People v. Bullock

We address in these consolidated cases the validity of a search conducted without a warrant, and the question whether Michigan’s mandatory penalty of life in prison without possibility of parole, for possession of 650 grams or more of any mixture containing cocaine, is "cruel or unusual” under our state constitution.

I. FACTS AND PROCEDURAL HISTORY

On February 24, 1988, defendant Hasson traveled by air from Los Angeles to Lansing’s Capital City Airport. He had a return ticket to Los Angeles on a flight scheduled to leave less than four hours after his arrival, yet he had checked two large suitcases. Acting on a tip from airline agents relayed through the Los Angeles police, the Michigan State Police met Hasson’s flight. Before Has-son claimed his luggage, a police dog alerted officers to the presence of illegal drugs in both suitcases. The police observed Hasson deplane, retrieve his luggage, make a call from a public phone, and walk outside to the public driveway. After about thirty minutes, Hasson flagged down a car driven and owned by defendant Bullock. Bullock’s seventeen-year-old grandson was a passenger in the car. Hasson placed his luggage in the trunk and got in the car, which began to pull away.

At that point, the police stopped the car and arrested all three occupants. The police, without attempting to obtain a warrant, then proceeded to search the entire car. They examined the glove compartment, Bullock’s purse which she left in the car, and the luggage Hasson had placed in the trunk. They found traces of cocaine in the glove compartment and Bullock’s purse, and over fifteen kilograms of cocaine in Hasson’s luggage. This cocaine was admitted as evidence at trial over Hasson’s and Bullock’s objections, and both were convicted, in separate jury trials, of knowingly possessing 650 grams or more of cocaine in violation of MCL 333.7403(2)(a)(i); MSA 14.15(7403)(2)(a)(i). As mandated by that statute, in conjunction with MCL 791.234(4); MSA 28.2304(4), both defendants were sentenced to life in prison without any possibility of parole.

The Court of Appeals, in separate unpublished opinions per curiam decided April 24, 1990, reversed both defendants’ convictions. The Court held that the cocaine found in Hasson’s luggage should have been excluded as the fruit of an invalid search because, while the police had probable cause to believe the luggage contained contraband and therefore were justified in seizing it, the police had no warrant to search it and the case did not fall within the so-called "automobile exception” to the warrant requirement. Because the state lacked sufficient evidence to prosecute without the excluded cocaine, the Court did not remand for retrial in Hasson. The Court, while finding that Bullock lacked standing to challenge the search of Hasson’s luggage, held that the traces of cocaine found in Bullock’s purse and the glove compartment should also have been excluded as the fruit of an illegal search. Because the Court found that the introduction of that cocaine as evidence was not harmless with regard to Bullock’s conviction for possession of the cocaine in Hasson’s luggage, the Court reversed the conviction and remanded for retrial in Bullock.

We granted leave to appeal, 436 Mich 881 (1990), and subsequently agreed to consider whether the mandatory penalty of life in prison without possibility of parole was invalid under either the federal or state constitutions. Following oral argument during the 1990-91 term, we ordered reargument this term to address the effect of the United States Supreme Court’s intervening decisions in California v Acevedo, 500 US —; 111 S Ct 1982; 114 L Ed 2d 619 (1991) (dealing with the search issue), and Harmelin v Michigan, 501 US —; 111 S Ct 2680; 115 L Ed 2d 836 (1991) (dealing with the penalty issue).

II. ANALYSIS

A. THE SEARCH ISSUE: HASSON

There is no basis in the Michigan Constitution for excluding from evidence the cocaine discovered in this case. Const 1963, art 1, § 11 provides that it "shall not be construed to bar from evidence in any criminal proceeding any narcotic drug . . . seized by a peace officer outside the curtilage of any dwelling house in this state.” Our analysis is thus governed exclusively by the United States Constitution, as currently construed by the United States Supreme Court. See People v Chapman, 425 Mich 245, 252-253; 387 NW2d 835 (1986).

While the reasoning of the Court of Appeals on this issue constitutes a plausible application of federal constitutional search and seizure law as it existed at the time of that Court’s decision, the United States Supreme Court’s recent decision in California v Acevedo, supra, plainly destroys any claim that Hasson might have had on this issue, and compels reversal of the Court of Appeals. The Court in Acevedo, overruling Arkansas v Sanders, 442 US 753; 99 S Ct 2586; 61 L Ed 2d 235 (1979), as reaffirmed in United States v Ross, 456 US 798, 812-813, 824; 102 S Ct 2157; 72 L Ed 2d 572 (1982), expanded the automobile exception to the Fourth Amendment warrant requirement and held that police may open and search any container placed or found in an automobile, as long as they have the requisite probable cause with regard to such a container, even if such probable cause focuses specifically on the container and arises before the container is placed in the automobile. See Acevedo, 114 L Ed 2d 630-634.

The Court of Appeals rejected Hasson’s claim that probable cause was lacking in this case, and that holding is not challenged before this Court. Thus, given that the police had probable cause to search Hasson’s luggage, and because the placement of the luggage in Bullock’s car brings this case within the automobile exception as defined by Acevedo, the failure to obtain a warrant does not render the search invalid. The cocaine was properly admitted as evidence at trial.

B. THE SEARCH ISSUE: BULLOCK

Just as in Hasson, for reasons noted above, our analysis here is governed exclusively by the United States Constitution, as currently construed by the United States Supreme Court. The Court of Appeals found the search of Bullock’s purse and the glove compartment of her car invalid, not for lack of a warrant — which, assuming probable cause, would clearly have been unnecessary under the automobile exception even prior to Acevedo— but because it found insufficient probable cause. The Court of Appeals correctly noted that even a search of a car without a warrant pursuant to the automobile exception is strictly limited in scope by the objects of the search and the places in which there is probable cause to believe they may be found, as the United States Supreme Court noted in Ross, 456 US 824, and strongly reaffirmed in Acevedo, 114 L Ed 2d 634. The Court of Appeals reasoned that the probable cause in this case extended to Hasson’s luggage and no further. The people contest the Court of Appeals holding that there was insufficient probable cause to search the passenger compartment of Bullock’s car, given the probable cause relating to Hasson’s luggage and the circumstances under which Hasson arrived at the airport and was picked up by Bullock, apparently in response to Hasson’s phone call.

Probable cause is by its very nature an issue closely tied to the specific facts of each case, and the question in this case is arguably a close one. We need not decide that question, however. Under New York v Belton, 453 US 454; 101 S Ct 2860; 69 L Ed 2d 768 (1981), the police may, as a contemporaneous incident of a lawful custodial arrest of the occupant of an automobile, search the entire passenger compartment of the automobile and any containers found therein, including glove compartments and purses. Because Hasson’s arrest, at least, was unquestionably valid, there can be no doubt that this search was also valid, irrespective of the existence of probable cause, a warrant, or exigent circumstances. See Chapman, 425 Mich 250-252. The traces of cocaine found in Bullock’s purse and in the glove compartment were thus properly admitted as evidence at trial.

C. THE PENALTY ISSUE: BULLOCK AND HASSON

1. THE APPLICABILITY OF CONST 1963, ART 1, § 16

The United States Supreme Court, in Harmelin v Michigan, supra, rejected a challenge, brought under the "cruel and unusual punishments” clause of the Eighth Amendment of the United States Constitution, to Michigan’s mandatory penalty of life in prison without possibility of parole for possession of 650 grams or more of a mixture containing cocaine. We address here a challenge to that penalty on the basis of Const 1963, art 1, § 16, which is worded differently from, and was ratified more than 171 years after, the Eighth Amendment.

While Harmelin is binding and authoritative for purposes of applying the United States Constitution, it is only persuasive authority for purposes of this Court’s interpretation and application of the Michigan Constitution. This Court alone is the ultimate authority with regard to the meaning and application of Michigan law. See In re Apportionment of State Legislature — 1982, 413 Mich 96, 116, n 11; 321 NW2d 565 (1982), app dis for want of substantial federal question sub nom Kleiner v Sanderson, 459 US 900 (1982). In the case of a divided United States Supreme Court decision, we may in some cases find more persuasive, and choose to rely upon, the reasoning of the dissenting justices of that Court, and not the majority, for purposes of interpreting our own Michigan Constitution. See n 9.

To note that we have the authority to interpret the Michigan Constitution more expansively than the United States Constitution does not, of course, lead to the conclusion that we should or will choose to exercise that authority in any particular area. It is entirely possible, in a given case or area, that our independent judgment will lead to our agreeing with the reasoning of the United States Supreme Court. See, e.g., Doe v Dep’t of Social Services, 439 Mich 650; 487 NW2d 166 (1992) (rejecting a state constitutional right to abortion funding). For example, in the area of search and seizure law, governed by the Fourth Amendment of the United States Constitution and Const 1963, art 1, § 11, this Court has held, on the basis of a careful examination of the text and history of the latter clause, and the understanding of the voters who adopted it, that it should not be interpreted to afford any greater protection than the parallel federal clause, absent a "compelling reason” for doing so. See People v Collins, 438 Mich 8, 25-29; 475 NW2d 684 (1991); People v Perlos, 436 Mich 305, 313, n 7; 462 NW2d 310 (1990); People v Nash, 418 Mich 196, 208-215; 341 NW2d 439 (1983) (opinion of Brickley, J.). See also People v Hill, 429 Mich 382, 393; 415 NW2d 193 (1987); People v Collier, 426 Mich 23, 39; 393 NW2d 346 (1986) (interpreting the Self-Incrimination Clause of Const 1963, art 1, § 17).

The application of the "compelling reason” standard remains an issue on which jurists of reason may differ, as they have differed in the past. We have no need, however, to further explore this broad issue in these cases. We find that regardless of whether it is or should be necessary to adduce a "compelling reason” to interpret Const 1963, art 1, § 16 more broadly than the United States Supreme Court interprets the Eighth Amendment, at least three compelling reasons do, in fact, exist to interpret our state constitutional provision more broadly in these cases than the United States Supreme Court interpreted the Eighth Amendment in Harmelin. We set forth these reasons in parts II(c)(2), (3), and (4). Furthermore, we find that a proper interpretation of Const 1963, art 1, § 16, in accordance with this Court’s longstanding precedent in this area, requires us to strike down the penalty at issue as unjustifiably disproportionate to the crime for which it is imposed, and therefore "cruel or unusual.” See part II(c)(5).

2. TEXTUAL DIFFERENCES

First, as we have already noted, the Michigan provision prohibits "cruel or unusual” punishments, while the Eighth Amendment bars only punishments that are both "cruel and unusual.” This textual difference does not appear to be accidental or inadvertent. Language providing that "no cruel or unusual punishments, shall be inflicted” was included in Article II of the Northwest Ordinance of 1787. Michigan’s first Constitution, adopted in 1835, provided that "cruel and unjust punishments shall not be inflicted.” Const 1835, art 1, § 18 (emphasis added). The Constitution of 1850 provided that "cruel or unusual punishment shall not be inflicted . . . .” Const 1850, art 6, § 31 (emphasis added). Identical language was adopted as part of the 1908 and 1963 Constitutions. See Const 1908, art 2, § 15; Const 1963, art 1, § 16.

This Court, in People v Lorentzen, 387 Mich 167, 171-172; 194 NW2d 827 (1972), took specific note of this difference in phraseology and suggested that it might well lead to different results with regard to allegedly disproportionate prison terms. "The prohibition of punishment that is unusual but not necessarily cruel carries an implication that unusually excessive imprisonment is included in that prohibition.” Id. at 172. As this Court noted in Collins, a "significant textual difference[ ] between parallel provisions of the state and federal constitutions” may constitute a "compelling reason” for a different and broader interpretation of the state provision. 438 Mich 32.

3. HISTORICAL FACTORS

Second, while two members of the Harmelin majority maintained that the historical circumstances and background of the adoption of the Eighth Amendment preclude the notion that the federal clause contains a "proportionality principle,” see 115 L Ed 2d 846-858 (opinion of Scalia, J., joined by Rehnquist, C.J.), such a conclusion cannot be reached with regard to the framing and adoption of the Michigan Constitution of 1963. Whatever the legal terms "cruel” and "unusual” were understood to mean in 1791 when the Eighth Amendment was ratified — or in 1689 when its antecedent, the English Bill of Rights, was adopted —by 1963 those words had been interpreted and understood by the United States Supreme Court and by this Court for more than half a century to include a prohibition on grossly disproportionate sentences. See Weems v United States, 217 US 349, 366-367, 371; 30 S Ct 544; 54 L Ed 793 (1910); Harmelin, 115 L Ed 2d 876 (White, J., dissenting); People v Mire, 173 Mich 357, 361-362; 138 NW 1066 (1912).

This would constitute another "compelling reason” under Collins for a broader view of state constitutional protection, in that "history provide^] reason to believe that those who framed and adopted the state provision had a different purpose in mind,” 438 Mich 32 — different, at any rate, from the historical understanding asserted by Justice Scalia.

4. LONGSTANDING MICHIGAN PRECEDENT

Finally, this Court, in interpreting Const 1963, art 1, § 16, has long followed an approach more consistent with the reasoning of the Harmelin dissenters than with that of the Harmelin majority. Twenty years ago, in People v Lorentzen, supra, we struck down, under both the Eighth Amendment and Const 1963, art 1, § 16, a mandatory minimum sentence of twenty years in prison (reducible to approximately ten years by earning "good time”) for selling any amount of marijuana. See 387 Mich 181.

Our analysis in Lorentzen foreshadowed in a striking manner the three-pronged test later adopted by the United States Supreme Court in Solem v Helm, 463 US 277, 290-291; 103 S Ct 3001; 77 L Ed 2d 637 (1983). Thus, Lorentzen noted the severity of the sentence imposed and the fact that it would apply to a marijuana sale by "a first offender high school student.” 387 Mich 176; accord Solem, 463 US 290-291 ("[f]irst, we look to the gravity of the offense and the harshness of the penalty”). Lorentzen then compared the penalty to those imposed for numerous other crimes in Michigan. 387 Mich 176-177; accord Solem, 463 US 291 ("[s]econd, it may be helpful to compare the sentences imposed on other criminals in the same jurisdiction”). Lorentzen further compared Michigan’s penalty for selling marijuana to the penalties imposed for that offense by other states. 387 Mich 179; accord Solem, 463 US 291-292 ("[t]hird, courts may find it useful to compare the sentences imposed for commission of the same crime in other jurisdictions”). Finally, Lorentzen applied a fourth criterion rooted in Michigan’s legal traditions, and reflected in the provision for "indeterminate sentences” of Const 1963, art 4, § 45: the goal of rehabilitation. See 387 Mich 179-181.

It is unclear, in the wake of Harmelin, whether Lorentzen’s or Solem’s analysis survives as a matter of federal constitutional law, and that need not concern us in any event. Lorentzen’s analysis, although relying in the alternative on the Eighth Amendment, was firmly and sufficiently rooted in Const 1963, art 1, § 16. Indeed, we preceded our proportionality analysis in Lorentzen with a lengthy review of Michigan case law dating back to 1879. See 387 Mich 173-176. We believe the precedential weight of Lorentzen and its antecedents, as a matter of Michigan law, constitutes a very compelling reason not to reflexively follow the latest turn in the United States Supreme Court’s Eighth Amendment analysis. We therefore continue to adhere, on the basis of the Michigan Constitution, to the analysis set forth in Lorentzen and later adopted in Solem,

5. APPLICATION

Applying the Lorentzen-Solem analysis to these cases, we conclude, largely for the reasons stated by Justice White in his dissenting opinion in Harmelin, that the penalty at issue here is so grossly disproportionate as to be "cruel or unusual.” The penalty is imposed for mere possession of cocaine, without any proof of intent to sell or distribute. The penalty would apply to a teenage first offender who acted merely as a courier. Indeed, on the basis of the information before this Court, it appears that prior to the offense giving rise to this case, defendant Bullock, a forty-eight-year-old grandmother, had never been convicted of any serious crime and had held a steady job as an autoworker for sixteen years.

It is true, as Justice Kennedy noted in Harmelin, that the collateral effects flowing even from mere possession of cocaine are terrible indeed. See 115 L Ed 2d 870-871. But conviction of the crime involved here does not require any proof that the defendant committed, aided, intended, or even contemplated any loss of life or other violent crime, or even any crime against property. As Justice White correctly noted in Harmelin, "[t]o be constitutionally proportionate, punishment must be tailored to a defendant’s personal responsibility and moral guilt.” Id., 115 L Ed 2d 883. While we emphatically do not minimize the gravity and reprehensibility of defendants’ crime, it would be profoundly unfair to impute full personal responsibility and moral guilt to defendants for any and all collateral acts, unintended by them, which might have been later committed by others in connection with the seized cocaine. Persons who independently commit violent and other crimes in connection with illegal drugs can and should be held individually responsible by our criminal justice system.

Thus, even under Justice Kennedy’s restrictive view of Solem, it is clear that an application of Solem’s first prong "leads to an inference of gross disproportionality.” Harmelin, 115 L Ed 2d 871 (Kennedy, J., concurring). Application of the second and third prongs of the Lorentzen-Solem analysis strongly reinforces that inference. As Justice White noted in Harmelin, aside from irianufacture, delivery, possession with intent to deliver, and possession of 650 grams or more of a substance containing cocaine or illegal narcotics, only first-degree murder — that is, "wilful, deliberate, and premeditated” murder, or murder committed in the course of certain serious felonies — is punishable in Michigan by mandatory life imprisonment without possibility of parole. See 115 L Ed 2d 885; MCL 750.316; MSA 28.548. The defendants in this case have been punished more severely than they could have been for second-degree murder, rape, mutilation, armed robbery, or other exceptionally grave and violent crimes.

Furthermore, as Justice White also noted, no other state in the nation imposes a penalty even remotely as severe as Michigan’s for mere possession of 650 grams or more of cocaine. See 115 L Ed 2d 885-886. "Of the remaining 49 States, only Alabama provides for a mandatory sentence of life imprisonment without possibility of parole for a first-time drug offender, and then only when a defendant possesses ten kilograms or more of cocaine.” Id., 115 L Ed 2d 886.

In sum, the only fair conclusion that can be reached regarding the penalty at issue is that it constitutes an unduly disproportionate response to the serious problems posed by drugs in our society. However understandable such a response may be, it is not consistent with our constitutional prohibition of "cruel or unusual punishment.” The penalty is therefore unconstitutional on its face.

The proportionality principle inherent in Const 1963, art 1, § 16, is not a simple, "bright-line” test, and the application of that test may, concededly, be analytically difficult and politically unpopular, especially where application of that principle requires us to override a democratically expressed judgment of the Legislature. The fact is, however, the people of Michigan, speaking through their constitution, have forbidden the imposition of cruel or unusual punishments, and we are duty-bound to devise a principled test by which to enforce that prohibition, and to apply that test to the cases that are brought before us. The very purpose of a constitution is to subject the passing judgments of temporary legislative or political majorities to the deeper, more profound judgment of the people reflected in the constitution, the enforcement of which is entrusted to our judgment.

III. CONCLUSION

For the reasons stated in parts ii(a) and (b), we reverse the judgments of the Court of Appeals and reinstate the convictions of both defendants at bar. For the reasons stated in part n(c), however, we strike down the sentences imposed on both defendants as "cruel or unusual” under Const 1963, art 1, § 16-

The remaining question is what remedy to afford. In considering this question, we are guided by several factors. First, there are three aspects to the severity of the penalty at issue: (1) its length (life); (2) its mandatory character, i.e., the absence of individualized consideration for each defendant at the sentencing stage; and (3) the absence of any possibility of individualized parole consideration for each defendant. Second, our holding today is necessarily limited to the precise issue before us; we do not address today the validity of a hypothetical penalty lacking any of these three attributes. Third, the defendants at bar, in challenging this penalty, focused especially on the absence of the possibility of parole. Finally, our decision today necessarily invalidates the sentences of all defendants currently incarcerated under the same penalty, and for committing the same offense, as the defendants at bar.

We conclude that the most appropriate remedy under the circumstances is to ameliorate the no-parole feature of the penalty. We therefore strike down, with regard to these defendants and all others who have been sentenced under the same penalty and for the same offense, that portion of MCL 791.234(4); MSA 28.2304(4) denying such defendants the parole consideration otherwise available upon completion of ten calendar years of the sentence. Thus, each such defendant shall, upon serving ten calendar years of the sentence, become subject to the jurisdiction of the parole board and eligible for parole consideration in accordance with MCL 791.234(4)(a)-(d), (5); MSA 28.2304(4)(a)-(d), (5).

Levin, Brickley, and Griffin, JJ., concurred with Cavanagh, C.J.

The police did telephone the Clinton County Prosecutor’s office to ask if a warrant was needed to search the car and the suitcases in the trunk. A prosecutor advised the police that, in his view, a warrant was not required.

The police also found two burnt marijuana cigarettes and assorted drug paraphernalia in the passenger compartment, and several thousand dollars in cash in Bullock’s purse.

Bullock’s grandson was also charged, but the charges were dismissed before trial on the ground of insufficient evidence linking him to the cocaine.

Docket Nos. 111276 (Bullock) and 111759 (Hasson).

As Justice Boyle points out, see post, p 72, n 5, Bullock did not raise the penalty issue in the Court of Appeals, and this Court, while agreeing to Hasson’s request to add that issue before this Court, denied Bullock’s request to add the issue. Our holding on the underlying issue, however, obviously affects Bullock no less than Hasson, as indeed it affects all other persons sentenced under the same penalty and for the same offense as the defendants at bar. See part in. We conclude that it would be incongruous and not conducive to substantial justice to limit our consideration of the penalty issue to Hasson and not Bullock. We, of course, "may, at any time . . . permit the reasons or grounds of appeal to be amended or new grounds to be added,” and "enter any judgment or order that ought to have been entered, and enter other and further orders and grant relief as the case may require . . . .” MCR 7.316(A)(3), (7). To the extent necessary, we hereby exercise that authority.

While cocaine is not technically a "narcotic,” we have no doubt that the voters who adopted the 1963 Constitution understood and intended cocaine to be encompassed by the quoted provision. Cocaine has long been grouped with the true narcotic drugs such as heroin for purposes of legal control, and, indeed, was legally defined as a "narcotic” at the time the 1963 Constitution was adopted. See 1948 CL 335.51(13) (Mason’s Supp, 1956).

Bullock raised three additional challenges to her conviction in the Court of Appeals that that Court did not explicitly address: (1) that the admission into evidence of the traces of cocaine found in the glove compartment and Bullock’s purse was erroneous because it constituted "other acts” evidence not admissible under MRE 404(b); (2) that the denial of Bullock’s request to waive jury trial because of lack of prosecutorial consent, in accordance with MCL 763.3; MSA 28.856 (as amended by 1988 PA 89, § 1, effective June 1, 1988, shortly before Bullock’s trial took place), was inconsistent with then-MCR 6.101(F)(1)(c)(ii), thereby unconstitutionally transgressing this Court’s authority to promulgate rules of court procedure under Const 1963, art 6, § 5; and (3) that the evidence was insufficient to support Bullock’s conviction.

Whatever merit the first contention may have, we note that Bullock failed to raise any timely objection at trial on the basis of MRE 404(b), and we therefore reject this contention on that basis. The second contention, whatever merit it may have had at the time, is now moot in light of MCR 6.401 (effective October 1, 1989), which provides, consistently with MCL 763.3; MSA 28.856, that a defendant’s waiver of jury trial is contingent on the consent of the prosecutor.” See also MCR 6.302(B)(3)(b) (effective October 1, 1989). Any retrial of Bullock would obviously be governed by the current court rules, and we therefore reject her second contention on that basis. (We note that Bullock has not challenged the denial of her request to waive jury trial on the ground that such denial violates any constitutional right to waive jury trial, and we therefore express no view on that issue in this case.) The Court of Appeals implicitly rejected Bullock’s third contention by remanding the case for retrial, which is barred on double jeopardy grounds when a conviction is reversed because of insufficient evidence. See Burks v United States, 437 US 1; 98 S Ct 2141; 57 L Ed 2d 1 (1978). Upon review of the record, we find this contention devoid of merit and reject it also.

US Const, Am VIII provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” (Emphasis added.) 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.” (Emphasis added.)

We have, however, afforded greater protection under the Michigan Constitution, or Michigan case law, in many areas. Compare, e.g., People v Beach, 429 Mich 450, 464-465; 418 NW2d 861 (1988) (lesser included offense instructions), with Keeble v United States, 4Í2 US 205; 93 S Ct 1993; 36 L Ed 2d 844 (1973); Delta Charter Twp v Dinolfo, 419 Mich 253, 265-278; 351 NW2d 831 (1984) (right of unrelated persons to share a house in an area zoned for "single-family residences”), with Village of Belle Terre v Boraas, 416 US 1; 94 S Ct 1536; 39 L Ed 2d 797 (1974); People v Cooper, 398 Mich 450, 460-461; 247 NW2d 866 (1976) (double jeopardy in the context of successive prosecutions by different sovereigns), with Bartkus v Illinois, 359 US 121; 79 S Ct 676; 3 L Ed 2d 684 (1959); People v Burden, 395 Mich 462; 236 NW2d 505 (1975) (unanimous jury verdicts in criminal cases), with Apodaca v Oregon, 406 US 404; 92 S Ct 1628; 32 L Ed 2d 184 (1972); People v Jackson, 391 Mich 323, 337-339; 217 NW2d 22 (1974) (right to counsel at photographic displays), with United States v Ash, 413 US 300; 93 S Ct 2568; 37 L Ed 2d 619 (1973); People v White, 390 Mich 245, 255-258; 212 NW2d 222 (1973) (adopting the same transaction” test for double jeopardy in the context of successive prosecutions), with Grady v Corbin, 495 US 508; 110 S Ct 2084; 109 L Ed 2d 548 (1990); People v Turner, 390 Mich 7, 22; 210 NW2d 336 (1973) (adopting an objective test for criminal entrapment), with United States v Russell, 411 US 423; 93 S Ct 1637; 36 L Ed 2d 366 (1973); Shakespeare Co v Lippman’s Tool Shop Sporting Goods Co, 334 Mich 109, 112-113; 54 NW2d 268 (1952) (the right to sell goods at prices below the minimum set by "fair trade agreement”), with Old Dearborn Distributing Co v Seagram-Distillers Corp, 299 US 183; 57 S Ct 139; 81 L Ed 109 (1936); and People v Victor, 287 Mich 506, 514-518; 283 NW 666 (1939) (the right to sell trading stamps), with Rast v Van Deman & Lewis Co, 240 US 342; 36 S Ct 370; 60 L Ed 679 (1916).

Moreover, this Court has, on occasion, led rather than followed the United States Supreme Court. For example, just one year after the ratification of the federal Fourteenth Amendment in 1868, and eighty-five years before the United States Supreme Court outlawed racial segregation in public schools on the basis of that amendment, this Court, in an opinion by Chief Justice Cooley, held that black children had the right, under Michigan law, to attend the public schools on a free, nonsegregated basis. Compare People ex rel Workman v Detroit Bd of Ed, 18 Mich 400, 408-410 (1869), with Brown v Topeka Bd of Ed, 347 US 483; 74 S Ct 686; 98 L Ed 873 (1954).

Compare, e.g., Collins, 438 Mich 25-29 (opinion of the Court), with 438 Mich 40-54 (Cavanagh, C.J., joined by Levin, J., dissenting). We note, without expressing any view on the issue, that a number of courts and scholars, including Justice Robert F. Utter of the Washington Supreme Court and former Justice Hans A. Linde of the Oregon Supreme Court, have proposed approaches to state constitutional interpretation that, if valid, would suggest that universal and automatic application of a "compelling reason” standard for differential state constitutional interpretation would conflict with sound principles of judicial federalism. See, e.g., Linde, First things first: Rediscovering the states’ bills of rights, 9 U Balt L R 379 (1980); Utter & Pitler, Presenting a state constitutional argument: Comment on theory and technique, 20 Ind L R 635 (1987); see also, e.g., State v Kennedy, 295 Or 260, 262-272; 666 P2d 1316 (1983) (Linde, J.); State v Ball, 124 NH 226, 231-233; 471 A2d 347 (1983); State v Coe, 101 Wash 2d 364, 373-374; 679 P2d 353 (1984) (Utter, J.); State v Hempele, 120 NJ 182, 195-198; 576 A2d 793 (1990); Commonwealth v Edmunds, 526 Pa 374, 388-391; 586 A2d 887 (1991).

While the historical record is not sufficiently complete to inform us of the precise rationale behind the original adoption of the present language by the Constitutional Convention of 1850, it seems self-evident that any adjectival phrase in the form "a or b” necessarily encompasses a broader sweep than a phrase in the form "a and b.” The set of punishments which are either "cruel” or "unusual” would seem necessarily broader than the set of punishments which are both "cruel” and "unusual.”

The decision in Lorentzen was unanimous with regard to the issues relevant to these cases. While Justices T. G. Kavanagh and Williams filed separate opinions concurring in part and dissenting in part, they dissented only insofar as the majority refused to strike down the disputed marijuana statute itself and reverse the defendant’s conviction outright. They expressed complete agreement with the majority’s reasoning and conclusion with regard to proportionality analysis and the unconstitutionality of the sentence at issue. See 387 Mich 182-183.

The Harmelin majority, conversely, conceded that "[s]evere, mandatory penalties may be cruel,” but maintained that "they are not unusual in the constitutional sense . . . .” 115 L Ed 2d 864 (opinion of Scalia, J., in the portion constituting the opinion of the Court). This poses a somewhat curious contradiction, in that Harmelin suggested this kind of penalty might be cruel but not unusual, while Lorentzen suggested it might be unusual but not cruel. We follow Lorentzen, however, as Michigan precedent regarding Const 1963, art 1, § 16.

We discuss more thoroughly in part 11(c)(4) this Court’s historical jurisprudence supporting the proportionality component of our state "cruel or unusual punishment” clause, as first unequivocally articulated in People v Mire, supra, just two years after Weems, and reaffirmed in People v Lorentzen, supra.

We do not suggest any endorsement of Justice Scalia’s view of the historical understanding regarding the Eighth Amendment. Justice White noted that some scholars have reached conclusions sharply at odds with Justice Scalia’s views. See Harmelin, 115 L Ed 2d 876, n 1 (White, J., dissenting), quoting Granucci, "Nor cruel and unusual punishments indicted”: The original meaning, 57 Cal L R 839, 860 (1969).

See Harmelin, 115 L Ed 2d 858 (opinion of Scalia, J.) (advocating overruling Solem outright); id., 115 L Ed 2d 871-872 (Kennedy, J., concurring) (purporting to reaffirm Solem, while applying only the first prong of its analysis); id., 115 L Ed 2d 880 (White, J., dissenting) (asserting that Justice Kennedy’s analysis would "eviscerate [Solem], leaving only an empty shell”).

Because the similarity in terminology may create confusion, we note that the constitutional concept of "proportionality” under Const 1963, art 1, § 16 is distinct from the nonconstitutional "principle of proportionality” discussed in People v Milbourn, 435 Mich 630, 650; 461 NW2d 1 (1990), although the concepts share common roots. The duty of the appellate courts to review trial court sentences within the applicable statutory ranges for abuse of discretion, as reaffirmed in Milbourn, is rooted not in Const 1963, art 1, § 16, but rather reflects the Legislature’s intent "in setting a range of allowable punishments for a single felony . . . .” 435 Mich 651. Milbourn obviously has no applicability to a legislatively mandated sentence because the trial court, in that case, lacks any discretion to abuse. Milbourn involved the relationship between the trial and appellate courts as they work together to fulfill the Legislature’s intent, under the belief "that judicial sentencing discretion should be exercised, within the legislatively prescribed range, according to the same principle of proportionality that guides the Legislature in its allocation of punishment over the full spectrum of criminal behavior.” Id. By contrast, the issue under Const 1963, art 1, § 16, as raised in these cases and others, concerns whether the punishment concededly chosen or authorized by the Legislature is so grossly disproportionate as to be unconstitutionally "cruel or unusual.”

Justice Riley would discard this Court’s unanimous decision in Lorentzen as "wrongly decided.” Post, p 46. It is true, of course, as Lorentzen itself conceded, that some of the early "cruel or unusual punishment” case law of this Court is equivocal and open to conflicting interpretation, but we must take issue with our colleague’s description of much of that case law.

For example, while our colleague cites language from People v Morris, 80 Mich 634; 45 NW 591 (1890), concededly supportive of her argument, see post, p 51, Morris also contains language that, in the alternative, applied proportionality analysis:

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. [Id. at 639. Emphasis added.]

Contrary to our colleague’s assertion, this Court’s decision in Robison v Miner, 68 Mich 549; 37 NW 21 (1888), did not involve only the "excessive fines” clause of Const 1850, art 6, § 31. Cf. Riley, J., post, p 49, n 6. In fact, the liquor law at issue authorized not only the imposition of fines but also imprisonment and, in the case of a second offense, suspension of the privilege of selling liquor for five years. Obviously, the latter penalty could not be regarded as a mere monetary "fine”; in describing the relevant issue, Robison quoted Const 1850, art 6, § 31 in its entirety, including the prohibition on "cruel or unusual punishment.” 68 Mich 559-560. Indeed, the ñnes imposed by the liquor law, like the imprisonment penalties, were upheld in Robison, and were not even regarded as central to the dispute. See id. at 560, 564; accord Luton v Newaygo Circuit Judge, 69 Mich 610, 613; 37 NW 701 (1888).

In striking down the five-year suspension penalty under Const 1850, art 6, § 31, Robison expressly emphasized the fact that such a penalty has a different and far more severe character than a mere monetary fine. See 68 Mich 562-563.

These punishments have always been regarded as incompatible with our institutions, and there can be no doubt that the cruel and unusual punishments forbidden by the United States Constitution had special reference to the barbarities of the old law of felony. It is equally clear that any fine or penalty is excessive which seriously impairs the capacity of gaining a business livelihood. The penalties in this act, which are imperative and not discretionary, must necessarily break up business, and are not measured by any standard of proportion or amount. [Id. at 563. Emphasis added.]

It is thus clear that Robison strongly foreshadowed the development of the proportionality component of our "cruel or unusual punishment” jurisprudence, as this Court-recognized in Lorentzen, 387 Mich 174. The only language from Robison quoted by our colleague is from the separate opinion of Chief Justice Sherwood, who dissented from the Robison Court’s decision to strike down the five-year suspension penalty as "cruel or unusual.” See 68 Mich 573; Riley, J., post, p 49, n 6. Even Chief Justice Sherwood, however, suggested agreement with the principle of proportionality, by stating that the issue was whether the Legislature’s "enactments are so far in excess of what is necessary to furnish the protection desired as to be obnoxious to the Constitution, which forbids 'cruel and unusual punishments’ . . . .” 68 Mich 574.

Our colleague suggests that People v Murray, 72 Mich 10; 40 NW 29 (1888), involved only nonconstitutional sentence review analogous to that applied in People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990). Riley, J., post, p 49, n 6. While it is true that Murray involved a judicially imposed discretionary sentence, rather than a sentence mandated by the Legislature, this Court stated that "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.” 72 Mich 17 (emphasis added). Murray thus clearly foreshadowed modern constitutional proportionality analysis. The fact that Murray also stated that "the present case shows an abuse of the discretion vested by the statute in the circuit judge,” id., thereby also foreshadowing Milbourn analysis to some extent, does not change the constitutional aspect of the case. See n 17 (explaining the distinction between Milbourn proportionality analysis and constitutional proportionality analysis).

Our colleague states that People v Armstrong, 73 Mich 288; 41 NW 275 (1889), "never addressed the issue” whether the challenged municipal handbill ordinance was unconstitutionally harsh, "because it found that the municipality did not have the authority to enact the ordinance in question.” Riley, J., post, p 50, n 6. Armstrong, however, stated:

The unreasonableness of this ordinance is made apparent when we consider the penalty which may be imposed for its violation, — a fine of $100, and costs of prosecution, and, in default of payment, imprisonment in the county jail or Detroit House of Correction for a period of six months. [73 Mich 295.]

The Court concluded: "This ordinance not only does not come within the power granted by the charter, but it is also unreasonable and unwarranted." Id. at 296 (emphasis added).

Our colleague makes short shrift of People v Mire, supra, which, as even she concedes, strongly supports Lorentzen’s proportionality approach. See Riley, J., post, p 52; Mire, 173 Mich 361-362, quoted in Lorentzen, 387 Mich 175-176. Mire has never been overruled or questioned by this Court. We disagree with our colleague’s contention that Mire was "abandoned” in Smith v Wayne Probate Judge, 231 Mich 409; 204 NW 140 (1925). See Riley, J., post, p 52. Smith did not cite Mire and did not address the proportionality issue. Chief Justice McDonald’s plurality opinion merely found that the involuntary sterilization of "feeble-minded persons” did not involve any "element of punishment,” being supposedly "analogous to compulsory vaccination,” and that the "cruel or unusual punishment” clause was therefore not even implicated. 231 Mich 416. We agree fully with the unremarkable dicta in Smith (quoted with emphasis by our colleague, Riley, J., post, pp 52-53) to the effect that the purpose of the clause "is to place a limitation on the power of the legislature in fixing punishment for crimes,” and that "[i]t has reference only to punishments inflicted after convictions of crimes.” 231 Mich 416. This dicta obviously sheds no light on what the scope of that "limitation” is.

Lorentzen cited still other cases which-arguably or implicitly support some form of proportionality analysis. -387 Mich 176. Thus, we can only beg to differ with our colleague’s assertion that "proportionality is not, and has never been, a component of the 'cruel or unusual punishment’ clause of this state’s constitution,” Riley, J., post, p 46, and especially her assertion that "an opposite conclusion cannot be seriously maintained,” Riley, J., post, p 62. To the extent that language in some of the early case law may be equivocal or in conflict, Lorentzen long ago answered the question which tendency this Court, in modern times, has found most persuasive.

To be sure, it may be argued that possession of such a large quantity of drugs is a fact from which, depending on the context, a jury might properly infer an intent to sell or distribute. We agree, and it is entirely possible that the evidence in this case would have been sufficient to support convicting both defendants of possession with intent to sell or deliver. But no jury drew, or was asked to draw, such an inference with regard to these defendants. By choosing to prosecute these defendants solely for possession, the people avoided the need to meet the heavy burden of proof beyond a reasonable doubt that these defendants intended to sell or distribute. Therefore, they must be deemed innocent of any such intent for purposes of analyzing the facial proportionality of the disputed penalty to the offense for which it is imposed. It would be inconsistent with the most basic norms of our system of justice to treat these defendants, for present purposes, as guilty of a crime of which they were never convicted, and for which the people never even sought to prosecute them.

Indeed, we may take judicial notice that the penalty has already been applied to several teenage first offenders.

According to her presentence investigation report, Bullock was convicted of three misdemeanors in 1960, when she was twenty years old: drunkenness ($5 fine), operating a vehicle with a suspended license (fine and costs of $18), and gambling (fine and'costs of $15 and fifteen days in jail). It would be unrealistic to view such youthful indiscretions almost thirty years prior to the instant offense as indicative of any deep-seated criminal or recidivist tendencies.

We are not unmindful of the fact that the two defendants before us present markedly different backgrounds, and that Hasson’s background appears to be far less sympathetic than Bullock’s. Cf. Boyle, J., post, p 72, n 5. The penalty at issue, however, was imposed on both defendants without regard for either’s particular record or individual circumstances. Because of the mandatory character of the penalty, no sentencing hearings were ever held. While the record before us contains presentence investigation reports prepared with regard to e'ach defendant, neither the people nor the defendants had any incentive to challenge the accuracy, weight, or significance of the information contained therein. Thus, we could not, at this particular stage of the litigation, properly analyze the constitutionality of the penalty as applied to these particular defendants. We must simply determine whether the penalty is facially unconstitutional in light of the specific crime for which it is imposed. Because we conclude that it is, we need not express any view regarding how defendant Hasson’s alternative as-applied challenge to the penalty would properly have been dealt with, or whether a remand for sentencing hearings would have been necessary with regard to both Bullock and Hasson, in order to properly address any as-applied challenge. Cf. Boyle, J., post, p 72, n 5; Mallett, J., post, p 45.

We note that a defendant’s prior record and individual circumstances are, of course, properly subject to consideration by the parole board, within the limits provided by law, in reaching any determination with regard to granting parole. See part III; MCL 791.233(1)(a), 791.235; MSA 28.2303(1)(a), 28.2305.

Because the penalty at issue here so clearly fails under the three primary prongs of the Lorentzen-Solem analysis, we need not address at any length the fourth Lorentzen factor relating to the goal of rehabilitation. We believe, however, that application of that factor would clearly support our conclusion that this penalty is "cruel or unusual.” As Justice Boyle suggested in People v Schultz, 435 Mich 517, 533-534; 460 NW2d 505 (1990), even the compelling interests underlying the "public policy that decries the scourge of drugs” should not be permitted to overwhelm "the equally important belief that only the rarest individual is wholly bereft of the capacity for redemption.”

Thus, while we agree with Justice Riley’s admonition that "it is not within the power of this Court to correct the perceived injustice by judicially legislating a socially or politically desirable result,” post, p 56, we disagree with her assertion that our decision today conflicts with that principle. Furthermore, we note that our colleague herself offers no method by which to determine what kinds of punishments are forbidden under Const 1963, art 1, § 16, other than the vague and unworkable test of whether a punishment is "inhumane and barbarous,” post, p 47, or perhaps whether it is analogous to "the abuses imposed by the Stuarts, during the reign of King James II,” post, p 54. Because our colleague evidently does not find mandatory life imprisonment without possibility of parole to be "inhumane and barbarous,” and because she rejects any principle of proportionality, it would seem to follow under her analysis that this Court would be compelled to uphold such a penalty even if imposed on a child for stealing a loaf of bread, or on a forgetful taxpayer who fails to file a return on time.

When pressed at reargument to specify which feature of the penalty was constitutionally most offensive, counsel for Hasson specified the parole aspect. Indeed, counsel for Hasson suggested that he did not think a life sentence with the possibility of parole would be unconstitutional.

Any persons currently incarcerated under the same penalty and for the same offense as the defendants at bar, who have already served ten calendar years of their sentences, shall become immediately subject to the jurisdiction of the parole board and eligible for parole consideration according to law.

We acknowledge that our decision today may have the effect of creating an arguable incongruity in the statutory scheme governing cocaine possession. The penalty for possessing 225 to 650 grams of cocaine is arguably more severe than the penalty for possessing 650 grams or more as modified by our decision today, in that the penalty for the former offense is a mandatory minimum sentence of twenty years in prison with no possibility of parole. MCL 333.7403(2)(a)(ii), 791.234(4); MSA 14.15(7403)(2)(a)(ii), 28.2304(4). On the other hand, the penalty for possessing 225 to 650 grams, unlike that for possessing 650 grams or more, permits a downward departure from the minimum sentence "if the court finds on the record that there are substantial and compelling reasons to do so.” MCL 333.7403(3); MSA 14.15(7403)(3). In any event, the validity of the penalty for possession of 225 to 650 grams is not before us in this case. Furthermore, the Legislature remains free to modify the statutory scheme in response to our decision today, either prospectively or, in the case of any ameliorative modifications, both prospectively and retrospectively. See People v Schultz, 435 Mich 517; 460 NW2d 505 (1990).