Opinion #7048

The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)

STATE OF MICHIGAN

JENNIFER M. GRANHOLM, ATTORNEY GENERAL

CONSTITUTIONAL LAW:

CORRECTIONS, DEPARTMENT OF:

CRIMES AND OFFENSES:

PAROLE AND PROBATION:

Parole eligibility following sentence to mandatory 20 years for possession of drugs

Mandatory 20-30 year sentence for possession of controlled substance not unconstitutional

A person sentenced to a mandatory minimum term of 20-years imprisonment for possession of 225 grams or more, but less than 650 grams, of a schedule 1 or 2 controlled substance under section 7403(2)(a)(ii) of the Public Health Code is parole eligible only after serving the 20-years minimum sentence.

A sentence of 20-30 years imprisonment for possession of 225 grams or more, but less than 650 grams, of a schedule 1 or 2 controlled substance is not necessarily more severe than a life sentence for possession of over 650 grams of the same drug, and does not constitute cruel or unusual punishment or denial of equal protection of the law.

Opinion No. 7048

March 22, 2000

Honorable Ed LaForge
State Representative
The Capitol
Lansing, Michigan 48913

You have asked two questions regarding persons sentenced to a mandatory 20-30 year sentence, for possessing 225-650 grams of a schedule 1 or 2 controlled substance.¹

Your first question asks: When is a person sentenced to a mandatory minimum term of 20-years imprisonment for possession of 225 grams or more, but less than 650 grams, of a schedule 1 or 2 controlled substance under section 7403(2)(a)(ii) of the Public Health Code eligible for parole? Is he or she eligible for parole only after serving the mandatory minimum 20 years? Or is he or she eligible for parole after serving 10 years, under People v Bullock, 440 Mich 15, 485 NW2d 866 (1992), or 15 years for crimes committed after October 1, 1992?²

Article 7 of the Public Health Code (Code), 1978 PA 368, MCL 333.1101 et seq; MSA 14.15(1101) et seq, controls trafficking in drugs and establishes penalties for violation of its provisions. Section 7403(2)(a)(ii) of the Code establishes a 20-year minimum, mandatory penalty for possession of a schedule 1 and 2 controlled substance as follows:

(2) A person who violates this section as to:

(a) A controlled substance classified in schedule 1 or 2 that is a narcotic drug or a drug described in section 7214(a)(iv), and:

***

(ii) Which is in an amount of 225 grams or more, but less than 650 grams, of any mixture containing that substance is guilty of a felony and shall be imprisoned for not less than 20 years nor more than 30 years.

Under specified circumstances not relevant here, the court may impose a sentence lower than the 20-year minimum term of imprisonment. See section 7403(2)(a)(ii)(3).

Section 7401(3) of the Code removes eligibility for parole on sentences for the above drug convictions as follows:

An individual subject to a mandatory term of imprisonment under subsection (2)(a) or section 7403(2)(a)(i), (ii), (iii), or (iv) shall not be eligible for probation, suspension of that sentence, or parole during that mandatory term, except and only to the extent that those provisions permit probation for life, and shall not receive a reduction in that mandatory term of imprisonment by disciplinary credits or any other type of sentence credit reduction.

(Emphasis added.)

Were it not for this prohibition against parole during a mandatory term of imprisonment, the provisions of the general parole act would apply. Chapter III of the parole act, 1953 PA 232, MCL 791.201 et seq; MSA 28.2271 et seq, inter alia, codifies the laws governing pardons and paroles. Section 34(6), which establishes one's parole eligibility after 10 or 15 years of the sentence depending on the date of the crime, provides in pertinent part:

A prisoner under sentence for life or for a term of years, . . . who has served 10 calendar years of the sentence in the case of a prisoner sentenced for any other crime committed before October 1, 1992, . . . or who has served 15 calendar years of the sentence in the case of a prisoner sentenced for any other crime committed on or after October 1, 1992, is subject to the jurisdiction of the parole board and may be released on parole by the parole board, subject to the following conditions.

In People v Bullock, 440 Mich 15, 41-42; 485 NW2d 866 (1992), the Michigan Supreme Court struck down as cruel or unusual punishment the "no parole" provision regarding persons sentenced to a mandatory life imprisonment for mere possession of over 650 grams of a schedule 1 or 2 controlled substance. The court held that the defendants in Bullock and all those similarly situated would thus be eligible under the parole act for parole consideration after serving ten years of their life sentence. The court did not address the "no parole" provision regarding persons sentenced to mandatory life for the manufacture, delivery or possession with intent to deliver over 650 grams of a schedule 1 or 2 controlled substance, under the same statute. The court later clarified that its ruling in Bullock did not apply to controlled substance violations involving delivery. People v Fluker, 442 Mich 891; 498 NW2d 431 (1993). Nor did the court extend its ruling to sentences for lesser amounts of controlled substances, such as 225-650 grams. In making drug lifers eligible for parole after only 10 years, the court acknowledged that its decision could create an "arguable incongruity" in the statutory scheme for cocaine possession. After Bullock, the penalty for possession of 225-650 grams of cocaine might appear more severe than the penalty for possession of over 650 grams, in that a person convicted of the former offense would receive a 20-year, mandatory minimum sentence "with no possibility of parole," compared to the life sentence for over 650 grams, with eligibility for parole after 10 years, or 15 years for crimes committed on or after October 1, 1992. Id, at 43, n 26. But the court left resolution of this issue to the Legislature.

A recent Court of Appeals decision reinforces the limitations of Bullock, supra. In People v DiVietri, 206 Mich App 61; 520 NW2d 643 (1994), the defendant was sentenced to the mandatory 20-to-30 years imprisonment for possession of 225 grams or more, but less than 650 grams of cocaine. Following defendant’s motion for resentencing, the trial court found that the sentence constituted cruel or unusual punishment and ordered that the defendant be parole eligible after serving 10 calendar years under the provisions of section 34(6) of the parole act. On appeal, the Court of Appeals reversed, concluding that the defendant's 20-to-30 years sentence did not constitute cruel or unusual punishment. The court acknowledged that in Bullock, supra, the Michigan Supreme Court had held a mandatory life sentence without parole for possession of over 650 grams of cocaine to be unconstitutional. But, citing language from Bullock, the Court of Appeals held that Bullock only applies to life sentences for over 650 grams, not to the 20-year mandatory penalty for 225-650 grams. Id, at 64.

It is my opinion, therefore, in answer to your first question, that absent a statutory change, a person sentenced to the mandatory minimum term of 20-years imprisonment for possession of 225 grams or more, but less than 650 grams, of a schedule 1 or 2 controlled substance under section 7403(2)(a)(ii) of the Public Health Code is parole eligible only after serving the 20-years minimum sentence.

Your second question asks: If a person sentenced to 20-30 years imprisonment for possession of 225 grams or more, but less than 650 grams, of a schedule 1 or 2 controlled substance is not eligible for parole until after serving the statutory minimum 20 years, does that sentence constitute cruel or unusual punishment or violate equal protection of the law when compared to the life sentence for over 650 grams, which is parolable after 10 years, or 15 years for crimes committed on or after October 1, 1992?

Your second question requires an examination of recent changes to Michigan's "650 gram lifer" law, and the anomalies of indeterminate sentences³ compared to life sentences. Through 1998 PA 319, the Legislature eliminated the mandatory life sentence for manufacture, delivery or possession with intent to deliver over 650 grams of a schedule 1 or 2 controlled substance by amending section 7401(2)(a)(i) of the Public Health Code to permit the sentencing court to impose a life sentence, or any term of years but not less than 20 years. Section 7403(2)(a)(i) of the Code, however, was not amended, and continues to require, with limited exceptions for juveniles, a mandatory life sentence for possession of those drugs. From 1978 until 1998, the Code had prescribed the same penalties for the manufacture, delivery or possession with intent to deliver schedule 1 or 2 controlled substances and the mere possession of those drugs in the same quantities. As your letter notes, 1998 PA 319 resulted in a potential inconsistency in the penalty scheme for possession and manufacture and delivery of controlled substances.

Whether these potential sentencing differences translate into actual time-served differences depends on both the sentence imposed and parole eligibility. Any person who receives an indeterminate sentence with a minimum term greater than the time which must be served before a "lifer" can be paroled (10 or 15 years depending upon the date of the offense) could argue that they have received a more severe sentence than a life sentence because of the life sentence's earlier parole eligibility date. The argument could be made in the context of a single crime, e.g., a life sentence imposed for second degree murder versus an indeterminate sentence of 16-25 years for the same crime. The argument could likewise be made in the context of two different crimes, e.g., a life sentence imposed for second degree murder versus an indeterminate sentence of 16-25 years for armed robbery. In both examples, although the person sentenced to 16-25 years appears to have received a lighter initial sentence than the life sentence, that person will not be eligible for parole until after serving 16 years. By contrast, the person sentenced to life will be eligible for parole after 10 years (for a crime committed on or after October 1, 1992) or 15 years (for a crime committed after October 1, 1992). See section 34(6) of the parole act, supra, at 3.

Your second question notes this apparent inconsistency and asks whether imposition of a life sentence is less severe than imposition of an indeterminate sentence of 20-30 years, given the differing parole eligibility dates. The determination of whether a life sentence or a 20-30 years indeterminate sentence is more severe cannot, however, be based solely upon the earliest parole eligibility date. Other factors must be considered. Any prisoner, whether serving a life sentence or an indeterminate sentence, hopes to be paroled at the first opportunity. But there is no guarantee that a parole will be granted at the earliest eligibility date or, for that matter, at any future date. Section 33(1)(a) of the parole act, which establishes the criteria for granting a parole release, provides that:

A prisoner shall not be given his liberty on parole until the board has reasonable assurance, after consideration of all of the facts and circumstances, including the prisoner’s mental and social attitude, that the prisoner will not become a menace to society or to the public safety.

A comparison of prison sentences must also take into account the maximum terms which have been imposed. A prisoner serving a life sentence might never be granted a parole and, therefore, might never be discharged from prison. But a prisoner serving a 20-30 years sentence has an established discharge date, namely 30 years after he begins serving his sentence. So, judged by the maximum term, the indeterminate sentence can indeed turn out to be shorter than the life sentence. When evaluating a life sentence, one must also consider the more rigorous protocol required by section 34(6) of the parole act. This process, as noted by the court in In re Parole of Glover, 226 Mich App 655, 668; 575 NW2d 772 (1997), rev’d on other grounds, 460 Mich 511; 596 NW2d 598 (1999), includes a public hearing, a potential veto by the sentencing court, and a vote by the entire 10-member Michigan Parole Board. Section 35 of the parole act does not impose any of these requirements for prisoners serving an indeterminate sentence. Therefore, not only does the person serving an indeterminate sentence have a limit less than life on his sentence, namely the maximum term, but he may also be paroled earlier than the person serving life, due to less rigorous parole procedures.

In People v Carson, 220 Mich App 662; 560 NW2d 657 (1996), the Court of Appeals addressed the question whether a parolable life sentence is more severe than an indeterminate sentence. The court concluded that this issue could not be resolved and would require endless speculation:

The preceding discussion illustrates the difficulty in determining whether, and at what point, a sentence of parolable life is a more severe sentence than a sentence of a term of years. . . . "The sentence concepts 'life' and 'any term of years' are mutually exclusive...." Johnson, supra at 498, 364 NW2d 654. In light of the various factors involved, we could speculate endlessly in the case of a given defendant concerning whether a sentence of parolable life would constitute a more severe penalty than a sentence of a term of years. However, such speculation could never be fruitful because, as acknowledged by defendant in his supplemental brief, attempting to compare a sentence of parolable life to a lengthy term of years is akin to the proverbial comparison of [apples] to oranges. . . .

Accordingly, we decline to determine when, and under what circumstances, a sentence of parolable life is a greater penalty than a sentence of a lengthy term of years. Obviously, a sentence of parolable life is one of the most severe sentences a defendant may receive. Likewise, a sentence of a lengthy term of years that may prevent the Parole Board from assuming jurisdiction, thus effectively constituting a life term without parole, is one of the most severe sentences a defendant may receive.

Id, at 676. (Emphasis added.)

Applying these considerations, a sentence to a mandatory minimum 20-years imprisonment for possession of between 225 and 650 grams of a drug is not so long as to "effectively constitut[e] a life term without parole." Moreover, comparing a 20-30 years indeterminate sentence to a life sentence with its 10-or-15 years parole eligibility date is akin to comparing apples to oranges since the parole process for a person sentenced to life imprisonment is significantly more rigorous than for a person given an indeterminate sentence. Finally, a person facing a potential 20-30 years sentence may qualify for the departure from the minimum sentence permitted for "substantial and compelling reasons" and other grounds specified by section 7403(3) of the Code. Thus, a person may receive a minimum sentence which is less than the 10 or 15 years required for a lifer to obtain parole eligibility. See, for example, Dean v Michigan Dep't of Corrections, 453 Mich 448; 527 NW2d 529 (1996), where the sentencing court exercised its discretion under the Code by imposing a 12-30 years sentence for possession of 225-650 grams of cocaine. For all these reasons, a sentence of 20-30 years for possession of 225-650 grams of a controlled substance is not necessarily more severe than a life sentence for possession of over 650 grams.

Addressing the constitutional question, in People v Matthews, 143 Mich App 45, 63-64; 371 NW2d 887 (1985), the Court of Appeals found that a mandatory 20-years minimum sentence for delivery of between 225 and 650 grams of cocaine did not violate defendant's right to due process and equal protection, nor did it constitute cruel or unusual punishment. See also People v DiVietri, supra, holding at page 63 that "legislatively mandated sentences are presumptively proportionate and valid," and People v Marji, 180 Mich App 525, 543-544; 447 NW2d 835 (1989). In People v Romano, 181 Mich App 204, 219-220; 448 NW2d 795 (1989), the Court of Appeals rejected a similar constitutional challenge to a mandatory life sentence for a drug law violation. Moreover, the United States Supreme Court has held that the Eighth Amendment prohibition against cruel and unusual punishment is not offended by a Michigan statute imposing mandatory life imprisonment without parole for delivery of over 650 grams of cocaine. Harmelin v Michigan, 501 US 957; 111 S Ct 2680; 115 L Ed 2d 836 (1991).

It is my opinion, therefore, in answer to your second question, that a sentence of 20-30 years imprisonment for possession of 225 grams or more, but less than 650 grams, of a schedule 1 or 2 controlled substance is not necessarily more severe than a life sentence for possession of over 650 grams of the same drug, and does not constitute cruel or unusual punishment or denial of equal protection of the law.

JENNIFER M. GRANHOLM
Attorney General

¹ Schedule 1 substances include heroin. Schedule 2 substances include cocaine.

² 1999 PA 181, enacted after the Bullock decision, and effective September 22, 1992, set lifer parole eligibility at 15 years for crimes committed on or after October 1, 1992.

³ An indeterminate sentence, which is the same as a "term of years," sets both a minimum and maximum term. A life sentence, however, has no minimum term.