Albany police station, asked her whether she could get him twenty dollars worth of cocaine, and then gave her twenty dollars. Ms. Fowler then left in a car with one Jerome Powell, a Government informer. Some twenty minutes later, the three individuals met again by pre-arrangement at a different location, at which point petitioner handed the substance containing cocaine to Powell, who, in turn, handed it to Werthmuller.

 After a jury trial *fn12" in February, 1974, Ms. Fowler was sentenced, on February 21, 1974, to a term of four years to life, the court exercising its discretion to set a minimum term of from one year to eight years and four months. At the time of sentence, Ms. Fowler, then twenty years of age, had no previous record of violent behavior or of criminal possession or sale of narcotics, although she was not a stranger to the criminal justice system. *fn13" During 1972, she had sought and obtained treatment at a methadone clinic in Albany, but, at the time of her arrest, she was not addicted to any narcotic drug. Her conviction was appealed through the State court system, and was affirmed by the New York Court of Appeals sub nom. People v. Broadie, 37 N.Y.2d 100, 371 N.Y.S.2d 471, 332 N.E.2d 338, cert. denied, 423 U.S. 950, 96 S. Ct. 372, 46 L. Ed. 2d 287 (1975).


 The State argues at the outset that the claims raised by these petitioners have not been adequately presented to the New York courts to satisfy the exhaustion requirement embodied in 28 U.S.C. § 2254(b). Picard v. Connor, 404 U.S. 270, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1972). At least with regard to the grounds upon which it rests its decision, the court does not find this argument well taken.

 The court here holds that, as applied to Ms. Carmona and Ms. Fowler and their offenses, certain provisions of the 1973 drug law are so disproportionately severe as to constitute cruel and unusual punishment. It is clear that the New York Court of Appeals, in upholding the constitutionality of the 1973 drug law, considered challenges to its validity under the Cruel and Unusual Punishments Clauses of both the New York and United States Constitutions. Broadie, supra, 371 N.Y.S.2d at 474. While the Court did not deal in depth with the personal backgrounds of the appellants or with the specific circumstances of the offenses there charged, a fair reading of the Court's opinion indicates that the Court of Appeals rejected the argument that the statutory punishments were constitutionally defective, either on their face or as applied. See especially Broadie, supra, at 475, 477, 482.

 Chief Judge Breitel took pains to note that the Court's opinion did not imply that "in some rare case on its particular facts it may not be found that the statutes have been unconstitutionally applied." Broadie at 482. However, his citation to Justice Powell's dissenting opinion in Furman v. Georgia, 408 U.S. 238, 460-1, 33 L. Ed. 2d 346, 92 S. Ct. 2726 (1972) seems to make clear that the exception, in which application might be unconstitutional, contemplated circumstances in which the alleged crime "technically (fell) within the legislatively defined class but factually (fell) outside the likely legislative intent in creating the category." 408 U.S. at 461. The Court was concerned with the possible "accidental offender", not with a situation in which application of the statutory penalties to an offense concededly falling within the statutory definition merely created a disproportionately severe punishment. *fn14" Accordingly, it seems clear that Broadie rejected the argument that the 1973 drug law provisions constituted cruel and unusual punishment, both by their terms and as applied to factual patterns clearly encompassed by the Legislature's intent. It is also clear that the Broadie court rejected the Equal Protection challenge as well. 371 N.Y.S.2d at 475.

 Since Ms. Fowler's conviction was one of the cases affirmed by the Broadie opinion, it is obvious that she has exhausted her available state remedies. Moreover, since it also seems clear that it would be completely futile for either Ms. Carmona or Ms. Foggie to pursue the same claims on direct appeal in the state courts, they need not do so before seeking relief in this court. *fn15" United States ex rel. Sero v. Preiser, 506 F.2d 1115, 1130 (2d Cir. 1974), cert. denied, 421 U.S. 921, 43 L. Ed. 2d 789, 95 S. Ct. 1587 (1975).

 The State apparently concedes the futility of raising any further constitutional claims in the state courts, insofar as they challenge the statutes' provisions on their face. *fn16" However, to the extent that petitioners seek in this court, through an evidentiary hearing, to provide a factual predicate for their assertions that the law is arbitrary and ineffective in its impact, the State asserts that the New York courts should have the opportunity to pass upon such claims in the first instance, with the benefit of the evidentiary showing sought to be made here.

 While appeals to principles of comity and federalism always have a persuasive ring in the context of federal habeas corpus proceedings, the court is not persuaded that further presentations to the New York courts ought to be required in this situation. This is not a case such as Needel v. Scafati, 412 F.2d 761 (1st Cir.), cert. denied, 396 U.S. 861, 24 L. Ed. 2d 113, 90 S. Ct. 133 (1969), in which critical factual evidence going to the merits of a federal claim was presented for the first time to the federal court, and the state court had no opportunity to consider it. In that case and others, e.g., United States ex rel. Cleveland v. Casscles, 479 F.2d 15 (2d Cir. 1973), the additional evidence adduced in the federal court was so significant as to essentially transform the nature of the claim originally presented in the state courts. Understandably, federal appellate courts have felt constrained in such situations to conclude that the state courts had not theretofore had a fair opportunity to consider the outlines of the ultimate federal claim. Picard v. Connor, supra.

 However, this is a different type of case. It is not essentially a factual case, but a legal one. Indeed, the need for the factual hearing is so limited that petitioners have indicated their willingness to waive the hearing request if the court decided that the nature of the evidence to be adduced created an exhaustion problem. *fn17" Petitioners do not seek to bring to this court's attention new facts relating to the crimes which they allegedly committed, nor do they raise new claims relative to their personal situations or any alleged disparity between the magnitude of their offenses and the severity of the punishment. Instead, they seek to adduce some limited factual material, most of which is not disputed by the State and much of which is, in fact, obtained through State agencies and State officials, which would cast doubt upon some of the factual assumptions which the New York Court of Appeals relied upon in upholding the drug law against constitutional challenge. See, e.g., Broadie, supra, 371 N.Y.S.2d at 476-9.

 In seeking to make this modest evidentiary showing concerning the operation of the law "in practice", petitioners ask no more than has been permitted in other federal habeas corpus cases without a requirement of further exhaustion. See Humphrey v. Cady, 405 U.S. 504, 508-512, 31 L. Ed. 2d 394, 92 S. Ct. 1048 (1972); United States ex rel. Sero v. Preiser, 372 F. Supp. 663, 670 (S.D.N.Y. 1974); Ford v. Hollowell, 385 F. Supp. 1392, 1397 (N.D. Miss. 1974). In this case, it seems clear that the legal issues sought to be raised are substantially the same as those raised before and considered by the New York Court of Appeals in Broadie. The limited factual presentation provided in this court as support for those claims does not so alter them as to require that the New York courts now be permitted to consider them afresh. *fn18" See Developments in the Law -- Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1096 (1970).


 Petitioners have attacked the 1973 drug law in numerous respects, notably (1) the mandatory indeterminate life sentences for all class A drug offenders; *fn19" (2) the preclusion of plea bargaining for A-III felony offenders (which has been eliminated during the pendency of this action); *fn20" (3) the mandatory lifetime parole provision without possibility of discharge *fn21" (which has also been altered during the pendency of this action to permit class A drug felons to be discharged from parole on the same basis as all other parolees); *fn22" (4) the predication of probation, in part, upon a recommendation from the prosecutor due to the defendant's cooperation; *fn23" and (5) the denial of bail pending appeal. *fn24" Moreover, they have charged that, both on their face and also as enforced, these various provisions deny them their rights to due process of law, to the equal protection of the law, and to be free from cruel and unusual punishment.

 The court does not find it either necessary or appropriate to pass upon all these ably presented challenges to the legality of petitioners' custody. For reasons discussed more fully infra, the court holds that the life sentences imposed upon Ms. Carmona and Ms. Fowler are so disproportionately severe in relation to the gravity of their offenses as to violate the Eighth and Fourteenth Amendments. The challenges to the lifetime parole provisions have obviously been rendered moot by the new legislation making these petitioners eligible for discharge from parole like any other parolees. Since the challenge to the preclusion of bail pending appeal was apparently not before the New York Court of Appeals in the Broadie case, and since there apparently yet remained an avenue to challenge that statutory provision in the New York courts, the court has already ruled that, in Ms. Foggie's case, the validity of that provision was not ripe for adjudication in the federal courts. United States ex rel. Carmona v. Ward, 416 F. Supp. 272 (S.D.N.Y. 1976). Since there are now no pending state appeals by these petitioners, it would appear that none of them have standing to challenge that provision.

 The remaining provisions concerning plea bargaining and probation are discussed in the context of Ms. Foggie's case. As indicated infra, the court does not consider that either of these provisions offend the constitution, either considered singly or in conjunction with the others. Thus, Ms. Foggie's conviction and sentence should not be disturbed.


 It is, at this point in our constitutional jurisprudence, a truism to note that the power to define crimes and to establish punishments therefor rests with the legislature in the first instance. Pennsylvania v. Ashe, 302 U.S. 51, 55, 82 L. Ed. 43, 58 S. Ct. 59 (1937); Weems v. United States, 217 U.S. 349, 379, 54 L. Ed. 793, 30 S. Ct. 544 (1910). However, the exercise of that power is subject to judicial scrutiny to ensure that it does not transgress any constitutional prohibitions. The final judgment as to whether the punishment it decrees exceeds constitutional limits is a function reserved to the judiciary. Furman, supra, 408 U.S. at 269 (Brennan, J., concurring); Trop v. Dulles, 356 U.S. 86, 103-4, 2 L. Ed. 2d 630, 78 S. Ct. 590 (1958) (plurality opinion of Warren, C.J.). The task of the courts is not, of course, merely to pass judgment upon the wisdom of penal legislation, but rather to determine whether, upon accepted principles, it offends constitutional commands. Trop, supra, at 103.

 The Cruel and Unusual Punishments Clause of the Eighth Amendment, *fn25" however, infrequently invoked by the Supreme Court, has served as an important -- and controversial -- check upon the legislature's power to define and punish crimes. In appropriate cases, the Supreme Court has not hesitated to rely upon that clause in declaring the imposition of a particular punishment constitutionally impermissible. See, e.g., Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982, 45 U.S.L.W. 4961 (1977); Furman, supra; Robinson v. California, 370 U.S. 660, 8 L. Ed. 2d 758, 82 S. Ct. 1417 (1962); Trop, supra; Weems, supra. Nor, of course, has the United States Supreme Court been alone in relying upon that clause, or comparable provisions in state constitutions, to protect the right of individual defendants to be free of unduly harsh, oppressive, or arbitrary punishments decreed by a majoritarian political system. See, e.g., Hart v. Coiner, 483 F.2d 136, 140 (4th Cir. 1973), cert. denied, 415 U.S. 983, 39 L. Ed. 2d 881, 94 S. Ct. 1577 (1974); Ralph v. Warden, 438 F.2d 786 (4th Cir. 1970), cert. denied, 408 U.S. 942, 92 S. Ct. 2846, 33 L. Ed. 2d 766 (1972); In Re Foss, 10 Cal. 3d 910, 519 P.2d 1073, 112 Cal. Rptr. 649 (1974); In Re Lynch, 8 Cal. 3d 410, 503 P.2d 921, 105 Cal. Rptr. 217 (1972); Workman v. Commonwealth, 429 S.W.2d 374, 377 (Ky. 1968) and cases cited therein.

 It is, furthermore, clear that a punishment may be constitutionally impermissible under the Eighth Amendment not only because of its nature or mode, but also because of its severity or harshness. A punishment, otherwise appropriate, may be so disproportionate to the offense charged and the circumstances of the case that it may violate the Constitution. "To be sure, imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual. But the question cannot be considered in the abstract. Even one day in prison would be cruel and unusual punishment for the 'crime' of having a common cold." Robinson, supra, 370 U.S. at 667 Accord, Ralph, supra, at 789-90 (citing cases); In Re Lynch, supra, 503 P.2d at 927 et seq. (citing cases). While the United States Supreme Court has never held a sentence of imprisonment invalid under the Eighth Amendment solely because of its length, *fn26" Downey v. Perini, 518 F.2d 1288, 1290 (6th Cir.) vacated and remanded, 423 U.S. 993, 96 S. Ct. 419, 46 L. Ed. 2d 367 (1975), state courts and other federal courts have not been so reluctant. See Ralph, supra; Hart, supra; United States v. McKinney, 427 F.2d 449, 455 (6th Cir. 1970), cert. denied, 402 U.S. 982, 29 L. Ed. 2d 148, 91 S. Ct. 1648 (1971); In Re Lynch, supra. And there is obviously nothing in the Eighth Amendment standards enunciated by the Supreme Court which in terms, prevents their application to periods of imprisonment alone.

 Application of either the concept of disproportionality or the more nebulous Eighth Amendment test of whether a challenged punishment comports with the "dignity of man", "[the] basic concept underlying the Eighth Amendment", Trop, supra, 356 U.S. at 100, obviously presents difficulties of interpretation upon which reasonable persons can and do differ. However, recent cases in the Supreme Court have provided sufficient guidance that this court's decision is somewhat facilitated.

 Clearly, the application of such general and value-laden principles calls for the utmost in judicial self-restraint consistent with the conscientious discharge of the court's constitutional responsibilities. While the Eighth Amendment is an evolving concept "[drawing] its meaning from the evolving standards of decency that mark the progress of a maturing society", Trop, supra, at 101, the Supreme Court has made clear that the process of divining such contemporary standards does not give federal judges license to apply to challenged punishments their own subjective perceptions of proper penology. Furman, supra, 408 U.S. at 277-8, n.21 (Brennan, J., concurring). Insofar as possible, the constitutional propriety of a challenged punishment is to be judged by "objective indicia" rather than by subjective judicial reaction. Gregg v. Georgia, 428 U.S. 153, 172, 96 S. Ct. 2909, 2924, 49 L. Ed. 2d 859, 874 (1976) (opinion of Stewart, J.); *fn27" Coker, supra, 45 U.S.L.W. at 4963.

 The Court's recent decision in Coker reaffirmed its previous holding in Gregg that "a punishment is 'excessive' and unconstitutional if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime. A punishment might fail the test on either ground." 45 U.S.L.W. at 4963. In the instant case, this court holds that the punishments inflicted upon petitioners Carmona and Fowler are unconstitutional on the latter ground. *fn28"

 The court considers first the punishments of imprisonment imposed upon Ms. Carmona and Ms. Fowler, who are incarcerated for indeterminate terms of six years to life and four years to life, respectively. Although it is entirely possible, and indeed probable, that they will both be released from prison substantially before the expiration of their maximum term, they have no right to release at an earlier time, Menechino v. Oswald, 430 F.2d 403, 408 (2d Cir. 1970), cert. denied, 400 U.S. 1023, 27 L. Ed. 2d 635, 91 S. Ct. 588 (1971), and their release is within the Parole Board's discretion. Accordingly, for Eighth Amendment purposes, the court must judge the severity of their punishments by looking to the maximum term possible under the judgment of the sentencing court -- in this case, life imprisonment. Broadie, supra, 371 N.Y.S.2d at 475; In Re Lynch, supra, 503 P.2d at 924-6. *fn29"

 Thus, the precise question before the court is whether the State of New York may constitutionally punish either the sale of one individual dose of cocaine (in Mrs. Fowler's case) or possession of 3 and 3/8 ounces of cocaine (in Ms. Carmona's case) by life imprisonment.

 The principle of proportionality of punishment to the offense is well settled under the Eighth Amendment. Weems, supra. And there are several objective indicia to which the court may turn in determining whether the punishment provided by the Legislature is so grossly disproportionate to the nature of the offense as to offend contemporary standards of decency.

 Although by no means dispositive of a punishment's constitutionality, Gregg, supra, 49 L. Ed. 2d at 875, n.19, the enactments of legislative bodies, both in New York and elsewhere, serve as some index of community standards and values. *fn30" Coker, supra, 45 U.S.L.W. at 4963-4; In Re Lynch, supra, 503 P.2d at 935 et seq.; Ralph, supra, at 790-2; Hart, supra, at 139. Thus, they give some indication of a punishment's general moral acceptability.

 In New York, all class A non-capital felony offenders must receive an indeterminate sentence with a maximum duration of life imprisonment. *fn31" Thus, class A drug offenders, irrespective of the degree of their involvement in the drug trade, receive the same maximum sentence as those felons convicted of first degree murder, *fn32" first degree arson, *fn33" and kidnapping in the first degree. *fn34" Additionally, class A drug offenders are punished more severely than felons convicted of such crimes as second degree arson, *fn35" first degree rape, *fn36" first degree manslaughter, *fn37" first degree burglary, *fn38" and second degree kidnapping, *fn39" all of which are classified as B felonies carrying a maximum term of imprisonment of 25 *fn40" years. However, even this comparative picture of the treatment of class A drug offenders fails to convey the relative severity of the treatment which is accorded them, for all other class A offenders may plead guilty to a B felony or less, and thus avoid the mandatory maximum life term; only class A drug offenders were statutorily precluded from this treatment until recent amendments made such a plea possible for A-III offenders. *fn41" Moreover, only the class A drug felon was to remain, until recently, on parole for the rest of his or her life if ever released from prison. *fn42"

 Not only is the treatment of A felony drug offenders unique in its severity among non-capital crimes in New York, however, but it is also virtually unique among all the States of the Union. The New York Court of Appeals duly noted in the Broadie case that "drug trafficking is punished more severely in this State than in other jurisdictions." 371 N.Y.S.2d at 480. By comparison, in apparently no other state would these petitioners, for these offenses, today be subjected to mandatory life sentences, with limited provisions for plea bargaining, and no possibility of discharge from eventual parole, if any.

 At the time of the institution of this action, only two states -- California and Louisiana -- required the court to impose a life sentence for certain drug offenses. However, effective July 1, 1977, California eliminated the mandatory indeterminate life sentence and substituted definite sentences of up to five years for a first offender, depending on the nature of the offense. *fn43" The penalty for sale of any amount of cocaine, the more serious offense in the instant case, would today be punished by a definite sentence of from three to five years, *fn44" rather than five years to life as under previous law. Possession with intent to sell is now punished by imprisonment for two, three, or four years. *fn45" However, even prior to these changes, the California sentencing scheme was significantly different from New York's. In California, the "life sentence" was imposed as part of that state's indeterminate sentencing program, which accords to the Adult Authority responsibility for setting the actual term; the "life sentence" must be reviewed by the Adult Authority promptly after commitment, and a definite term of years set. In Re Rodriguez, 14 Cal. 3d 639, 537 P.2d 384, 122 Cal. Rptr. 552 (1975). Furthermore, California also previously permitted probation for some narcotic offenders under certain circumstances. *fn46"

 Louisiana still retains a mandatory life sentence for certain narcotic offenses; for instance, sale of heroin. *fn47" However, the penalty for sale (or possession with intent to sell) of cocaine is a sentence of from five years to thirty years at hard labor, and a fine of up to $15,000. *fn48" Simple possession, moreover, is punishable by imprisonment, with or without hard labor, for not more than five years *fn49" and, if the defendant is a first offender, he may be eligible for a conditional discharge. *fn50" While this punishment scheme is in some respects severe, particularly with its provision for doubling of punishments for second or subsequent offenders, *fn51" it is still clear that both Ms. Carmona and Ms. Fowler would have received substantially less onerous sentences in either California or Louisiana under present law.

 Under federal law, sale or possession with intent to sell cocaine (or, for that matter, heroin and many other narcotic drugs) is punishable as a first offense by probation or imprisonment up to 15 years, a fine of up to $25,000, or both, along with a mandatory special parole term of at least three years *fn52" following any term of imprisonment. A second offense may be punished by imprisonment up to 30 years, a fine of up to $50,000, and a special parole term of at least six years. *fn53" Ms. Fowler would have been subject to the former provision under federal law and she might well have received a sentence of probation. Ms. Carmona, who was charged with simple possession of cocaine, *fn54" could have received no more than one year imprisonment and/or a $5,000 fine under federal law since this was her first conviction for a drug offense. *fn55" Even if it were a second offense, she could have received no more than two years' imprisonment along with a possible $10,000 *fn56" fine. Moreover, as a first offender, she might have received probation, with a subsequent discharge from supervision and dismissal of the charges without an adjudication of guilt. *fn57" Even if either petitioner were adjudged to be a "dangerous special drug offender," she could receive a maximum of only 25 years' imprisonment. *fn58" Only if she were found guilty of engaging in a "continuing criminal enterprise" in concert with at least five others could she receive a term of imprisonment approaching a life sentence. *fn59"

 Even this brief survey is sufficient to make it clear that the penalty imposed upon petitioners Carmona and Fowler is "unusual" in its severity, both when compared with punishments for other offenses within New York, and also when matched against punishments for similar offenses in other jurisdictions. This disparity is powerful evidence that the challenged punishments of life imprisonment do not comport with prevalent moral notions of what constitute just, temperate, and appropriate punishments for these offenses. Thus, this evidence weighs heavily in the scales against the constitutionality of these sentences.

 In response to this showing, however, the State makes two arguments.

 First, it points out that, within a very broad range of discretion, it is the Legislature's prerogative to determine the relative gravity of offenses within its jurisdiction and to tailor its punishments accordingly. Pennsylvania v. Ashe, supra, 302 U.S. at 55. The fact, therefore, that it chooses to penalize certain drug offenses more seriously than other crimes reflects a perfectly legitimate exercise of its constitutional powers.

 Secondly, and somewhat more persuasively, it argues that the disparity in treatment of similar offenses between states is perfectly permissible in a federal union in which many jurisdictions are grappling with a narcotics problem of varying degrees of intractability. The State urges that the Eighth Amendment should not be applied in such a way as to discourage innovative solutions to a social and criminal problem which has, to a large degree, defied many disparate corrective approaches.

 The State's first argument is certainly sound as a general principle, but it proves too much. Although the State clearly has a great deal of latitude in making judgments as to the relative severity of crimes, surely, to use an extreme example, the State would not be free, without any constitutional sanction, to provide a sentence of life imprisonment for a five dollar theft, when it made manslaughter, arson and rape punishable only by a maximum of twenty five years in prison. The judiciary must necessarily have some function in assuring that the chosen punishment scheme comports with the human dignity of the criminals who are subject to it.

 The State's second argument is, at least up to a point, very appealing. There is, surely, room in a federal system for a diversity of penological approaches to a problem as widespread and difficult as that of the illegal drug trade. Cf. Marshall v. United States, 414 U.S. 417, 427, 38 L. Ed. 2d 618, 94 S. Ct. 700 (1974) (narcotic addict rehabilitation); McGinnis v. Royster, 410 U.S. 263, 270, 35 L. Ed. 2d 282, 93 S. Ct. 1055 (1973) (parole eligibility). Moreover, the concededly vast extent of the drug problem in the State and especially the City of New York has been widely noted, *fn60" and was certainly paramount in the minds of the concerned legislators who enacted the 1973 drug law in New York. *fn61" And the State clearly has "broad power" to regulate the narcotic drug traffic within its borders. Robinson, supra, 370 U.S. at 664.

 However, there necessarily remains a constitutional limitation upon the State's freedom to undertake even the most enlightened and well motivated approach to the most intractable and corrosive social problems. Whether the Legislature saw fit to hospitalize drug offenders indefinitely to attempt to effect their rehabilitation, or whether it decided to decree their summary execution as the ultimate deterrent, the courts could necessarily be called upon to determine whether such punishments comported with the dictates of the Eighth Amendment. "Judicial enforcement of the [Cruel and Unusual Punishments] Clause . . . cannot be evaded by invoking the obvious truth that legislatures have the power to prescribe punishments for crimes. That is precisely the reason the Clause appears in the Bill of Rights." Furman, supra, 408 U.S. at 269 (Brennan, J., concurring).

 The State argues, as the New York Court of Appeals noted in Broadie, supra, 371 N.Y.S.2d at 477, 480, that narcotic offenses are peculiarly serious crimes in that they not only can lead to serious physiological damage and psychological dependency in the drug user, but they also can generate "collateral" crimes, often violent ones, as addicts are forced to resort to other crimes to support their habits. Therefore, it is argued, the Legislature was justified in imposing severe penalties on all those who play any "roles in the scourge of drug distribution", however peripheral. Broadie, supra, at 478.

 There are at least two serious problems with this line of reasoning, however. In the first place, it is necessary to judge the proportionality of a punishment with relation to the actual offense committed; a penalty cannot be justified solely by the potential for more serious conduct, even though it may be violent and dangerous. For instance, in Ralph, supra, the Court of Appeals for the Fourth Circuit invalidated imposition of the death penalty for rape on the ground that, in that case, the rapist had "neither taken nor endangered life," (438 F.2d at 788) despite the fact that the circumstances of that case clearly involved the potential for such violence. Similarly, when the United States Supreme Court subsequently ruled that the death penalty for rape of an adult woman was impermissibly disproportionate to the gravity of the offense, it noted that "[although] it may be accompanied by another crime, rape by definition does not include the death or even the serious injury to another person. The murderer kills; the rapist, if no more than that, does not." Coker, supra, 45 U.S.L.W. at 4965 (footnote omitted). Clearly there are constitutional limits to the extent to which the statistical, or assumed, connection between a particular offense and collateral crimes may be used to justify a particularly harsh penalty for commission of the acts in question. *fn62"

 Moreover, the Eighth Amendment requires that a Legislature make some rational gradations of culpability in determining the punishments mandated for criminal offenses. Ralph, supra, at 788; In Re Foss, 10 Cal. 3d 910, 519 P.2d 1073, 1079, 112 Cal. Rptr. 649 (1974). Cf. N.Y. Penal Law § 1.05(4). In the latter case, the California Supreme Court, interpreting the California constitution, ruled that a statutory provision absolutely precluding parole consideration during the first ten years of a mandatory ten years to life imprisonment sentence was, as applied to the defendant in that case, constitutionally invalid because disproportionate to the offense committed, even though the defendant was convicted of five counts of furnishing heroin and had previously been convicted of heroin possession. In so ruling, the Court noted that "[we] have no doubt that heroin abuse presents a serious problem to our society or that harsh penalties may be necessary to restrict the supply, sale and distribution of this substance . . . [However], consideration should be given to the particular circumstances of the offenses committed, such as the quantity of narcotics involved, and whether the transactions were those of an addict to support his habit . . . or were sales for profit made by other suppliers of heroin." 519 P.2d at 1079.

 To say that the Legislature must make some rational gradations of culpability is by no means to say that, in every instance, mandatory prison sentences are unconstitutional, for that is clearly not the law. See, e.g., Gallego v. United States, 276 F.2d 914 (9th Cir. 1960) (five years minimum for importation of marijuana); United States v. Chow, 398 F.2d 596 (2d Cir. 1968) (five year minimum for importation of 15 pounds of opium). However, the punishments provided by the State of New York for class A felony drug offenders are quite extraordinary in their failure to differentiate between minor offenders and major drug dealers. It is certainly true that different mandatory minimum terms of imprisonment are provided for A-I, A-II, and A-III offenders, depending principally upon the aggregate amount of narcotic (or substance containing narcotic) involved in the particular offense. *fn63" However, each A felony offender, regardless of the gravity of his or her offense, is nonetheless subject to a maximum term of life imprisonment which, as indicated supra,64 is the punishment to be considered in an Eighth Amendment analysis. Thus, for example, a person, never before involved with the law, who is convicted of agreeing to give *fn65" any amount (up to one-eighth of an ounce) of a narcotic drug to a friend receives the same life sentence as does the major purveyor of heroin. This total failure to tailor the maximum indeterminate sentence in any meaningful way to the culpability of the offender, the gravity of the offense, and the peculiar circumstances of each case also renders the life sentences imposed in this case constitutionally suspect. *fn66"

 It is further argued by the State that the drug law's gradation of minimum terms of imprisonment according to the amount of the substance containing narcotic provides a constitutionally sufficient method of differentiating among various degrees of culpability within the general class of A felony drug offenders. In a case involving a challenge to the predecessor New York statutes, the Court of Appeals for this Circuit upheld use of the aggregate weight standard to define different crimes, noting that "[the] State cannot be expected to make gradations and differentiations and draw distinctions and degrees so fine as to treat all law violators with the precision of a computer . . . ." United States ex rel. Daneff v. Henderson, 501 F.2d 1180, 1184 (2d Cir. 1974). *fn67" However, that case, and the difference between minimum terms generally, are simply not relevant to the Eighth Amendment issue for decision. The petitioners are not challenging the concept of the mandatory minimums, per se, but rather the maximum life sentences, *fn68" which are mandatory for all class A felony offenders, and which form the relevant benchmark for Eighth Amendment purposes. And it is unquestioned that that term is applied to all A felony drug offenders, regardless of the amount of narcotic substance involved in their particular cases.

 It should be further noted that whatever rationality is imparted to the A felony drug punishment scheme by the differentiation based upon the amount of narcotic-containing substance involved has been substantially vitiated by the operation of the law in practice. And, as Justice Douglas noted in his concurring opinion in Furman, supra, "[what] may be said of the validity of a law on the books and what may be done with the law in its application do, or may, lead to quite different conclusions." 408 U.S. at 242. *fn69" The proscription against pleading out of the A felony class, until recently changed by amendment, led to the result that many drug offenders originally charged with A-I and A-II drug offenses were allowed to plead guilty to A-III charges, *fn70" while those charged with A-III offenses were not allowed to plead to reduced charges. *fn71" Thus, those persons accused of what were, at least theoretically, the least serious offenses in the A felony category were facing precisely the same penalties as many of those accused of the most serious, i.e., A-I offenses. Moreover, evidence presented to the court indicated that those persons originally charged with A-I and A-II offenses were not receiving sentences any more severe, in terms of the minimums provided, than those who were originally charged with A-III offenses; most received the minimum sentence of one year to life imprisonment. *fn72" Restrictions on probation further ensured that the category of persons sentenced as A-III felons would encompass not only many serious offenders, but also individuals who might have been under other circumstances, treated as inconsequential offenders and released on probation.

 To point out these anomalies is by no means to suggest that criminal defendants have a "right" to plead guilty to charges less serious than those which they originally faced. They clearly have no such right. See Hutcherson v. United States, 120 U.S. App. D.C. 274, 345 F.2d 964, 967, cert. denied, 382 U.S. 894, 15 L. Ed. 2d 151, 86 S. Ct. 188 (1965) ("A defendant has no constitutional right to elect which of two applicable statutes shall be the basis of his indictment and prosecution."). Moreover, petitioners' argument that reducing the discretion of the sentencing judge merely leaves undue discretion in the hands of police making arrests and prosecutors deciding whether to prosecute and on what charges is not pertinent to the Eighth Amendment claim. Proffitt v. Florida, 428 U.S. 242, 254, 96 S. Ct. 2960, 2967, 49 L. Ed. 2d 913, 924 (1976); Gregg, supra, 49 L. Ed. 2d at 889.

 The point is the somewhat collateral one that, to the extent that the State argues that the differentiation in minimum terms of imprisonment takes constitutionally sufficient cognizance of the different gradations of culpability among class A felony drug offenders, that argument is seriously undercut by the way in which the law has operated in practice. In a criminal justice system which is simply not equipped to try all cases as originally charged, the statutory differences among offenses may turn out to be virtually meaningless in practice. However, as indicated previously, the State's provision for different minimum sentences for various categories of A felonies does not cure the fact that all class A drug offenders, regardless of the gravity of their offenses, receive a mandatory maximum sentence of life imprisonment.

 To summarize, the court holds that the mandatory sentences of life imprisonment imposed upon Ms. Carmona and Ms. Fowler are so grossly disproportionate to the nature of their offenses as to constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution. These sentences are significantly more severe than those which would have been imposed for the same offenses in any other jurisdiction in the United States, and are more severe than those imposed for many serious and violent crimes in the State of New York itself. The statutory scheme pursuant to which they were imposed does not differentiate, in imposition of this maximum punishment, among offenders of varying degrees of culpability, nor does it allow for consideration of any mitigating circumstances in the case unless the accused persons can provide the prosecutors with sufficient new and material intelligence information that they become eligible for a probation recommendation. Even in view of the admitted severity of the drug abuse problem in New York, this court cannot accept the proposition that the State's legitimate interests in both deterrence and isolation of drug offenders could not be as well served by such sentences of shorter duration as are provided for in other jurisdictions in this nation, *fn73" including the federal system where many New York City and State drug offenders are regularly tried, convicted, and sentenced.

 Finally, as noted by the Court of Appeals for the Fourth Circuit in Hart, supra, "Life imprisonment is the penultimate punishment. Tradition, custom, and common sense reserve it for those violent persons who are dangerous to others. It is not a practical solution to petty crime in America. Aside from the proportionality principle, there aren't enough prisons in America to hold all the Harts that afflict us." 483 F.2d at 141. This court does not mean to suggest, of course, that the offenses for which Ms. Carmona and Ms. Fowler were convicted should be characterized as "petty crimes". However, it is appropriate to note that these were not crimes of violence, nor were the aggregate amounts of cocaine-containing substance very large in any of the three cases before the court. *fn74" In light of the amounts of illicit substance involved in the cases of Ms. Carmona and Ms. Fowler, the court has the "abiding conviction" *fn75" that the life sentences imposed are so disproportionately severe as to be unconstitutional. It is certainly true that both these petitioners had either previous or contemporaneous involvement with the criminal justice system. But just as those charges did not warrant a more severe sentence as a second narcotic offender, they cannot serve to justify the Draconian penalty imposed for the instant offenses.


 As indicated previously, Ms. Foggie is currently on parole, having been released from prison after serving roughly one year of her one year to life sentence. Necessarily, her situation presents very different constitutional questions.

 Much of the discussion concerning the Eighth Amendment validity of Ms. Carmona's and Ms. Fowler's sentences is simply inapplicable to Ms. Foggie. Although she too received the mandatory maximum sentence of life imprisonment, she was released shortly after serving her minimum term. Since it is patent that she will not be serving a life sentence, and since, even if she were to be adjudicated a parole violator and returned to prison, she would nonetheless now be subject to later release and ultimate discharge from parole on the same basis as all other parolees, the court cannot hold that the punishment imposed upon her for the offense of selling $40 worth of cocaine is so grossly disproportionate as to violate the Eighth Amendment. Nor, even taking into account all the evidence concerning the implementation of the law with whatever arguable inequities may be attendant thereto, can the court hold that this punishment -- of one year's imprisonment and subsequent parole -- violates the Eighth Amendment under the alternative criterion set forth in Coker. 45 U.S.L.W. at 4963.

 However, as indicated previously, Ms. Foggie has challenged the constitutionality of her sentence under the Due Process and Equal Protection Clauses, as well as under the Eighth Amendment. While this argument obviously differs in some respects from the Eighth Amendment argument, it is predicated upon the same observations concerning the drug law and its application.

 Briefly stated, the argument is that the challenged drug law irrationally and without legal justification singles out class A drug felons for especially harsh punishments, which are then imposed in an arbitrary manner bearing little, if any, relationship to the gravity of the offense involved. As applied to Ms. Foggie, the court finds this argument to be without merit.

 It is undisputed, in the first place, that the sale of a quantity of cocaine, however small, is an act which the State may properly make subject to its penal laws. See Robinson, supra, 370 U.S. at 664. And there is no question in this case that Ms. Foggie did, indeed, commit the act for which she was convicted.

 Since Ms. Foggie, at this point, clearly lacks standing to complain both of the indeterminate life sentence and also of the previously effective lifetime parole provision, her challenge is necessarily restricted to those portions of the drug law which differ from the treatment of other offenders, specifically, the previously effective preclusion of plea bargaining for A-III felony offenders, and the predication of probation, in part, upon a recommendation from the prosecutor. *fn76"

 In the court's view, the State of New York could preclude A-III felony offenders from pleading to reduced charges without offending the Equal Protection or Due Process Clauses of the Constitution. The clear purpose of that provision was to ensure that all those persons accused of class A drug felonies *fn77" would be subject to some mandatory sentence of imprisonment (with very limited possibility for probation), presumably both to isolate them from the rest of society for some period of time, and to deter others from committing similar offenses. (Although those persons accused of A-I and A-II felonies are allowed to plead guilty to A-III felonies, they do not thereby escape some mandatory imprisonment.) Relatively speaking, of course, this provision was more onerous to those accused of A-III offenses than to those accused of A-I and A-II offenses; the A-III offender could not gain any benefit from pleading guilty. Moreover, this preclusion served to set apart class A drug offenders as a class from all other persons accused of felonies in New York.

 However, in the court's view, this distinction bears a clearly rational relation to the Legislature's defensible goal of ensuring that relatively more serious drug offenders all receive a prison term as a deterrent to other crime. *fn78" It is certainly not to be discounted, of course, that the Legislature has since altered this provision to allow those accused of A-III offenses to plead guilty to as little as a C felony, and that the Governor himself has termed the restriction "irrational". *fn79" However, the principal reason both for the Governor's remark and also for the Legislature's action appears to be that the restriction caused a considerable backlog of A-III cases for trial and diverted prosecutorial resources, at great expense, from prosecution of major violent crimes. Neither the Governor nor the Legislature thereby conceded that the restriction of plea bargaining did not serve some deterrent purpose. Moreover, the testimony in this court made clear that at least one principal (and, from the State's point of view, desirable) side effect of this restriction was that more defendants were willing to cooperate in providing law enforcement officials with information concerning drug activities in the hope of obtaining a recommendation for probation, rather than facing the harsh penalties provided for class A drug felons. While the restriction on plea bargaining for A-III felons clearly contributed substantially to court congestion and delays and thereby increased the likelihood that A-I and A-II felons would plead to A-III charges, this court cannot say, from the evidence before it in this case, that the restriction on plea bargaining is so devoid of any substantial relation to any legitimate state purpose that it violates the Equal Protection Clause, even having due regard for the very substantial interests at stake on the part of the criminal defendants involved.

 Much the same can be said of the provision restricting probation to those persons who, in the eyes of the prosecutor, are able to provide "material assistance" in the investigation or prosecution of drug offenses. *fn80" There exists no constitutional "right" to be placed on probation, rather than receive a sentence of imprisonment for a crime which the state may legitimately punish. And this court cannot find that it is unconstitutional for the State to extend this benefit only to those defendants who, in turn, are able and willing to extend a benefit to the State through cooperation. See Brady v. United States, 397 U.S. 742, 753, 25 L. Ed. 2d 747, 90 S. Ct. 1463 (1970). Probation is, of course, not generally available to persons convicted of class A felonies, *fn81" and is made available to class A-III felons only on this conditional basis. The obvious purpose of this exception was "to get small fry drug dealers or addicts to cooperate in the apprehension and conviction of the bigger traffickers." *fn82" It is certainly possible that, in many instances, the persons initially accused of A-III crimes due to the small amounts of narcotic-containing substance involved may be unable to provide the information that more serious offenders might have available. And the anomalous result could be that those persons initially accused of dealings in larger amounts could be allowed to plead down to A-III offenses and then be granted probation in exchange for their greater store of marketable information. However, this court cannot hold that, on that basis alone, the statutory distinction drawn between class A-III felons and those other felons eligible for probation without condition is so unrelated to a rational state purpose, i.e., inducing cooperation by lesser drug offenders, that it violates the Equal Protection Clause. The fact that, in practice, the statute may operate in such a way as to allow certain more serious drug dealers to escape imprisonment does not render the provision irrational, nor does it wholly vitiate the purpose for which it was enacted.

 In sum, the court finds no constitutional infirmity in Ms. Foggie's conviction or sentence.


 Since the court has declared unconstitutional the maximum sentences imposed upon Ms. Carmona and Ms. Fowler, the State is directed to discharge them from incarceration at the expiration of their minimum terms of imprisonment unless new, and constitutionally appropriate, maximum sentences are imposed within 90 days of filing of this opinion. Dated: New York, New York



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