People v Sinclair

People v Sinclair

Michigan Supreme Court Reports

PEOPLE v. SINCLAIR>, 387 Mich. 91 (1972)

194 N.W.2d 878

PEOPLE v SINCLAIR

No. 19 October Term 1971, Docket No. 53,550.

Supreme Court of Michigan.

Decided March 9, 1972.

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Appeal from Court of Appeals, Division 1, Lesinski, C.J., and
Bronson and Engel, JJ., affirming Recorder’s Court of Detroit,
Robert J. Colombo, J. Submitted November 2, 1971. (No. 19 October
Term 1971, Docket No. 53,550.) Decided March 9, 1972.

30 Mich. App. 473 reversed.

John A. Sinclair was convicted of possession of marihuana.
Defendant appealed to the Court of Appeals. Affirmed. Defendant
appeals. Conviction reversed and set aside and defendant
discharged.

Frank J. Kelley, Attorney General, Robert A. Derengoski,
Solicitor General, William L. Cahalan, Prosecuting Attorney,
Dominick R. Carnovale, Chief, Appellate Department, and Angelo
A. Pentolino, Assistant Prosecuting Attorney, for the people.

Philo, Maki, Ravitz, Jobes, Cockrel & Robb and Robert
Bartels, Hugh M. Davis, and Shellow & Shellow, for defendant.

Amici Curiae:

Sol Plafkin, for State Senators Coleman Young, Basil Brown,
and Jack Faxon, and State Representatives Jackie Vaughn III,
William Broadhead, James Bradley, Edward Suski, and Daisey
Elliott.

Wallace H. Glendening, for American Civil Liberties Union of
Michigan.
Page 98

R. Keith Stroup, for the National Organization for the Reform
of Marijuana Laws.

Michael Schuman and Gary Roth, for YPC-Center House of
Ferndale.

Bernard D. Fischman, for the American Orthopsychiatric
Association, Inc.

Philip J. Hirschkop, for Penal Reform Institute.

David Hood, for New Detroit Subcommittee on Drug Treatment.

Ernest Winsor, for the Committee for a Sane Drug Policy.

Thomas Meyer, M. Gerald Schwartzbach; Glotta, Audelman &
Dingus; Gage, Burgess & Knox; Neal Bush; Lafferty, Reosti,
Jabara, Papakhian, James & Strickgold; Mark Weiss; and Colista,
Moore & Braun, for the Detroit Chapter of the National Lawyers
Guild.

Goodman, Eden, Robb, Millender, Goodman & Bedrosian, for
Medical Committee for Human Rights.

PER CURIAM.

For the reasons set forth in our several opinions, the judgment
of conviction of defendant Sinclair is reversed and set aside and
the defendant discharged.

T.M. KAVANAGH, C.J., and T.G. KAVANAGH, SWAINSON and WILLIAMS,
JJ., concurred.
Page 99

SWAINSON, J.

Defendant, John A. Sinclair, was arrested on January 24, 1967,
and charged with the unlawful sale[fn1] and unlawful
possession[fn2] of two marijuana cigarettes. Defendant was
convicted by a jury in the Recorder’s Court for the City of
Detroit of unlawful possession of the two marijuana cigarettes,
on July 25, 1969, and on July 28, 1969, he was sentenced to 9-1/2
to 10 years imprisonment. During the 2-1/2 years between his
arrest and trial, defendant was free on bond in the amount of
$1,000, and never failed to appear when required to do so.

Prior to the trial, a special three-judge panel of Recorder’s
Court was convened to consider the constitutionality of the
Michigan statutes prohibiting sale or possession of marijuana. On
April 17, 1968, the panel upheld the statutes against the
contentions that they violated the equal protection of the
laws;[fn3] denied defendant due process of law;[fn4] violated
rights of privacy retained by the people;[fn5] and that the
penalty provisions imposed cruel and unusual punishment.[fn6] Judge Robert J. Colombo, a member of the three-judge panel, in a
concurring opinion stated that he personally believed that there
was a question of whether defendant had been entrapped.[fn7] The
trial judge (Hon. Robert J. Colombo), on June
Page 100
23, upon motion of defense counsel, dismissed the count for
unlawful sale on the ground that the sale was entrapped by the
police officers.[fn8] Defendant was thereafter convicted of the
unlawful possession of marijuana based on the two cigarettes
introduced into evidence. The Court of Appeals affirmed the
conviction. 30 Mich. App. 473. We granted leave to appeal. 385 Mich. 786.

The Detroit Police Department Narcotics Bureau had instructed
Patrolman Vahan Kapagian and Policewoman Jane Mumford Lovelace to
assist in an investigation of illegal activities involving
narcotic violations in an area surrounding Wayne State University
and, in particular, an establishment known as the Artists’
Workshop which was located at 4863 John Lodge, in the City of
Detroit. Defendant Sinclair made his residence above the Artists’
Workshop, at 4867 John Lodge.

In pursuance of this assignment, Patrolman Kapagian grew a
beard and began to let his hair grow long, in late August 1966.
On October 18, 1966, using the aliases of Louis Cory and Pat
Green, the officers commenced their assignment. They continued
working until January 24, 1967, on this particular assignment.
The officers assisted in doing typing and other odd chores at the
Artists’ Workshop, including sweeping floors and collating
literature. They sat in at communal dinners and provided the food
for one of these dinners. They joined a group called LEMAR, which
advocated that marijuana be legalized. They listened to poetry
and helped in the preparation of certain literature. Patrolman
Kapagian visited the shop and saw defendant approximately two or
three times a week until the defendant’s
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arrest. As part of the assignment, Patrolman Kapagian took a job
at the Candle Shop. Patrolman Kapagian was equipped with a
porta-talk radio transmitter which allowed him to keep in contact
with other police officers stationed outside and nearby.

Patrolman Kapagian testified at the preliminary examination
that on two occasions prior to December 22, 1966, during the
investigation, the police officers asked defendant for marijuana.
He denied this at the trial, despite the fact that his testimony
to that effect at the preliminary examination was read to him
from the transcript. Policewoman Lovelace stated that she had
asked defendant on previous occasions to obtain marijuana for
them.

Officer Kapagian testified that on December 22nd, at about 7
p.m., defendant appeared at the Workshop and following an
exchange of greetings, defendant asked whether they had received
any marijuana the previous night. The officers responded
affirmatively and stated that they were looking for some more. At
approximately 8:55 that evening, Kapagian told the defendant that
they had to leave and defendant asked them to accompany him
upstairs to his residence. Once inside the residence, the
officers were seated at the kitchen table. Defendant went to a
shelf and removed a brown porcelain bowl which he set down on the
table before him. Defendant took some cigarette paper and from
the contents of the bowl rolled a cigarette, which he gave to
Kapagian. Kapagian handed this cigarette to Lovelace, who
inserted it into a partially filled Kool pack. Defendant then
rolled a second cigarette, lit it, and handed it to Kapagian. The
officer said he did not want to smoke it then because he had to
drive and the cigarette would make him dizzy. Kapagian gave the
cigarette to Lovelace after defendant Sinclair
Page 102
had butted it. She placed the cigarette in the same Kool pack. At
that time they said they had to leave, and departed. Sinclair was
not arrested for committing a felony in the officers’ presence
because, as Kapagian stated, he did not want to tip his hand
since numerous arrests were to be made as the result of this
investigation.

At the trial, the only witnesses were the two police
officers.[fn9] No corroborating evidence was introduced. Although
officer Kapagian was equipped in a manner to enable the
transmission of his conversation to other officers, no
arrangements were made to tape the conversations, which allegedly
occurred between defendant and the police officers. In addition,
officer Kapagian testified that he did not preserve his log book
for the year 1966 because he decided that it was not worth
saving. He did admit that if the log book had been preserved, the
presence or absence of entries relating to the transactions of
December 22nd and all previous transactions during the
investigation, would either confirm or disprove his testimony.

Prior to trial, the defendant made several motions to quash the
information and to exclude the marijuana cigarettes from
evidence. These were denied by the trial court.

Defendant raises ten issues on appeal, and the prosecutor lists
five. We will deal with two of these:

1) Whether the classification of marijuana as a narcotic under
MCLA 335.151 violates the equal protection of the laws under the
US Const, Am XIV, and
Page 103

2) Whether the two marijuana cigarettes should have been
excluded from evidence on the ground that they constituted
evidence obtained as the result of an illegal police entrapment?

I.

It is not denied that the State of Michigan has the power to
pass laws against the sale and use of marijuana. Rather, the
issue is whether marijuana may be constitutionally classified as
a narcotic drug if, in fact, it is not a narcotic. A threshold
question is raised – and that is whether this Court has the power
to determine the actual state of facts concerning marijuana and
other drugs. It cannot be doubted that the judiciary has the
power to determine the true state of facts upon which a law is
based. Brown v Board of Education, 347 U.S. 483; 74 S Ct 686;
98 L Ed 873 (1954).

A trial court may take judicial notice of any records of the
court where it sits. Knowlton v Port Huron, 355 Mich. 448, 452
(1959). Moreover, it is clear that “an appellate court can
properly take judicial notice of any matter which the court of
original jurisdiction may take notice”. Pennington v Gibson,
57 US (16 How) 65, 14 L Ed 847 (1853).

Const 1963, art 6, § 1, provides:

“The judicial power of the state is vested exclusively in one
court of justice which shall be divided into one supreme court,
one court of appeals, one trial court of general jurisdiction
known as the circuit court, one probate court, and courts of
limited jurisdiction that the legislature may establish by a
two-thirds vote of the members elected to and serving in each
house.” (Emphasis added.)

As such, the records of all courts of this State may be
examined by the Supreme Court since they
Page 104
are all part of the record of the “one court of justice” of the
State of Michigan. Hence, in addition to the record made by the
court below, we may properly look at the evidence introduced and
the findings of fact made by the trial court in People v
Lorentzen, 387 Mich. 167 (1972).

We now turn to a comparison of the properties of marijuana and
the other drugs classified as narcotics under MCLA 335.151 et
seq.; MSA 18.1121 et seq.

II.

Comparison of the effects of marijuana use on both the
individual and society with the effects of other drug use
demonstrates not only that there is no rational basis for
classifying marijuana with the “hard narcotics”, but, also, that
there is not even a rational basis for treating marijuana as a
more dangerous drug than alcohol. This is not to say that our
scientific knowledge concerning any of the mind-altering drugs is
at all complete. It is not.[fn10] Even our society’s vast
experience with the mind-altering effects of alcohol has not led
to complete scientific knowledge of that drug, as the Canadian
Government Commission of Inquiry pointed out:[fn11]

“Little is known as to the specific mechanism by which alcohol
produces its psycho-pharmacological action. As with most drugs,
alcohol effects, especially those resulting from low or moderate
amounts, depend to a large extent on the individual and the
situation in which the drinking occurs. A drink or two may
produce drowsiness and lethargy in some instances, while the same
quantity might
Page 105
lead to increased activity and psychological stimulation in
another individual, or in the same person in different
circumstances. Furthermore, a dose which is initially stimulating
may later produce sedation.”

Despite our lack of complete knowledge though, we do have
sufficient scientific knowledge to categorize drugs according to
their relative level of danger to both the individual and
society. Proceeding to a comparison of marijuana with other
mind-altering drugs, we find marijuana is a euphoria producing,
mind-altering drug, whose effects are generally obtained by
smoking, but can also be obtained by oral ingestion of the drug,
usually mixed with other food or drinks.[fn12] Coming from the
hemp plant, cannabis sativa, the psychoactive strength of the
drug varies greatly with the part of the plant used, quality of
the seed stock, and the growing conditions.[fn13]

The psychoactive ingredient of cannabis sativa has been
isolated as two isomers of tetrahydrocannabinol (THC, although
additional active ingredients of cannabis sativa may be
discovered and isolated in the future).[fn14] Thus the strength
of any
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given amount of marijuana depends primarily on the amount of THC
it contains. The ordinary street form of marijuana, commonly
available and used in the United States, is composed of the
leaves and flower clusters of the female plant, which are dried
and crushed to make up the variable strength mixture. The resin
from the flowering tops of the mature female plants is known as
hashish (charas in India) and is apparently the strongest form
of the naturally occurring drug because it contains the highest
concentration of THC. Hashish is as much as eight times as strong
as ordinary marijuana.[fn15]

Consideration of the scientifically observed physical and
psycho-motor effects of marijuana indicates that it is overall,
the least dangerous mind-altering drug. Observed physical effects
of marijuana use include dryness of mouth and throat, slight
increase in pulse rate, and slight conjunctival reddening of the
eyeball.[fn16] No known tolerance develops to marijuana – in fact
negative tolerance has been observed, that is, a decreased amount
of the drug taken on subsequent occasions produces the same level
of physical and euphoric effect.[fn17] No physical dependency is
produced by use of the drug and, hence, there are no withdrawal
symptoms or “abstinence
Page 107
syndrome” when the drug is unavailable to the user.[fn18]

No lethal dose for marijuana has been established.[fn19] The
lack of harmful physical effects from marijuana use has been well
summarized by Dr. Grinspoon in Marijuana Reconsidered (Bantam
ed 1971), p 60:

“What is so striking about the pharmacology of cannabis is that
it has such limited and mild effects on human nonpsychic
function. This is consistent with the equally striking
observation that there has never in its long history been
reported an adequately documented case of lethal overdosage. Nor
is there any evidence of cellular damage to any organ.”

Both the opiates and alcohol provide a dramatic contrast to the
lack of physical harmfulness of marijuana. With the opiates[fn20] high levels of tolerance develop,[fn21] severe physical addiction
results from repeated use,[fn22] and deaths resulting from
overdosage also occur.[fn23] Occasional social use of alcohol
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in moderate dosage as a mind-altering drug has few deleterious
physical consequences. However, tolerance does develop in alcohol
use and the drug is subject to a great, acute and chronic
abuse.[fn24] Acute alcohol abuse can lead to death from
overdosage.[fn25] In addition, chronic alcohol abuse leads to
alcoholism where a clear withdrawal syndrome is observable (an
easily discernible physical shaking and later delirium
tremens), and death of brain cells, mental deterioration, and
cirrohsis of the liver may occur.[fn26]

Damaging effects of alcohol on psychomotor coordination are so
well known as to need no documentation. The President’s
Commission on Law Enforcement and Administration of Justice,
Task Force Report: Drunkenness, commenting on alcohol, observed
that (p 39):

“There is probably no other area in the field of drug research
and related dangerous behavior where the role of a drug as a
precipitating factor in dangerous behavior is so clear.”

On the other hand, the evidence available concerning
marijuana’s effect on psychomotor functions seems to show very
little impairment, at least in experienced users.[fn27] Page 109

Psychological Effects:

Marijuana is a mild hallucinogen, which in view of its lack of
any other harmful effects, leads us to conclude that there is no
rational basis for penalizing it more severely than the other
hallucinogens (MCLA 335.106; MSA 18.1106). Indeed, mild
hallucinogenic effects are reported almost exclusively from use
of more potent hashish type preparations and rarely, if ever,
from the use of ordinary street variety marijuana. The Canadian
Commission Report states (pp 116-117):

“Cannabis is one of the least potent of the psychedelic drugs,
and some might object to its being classified with LSD and
similar substances. It is often suggested that marijuana is a
mild intoxicant, more like alcohol. * * * It would be incorrect
to say that cannabis in moderate dose actually produces a mild
LSD experience; the effects of these two drugs are
physiologically, behaviorally and subjectively quite distinct.
Furthermore, since no cross-tolerance occurs between LSD and THC
the mechanism of action of these two drugs is thought to be
different.”

The Canadian Commission Report comprehensively summarized the
various possible psychological effects of marijuana use as
follows (pp 117-118):

“A cannabis `high’ typically involves several phases. The
initial effects are often somewhat stimulating and, in some
individuals, may elicit mild tension or anxiety which usually is
replaced by a pleasant feeling of well-being. The later effects
usually tend to make the user introspective and
Page 110
tranquil. Rapid mood changes often occur. A period of enormous
hilarity may be followed by a contemplative silence.

“Psychological effects which are typically reported by users
include: happiness, increased conviviality, a feeling of enhanced
interpersonal rapport and communication, heightened sensitivity
to humour, free play of the imagination, unusual cognitive and
ideational associations, a sense of extra-ordinary reality, a
tendency to notice aspects of the environment of which one is
normally unaware, enhanced visual imagery, an altered sense of
time in which minutes may seem like hours, changes in visually
perceived spatial relations, enrichment of sensory experiences
(subjective aspects of sound and taste perception are often
particularly enhanced), increased personal understanding and
religious insight, mild excitement and energy (or just the
opposite), increased or decreased behavioral activity, increased
or decreased verbal fluency and talkativeness, lessening of
inhibitions, and at higher doses, a tendency to lose or digress
from one’s train of thought. Feelings of enhanced spontaneity and
creativity are often described, although an actual increase in
creativity is difficult to establish scientifically. While most
experts agree that cannabis has little specific aphrodisiac (sex
stimulating) effect, many users report increased enjoyment of sex
and other intimate human contact while under the influence of the
drug.

“Less pleasant experiences may occur in different individuals,
or possibly in the same individuals at different times. Some of
these reactions may include: fear and anxiety, depression,
irritability, nausea, headache, backache, dizziness, a dulling of
attention, confusion, lethargy, and a sensation of heaviness,
weakness and drowsiness. Disorientation, delusions,
suspiciousness and paranoia, and in some cases, panic, loss of
control, and acute psychotic states have been reported.”
Page 111

There is no reliable scientific evidence demonstrating that
chronic psychosis can be caused by marijuana use[fn28] in
dramatic contrast to the American experience with alcohol.[fn29] The argument that marijuana use causes or contributes to
assaultive crime is now largely discredited.[fn30] Again by
contrast, considerable evidence points to a substantial
connection between alcohol use and commission of violent
crimes.[fn31]

Finally, the “stepping stone argument” that marijuana use leads
to use of “hard narcotics” has no scientific basis. The
President’s Commission on Law Enforcement and Administration of
Justice, Task Force Report: Narcotics and Drug Abuse, found at
pp 13-14:

“The charge that marihuana `leads’ to the use of addicting
drugs needs to be critically examined. There is evidence that a
majority of the heroin users who come to the attention of public
authorities have, in fact, had some prior experience with
marihuana. But this does not mean that one leads to the other in
the sense that marihuana has an intrinsic quality that creates a
heroin liability. There are too many marihuana users who do not
graduate to heroin, and too many heroin addicts with no known
prior marihuana
Page 112
use, to support such a theory. Moreover there is no scientific
basis for such a theory. The basic text on pharmacology, Goodman
and Gilman, The Pharmacological Basis of Therapeutics
(Macmillan 1960) states quite explicitly that marihuana
habituation does not lead to the use of heroin.” (Emphasis
added.)[fn32]

All of the preceding factual findings with respect to the
effects of marijuana use, are substantiated by the trial court’s
findings of fact made after five days of expert testimony in
People v Lorentzen, supra.

Virtually every major commission which has studied the effects
of marijuana use agrees that it is improperly classified with the
“hard narcotics”. The British Report found (pp 6-7):

“Having reviewed all of the material available to us we find
ourselves in agreement with the conclusion reached by the Indian
Hemp Drugs Commission appointed by the Government of India
(1893-1894) and the New York Mayor’s Committee on Marihuana
(1944), that the long-term consumption of cannabis in moderate
doses has no harmful effects.”[fn33]

Further, counsel for the people admitted in oral argument that
the differences between marijuana and the opiates call for
different classifications:

[fn1] MCLA 335.152; MSA 18.1122.[fn2] MCLA 335.153; MSA 18.1123.[fn3] US Const, Am XIV; Const 1963, art 1, § 2.[fn4] US Const, Am XIV; Const 1963, art 1, § 17.[fn5] US Const, Am IX.[fn6] US Const, Am VIII; Const 1963, art 1, § 16.[fn7] “My concurrence in the decision of the court on the issues
raised here are limited solely to the issues raised here, as
there appears to this writer to be another important legal issue
not raised in this opinion which may well apply to count one in
the people’s information, namely, sale and possession of
narcotics, and that is the issue of unlawful and illegal
entrapment, an issue which suggests itself to this writer and
which suggested itself to the learned assistant prosecuting
attorney who presented this case on behalf of the people at the
preliminary examination of the defendant Sinclair in this
matter.”[fn8] “We’ve talked a lot about it. It’s up to me to come to
grips with the problem. I hold that count one, Sale and/or
Dispensing of marijuana should be dismissed on the grounds of
entrapment.”[fn9] Defendant did not take the stand because the trial court
ruled on July 22nd that if he did testify he could be
cross-examined on his prior convictions.[fn10] People v McCabe, 49 Ill.2d 338; 275 N.E.2d 407, 409
(1971).[fn11] Interim Report of the Canadian Government Commission of
Inquiry, The Non-Medical Use of Drugs (Penguin ed 1970), pp
65-66 (hereinafter referred to as “Canadian Commission Report”).[fn12] The Illinois Supreme Court in People v McCabe, supra p
410, point out that knowledge concerning marijuana has been
developing rapidly in the last decade. For an example of a case
where the United States Supreme Court relied on the current
writing of authorities in a then rapidly developing field, see
Brown v Board of Education, 347 U.S. 483, 494, fn 11; 74 S Ct
686; 98 L Ed 873 (1954).

L. Grinspoon, M.D., Marijuana Reconsidered (Bantam ed 1971),
p 46.

[fn13] L. Grinspoon, M.D., Marijuana Reconsidered (Bantam ed
1971), pp 39-40.[fn14] Stipulated Findings of Fact (No 19) in People v
Lorentzen, supra, reads: “There is no proven relationship
between the use of marijuana and the use of heroin. As marijuana
use has increased greatly in American society, heroin addiction
in proportion to the population has remained essentially the
same, or only slightly increased.”

See, also, L. Grinspoon, M.D., Marijuana Reconsidered (Bantam
ed 1971), pp 47-61.

[fn15] President’s Commission on Law Enforcement and
Administration of Justice, Task Force Report: Narcotics and Drug
Abuse (1967), p 3: “Other derivatives of the hemp plant, such as
hashish, which are more potent than marijuana, are rarely found
in the United States.”

See, also, L. Grinspoon, M.D., Marijuana Reconsidered (Bantam
ed 1971), pp 41-43.

[fn16] People v Lorentzen, supra, Stipulated Findings of Fact
(No 8): “The major physical effect of THC that can be detected is
a marked increase in pulse rate.”

See, also, Canadian Commission Report, p 122.

[fn17] People v McCabe, supra, p 411; People v Lorentzen,
Stipulated Findings of Fact (No 4): “There is no currently known
tolerance to marijuana but the question is still under
investigation.” Canadian Commission Report, p 122.[fn18] People v Lorentzen, Stipulated Findings of Fact (No
5): “Marijuana does not produce physical dependency.”

Canadian Commission Report, p 123.

[fn19] People v McCabe, supra, p 411; People v Lorentzen,
Stipulated Findings of Fact (No 7): “Marijuana does not produce
death, even with a single large overdose, which is characteristic
of depressant drugs including alcohol.”[fn20] “These drugs are obtained from the juice of the unripened
seed pod of the opium poppy plant [papaver somniferum] soon after
the flower petals begin to fall – no other part of the plant
produces psychoactive substances.” Canadian Commission Report, p
147. Heroin, codeine and morphine are all processed derivatives
of opium. Isonipecaine and anileridine are synthetic “opiates”
whose physical effects and addictive liability are equivalent to
morphine. Stedman’s Medical Dictionary (1966), p 95.[fn21] Canadian Commission Report, p 43; Report by the Advisory
Committee on Drug Dependence, Cannabis, (Her Majesty’s
Stationery Office, London, 1968) p 14 (hereinafter referred to as
“British Report”).[fn22] Canadian Commission Report, pp 153-154; British Report, p
15.[fn23] Canadian Commission Report, p 151; British Report, p 14;
President’s Commission on Law Enforcement and Administration of
Justice, Task Force Report: Narcotics and Drug Abuse, p 54:
“One of the special features of the opiates (and certain other
mind-altering drugs such as barbiturates and some tranquilizers)
is that death may also be produced by not giving the drug. That
is the classical withdrawal or abstinence syndrome associated
with opiate deprivation in an organism which has been receiving
heavy doses of the opiate.”[fn24] Canadian Commission Report, pp 43, 70-72.[fn25] President’s Commission on Law Enforcement and
Administration of Justice, Task Force Report: Drunkenness
(1967), p 35.[fn26] President’s Commission on Law Enforcement and
Administration of Justice, Task Force Report: Drunkenness, p
35; J. Kaplan, Marijuana: The New Prohibition (Pocket Book ed
1971), pp 275-320, specifically p 318.[fn27] People v Lorentzen, supra, Stipulated Findings of Fact
(No 30): “It is a debatable and equivocal question as to whether
or not one under the influence of marijuana and driving on the
highway is a better or worse driver. The experienced marijuana
smoker performs as well under the influence of the drug he does
when he is not using it. The inexperienced user performs less
well.”

See, also, R. Bonnie and C. Whitebread, II, The Forbidden
Fruit and the Tree of Knowledge: An Inquiry into the Legal
History of American Marijuana Prohibition, 56 Va L Rev 971, 1107
(1970).

[fn28] British Report, p 16.[fn29] Canadian Commission Report, p 69; President’s Commission
on Law Enforcement and Administration of Justice, Task Force
Report: Drunkenness (1967), p 35.[fn30] President’s Commission on Law Enforcement and
Administration of Justice, Task Force Report: Narcotics and Drug
Abuse (1967), p 25; British Report, p 16; Report of the Indian
Hemp Drugs Commission (1893-94), p 264; J. Kaplan, Marijuana:
The New Prohibition, pp 139-141; Bonnie and Whitebread, The
Forbidden Fruit and The Tree of Knowledge, p 1105.[fn31] President’s Commission on Law Enforcement and
Administration of Justice, Task Force Report: Drunkenness
(1967), p 41: “On the basis of the present data one can say that
there is a strong link between alcohol and homicide and that the
presumption is that alcohol plays a causal role as one of the
necessary and precipitating elements for violence.”[fn32] People v McCabe, supra, pp 412, 413. See, also,
British Report, pp 12-13.[fn33] People v McCabe, supra, p 411. Also, the British
Report concluded on the classification question (pp 20-21): “We
believe that the association of cannabis in legislation with
heroin and the other opiates is entirely inappropriate and that
new and quite separate legislation to deal specially and
separately with cannabis and its synthetic derivatives should be
introduced as soon as possible. We are also convinced that the
present penalties for possession and supply are altogether too
high.” (Emphasis added.)

“ADAMS, J.:

If we have two extremes here, and not a gray area in the
middle, doesn’t that call for different classifications?
Page 113

“Assistant Prosecutor: I think it does, I think it does, and
I think every state in the country is graduating to that
particular state where they are now recognizing and they are
classifying marijuana in a separate statute. The government has
done so in its control and abuse act.”

Finally, Governor William Milliken, in his Special Message to
the Legislature on Alcohol and Drug Abuse (Mar 4, 1971),
recognized that the present classification of marijuana with the
opiates is irrational and provided an illuminating comment on the
relative danger of alcohol:

“As public officials, we must face squarely the need for a
major revision of our laws dealing with marijuana. The hypocrisy
of our present law, which falsely classifies marijuana as a
narcotic, affects the credibility of our entire drug abuse
program. Recent federal legislation and the passage of local
marijuana ordinances give new urgency to the need for state
action in this controversial area. * * *

“Alcohol continues to be a larger problem than drugs. It
accounts for more broken homes, wasted lives, accidental deaths,
and greater expense for society than any drug. It is an
established fact that alcohol can destroy brain tissues and cause
cirrhosis of the liver which ultimately produces death. A
significant portion of crime is committed by people under the
influence of alcohol and alcohol-related problems are estimated
to account for 15% to 25% of our welfare costs.” (Emphasis
added.)

The murky atmosphere of ignorance and misinformation which
casts its pall over the state and Federal legislatures’ original
classification of marijuana with the hard narcotics has been well
documented in the 250-page article by R. Bonnie and C.
Whitebread, II, The Forbidden Fruit and the Tree
Page 114
of Knowledge: An Inquiry into the Legal History of American
Marijuana Prohibition, 56 Va L Rev 971 (1970).[fn34]

We can no longer allow the residuals of that early
misinformation to continue choking off a rational evaluation of
marijuana dangers. That a large and increasing number of
Americans recognize the truth about marijuana’s relative
harmlessness can scarcely be doubted.[fn35]

The truth compels us to conclude at the minimum that marijuana
has been erroneously classified with
Page 115
the opiates, and thus it is clear that based on current
scientific knowledge, marijuana is not a narcotic drug.

Indeed, the Michigan legislature has recognized the erroneous
classification of marijuana as a narcotic by its passage of the
“Controlled Substances Act of 1971” (1971 PA 196; MCLA 335.301 to
335.367; MSA 18.1070[1] to 18.1070[67]), effective April 1, 1972,
which classifies marijuana as a distinct type of substance and
provides drastically reduced penalties for its sale and
possession.

We agree with the Illinois Supreme Court in People v McCabe,
supra, that marijuana is improperly classified as a narcotic and
hold that MCLA 335.151; MSA 18.1121, in its classification of
marijuana violates the equal protection clauses of the US Const,
Am XIV and Const 1963, art 1, § 2.[fn36]

III.

Defendant contends that the two marijuana cigarettes should not
have been admitted into evidence because they were the result of
an illegal police entrapment. The prosecution asserts that the
two cigarettes were admissible because the defendant
Page 116
possessed them independently of the undercover officers’ request
for them.

The trial court ruled that the sale count should be dismissed
because the defendant had been entrapped into committing this
offense. Our Court has long recognized the defense of entrapment
and the public policy behind this rule. In Saunders v People,
38 Mich. 218 (1878), the Court reversed Saunders’ conviction for
breaking and entering by night a court room not connected with a
dwelling and “taking therefrom certain recognizances described as
contracts in force and public records.” The Court held:

“Decoying, or conniving with persons suspected of criminal
designs, for the purpose of arresting them in the commission of
the offense, is denounced by the Supreme Court.” (Syl 1.)

Justice COOLEY, writing for the Court, reversed on the grounds
that the testimony of a witness named Dunnebacke, should not have
been excluded. Two of the Justices held that the conviction
should be reversed because of impermissible police conduct.
Justice MARSTON stated (pp 221-222):

“I cannot, however, silently permit the extraordinary course
adopted by the police officers in this case to pass unnoticed and
uncondemned. * * *

“The course pursued by the officers in this case was utterly
indefensible. Where a person contemplating the commission of an
offense approaches an officer of the law, and asks his
assistance, it would seem to be the duty of the latter, according
to the plainest principles of duty and justice, to decline to
render such assistance, and to take such steps as would be likely
to prevent the commission of the offense, and tend to the
elevation and improvement of the would-be criminal, rather than
to his farther debasement. Some courts have gone a great way in
giving encouragement to detectives, in some very
Page 117
questionable methods adopted by them to discover the guilt of
criminals; but they have not yet gone so far, and I trust never
will, as to lend aid or encouragement to officers who may, under
a mistaken sense of duty, encourage and assist parties to commit
crime, in order that they may arrest and have them punished for
so doing. The mere fact that the person contemplating the
commission of a crime is supposed to be an old offender can be no
excuse, much less a justification for the course adopted and
pursued in this case. If such were the fact, then the greater
reason would seem to exist why he should not be actively assisted
and encouraged in the commission of a new offense which could in
no way tend to throw light upon his past iniquities, or aid in
punishing him therefor, as the law does not contemplate or allow
the conviction and punishment of parties on account of their
general bad or criminal conduct, irrespective of their guilt or
innocence of the particular offense charged and for which they
are being tried. Human nature is frail enough at best, and
requires no encouragement in wrong-doing. If we cannot assist
another and prevent him from violating the laws of the land, we
at least should abstain from any active efforts in the way of
leading him into temptation. Desire to commit crime and
opportunities for the commission thereof would seem sufficiently
general and numerous, and no special efforts would seem necessary
in the way of encouragement or assistance in that direction.”

Chief Justice CAMPBELL stated (p 223):

“[T]he encouragement of criminals to induce them to commit
crimes in order to get up a prosecution against them, is
scandalous and reprehensible.”

Two theories have been advanced concerning the issue of
entrapment. The first view was articulated
Page 118
by Chief Justice Hughes in Sorrells v United States,
287 U.S. 435, 451; 53 S Ct 210; 77 L Ed 413 (1932), when he stated:

“[T]he defense of entrapment is not simply that the particular
act was committed at the instance of government officials. That
is often the case where the proper action of these officials
leads to the revelation of criminal enterprises. * * * The
predisposition and criminal design of the defendant are relevant.
But the issues raised and the evidence adduced must be pertinent
to the controlling question whether the defendant is a person
otherwise innocent whom the Government is seeking to punish for
an alleged offense which is the product of the creative activity
of its own officials. If that is the fact, common justice
requires that the accused be permitted to prove it. The
Government in such a case is in no position to object to evidence
of the activities of its representatives in relation to the
accused, and if the defendant seeks acquittal by reason of
entrapment he cannot complain of an appropriate and searching
inquiry into his own conduct and predisposition as bearing upon
that issue.”

In Sherman v United States, 356 U.S. 369; 78 S Ct 819; 2 L Ed
2d 848 (1958), the majority of the Court adopted the position of
Chief Justice Hughes in Sorrells, supra. Thus, according to the
majority view, whenever the defense of entrapment is raised, the
court must look at 1) the conduct of the police, and 2) the
predisposition of the defendant. The second view was stated by
Justice Roberts in Sorrells (pp 458-459):

“It has been generally held, where the defendant has proved an
entrapment, it is permissible for the government to show in
rebuttal that the officer guilty of incitement of the crime had
reasonable cause to believe the defendant was a person disposed
to commit
Page 119
the offense. This procedure is approved by the opinion of the
court. The proof received in rebuttal usually amounts to no more
than that the defendant had a bad reputation, or that he had been
previously convicted. Is the statute upon which the indictment is
based to be further construed as removing the defense of
entrapment from such a defendant?

“Whatever may be the demerits of the defendant or his previous
infractions of law these will not justify the instigation and
creation of a new crime, as a means to reach him and punish him
for his past misdemeanors. He has committed the crime in
question, but, by supposition, only because of instigation and
inducement by a government officer. To say that such conduct by
an official of government is condoned and rendered innocuous by
the fact that the defendant had a bad reputation or had
previously transgressed is wholly to disregard the reason for
refusing the processes of the court to consummate an abhorrent
transaction. It is to discard the basis of the doctrine and in
effect to weigh the equities as between the government and the
defendant when there are in truth no equities belonging to the
latter, and when the rule of action cannot rest on any estimate
of the good which may come of the conviction of the offender by
foul means. The accepted procedure, in effect, pivots conviction
in such cases, not on the commission of the crime charged, but on
the prior reputation or some former act or acts of the defendant
not mentioned in the indictment.”

In Sherman, supra, Justice Frankfurter, writing for four
justice of the Court, adopted the views advanced by Justice
Roberts in Sorrells, supra.

The factual situation confronting us here demonstrates the
practical problems that arise when the majority test is employed.
The basis of the entrapment defense is that the methods used by
the police
Page 120
are repugnant to fair play and justice. As the court stated in
United States v Chisum, 312 F. Supp. 1307, 1312 (CD Cal, 1970):

“Entrapment is indistinguishable from other law enforcement
practices which the courts have held to violate due process.
Entrapment is an affront to the basic concepts of justice. Where
it exists, law enforcement techniques become contrary to the
established law of the land as an impairment to due process.”

In an attempt to discourage these practices and uphold “public
confidence in the fair and honorable administration of justice”
(Sherman v United States, supra, p 380 [Frankfurter, J.]),
courts refuse to allow convictions based on entrapment. Thus,
when the trial court ruled as a matter of law that the defendant
was entrapped into giving the two cigarettes to the police
officers, count one, sale, was dismissed and the police were
prevented from obtaining a conviction based on their
reprehensible methods.

However, the defendant was still prosecuted for possession. The
two marijuana cigarettes obtained purely as a result of illegal
police conduct were the sole basis of defendant’s conviction. To
allow the conviction to stand, based on this evidence, is to
subvert the public policy rule behind the entrapment defense. If
the conviction stands, the police can ignore with impunity the
doctrine of entrapment in narcotic cases. Citizens could be
enticed and entrapped to give marijuana to police undercover
agents, using methods condemned by the Courts of this state and
our sister states.[fn37] While a court
Page 121
might dismiss the information based on sale, it would still allow
the evidence obtained by repugnant methods to be used as the
basis of a conviction for possession.

In other areas of the law, the Courts have fashioned
exclusionary rules against the use of evidence obtained by means
of illegal police conduct. Mapp v Ohio, 367 U.S. 643; 81 S Ct
1684; 6 L Ed 2d 1081; 84 ALR2d 933 (1961); Miranda v Arizona,
384 U.S. 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966).

The people contend that the exclusionary rules set out in
Mapp and Miranda are not applicable to this case because they
involve specific constitutional rights.[fn38] However, there are
examples of both state and Federal cases where exclusionary rules
have been fashioned under the general supervisory powers of the
court.

To illustrate, in McNabb v United States, 318 U.S. 332; 63 S
Ct 608; 87 L Ed 819 (1943), the United States Supreme Court
excluded from evidence a confession obtained from defendant.
Although the Court held that the confession was not involuntary
in the sense that it was factually incorrect, nevertheless the
Court felt that it should not be allowed into evidence because to
do so would be to countenance reprehensible methods of
interrogation. The court based this on its specific supervisory
powers over procedure in Federal courts.

Likewise in a situation analagous to McNabb, our Court
applied the same rule depending on its supervisory powers over
the courts in People v Hamilton,
Page 122
359 Mich. 410, 411 (1960). In Hamilton, Justice BLACK, speaking
for a unanimous Court, relied on United States Supreme Court
cases which stated:

“`The aim of the requirement of due process is not to exclude
presumptively false evidence, but to prevent fundamental
unfairness in the use of evidence whether true or false.’
Lisenba v California, 314 U.S. 219, 236 (62 S Ct 280, 86 L ed
166 [1941]), quoted in Blackburn v Alabama, 361 U.S. 199 (80 S
Ct 274, 280, 4 L ed 2d 242, 248 [1960]).”

Const 1963, art 6, § 5, grants to this Court general
supervisory powers over the practice and procedure in this
case.[fn39] The excesses of police conduct which the Court in
Hamilton, supra, held justified exclusion of evidence, were
also present in this case. The trial court found as a matter of
law that defendant was entrapped into the sale. This case is
distinguishable from other entrapment cases where the courts did
not exclude the evidence.[fn40] We are dealing with a limited
factual situation. This occurs when a trial court has ruled as a
matter of law that a defendant was entrapped into the sale of
marijuana or narcotics. In such circumstances, we hold that the
evidence thus obtained through the illegal entrapment cannot be
used to prosecute a defendant for possession of marijuana or
narcotics.

In the case at bar, the trial court determined that defendant
was entrapped into the sale of marijuana.
Page 123
The same police misconduct (ante pp 100-102) that occurred in
the sale of the marijuana was also involved in the possession.
Defendant did not volunteer the two cigarettes to the undercover
agents; he only gave the cigarettes to them after repeated
requests by the officers, who had deceived him over a lengthy
period of time.

We hold that on the facts of this case the two marijuana
cigarettes should not have been admitted into evidence. The
judgment is reversed and the defendant is discharged.

[fn34] The unavailability of the Indian Hemp Drugs Commission
Report and the general lack of information upon which most
legislatures criminalized marijuana is pointed out by J. Kaplan’s
introduction to the 1969 reprint of the Report of the Indian
Hemp Drugs Commission 1893-1894, vii-xiii (Jefferson ed 1969).[fn35] People v Lorentzen, supra, Stipulated Findings of Fact
Nos 37-42: “From the general public standpoint, the general
marijuana user would require no treatment at all. Most marijuana
users do not have problems that would require any treatment from
a medical or psychiatric point of view. Those that seek help
because they have had an adverse reaction to marijuana or because
they think they are using too much of the drug ordinarily need
some guidance and some support and not much else. The majority of
current marijuana users are using but not abusing the drug in the
sense that one would normally think of dangerous drug abuse. To
say that marijuana is an absolutely harmless drug is untrue, on
the other hand to say it is a horrendous drug is equally untrue.
Marijuana is a drug with potential dangers for some people when
taken in conventional doses. Marijuana is safe for most people in
conventional doses. Occasional, recreational use of marijuana for
most individuals will be a pleasurable experience, involving no
adverse reactions. The vast majority of recreational marijuana
users will emerge from their drug experience without any apparent
harm, either to themselves or to society.”

J. Kaplan, in “Marijuana: The New Prohibition,” p 338,
stated: “Another attempt to measure the deterrent effect of the
marijuana laws was a careful study by two law students, Ellen
Green and Bruce Blumberg, who sampled the student body at the
University of California Law School at Berkeley. They found that
seventy-three percent of this student body had used marijuana, a
figure that is quite striking when one considers that law
students would be expected to be among the most deferrable
members of our society. Being involved in the law, they are more
likely to know of its consequences; studying for a profession
that regards moral character as one of its prerequisites, they
would be risking more than arrest or imprisonment if detected
using marijuana; and, finally, at least most observers have
considered lawyers and law students to be among the more
conservative and cautious groups of our student population.”

[fn36] The decision today does not mean that persons arrested for
sale or possession or marijuana cannot be prosecuted under the
laws of the State of Michigan. Until April 1, 1972, the effective
date of 1971 PA 196, prosecutions must be commenced under MCLA
335.106; MSA 18.1106, which reads:

“Any person who violates any of the provisions of this act is
guilty of a misdemeanor, and upon conviction shall be subject to
a fine of not more than $500.00, or imprisonment in the county
jail not more than 1 year, or both such fine and imprisonment in
the discretion of the court. Any person, firm, partnership,
association or corporation who sells, offers for sale, barters or
otherwise disposes of or is in possession of d-lysergic acid
diethylamide, peyote, mescaline and its salts,
dimethyltryptamine, silocyn, or psilocybin or any salt or
derivative of any of the aforementioned substances or any other
drug possessing similar hallucinogenic properties is guilty of a
felony unless in accordance with the federal food, drug and
cosmetics act.”

[fn37] For examples of cases where the Courts have condemned the
use of entrapment, see People v McCord, 76 Mich. 200, 205-206
(1889); People v Pinkerton, 79 Mich. 110 (1889); United
States v Adams, 59 F 674 (D Ore, 1894); Woo Wai v United
States, 223 F 412, 415 (CA 9, 1915); Butts v United States,
273 F 35, 37-38 (CA 8, 1921); State v Neely, 90 Mont. 199;
300 P. 561 (1931), and Evanston v Meyers, 70 Ill. App. 205, 207
(1897).[fn38] Mapp involved the Fourth Amendment right to be free from
unreasonable search and seizure. Miranda involved the Fifth
Amendment right of freedom from self-incrimination and the right
to counsel in criminal proceedings guaranteed by the Sixth
Amendment.[fn39] “The supreme court shall by general rules establish,
modify, amend and simplify the practice and procedure in all
courts of this state. The distinctions between law and equity
proceedings shall, as far as practicable, be abolished. The
office of master in chancery is prohibited.”[fn40] In none of the cases cited by the people did the police
engage in their efforts of entrapment over a prolonged period of
time. See People v McIntyre, 218 Mich. 540 (1922); People v
Murn, 220 Mich. 555 (1922); People v Christiansen, 220 Mich. 506
(1922); People v England, 221 Mich. 607 (1923), and
People v Smith, 296 Mich. 176 (1941).

WILLIAMS, J. (for reversal).

This is an opinion concerning a problem whose time has come.
The name in the entitling is happenstance as the defendant could
have been any mother’s son or daughter.

The specific issue this opinion will consider is whether the
categorization of marihuana in 1929 PA 310[fn1] along with the
“hard drug” narcotics such as heroin, cocaine, and opium with the
same penalty is denial of equal protection of the law because of
unreasonable classification.

The defendant raised other issues such as entrapment and cruel
and unusual punishment but inasmuch as the issue of equal
protection is dispositive of the case neither those issues nor
the factual details supporting them will be here considered. My
Brother T.E. BRENNAN’S opinion concerning the issue of cruel and
unusual punishment is well-reasoned, and I am in agreement with
it as far as it goes, but it goes only to the length of
defendant’s sentence, not to his conviction.
Page 124

For the purposes of this opinion the facts of the case are that
the defendant prepared two marihuana cigarettes from a jar in his
private quarters and handed them to two undercover police
personnel. The defendant was subsequently charged on separate
counts with sale and with possession of marihuana, the charge of
sale being dismissed by the trial court because of entrapment.
Defendant was tried, convicted, and sentenced to 9-1/2 to 10
years in prison.

The Court of Appeals affirmed the defendant’s conviction in
People v Sinclair, 30 Mich. App. 473 (1971). This Court granted
the defendant’s application for leave to appeal on September 1,
1971.

The Michigan statute penalizing the possession of marihuana is
MCLA 335.153; MSA 18.1123. It was one of a number of state acts
of similar type passed around the time of the passage of the
Marihuana Tax Act in 1937.[fn2]

At the time of passage of the Marihuana Tax Act of 1937,
marihuana was linked with heroin and other so-called “hard drugs”
based on testimony indicating that marihuana was similarly
dangerous. For example, in his testimony before the House Ways
and Means Committee, Narcotics Commissioner Harry J. Anslinger
relied on a number of authorities including a paper by Dr. Frank
R. Gomila, at that time Commissioner of Public Safety of the City
of New Orleans, and Miss Madeleine Gomila, Assistant City
Chemist. That paper among other things said “we find that in
comparison with other important habit-forming drugs, heroin,
morphine, opium, and cocaine, marihuana has an established
place”.
Page 125
Taxation Of Marihuana-Hearings Before The Committee On Ways And
Means, House of Representatives, 75th Cong. 1st Session on H.R.
6385, 1937, p 35.

The Commissioner made further points which are summarized by
the Congressional Research Service (LRS, 13) as follows:

“1. A person under the influence of marihuana is dangerous
behind the wheel of an automobile or while performing other
functions which require coordination and judgment.

2. A habitual marihuana user is liable to commit a violent
crime while under the influence of the drug.

3. Prolonged use of marihuana may produce `mental
deterioration’ or even lead to insanity.

4. The drug may `operate to destroy the will’ and `gradually
weaken physical powers.’”

Based on such data it may not have been unreasonable for the
Congress and the state legislatures at that time to have passed
legislation coupling marihuana with opium and similar “hard
drugs” in penal offenses. However, the situation today is quite
the opposite. While experts cited in the briefs and appendices
for plaintiff, defendant and amici curiae are not in complete
agreement as to the exact properties of marihuana, it is quite
clear that today few, if any, responsible experts would classify
marihuana in the same category with opium and similar “hard
drugs.”[fn3] Page 126

The United States Congress, particularly the House of
Representatives, has been especially concerned with the
properties and effects of marihuana, apparently in connection
with H.R. 14012, a bill to provide for the establishment of a
commission on marihuana. Stanley F. Yolles, M.D., Director of the
National Institute of Mental Health appeared before the
Sub-Committee on Public Health and Welfare of the Interstate and
Foreign Commerce Committee on September 17, 1969, more than two
years ago to testify on this general subject. His testimony
establishes quite clearly that “in the past, dangerous drugs were
grouped arbitrarily, sometimes by historical accident rather than
with regard for their differing characteristics and their
specific and distinct effects”. He then went on to outline as
well the
Page 127
present significant knowledge concerning the characteristics of
marihuana. This Court can certainly take judicial notice that the
characteristics of marihuana are quite different from narcotic
drugs like heroin.

Dr. Yolles discusses this in his statement in brief form. The
pertinent part of Dr. Yolles’ statement is as follows:

“In the past, dangerous drugs were grouped arbitrarily,
sometimes by historical accident rather than with regard for
their differing characteristics and their specific and distinct
effects. The bill before you today, Mr. Chairman, if read in
conjunction with H.R. 13742, now before the House Ways and Means
Committee, would provide for the first time a more logical
grouping of substances according to the degree of danger in the
abuse of each. It also wisely requires all decisions to add,
delete, or reclassify a substance to be made by the Attorney
General only after obtaining the advice of the Secretary of
Health, Education, and Welfare, and of the Attorney General’s own
scientific Committee.

“There is one comment which I must make with regard to the
content of the schedules. One substance which I know is being
considered by another House Committee – because through
historical accident it has been traditionally regulated as a
narcotic – is marihuana.

“There is total agreement among competent scientists and
physicians that marihuana is not a narcotic drug like heroin or
morphine but rather a mild hallucinogen. To equate its risks –
either to the individual or to society – with the risks inherent
in the use of hard narcotics is neither medically nor legally
defensible. I am certainly not advocating the removal of all
restrictions on marihuana. It can be a dangerous drug. We need to
know much more about the long-term effects of marijuana and other
Page 128
forms of Cannabis, particularly the more potent hashish. Based on
what we already do know about the substance, however, it should
not be dealt with, legally or medically, as a narcotic.”
(Emphasis supplied.)

*   *   *

“Mr. Chairman, the patterns of marihuana use, as well as the
properties of the drug, are very different from other substances
under consideration here. No one really knows how many people
smoke marihuana in the United States today. From collegiate
studies and other sources, it can be estimated that the number of
people who have smoked marihuana at least once is something
between 8 and 12 million; and it may be closer to 20
million.[fn4]

“The marihuana debate continues but the differences between the
facts about marihuana and the fables surrounding its use are now
much more widely recognized than was the case even six months
ago.”

The above data indicates that factually the categorization of
marihuana with narcotics and other “hard drugs” is not a
reasonable classification.

The United States Constitution[fn5] and the Michigan
Constitution[fn6] each guarantee every citizen of the State of
Michigan the equal protection of the law. Both the United States
Supreme Court and this Court have held that a classification
which does not rest upon a reasonable basis and which is
essentially arbitrary in nature constitutes a violation of the
Equal Protection Clause. Lindsley v Natural Carbonic Gas Co,
220 U.S. 61; 55 L Ed 369; 31 S Ct 337 (1911); Naudzius v Lahr,
253 Mich. 216 (1931).

Recent cases have outlined a stricter test in certain cases
involving an interpretation of the Equal
Page 129
Protection Clause. These cases have held that when a fundamental
constitutional right is in question, any classification which
penalizes the exercise of that right is unconstitutional unless
it is necessary “to promote a compelling governmental interest”.
Shapiro v Thompson, 394 U.S. 618, 634; 89 S Ct 1322; 22 L Ed 2d
600 (1969); Traverse City School District v Attorney General,
384 Mich. 390 (1971).

Under either of the above standards the classification of
marihuana as a “hard drug” in MCLA 335.151; MSA 18.1121,
constitutes a violation of the Equal Protection Clause of the
United States Constitution. Such a classification is irrational
in view of the present evidence which exists concerning
marihuana. This is particularly true since other hallucinogenic
drugs such as d-lysergic acid diethylamide, peyote, and mescaline
are grouped together. (MCLA 335.106; MSA 18.1106). The penalties
for the use of these drugs are less severe than those for the
possession of the narcotic drugs with which marihuana is
included. This classification promotes no “compelling
governmental interest”. Therefore such classification of
marihuana deprived the defendant of his constitutional right to
equal protection of the law.

The Supreme Court of the State of Illinois recently considered
this same issue in its review of a case involving an Illinois
statute classifying marihuana with narcotic drugs. In People v
McCabe, 49 Ill.2d 338; 275 N.E.2d 407 (1971), that Court stated,
“Marijuana, in terms of abuse characteristics, shares much more
in common with the barbiturates, amphetamines and, particularly,
the hallucinogens than it does with the `hard drugs’ classified
in the Narcotic Drug Act”. 49 Ill.2d 338. The Court concluded
that the grouping of marihuana
Page 130
with narcotic drugs was irrational and violated the Equal
Protection Clause.

It is of interest to note that the Michigan legislature itself
has decided that the classification of marihuana with narcotics
and other so-called “hard drugs” is not rational in the light of
present scientific knowledge. The legislature has removed
marihuana from the category containing “hard drugs”, and has
lowered the penalties for the marihuana crimes.[fn7]

The legislature also has recognized the problem arising from
the fact that the Controlled Substances Act of 1971 may only be
applied prospectively. Aware of its inability to pass a
retrospective law, the legislature has wisely called for a
committee to review the sentences of those individuals presently
incarcerated for drug offenses. Such a committee can make
recommendations concerning the commutation of sentences to the
Governor. Unlike the legislature, however, this Court does have
the authority to apply its decisions retrospectively. Justice
demands that we so apply this decision.

The legislature’s action is in line with the following
conclusion reached by the United States House of Representatives
Select Committee On Crime which in their April 6, 1970 report
(91st Congress, 2nd Session H.R. 91-978), concluded as follows:

“Certainly, savagely repressive and punitive laws cannot be
defended as a solution to the marihuana problem. It destroys our
criminal justice system to have penal statutes that are not
uniformly enforced – and perhaps in some instances are
unenforceable. Our committee heard many general statements of
harsh and oppressive prison sentences that had been meted out to
young marihuana users or possessors.
Page 131
Many lament that we are `making criminals of our young people.’
The facts, however, do not support these statements. We have
observed that the penalties for marihuana possession or even for
selling are generally not imposed and that jail sentences are the
rare exception rather than the rule.

“This situation is not desirable. Our criminal statutes must be
uniformly enforced or they make a mockery of the effective
administration of criminal justice. Nothing brings about a
disrespect for the law more effectively than penal statutes which
are selectively enforced. Those who receive the penalty which the
law provides rightfully feel discriminated against if most
violators go free. A major and perhaps the most serious need in
relation to marihuana is to make the penalties relating to
violations rational and then to bring about uniform and even
enforcement of the laws. No society can exist if disrespect for
its laws is widespread.”

Reversed, defendant discharged.

T.M. KAVANAGH, C.J., concurred with WILLIAMS, J.

[fn1] 1923 PA 92, as amended by 1925 PA 9 was the forerunner of
this act, but did not include marihuana as a narcotic drug.
Marihuana was first grouped with the “hard drugs” in 1929. The
act of 1929 has subsequently been amended in 1931 (PA No 172), in
1937 (PA No 343), in 1952 (PA No 266), in 1957 (PA No 63), and in
1961 (PA No 206).[fn2] The passage of the Marihuana Tax Act of 1937 and numerous
similar state statutes took place in a climate of ignorance and
misconception. See The Forbidden Fruit And The Tree of
Knowledge: An Inquiry Into The Legal History of American
Marijuana Prohibition, 56 Va L Rev 971 (1970).[fn3] We are well aware of the great wealth of written material
which exists concerning marihuana. The vast majority of these
works are in agreement that marihuana is not a narcotic drug. We
have relied upon the National Institute of Mental Health as the
most authoritative spokesman for establishing this fact.

We have quoted the 1969 statement of Dr. Yolles, Director,
National Institute of Mental Health, because it is the most
pertinent comparison of marihuana with the hard drugs. However,
since the original filing of this opinion, new authority has
become available. The NIMH produced Second Annual Report to
Congress from HEW (released February 11, 1972) continues to
classify marihuana separate from hard drugs and states ” * * *
there seems to be agreement that physical dependence comparable
to that produced by the opiates, alcohol and barbiturates does
not exist with Cannabis” (p 190). This report incidentally notes
the recent British report of cerebral atrophy in ten young
cannabis smokers as serious but requiring further research as
eight out of the ten youths were multiple drug users (pp 22-23).

We note also the findings of the National Commission on
Marihuana and Drug Abuse. In its first report released on March
22, 1972, the Commission recommended as follows:

“I. Reclassification of Cannibis

“RECOMMENDATION: THE COMMISSION RECOGNIZES THAT SEVERAL STATE
LEGISLATURES HAVE IMPROPERLY CLASSIFIED MARIHUANA AS A NARCOTIC,
AND RECOMMENDS THAT THEY NOW REDEFINE MARIHUANA ACCORDING TO THE
STANDARDS OF THE RECENTLY ADOPTED UNIFORM CONTROLLED SUBSTANCES
LAW.

“Scientific evidence has clearly demonstrated that marihuana is
not a narcotic drug, and the law should properly reflect this
fact. Congress so recognized in the Comprehensive Drug Abuse
Prevention and Control Act of 1970, as did The Conference of
Commissioners on Uniform State Laws in the Uniform Controlled
Substances Law.

“In those states where the Uniform Controlled Substances Law
has not yet been adopted, twelve of which continue to classify
marihuana as a `narcotic’, the Commission recommends that the
legislatures distinguish marihuana from the opiates and list it
in a separate category. The consequence of inappropriate
definition is that the public continues to associate marihuana
with the narcotics, such as heroin. The confusion resulting from
this improper classification helps to perpetuate prejudices and
misinformation about marihuana.” Marihuana, A Signal of
Misunderstanding, p. 177.

[fn4] A recent nationwide survey revealed that 61.7% of the
country’s college students have used marihuana at least once.
Over one-third of the students, 38.6%, stated they had used
marihuana 10 or more times. “Playboy’s Student Survey: 1971.”[fn5] US Const, Am XIV.[fn6] Const 1963, art 1, § 2.[fn7] See the Controlled Substances Act of 1971, effective April
1, 1972.

T.G. KAVANAGH, J.

John Sinclair was convicted of the crime of possession of
marijuana contrary to the provisions of MCLA 335.153; MSA
18.1123, and was sentenced to serve 9-1/2 to 10 years in prison
therefor.

I agree with my Brother BRENNAN that a minimum sentence of
9-1/2 years for the possession of marijuana is cruel and/or
unusual punishment prohibited by the US Const, Am VIII and the
Const 1963, art 1, § 16, for the reasons he states.

I also agree for the reasons he states, that in the discharge
of our duty we have the power to review sentences.
Page 132

I do not agree that the other issues urged on appeal here were
adequately treated by the Court of Appeals or that on the basis
of their reasoning – or any other – that the conviction can
stand.

My Brother SWAINSON has written that the police procedure
followed in this case was tantamount to entrapment and does not
meet a standard of practice which we can countenance. I agree
with him in this for his stated reasons. His quotations from
Justice MARSTON and CAMPBELL in Saunders v People, 38 Mich. 218
(1878), and Justice Roberts in Sorrells v United States,
287 U.S. 435; 53 S Ct 210; 77 L Ed 413 (1932) strike me as most
apt.

Here because of the way it was obtained, the evidence should
have been suppressed for all purposes, so defendant’s conviction
based upon it was improper.

My Brothers WILLIAMS and SWAINSON, however, both write to the
effect that our statute denied the defendant equal protection and
due process of the law on account of its classification of
marijuana with heroin and other “hard narcotics”, prescribing the
same penalty for their possession and use. They demonstrate that
the overwhelming weight of scientific opinion today is that
marijuana is not a narcotic at all, but rather a mild
hallucinogens which should, with propriety, be treated with other
hallucinogens. They hold that classification of marijuana with
the “hard” drugs is wholly unreasonable and unconstitutional.

Although I am persuaded that our statute is unconstitutional, I
cannot agree that my Brothers have ascribed the correct or even
permissible reasons for this conclusion.

The testimony and data upon which this legislation was based
may indeed be out of date and of exceedingly doubtful validity
today, but I do not perceive
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it the prerogative of a court to substitute its assessment of
such testimony and data for that of a legislature. Rather I
believe our duty is to determine whether what the legislature
did conformed to constitutional limits.

I find that our statute violates the Federal and State
Constitutions in that it is an impermissible intrusion on the
fundamental rights to liberty and the pursuit of happiness, and
is an unwarranted interference with the right to possess and use
private property.

As I understand our constitutional concept of government, an
individual is free to do whatever he pleases, so long as he does
not interfere with the rights of his neighbor or of society, and
no government – state or Federal – has been ceded the authority
to interfere with that freedom. As has been said:

“[T]he sole end for which mankind are warranted, individually
or collectively, in interfering with the liberty of action of any
of these number, is self-protection. That the only purpose for
which power can be rightfully exercised over any member of a
civilized community, against his will, is to prevent harm to
others. His own good, either physical or moral is not a
sufficient warrant.” J.S. Mill, On Liberty, Chapter 1.

Whatever the validity of the concept that traffic in
marijuana is freighted with a proper public interest, it is
extending the concept entirely too far to sanction proscription
of possession and private use of it. Although it is conceivable
that some legitimate public interest might warrant state
interference with what an individual consumes, “Big Brother”
cannot, in the name of Public health, dictate to anyone what he
can eat or drink or smoke in the privacy of his own home.
Page 134

In my view when the legislature proscribed the possession and
private use of marijuana as a Public health measure it did so
unconstitutionally.

John Sinclair’s conviction should be set aside and the
prosecution dismissed.

T.E. BRENNAN, J. (Separate Opinion).

Defendant was convicted of possession of two marijuana
cigarettes in violation of MCLA 335.153; MSA 18.1123.

The offense occurred in the defendant’s home, and in the
presence of two police officers whose identity as such was
unknown to the defendant.

Defendant did not testify at his trial.

On July 28, 1969, defendant, in the company of his attorney,
appeared before the trial judge for sentencing.

The following is a transcript of that hearing:

“The Clerk: File No. A-134588, People vs. John A. Sinclair.
You were found guilty by a jury July 25th of Possession of
Marijuana. You are here today for sentence. Do you have anything
to say to the Court?

“The Defendant: I do.

“The Clerk: Speak up.

“The Court: You want the microphone, Mr. Sinclair?

“The Defendant: Not particularly.

“The Court: All right.

“The Defendant: I haven’t had a chance to say anything and so
far I’d like to say a few things for the record. The Court is
aware these charges have been fabricated against me by the
Detroit Narcotic Squad. He came to me one day and said a month
and three days ago, you did this, you gave so and so this, you
did that. I had no opportunity, I didn’t do that and I had no
opportunity to construct a defense. But I know what was going on
all along and
Page 135
it was a conspiracy by these people, Warner Stringfellow, Vahan
Kapagian and Joseph Brown and the rest of them, to frame me on
this case and to bring me right here and to manufacture two
marijuana cigarettes and say I gave them to them and then let the
rest of you who are in it with them manufacture this cold case
and bring me here. The punishment I have received already in the
two and a half years since this case started is cruel and
unusual, if I had committed the crime of possessing two marijuana
cigarettes. And everyone who is taking a part of this is guilty
of violating the United States Constitution and violating my
rights and everyone else’s that’s concerned. And to take me and
put me in a pigsty like the Wayne County Jail for the weekend is
a cruel and unusual punishment, to sleep on the floor, to have no
sheets, no blankets, pig swill to eat. You see, but you can get
away with this and you can continue – I don’t know what sentence
you are going to give me, it’s going to be ridiculous, whatever
it is. And I am going to continue to fight it. The people are
going to continue to fight it because this isn’t justice. There
is nothing just about their, there is nothing just about these
courts, nothing just about these vultures over here.

“The Court: One more word out of the crowd and I will clear
the courtroom.

“The Defendant: Right. And that will continue in the
tradition that’s been established here. I am not done, but no
sense talking any more.

“Mr. Ravitz [attorney for defendant]: If your Honor please,
Mr. Sinclair is twenty-seven years of age, he is married, he has
one child in the audience today, two years of age. A beautiful
child, she is there. His wife is pregnant. He’s lived in the
State of Michigan all his life. He has three prior convictions,
two are for marijuana. In each instance, he pled guilty. In the
second instance, he never, ever should have pled guilty. It was
the subject of illegal entrapment by Vahan Kapagian. He
Page 136
was induced, he was seduced, he was led by Kapagian to be an
intermediary. To be an intermediary to a transaction which he
never would have been a party to. To be an intermediary to a
transaction which the major person on both sides of the
transaction were, of course, not charged with an offense.

“John Sinclair stands convicted in Oakland County of assaulting
a police officer who wasn’t even a police officer. Of assaulting
a person who assaulted him. He’s been given a sentence of thirty
days in that case, which is on appeal. The Court knows something
about the history of cases involving alleged assaults upon police
officers where the alleged assailants were persons of the nature
of John Sinclair.

“If there are two crimes in this country which are political
prosecutions, they are in one instance, those of claimed assaults
against police officers and in another instance, those cases
which can be proved easily by fabricated stories and not easily
disproved by citizens. Namely, offenses such as the one before
this Court.

“John Sinclair has another pending case. That pending case is
an oddity in the annals of jurisprudence in this country or
anywhere else. That case is for violation of the Federal law,
which is on its face, palpably unconstitutional. It stated as
many as twelve years ago in the case of Lamberg versus
California, by the Supreme Court, I wonder who it was who came up
with the clever notion of saying that John Sinclair is a criminal
because he kept a business engagement in another state, in
Canada, and went across the line not registering as a person
convicted of a narcotic offense? Who else has been charged with
that case and when and who is behind that case? I wonder? But one
need not wonder, one need only look. The community’s attitude and
the establishment’s attitude and the narcotics officer’s attitude
and the unmitigated power which they have to exercise. The only
way that power can be
Page 137
checked is by having an independent judiciary. The only way that
power can be checked is by having jurors who aren’t going to be
servants to police state power that are going to stand as a
bullwark against the improper exercise of that power. And we
don’t have that in America today. We didn’t have that in this
court this past week and that’s regrettable.

“In America, which has never known anything but the history of
racism, and in America which practices those imperialistic and
those brutalistic and inhumane wars in Asia and elsewhere around
the globe, and in America which sends a man to the moon while
millions of its citizens starve, John Sinclair is brought before
this Court and he is said to be a criminal. He isn’t a criminal.
He isn’t a criminal at all. The criminals with respect to this
law, are the doctors, the legislators, the attorneys who know,
who know, because they have knowledge that these laws are
unconstitutional. That these laws defy all knowledge of science.
That this sumptuary legislation, like its predecessors and like
other forms of sumptuary legislation, are on the books to go
after and to impress politically unpopular people and groups and
minorities. That’s the only reason they are on the books.

“This very day, 25% of the future doctors of America who are
studying medicine at Wayne State University Medical School, have
possessed marijuana. Twenty-five percent of the future lawyers,
indeed future judges who will be sitting on that bench some day,
have possessed and have smoked marijuana.

“The Court: That’s your opinion.

“Mr. Ravitz: That’s my opinion.

“The Defendant: That’s a fact.

“Mr. Ravitz: My opinion and based on studies.

“Persons brought before the bar of the Court aren’t the
middle-class, aren’t the popular, they are the oppressed. They
are the unpopular. It’s a
Page 138
terrible law, it’s a criminal law. I know that the Court might
not agree with my evaluation of it. I know and ask and hope for
only this, your Honor. I think the Court has been involved in
enough of these cases to know that the law itself, whether it’s
unconstitutional per se, is a cruel law and isn’t a law that is
properly and fairly dispensed. I know that the Court, and I hope
that the Court recognizes that the two cigarettes in this case
were really – the officers in this case really had utter
disregard for John Sinclair. They never treated him as a human
being to whom the Constitution extended itself. What I really
hope the Court recognizes is that other judges and other persons
of this society charged with responsibilities, come to recognize
is that America cannot single out unpopular leaders and go into
their arsenal of over-kill, be it through stone or rifles or
highly punitive sentences and think that the problems in this
country can ever be solved in that fashion. Yet all around this
country, we see political prosecutions. We see the Tom Haydens,
we see the Huey Newtons, the John Sinclairs singled out. And
somewhere in the warped minds of those so-called leaders, they
think that they are going to cure the generation gap. They think
that they are going to stem the tide of revolution by picking out
leaders. Well, they are simply not going to do so because leaders
are no longer indispensable in this country. Because there are a
great many people who are awake to the crimes and the atrocities
committed by governments and because it simply cannot work. The
only way to deal with it is to deal with it rationally, to deal
with it constitutionally and to follow those laws written by
those legislators. And I will ask that the Court do just that.
And I would ask that the Court insulate itself from public
pressures which I recognize to be very weighty. But to be equally
irrational. Those are the same public pressures that lead to all
those acts that called for the conclusions brought forward in the
Kerner Commission
Page 139
Report. And yet those conclusions haven’t been acted on in any
way by government. I hope that this Court in particular begins to
act upon them by exercising some degree of rational thought
process and by recognizing the realities of the situation.

“Thank you.

“The Court: Well, in this matter here, Mr. Sinclair was
arrested in January of 1967 in connection with an offense that
took place on December 22d 1966. It’s interesting to me that
he, and you, assert that he has been violated of his
constitutional rights because all of the rights that he’s
entitled to as any citizen is under the Constitution, have been
asserted in his defense. In addition to that, there have been
appeals to the Court of Appeals, to the Michigan Supreme Court on
his behalf, which have held up the trial of this case for a long
and lengthy period of time.

“Now, Mr. Sinclair is not on trial and never was on trial in
this courtroom because of his beliefs. He represents a person who
has deliberately flaunted and scoffed at the law. He may think
that there is nothing wrong with the use of narcotics, as many
people think that there is nothing wrong with the use of
narcotics. Although enlightened and intelligent people think to
the contrary and otherwise. And medical studies back them up far
more completely than they do the people on his side of the
particular question.

“The public has recognized that the use of narcotics is
dangerous to the people that use it. The public, through its
legislature has set penalties for those who violate and traffic
in narcotics.

“Now, this man started in 1964, in which he first came to the
attention of this Court and upon the offense of Possession of
Narcotics, on a plea of guilty, was placed upon probation. We
have tried to understand John Sinclair, we have tried to reform
and rehabilitate John Sinclair.
Page 140

“In 1966, while still on probation for that offense, he
committed another offense for which he pleaded guilty. And this
Court again showed supreme leniency to John Sinclair, placing him
on probation again while ordering him to serve the first six
months thereof in the Detroit House of Correction.

“This placed him in violation of his other probation, which
resulted in that Judge extending that probation on again, so that
for you or for John Sinclair to assert that the law has been out
to get him, is sheer nonsense. John Sinclair has been out to show
that the law means nothing to him and to his ilk. And that they
can violate the law with impunity and the law can’t do anything
about it.

“Well, the time has come. The day has come. And you may laugh,
Mr. Sinclair, but you will have a long time to laugh about it.
Because it is the judgment of this Court that you, John Sinclair,
stand committed to the State Prison at Southern Michigan at
Jackson or such other institution as the Michigan Corrections
Commission may designate for a minimum term of not less than nine
and a half nor more than ten years. The Court makes no
recommendation upon the sentence other than the fact that you
will be credited for the two days you spent in the County Jail.

“Now, as to bond, in view of the fact that Mr. Sinclair shows a
propensity and a willingness to further commit the same type of
offenses while on bond, and I am citing you to the case of People
versus Vita [sic] Giacalone just cited by the Michigan Court of
Appeals, this is one instance where there is a likelihood of that
type of danger and which the Court of Appeals said that refusal
to set bond is a good grounds. And based on that, and my belief
that he will continue to violate the law and flaunt the law in
relation to narcotics, I deny bond pending appeal.

“The Defendant: You just exposed yourself even
Page 141
more. And people know that. You give somebody nine and a half to
ten years – (noise in courtroom).”

Statistics of the Michigan Department of Corrections show that
since 1964, 1,663 persons have been convicted in Michigan for
violation of MCLA 335.153; MSA 18.1123.[fn*] Of these, 214 were
given short jail terms, fined or given suspended sentences. Nine
hundred and eighty-two were placed on probation. Four hundred and
sixty-seven were committed to prison.

Of the 467 sent to prison, only 46 received minimum terms
exceeding five years. Only 5 persons have been committed to
prison for minimum terms of 9-1/2 years, or more, for possession
of any amount or species of narcotics since 1964.

Defendant appeals his conviction and sentence on many grounds.
All of these have been dealt with adequately by the Court of
Appeals, with one exception.

That issue is this: Whether under the circumstances of this
case, the imposition of a minimum term of imprisonment of 9-1/2
years is prohibited by the US Const, Am VIII, or Const 1963, art
1, § 16.

The US Const, Am VIII, provides:

“Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.”

Const 1963, art 1, § 16, provides:

“Excessive bail shall not be required; excessive fines shall
not be imposed; cruel or unusual punishment shall not be
inflicted; nor shall witnesses be unreasonably detained.”

Cummins v People, 42 Mich. 142 (1879), was submitted
Page 142
to the Supreme Court on October 29, 1879, and decided the next
day. It involved:

“BURGLARY. Criminal information charging George Linden, Michael
Moore, William Cummins and John Seipher with breaking into the
dwelling house of Anne McFarlin, in the township of Hamtramck,
and feloniously taking therefrom a bottle of sherry and a lot of
cigars. Cummins was convicted and sentenced to imprisonment in
the State Prison for seven years.”

The Court, held, without citation of precedents:

“It is also alleged as error that the sentence was unusually
severe, and that in the light of all the facts it was in
violation of the constitutional provision which declares that
`cruel or unusual punishment shall not be inflicted.’ The
sentence was not in excess of that permitted by statute, and when
within the statute, this court has no supervisory control over
the punishment that shall be inflicted. The statute gives a wide
discretionary power to the trial court upon the supposition that
it will be judicially exercised in view of all the facts and
circumstances appearing on the trial. Unless the case presented
differed materially from what it would appear to have been, as
shown by the bill of exceptions, we think the punishment
inflicted was unusually severe, and have no doubt but that on a
full presentation of the facts to the chief Executive, relief
would be promptly and cheerfully granted.”

In Robison v Miner, 68 Mich. 549 (1888), a provision of the
liquor law of 1887 calling for forfeiture of business in addition
to fine and imprisonment was struck down as cruel or unusual
punishment.

People v Murray, 72 Mich. 10 (1888), was a case in which:

“The respondent in this case was convicted in the Kalamazoo
circuit on February 28, 1888, of the
Page 143
crime of carnally knowing and abusing a young girl under the age
of 14 years, and was sentenced to imprisonment at Jackson for the
term of 50 years.”

The reported decision contains a detailed description of the
events which led to the arrest and conviction of the defendant
Murray, concluding with these words (p 13):

“The case does not show the aggravating circumstances which so
frequently accompany criminal conduct of the character charged,
and especially is this true when we consider the intoxicated
condition of the respondent. While this cannot furnish any legal
excuse for what he did, it has an important bearing upon the
turpitude of the respondent, and the quality of his crime, and
should have had an important influence in determining the extent
of the punishment to be inflicted after conviction had. Such
considerations, however, seem to have been entirely without
weight with the court below, as is very clearly manifest from the
extent of the punishment meted out to the respondent.”

In Murray, the Court found errors in the trial, and directed
remand for new trial.

But the Court also directed its attention to the punishment
issue, in these words (pp 16-17):

“There is another feature of this case to which we wish to call
special attention, and that relates to the sentence imposed. It
is for 50 years, and will very likely reach beyond the natural
life of the respondent, unrestrained of his liberty, and
overreach by 10 or 15 years his natural life if so restrained. We
see nothing in this record warranting any such sentence, and it
must be regarded as excessive. It will not do to say the
executive may apply the remedy in such a case. We do not know
what the executive may do, and it is but a poor commentary upon
the judiciary when it becomes necessary for the executive to
regulate the humanity of the bench.
Page 144

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

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

The Murray decision makes no reference to Cummins, although
it is clear that the Court took a very different view of the
strictures of the cruel and unusual punishment prohibition in the
two cases.

In People v Morris, 80 Mich. 634 (1890), there is a rather
extensive discussion of cruel or unusual punishment. There, two
defendants pled guilty to larceny of a horse, and were sentenced
to seven years and six years nine months, respectively. The
statute on horse theft carried a minimum sentence of 3 and a
maximum sentence of 15 years.

It was alleged in Morris that the statute was
unconstitutional. No claim seems to have been made, as in
Murray, that the sentence itself constituted the infliction of
cruel or unusual punishment.

The historical discussion in Morris discloses that the
precursor of our constitutional ban on cruel or unusual
punishment was originally aimed at the infliction of punishments
by judges, and was not a limitation upon the legislative branch
of government in defining crimes and declaring punishments.

“`We first find the injunction against cruel and unusual
punishment in the Declaration of Rights, presented by the
convention to William and Mary before settling the crown upon
them in 1688. That declaration recites the crimes and errors
which had
Page 145
made the revolution necessary. These recitals consist of the acts
only of the former king and the judges appointed by him, and one
of them was that “illegal and cruel punishment had been
inflicted.” * * * The punishments complained of were the
pillories, slittings, and mutilations which the corrupt judges of
King James had inflicted without warrant of law, and the
declaration was aimed at the acts of the executive; for the
judges appointed by him, and removable at pleasure, were
practically part of the executive. It clearly did not then refer
to the degree of punishment, for the criminal law of England was
at that time disgraced by the infliction of the very gravest
punishment for slight offenses, even petit larceny then being
punishable with death. But the declaration was intended to forbid
the imposition of punishment of a kind not known to the law, or
not warranted by the law.’” (p 638.)

While the Court in Morris was only asked to consider the
constitutionality of the statute, nonetheless, the Court repeated
the Cummins rule that any sentence within the statutory limits
was beyond appellate consideration.

“But for the disposition of this case we may adopt the rule
contended for, and then we must find (in order to declare the law
unconstitutional) that the minimum punishment provided by the law
is so disproportionate to the offense as to shook [sic] the
moral sense of the people. Imprisonment for larceny is, and
always has been, in this country and in all civilized countries,
one of the methods of punishment. There may be circumstances
surrounding the commission of larceny where fifteen years would
not be considered too severe a punishment. When punishment is
commensurate with the depravity of the criminal, as shown in the
commission of the act, justice is done. Under most of our
criminal laws, cases may arise where the punishment inflicted
might be considered cruel, but that does not condemn
Page 146
the law. The judge in such case has acted within the jurisdiction
of constitutional law, and other means must be resorted to to
right the wrong. Appellate courts cannot interfere if the
proceedings have been regular. The law itself must therefore be
cruel or unusual to warrant the interposition of the courts.” (p
639.)

The Morris Court also pointed out that the act of stealing a
horse was malum in se. Details of the horse theft were not
recounted.

The Cummins rule was followed again in People v Cook,
147 Mich. 127 (1907). There a statute calling for indeterminate
sentences was upheld. The Court said (p 133):

“The law does not provide for any unusual punishment. The
legislature may fix one definite punishment for any crime, or it
may fix a minimum and a maximum. When a constitutional law has
fixed the punishment for an offense, a sentence under that law is
not cruel or unusual within the meaning of the Constitution. One
judge might sentence a man convicted of larceny for one year, and
another might sentence the same man for the same offense for five
years. When the judge imposes a sentence within the law, his
sentence is not a cruel or unusual punishment. It is laws
providing for cruel and unusual punishments that the Constitution
refers to and prohibits, and not sentences by courts under
constitutional laws.”

People v Mire, 173 Mich. 357 (1912), dealt with a conviction
of burglary with explosives. The defendant there argued that the
statute provided a cruel and unusual punishment. Affirming the
sentence, the Court said (p 361):

“The punishment prescribed in the act in question is
imprisonment, a most common and usual method of punishment the
world over. The claim that it is
Page 147
cruel and unusual must of necessity be directed, not to its
nature, but to its limits of time, `not less than 15 years nor
more than 30.’ That class of cruel and now unusual punishments at
one time sanctioned and prevalent under the common law of
England, such as burning at the stake, drawing and quartering,
mutilation, starvation, and lesser forms of physical torture, to
which the constitutional prohibitions were primarily directed, is
not involved here. Approaching the dividing line, the inquiry as
to what does in any particular case constitute cruel and unusual
punishment under the constitutional provisions, turns, not only
upon the facts, circumstances, and kind of punishment itself, but
upon the nature of the act which is to be punished.”

As in Morris, the Court agreed that the minimum term was the
measure of the constitutionality of a punishment statute.

“We are not prepared to hold that the punishment prescribed in
this act does not fit the crime, or that the minimum punishment,
which is the test, should be regarded as so unusual and cruel,
and so disproportionate to the offense as to shock the moral
sense of the public.” (p 362.)

Also following the lead of Morris, the Court in Mire
discussed the legislative rationale, pointing out the peculiar
dangers inherent in the use of explosives.

People v Smith, 94 Mich. 644 (1893), and People v
Whitney, 105 Mich. 622 (1895), are both cases in which the
constitutionality of legislatively determined punishments were
considered and upheld. In both cases, the Court said “upon the
Legislature alone is conferred the power to fix the minimum and
maximum of the punishment for all crimes.”

In People v Baum, 251 Mich. 187 (1930), defendant was
convicted of violation of the liquor laws, sentenced
Page 148
to pay a fine of $500 and $500 costs. In addition, defendant was
placed on probation for five years, during which time it was
ordered that he “must leave the State of Michigan within 30 days
and not return for the period of probation”. It was held that
such a method of punishment was impliedly prohibited by public
policy. The case was remanded with instructions to enter a legal
sentence.

In People v Jagosz, 253 Mich. 290 (1931), defendant was
convicted of rape. There was no discussion of the basis for the
claim that the sentence imposed was cruel or unusual. The Court
said (p 292):

“It is claimed that the sentences to imprisonment from 12 to 30
years constitute cruel and unusual punishment. There is no merit
in this. The statute (3 Comp Laws 1915, § 15211 [3 Comp Laws
1929, § 16727]) provides imprisonment for life or any such period
as the court in its discretion shall direct.”

In People v Harwood, 286 Mich. 96 (1938), defendant was
sentenced 5 to 15 years for placing a foul and offensive
substance in a taxicab, rendering it unuseable for two weeks.

The Court cited United States Supreme Court cases to support
its finding that the Eighth Amendment did not apply to the
states, then, without discussing the similar provision of the
Michigan Constitution, affirmed the conviction on the ground that
the “length of imprisonment for felony is for legislative
determination and not subject to judicial supervision.” Citing
Morris, Smith and Whitney.

Defendant appealed his conviction of rape in People v
Commack, 317 Mich. 410 (1947). This was a delayed appeal in
which there appeared to have been some possibility of doubt as to
the defendant’s guilt, based upon certain after discovered
evidence.
Page 149
Defendant’s appellate counsel asked to withdraw because he did
not wish to be a party to a fraud on the Court. Thereafter, the
Court made short shrift of the appeal, and disposed of the cruel
and unusual argument with the simple statement that the sentence
was within the statutory limits, and was not “cruel, inhuman and
unjust punishment in view of the nature of the crime charged.”

In re DeMeerleer, 323 Mich. 287 (1948), imposed a sentence of
6 months to 15 years for manslaughter. The Court reiterated the
holding of Harwood without discussion.

Defendant was sentenced to a minimum term of eight years in
People v Connor, 348 Mich. 456 (1957). He challenged the
sentence as an abuse of discretion. The Court there held:

“The sentence imposed is within the penalty imposed by statute.
In such cases the Supreme Court is without power to alter or
change a sentence.”

In People v Krum, 374 Mich. 356 (1965), defendant was
convicted of obstructing an officer. He claimed that his sentence
of 30 days in jail, $1,000 fine and $346.20 in costs, was grossly
excessive under all the circumstances and taking account of his
past exemplary record. That claim was disposed of with one
sentence:

“As to the claim that the sentence was excessive, it is found
to be within the limits set by the statute, and that precludes
our altering it.”

It is apparent that our cases on the subject of cruel or
unusual punishments have not considered the parameters of the
constitutional prohibition in any great depth.

It is clear from Murray, Miner and Baum that the Court does
have, and will occasionally exercise authority to vacate
sentences which are illegal. But
Page 150
it is also clear that our Court has consistently declined to
consider punishments challenged as being cruel and unusual where
the sentence is within the range permitted by statute.

The conclusion that the prohibitions of the Eighth Amendment
and of Const 1963, art 1, § 16, are directed only to legislative
acts and not judicial actions, does not seem warranted.

As pointed out in Morris, the history of the “cruel and
unusual” punishment bar was otherwise. Moreover, the punishments
prohibited by the Constitution are those “inflicted” and not
those permitted or authorized by law. The prohibition against
“excessive bail” would seem obviously directed against courts and
judges who set bail, and not against legislatures which
ordinarily leave the amount of bail to judicial discretion.

Further, the action of state courts has been held to constitute
state action within the meaning of the Fourteenth Amendment.
Shelley v Kraemer, 334 U.S. 1; 68 S Ct 836; 92 L Ed 1161; 3
ALR2d 441 (1948).

Since the Eighth Amendment has now been held applicable to the
states, via the Fourteenth Amendment (Robison v California,
370 U.S. 660 [82 S Ct 1417; 8 L Ed 2d 758 (1966)]), it would follow
that the sentence imposed by a state court, could be made the
basis for a Federal claim, even though state legislative action
is not challenged.

Where the legislature provides an indeterminate sentence, which
contains no minimum term, the constitutionality of the
legislation would have to be determined on the basis of the
maximum penalty established. In such a case, a showing would have
to be made that no set of facts could be posited under which the
commission of the crime defined in
Page 151
the law would warrant the imposition of the maximum penalty.

In such a case, the legislature leaves the setting of the
minimum sentence to the court for the very purpose of creating
latitude so as to relieve from the maximum penalty those
defendants whose conduct contained some circumstances of
mitigation, or at least no circumstances of aggravation.

But it does not follow that because the legislature has left
the setting of the minimum term to the courts, no minimum term
can ever be excessive.

We reject the proposition that punishments can be “cruel and
unusual” in the popular sense, but not in the constitutional
sense. The Constitution is a popular document. It must be
construed by the courts to have that meaning which the people
intended it to have.

It is ludicrous to suppose that the people who prohibited
excessive fines and bail and cruel or unusual punishment intended
thereby to vest unbridled power in judges to require bail, impose
fines and inflict punishments.

It is equally unrealistic to conclude that the people intended
to permit the legislature to give such unbridled power to the
trial courts in the name of indeterminate sentencing.

Many examples could be given in which maximum statutory
punishments are at variance with the realities of the
administration of justice.

Traffic violations, for instance, are punishable under the
motor vehicle code as misdemeanors, carrying a maximum of 90 days
in jail and $100 fine.

While certain aggravated circumstances might be supposed
justifying such penalties in some cases, it would be shocking
indeed if the maximum penalty should be meted out for a
commonplace left turn violation!
Page 152

Surely this Court would not consider itself powerless to
interpose in such a case.

Our constant reiteration that an appellate court is without
authority to review a sentence has no basis in law or logic. MCLA
769.1; MSA 28.1072 provides that Justices of the Supreme Court
have sentencing power, as fully as circuit judges. There is no
reason to suppose that such authority is idly given or has no
relation to the appellate function.

The authority, indeed the duty, of this Court to vacate
sentences which exceed the permissible limits of statutory
provisions is clear. Such sentences are illegal. They violate the
law. As such, they are null and void.

The Constitution is the fundamental law. It is as explicit and
as binding on courts as the pronouncements of the legislature. A
sentence of a court which violates the Constitution is illegal.
This Court is not without the power to support and observe the
Constitution and to apply it to the actions of judges, even when
such actions are literally within the discretion vested by
statute.

The legislature has no power to invest a court with discretion
to violate the Constitution.

This case of Sinclair has been given much notoriety.
Defendant and his supporters have used his conviction and
sentence as a vehicle to attack the wisdom and efficacy of the
marijuana laws.

We have declined to enter into that controversy. The judicial
fact-finding process is not adaptable to finding mixed questions
of fact and policy.

But we do note that the possession of narcotic drugs is a crime
malum prohibitum only. This is particularly apparent in the
case of marijuana. The statute prohibits possession of any part
of the cannibus sativa plant. Possession of a natural growing
plant can hardly be malum in se.
Page 153

As officers sworn to uphold the Constitution we recognize with
understanding, the action of the learned trial judge.

The attitude of hostility and remorselessness displayed by the
defendant and the disruption of orderly proceedings by his
supporters surely combined to tax the patience of the court. And
certainly if rehabilitation were the sole purpose of sentencing,
the measure of the imprisonment would be more the posture of the
defendant than the gravity of the offense.

But rehabilitation is not the only function of punishment. It
is not even always possible. Where the defendant is recalcitrant,
whether from principle or out of sheer meanness, the law cannot,
in a free society, disregard the nature of the offense and
address itself only to the character of the offender.

Where a minimum sentence is imposed which is demonstrably and
grossly excessive, in the light of the depravity of the criminal
as shown in the commission of the act and in light of the usual
and customary disposition of those convicted of like conduct,
such minimum sentence violates the constitutional prohibition
against the inflicting of cruel or unusual punishment, and is
illegal and void.

The sentence is vacated, and the cause is remanded for
re-sentencing. In the meantime defendant will be admitted to bail
with bond in the amount of $1,000.

ADAMS, J., concurred with T.E. BRENNAN, J.

BLACK, J., did not sit in this case.

[fn*] State of Michigan, Department of Corrections, Criminal
Statistics (1964-1970).
Page 154

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