People V. Sinclair - Pt.2

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Lansing, MI


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
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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

“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

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
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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
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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.
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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.”

“I. Reclassification of Cannibis


“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.


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

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.
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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

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

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

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
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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
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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
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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
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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
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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
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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

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
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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

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
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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

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

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
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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
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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

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

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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

“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
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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
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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

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).
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