Carmona v. Ward

576 F.2d 405

Opinions

MULLIGAN, Circuit Judge:

Benjamin Ward, Commissioner of the New York State Department of Correctional Services, Frances Clement, Superintendent, Bedford Hills Correctional Facility, Frank Caldwell, Acting Chairman of the New York State Board of Parole, and the New York State Board of Parole (Respondents-Appellants), appeal from an order entered on August 17, 1977 by the Hon. Constance B. Motley in the United States District Court for the Southern District of New York. The order resulted from a habeas corpus proceeding challenging the constitutionality of the confinement of petitioners Martha Carmona, Roberta Fowler and Donna Foggie.¹ The court found that the indeterminate sentences being served by Carmona and Fowler were unconstitutional because of the maximum mandatory life terms which were imposed. It ordered that the petitioners be discharged from custody at the expiration of their minimum terms of imprisonment unless new maximum sentences were imposed which, in the judgment of the district court, were “constitutionally appropriate.” The decision and order of Judge Motley are reported at 436 F.Supp. 1153. We reverse that portion of the order which has been appealed and remand for the entry of an order in accordance with this decision.

I

A) Carmona

Appellee Carmona has been convicted in both the state and federal courts on narcotics related charges. In May 1974 she was indicted on federal charges of conspiracy and two substantive counts of possession of cocaine with intent to distribute it. Eventually, these charges were satisfied by Carmona’s pleading guilty to one substantive count. Undaunted by her federal indictment, she continued pursuing her trade. An authorized search of her apartment by the New York City Police Department on July 30, 1974 resulted in the finding of 3% ounces of cocaine, some marijuana and paraphernalia associated with drug dealing. She was indicted by a state grand jury in Bronx County on August 13, 1974. The most serious count in the indictment was for possession of a controlled substance in the first degree, an A-I felony with a mandatory minimum sentence of at least 15 years. When she was arrested on July 30, Carmona confessed to possession of the cocaine for the purpose of selling it to a buyer with whom she had already contracted for the sale. The appellee was also subsequently indicted by a state grand jury for sales of heroin to undercover agents on May 30, 1974 and June 24, 1974.

Carmona indicated her willingness to cooperate with the police so that she would be eligible for lifetime parole under N.Y. Penal Law §§ 65.00(l)(b), (3)(a)(ii).² However, she adamantly refused to reveal her supplier of narcotics. The information she did offer was already known to the law enforcement agents. Therefore, having failed to provide material assistance she was not eligible under the statute for lifetime parole.

In satisfaction of all outstanding charges, Carmona was allowed to plead guilty to possession of a controlled substance (cocaine) in the second degree, an A-II felony. On January 31, 1975 her plea was accepted by Justice Cohen of the Supreme Court, Bronx County and, on March 10, 1975, she was sentenced to a term of imprisonment of six years to life. This was the least severe sentence allowed under the law. N.Y. Penal Law §§ 70.00-1, 70.00-2(a), 70.00-3(a)(ii).

Investigation had revealed that Carmona was living in a lavishly furnished apartment and enjoying a comparatively high standard of living without any known legal means of support. The reasonable inference is that appellee supported herself by drug trafficking as evidenced by her frequent narcotic-related encounters with the legal system in 1974.

B) Fowler

Appellee Fowler also had extensive firsthand experience with the criminal justice system. Her prior record was succinctly set out by Judge Motley:

On April 27, 1972, Ms. Fowler was arrested and charged with criminal possession of a hypodermic instrument (Penal Law § 220.45) and criminal use of drug paraphernalia in the second degree (Penal Law § 220.50). She was adjudged guilty of both charges and sentenced to three years probation. On June 29, 1972, she was arrested and charged with prostitution (Penal Law § 230.00). She was found guilty on August 9, 1972, and was sentenced to one year’s probation. On February 22, 1973, she was again arrested, charged with prostitution and found guilty on July 30,1973. On July 10,1973, she was arrested and charged with obstructing government administration (Penal Law § 195.05), possession of a dangerous drug (Penal Law § 220.05) [now repealed] and possession of stolen property (Penal Law § 165.45). These charges were dismissed because she pleaded guilty to another charge on July 30,1973. On July 12, 1973, she was arrested and charged with petit larceny (Penal Law § 155.25), criminal possession of stolen property in the third degree (Penal Law § 165.40), and possession of a forged instrument in the second degree (Penal Law § 170.25). On July 30,1973, she was convicted of petit larceny and conditionally discharged on three years probation.

436 F.Supp. at 1159 n.13.

On September 25, 1973 Fowler sold $20 worth of cocaine to a police undercover agent. After a jury trial, appellee was sentenced to a term of four years to life for an A-III felony. Her sentence was upheld unanimously by both the Appellate Division, 46 A.D.2d 838, 361 N.Y.S.2d 408 (3d Dep’t 1974), and the New York Court of Appeals, People v. Broadie, 37 N.Y.2d 100, 371 N.Y.S.2d 471, 332 N.E.2d 338, cert. denied, 423 U.S. 950, 96 S.Ct. 372, 46 L.Ed.2d 287 (1975), in face of an attack that the sentence was unconstitutional because it constituted cruel and unusual punishment.

C) Proceedings Below.

Appellees in their 28 U.S.C. § 2254 petitions launched a broad-based attack on the constitutionality of certain sections of the New York Penal Law, Criminal Procedure Law, and Correction Law, as amended in 1973, (1973 Drug Law) which apply to class A felony offenders, and under which Carmona and Fowler were sentenced.³ Judge Motley held:

[I]n the case of Ms. Carmona and Ms. Fowler, the life sentences are so disproportionately severe as to violate the Eighth Amendment. The court does not thereby hold, of course, that the life sentences provided for class A felons could never be applied in any case consistent with the strictures of the Eighth Amendment.

436 F.Supp. at 1174 n.78. The major question on appeal is whether the mandatory maximum sentence of life imprisonment imposed on appellees is unconstitutional under the Eighth Amendment.⁴

II

At the outset we recognize that the constitutional prohibition is not limited to sanctions which involve torture or other barbaric modes of punishment. Since Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910) there has been a growing acceptance of the proposition that punishment which is disproportionate to the gravity of the crime committed is violative of the Eighth Amendment. Downey v. Perini, 518 F.2d 1288 (6th Cir.), vacated and remanded, 423 U.S. 993, 96 S.Ct. 419, 46 L.Ed.2d 367 (1975); Griffin v. Warden, 517 F.2d 756 (4th Cir.), cert. denied, 423 U.S. 990, 96 S.Ct. 402, 46 L.Ed.2d 308 (1975); In re Lynch, 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921 (1973); People v. Lorentzen, 387 Mich. 167, 194 N.W.2d 827 (1972); Wheeler, Toward a Theory of Limited Punishment: An Examination of the Eighth Amendment, 24 Stanford L.Rev. 838, 853 (1972); Granucci, “Nor Cruel and Unusual Punishments Inflicted:” The Original Meaning, 57 Calif.L.Rev. 839 (1969); Note, Drug Abuse, Law Abuse and the Eighth Amendment: New York’s 1973 Drug Legislation and the Prohibition against Cruel and Unusual Punishment, 60 Cornell L.Rev. 638, 645-46 (1975); 44 Ford-ham L.Rev. 637 (1975). This principle was recognized by the district court here as well as the New York Court of Appeals in Broadie. We do not take issue therefore with the principle applied but rather find that the court below erred in its application.

There is no direct authority in the Supreme Court to guide us since, as the district court acknowledged, 436 F.Supp. at 1163, that Court has never found a sentence imposed in a criminal case violative of the Eighth Amendment merely because of its length. Downey v. Perini, supra; 44 Ford-ham L.Rev. 637, 644 (1975). Since the passage of the Eighth Amendment a majority of the Supreme Court has struck down only two non-capital punishments as cruel and unusual. Both involved elements of cruelty and not simply excessive terms.⁵ The Court has recently given plenary review to cases involving capital punishments and concluded that in some instances the death penalty is proscribed by the Eighth Amendment.⁶ The capital punishment cases provide some instruction here, particularly on the great deference which is to be given to the legislative election of penalties. Although on this appeal it was suggested that a mandatory life sentence is a more egregious penalty than death, the hyperbole in that argument was succinctly exposed by Mr. Justice Marshall in his separate concurring opinion in Furman v. Georgia, 408 U.S. 238, 346, 92 S.Ct. 2726, 2781, 33 L.Ed.2d 346 (1972):

Death is irrevocable; life imprisonment is not. Death, of course, makes rehabilitation impossible; life imprisonment does not. In short, death has always been viewed as the ultimate sanction, and it seems perfectly reasonable to continue to view it as such.

While we have no Supreme Court case directly in point, we accept the proposition that in some extraordinary instance a severe sentence imposed for a minor offense could, solely because of its length, be a cruel and unusual punishment. This is not the case at hand.

A. The Test

As it has developed, the “proportionality” test for determining whether a sentence for a crime is so excessive as to violate the Eighth Amendment consists of three steps: 1) a judgment on the seriousness of the offense; 2) a comparison of the punishment imposed with that fixed for other crimes within the jurisdiction; and 3) a comparison of the sentence under review with those authorized in other jurisdictions for the same crime. Hart v. Coiner, 483 F.2d 136 (4th Cir. 1973), cert. denied, 415 U.S. 938, 94 S.Ct. 1454, 39 L.Ed.2d 495 (1974); In re Lynch, supra; People v. Broadie, supra; 44 Fordham L.Rev. 637 (1975); 1976 Wisconsin L.Rev. 655. Although the aim of this test is to reduce the amount of judicial subjectivity in Eighth Amendment jurisprudence, it is quite obvious that the first step can easily become a vehicle for the substitution of the policy views of individual judges for those of the legislature. Rummel v. Estelle, 568 F.2d 1193, 1202 n.3 (5th Cir. 1978) (Thornberry, J., dissenting); 52 N.C.L.Rev. 442, 452-53; 1976 Wisconsin L.Rev. 655, 667-69; see Morris, The Future of Imprisonment: Toward a Punitive Philosophy, 72 Mieh.L.Rev. 1161, 1172-73 (1974); Wheeler, Toward a Theory of Limited Punishment: An Examination of the Eighth Amendment, 24 Stanford L.Rev. 838, 856-62 (1972). The Supreme Court has enunciated guidelines which restrain a court in its review of the legislative conclusion as to the danger represented by a crime. It is not open to question that this determination in the first instance is legislative and not judicial. “[T]he power of punishment is vested in the legislative, not in the judicial department. It is the legislature, not the court, which is to define a crime, and ordain its punishment.” United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 93, 5 L.Ed. 37 (1820) (Marshall, C. J.); see Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958). As Mr. Justice Stewart stated in his opinion in Gregg v. Georgia, 428 U.S. 153, 175-76, 96 S.Ct. 2909, 2926, 49 L.Ed.2d 859 (1976):

Therefore, in assessing a punishment selected by a democratically elected legislature against the constitutional measure, we presume its validity. We may not require the legislature to select the least severe penalty possible so long as the penalty selected is not cruelly inhumane or disproportionate to the crime involved. And a heavy burden rests on those who would attack the judgment of the representatives of the people.

This is true in part because the constitutional test is intertwined with an assessment of contemporary standards and the legislative judgment weighs heavily in ascertaining such standards. “[I]n a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people.” Furman v. Georgia, supra [408 U.S.], at 383 [92 S.Ct., at 2800] (Burger, C. J., dissenting). The deference we owe to the decisions of the state legislatures under our federal system, id., at 465-470 [92 S.Ct., at 2842-2844] (Rehnquist, J., dissenting), is enhanced where the specification of punishments is concerned, for “these are peculiarly questions of legislative policy.” Gore v. United States, 357 U.S. 386, 393 [78 S.Ct. 1280, 1285, 2 L.Ed.2d 1405] (1958). Cf. Robinson v. California, 370 U.S., at 664-665 [82 S.Ct., at 1419-1420]; Trop v. Dulles, 356 U.S., at 103 [78 S.Ct., at 599] (plurality opinion); In re Kemmler, 136 U.S. [436], at 447 [10 S.Ct. 930, at 933, 34 L.Ed. 519]. Caution is necessary lest this Court become, “under the aegis of the Cruel and Unusual Punishment Clause, the ultimate arbiter of the standards of criminal responsibility . . throughout the country.” Powell v. Texas, 392 U.S. 514, 533 [88 S.Ct. 2145, 2154, 20 L.Ed.2d 1254] (1968). A decision that a given punishment is impermissible under the Eighth Amendment cannot be reversed short of a constitutional amendment. The ability of the people to express their preference through the normal democratic processes, as well as through ballot referenda, is shut off. Revisions cannot be made in the light of further experience. See Furman v. Georgia, supra [408 U.S.], at 461-462 [92 S.Ct., at 2839-2840] (Powell, J., dissenting).

We glean from these opinions the guidelines which are here controlling. The paramount role of determining that the punishment fit the crime is that of the legislature of the state. Obviously that legislative discretion is not untrammeled. The Eighth Amendment precludes the state from wanton cruelty or a callous indifference lest a cruel and unusual punishment be inflicted. However, in view of the deference we must pay under our federal system to the judgment of the state legislature charged with the responsibility of assessing and reflecting the contemporary standards of its constituency which elected it to office, the policy which motivated its decision must be reviewed with great caution lest, in the guise of judicial review, we substitute our views on this pressing social problem for those of the elected representatives of the people. We must assume the penalty’s validity and a heavy burden rests upon those who make the constitutional challenge.

B. The Grime

The crucial issue therefore becomes whether the New York State Legislature’s assessment of the dangerousness of the crimes of selling and of possessing cocaine with an intent to sell it, as reflected in the punishment imposed, is so unreasonable that it violates the constitution by allotting an excessively severe penalty for the crime. In deciding this issue, we must bear in mind the legislature’s obvious institutional advantage in determining the magnitude of the harm done to societal interests and the public weal.⁷ We have the benefit here of the scholarly and thorough opinion of Chief Judge Breitel for the unanimous New York Court of Appeals in People v. Broadie, supra, in which that court, after applying the same test as did the federal district court below, upheld the constitutionality of the 1973 Drug Law provisions now under at tack. Broadie involved consolidated appeals from three Appellate Departments of the Supreme Court of New York. The intermediate appellate courts had unanimously upheld those statutes in face of an Eighth Amendment attack.⁸ One of the appellants in Broadie was Roberta Fowler, who is an appellee here.

Judge Breitel’s analysis was penetrating: The gravity of the offense is obviously key, as is the gravity of the danger which the offender poses to society. Given grave offenses committed or committable by dangerous offenders, the penological purposes of the sentencing statutes, whether they be the rehabilitation or isolation of the offenders or the deterrence of potential offenders, will be decisive.

In assessing the gravity of a criminal offense, the primary consideration is the harm it causes society. The Legislature, in making this assessment, could properly view criminal narcotics sales not as a series of isolated transactions, but as symptoms of the widespread and pernicious phenomenon of drug distribution. Social harm in drug distribution is great indeed. The drug seller, at every level of distribution, is at the root of the pervasive cycle of destructive drug abuse.

Defendants would minimize drug trafficking by arguing that it is not a crime of violence. Because of their illegal occupation, however, drug traffickers do often commit crimes of violence against law enforcement officers and, because of the high stakes, engage in crimes of violence among themselves.

More significant, of course, are the crimes which drug traffickers engender in others. The seller often introduces the future addict to narcotics. The addict, to meet the seller’s price, often turns to crime to “feed” his habit. Narcotics addicts not only account for a sizable percentage of crimes against property; they commit a significant number of crimes of violence as well.

Thus the Legislature could reasonably have found that drug trafficking is a generator of collateral crime, even violent crime. And violent crime is not, of course, the only destroyer of men and the social fabric. Drug addiction degrades and impoverishes those whom it enslaves. This debilitation of men, as well as the disruption of their families, the Legislature could also lay at the door of the drug traffickers.

Measured thus by the harm it inflicts upon the addict, and, through him, upon society as a whole, drug dealing in its present epidemic proportions is a grave offense of high rank.

37 N.Y.2d at 112-13, 371 N.Y.S.2d at 476-77, 332 N.E.2d at 342 (citations omitted).

Judge Motley, however, found the reasoning of Broadie flawed because “a penalty cannot be justified solely by the potential [of that crime] for more serious conduct even though it may be violent or dangerous.” 436 F.Supp. at 1169. We cannot agree.⁹ As the First Circuit has recently explained, “Society has a right to prohibit and punish not only overtly criminal conduct but other conduct which creates danger, or a sufficient probability of danger, to the community at large.” McQuoid v. Smith, 556 F.2d 595, 599 (1st Cir. 1977). Indeed, it is a truism that “[i]njury to society need not be direct harm to a person or his property; it can be the slow undermining of societal values and rules believed to be necessary to enable men to live together in peace . . . .” Wheeler, Toward a Theory of Limited Punishment: An Examination of the Eighth Amendment, 24 Stanford L.Rev. 838, 851 (1972).

As Judge Marvin Frankel has pointed out, “Drug abuse . . . may be our most harrowing problem today.” M. Frankel, Criminal Sentences 99 (1973). Drug abuse has become epidemic, particularly in New York City which has more than half of all the drug addicts in the nation. People v. Broadie, supra, 37 N.Y.2d at 116, 371 N.Y.S.2d at 480, 332 N.E.2d at 345. The crime it spawns is well recognized. Addicts turn to prostitution, larceny, robbery, burglary and assault to support their habits. The profits are so lucrative that police and law enforcement agents have become corrupted.¹⁰ Human lives have become degraded. How could any responsible legislative body in determining the gravity of drug selling fail to take into consideration the contagious, epidemic menace to the health, safety and welfare of the citizenry that it poses? Indeed, the legislature’s failure to recognize the severity of the assault on the societal interests of the community would, in fact, be a cause for alarm.

Appellees urge that the amounts of drugs involved here were small.¹¹ However, the petitioners were unquestionably engaged in sale for a profit. The nature of the drug trafficking trade is well known — it is a highly organized venture involving importation or manufacture by major groups who in turn supply wholesalers who sell to retailers with eventual peddling by those who sell small quantities to consumers. The entire system depends upon ultimate disposition by sellers such as the defendants here, who as Judge Breitel has pointed out are, “the crucial link” in the pernicious cycle spawning the addiction which creates other sellers. People v. Broadie, supra, 37 N.Y.2d at 114, 371 N.Y.S.2d at 478, 332 N.E.2d at 343. We conclude that the legislature could only properly judge the severity of the crime involved by considering the well understood and undisputed operating procedures of the dirty business involved and its disastrous consequences.¹²

C. The Punishment

The power of the state to regulate drug traffic within its borders in the interest of public health and welfare is firmly established. Whipple v. Martinson, 256 U.S. 41, 45, 41 S.Ct. 425, 65 L.Ed. 819 (1921). The discretion of the legislature in this area is unquestionably broad. As Mr. Justice Stewart pointed out in his opinion for the Court in Robinson v. California, 370 U.S. 660, 664, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), the state’s regulation of drugs may take a variety of forms. “[T]he range of valid choice which a State might make in this area is undoubtedly a wide one, and the wisdom of any particular choice within the allowable spectrum is not for us to decide.” Id. at 665, 82 S.Ct. at 1420.

The New York experience in attempting to combat the drug problem is instructive. In 1967 Governor Rockefeller sponsored a provision which eventually became § 220 of the New York Penal Code. That statute created a Narcotics Addiction Control Commission with the laudable purpose of emphasizing treatment of the addict and not incarceration. The program cost the New York taxpayers over $1 billion between 1967 and 1973. The vast majority of those who were treated were not cured but in fact became recidivists. Criminal Law, 1976 Annual Survey of American Law 313, 353 n.268. See also Hardt and Brooks, Social Policy on Dangerous Drugs: A Study of Changing Attitudes in New York and Overseas, 48 St. John’s L.Rev. 48 (1973). In his message to the legislature in 1973 the Governor stated, “Either we can go on as we have been, with little real hope of changing the present trend; [o]r we must take those stern measures that, I have become convinced, common sense demands.” 1973 N.Y.Leg.Doc. No. 1 at 18. The 1973 law was quite clearly a direct response to popular concern over the escalating crime rate. Id. at 16. “A Gallup poll in that year revealed that almost seventy percent of Americans supported harsher drug penalties. In fact, during the 1973 session, many members of the New York state legislature favored even more stringent penalties than were ultimately adopted. The original bill submitted to the legislature, which called for a life sentence without parole for the sale of any amount of narcotic drugs, hallucinogens, or amphetamines, commanded substantial support.” Criminal Law, 1976 Annual Survey of American Law 313, 353 (footnotes omitted).

The law under attack here is summarized in note 3. Its purposes were isolation and deterrence. People v. Broadie, supra, 37 N.Y.2d 114, 371 N.Y.S.2d 478, 332 N.E.2d 343. The New York statute differentiates among defendants with respect to minimum terms depending upon the amount and type of drug sold. The court below found that the imposition of the mandatory life imprisonment term was excessively disproportionate to the crimes here committed. 436 F.Supp. at 1172. The district court recognized that it was entirely possible and even probable that both appellees would be released from prison substantially before the expiration of their maximum term. Nonetheless it held for “. . . Eighth Amendment purposes, the court must judge the severity of their punishments by looking to the maximum term possible under the judgment of the sentencing court — in this case, life imprisonment.” Id. at 1165. This was because the court determined appellees had no right to release at an earlier time but “only after full service of [their] sentence[s]”, Menechino v. Oswald, 430 F.2d 403, 408 (2d Cir. 1970), cert. denied, 400 U.S. 1023, 91 S.Ct. 588, 27 L.Ed.2d 635 (1971), and their release was within the discretion of the Parole Board. Id. The court relied on People v. Broadie, supra, and In re Lynch, supra, for its conclusion that the sentences must be judged by their maximum.¹³

We cannot agree that the recognized probability of parole in the cases before us was to be ignored when the court determined whether the statutory punishment was unconstitutional as applied to appellees. On the one hand, we are asked to look at all the circumstances which would ameliorate the seriousness of petitioners’ offenses and their individual culpability in order to justify a finding that their punishment was constitutionally offensive. On the other hand, we are asked in effect to consider the appellees so incorrigible that they must be deemed destined to durance vile for the rest of their natural lives because they will never be paroled. We do not consider this to be a realistic or practical approach. See 61 Calif.L.Rev. 418, 422 (1973).

We are told that the New York Parole Board is stringent, that it lacks standards and that its determinations are beyond the jurisdiction of the federal court. The suggestion that the federal court act as a New York parole board determining which prisoner should be released and under what conditions is not at all palatable as a practical matter, Wolfish v. Levi, 573 F.2d 118, 120 (2d Cir. 1978), to say nothing of the offense to the principles of comity and federalism. Cf. Rizzo v. Goode, 423 U.S. 362, 378-81, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). This court has properly reviewed cases where state prisoners have alleged denial of due process rights or other constitutional imperfections in parole procedures.¹⁴ There is no reason to anticipate that either the petitioners here will be denied a constitutionally proper parole hearing or that the federal courts will hesitate to intervene if their constitutional rights are violated in the state proceedings. We conclude that in determining the severity of the sentences imposed here we cannot consider them equivalent to life sentences without parole.¹⁵ Rather we must view the punishment as set forth by the statute which provides that the defendants here are eligible for parole, as are all other felons in the state, at the conclusion of their mandatory minimum sentences.

In determining the severity of the sentences imposed, we properly take into account the punishment levied by the State of New York for other serious crimes as well as the punishment levied by other jurisdictions for the crime charged. Coker v. Georgia, supra, 97 S.Ct. at 2867-68 (plurality opinion). In People v. Broadie, supra, 37 N.Y.2d at 115-16, 371 N.Y.S.2d at 479-80, 332 N.E.2d at 344-345, as well as below, 436 F.Supp. at 1166, this issue was thoroughly canvassed. In New York murder in the first and second degree, arson in the first degree and kidnapping in the first degree are the only crimes which carry mandatory life terms.¹⁶ As Judge Oakes indicated in United States ex rel. Daneff v. Henderson, 501 F.2d 1180, 1184 (2d Cir. 1974), quoting Pennsylvania v. Ashe, 302 U.S. 51, 55, 58 S.Ct. 59, 82 L.Ed. 43 (1937), “The comparative gravity of criminal offenses, and whether their consequences are more or less injurious, are matters for [the state’s] determination.” Collins v. Johnston, 237 U.S. 502, 510, 35 S.Ct. 649, 653, 59 L.Ed. 1071 (1915); Howard v. Fleming, 191 U.S. 126, 135-36, 24 S.Ct. 49, 48 L.Ed. 121 (1903). Our inquiry is therefore limited. The purposes of the Drug Law of 1973 were isolation and deterrence, rehabilitation having failed. The law was enacted after thorough study and investigation. Drug trafficking and its attendant evils posed an imminent- threat to the community which the legislature could reasonably consider to be comparable to or of greater import than arson, kidnapping, manslaughter or rape. We cannot sensibly characterize that determination as arbitrary or irrational.¹⁷ It is also conceded that New York punishes drug trafficking more harshly then other jurisdictions, People v. Broadie, supra, 37 N.Y.2d at 116, 371 N.Y.S.2d at 480, 332 N.E.2d at 345; 436 F.Supp. at 1166-68; but again, the problem is more severe there as New York city houses more than half of all the addicts in the entire United States. If the punishment must fit the crime, the legislature must look at the crime as found in its own borders and the action of the states faced with drug problems of lesser magnitude are of little relevance. In Coker, supra, the plurality compared the punishment levied by various states for the crime of rape and found Georgia’s punishment of death was unique. But there was no indication that Georgia was the rape capital of the United States. Unfortunately, the plague which is here under attack is most virulent in New York and the response of that state was predictably more harsh. See Rummel v. Estelle, supra, 568 F.2d at 1200 n.13.

Appellees finally urge that under Coker v. Georgia, supra, 97 S.Ct. at 2865 (plurality opinion), the court below could also have found the punishment to be judged excessive if it “makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering.” Of course Coker involved the death penalty which, as we have observed, is the ultimate sanction and thus “occupies a special place in eighth amendment jurisprudence.” Hall v. McKenzie, 537 F.2d 1232, 1235 (4th Cir. 1976). Appellees urge however that the 1973 Drug Law has not worked and therefore, since it has not fulfilled its purpose, it is “[a] purposeless and needless imposition of pain and suffering.”

The Coker test of excessiveness quoted above was derived from Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976) (opinion of Stewart, J., concurred in by Powell and Stevens, JJ.), which indicated that punishment is excessive if it involves "the unnecessary and wanton infliction of pain.” Since we have already determined that the punishment was not “grossly out of proportion to the severity” of the crime, we cannot view it as an unnecessary and wanton infliction of pain. Certainly its stated purposes to achieve the isolation and the deterrence of drug traffickers are acceptable goals of punishment. Trop v. Dulles, 356 U.S. 86, 111, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (Brennan, J., concurring). Appellees’ argument really is that the statute has not worked and is therefore an imprudent or unwise penalty. But the cases have emphasized that it is not our function to determine the wisdom of the legislative determination. We cannot equate lack of wisdom with wanton infliction of needless pain. Appellees urge that we take into consideration the views of bar associations, penologists and even prosecutors who have expressed the view that the 1973 Drug Law penalties have not stopped the problem. They urge that drug addition continued to be epidemic and that violent drug-related crime persists.¹⁸ This argument of course not only emphasizes the gravity and enormity of the crime but it clearly suggests the proper tribunal to which such complaints should be made — the legislature of the State of New York. Governor Carey earlier this year appointed a distinguished committee of those experienced in penology and criminology to study sentencing in New York and admittedly that committee will study the statutes here under attack.¹⁹

It is not our function, nor are we adequately equipped to determine what measures the legislature should take and how effective such measures may prove to be in comparison to those previously tried. We cannot easily characterize the legislature of New York as retrograde, reactionary or arbitrary. We do not judge either the wisdom of the 1973 Drug Law or its efficacy. Our role is not to grant an imprimatur but only to determine whether the punishment meted out here is so egregious as to trans gress the constitutional inhibition against cruel and unusual punishments. No decision of the Supreme Court, this court or the highest court of the State of New York has ever found a sentence of imprisonment to transgress the Eighth Amendment merely because of its length. There may well be such a case but this is surely not it. In view of, the extraordinary crisis faced by the State of New York, caused by the crime of drug trafficking, we cannot agree with the district court that the punishments meted out to the appellees here are constitutionally defective. We therefore reverse the district court judgment and remand for the entry of an order in accordance with this opinion.

Footnotes

1

. At the time of the district court’s order, Foggie was out on parole after having served approximately one year of her one year to life sentence. The court dismissed her petition without prejudice to later challenging a state determination not to discharge her from parole custody as soon as she was eligible under New York law for such consideration. In addition, Judge Motley dismissed her petition without prejudice to filing a new petition challenging her original maximum sentence in the event she was re-imprisoned pursuant thereto. Foggie has not appealed from this order.

2

. The lifetime parole provision of the 1973 Drug Law has been amended. See note 13, infra.

3

. The 1973 Drug Law provided, inter alia, for indeterminate sentences for all narcotic drug sales and for possession of narcotic drugs in quantities in excess of one ounce. Mandatory maximum life sentences were to be imposed for all class A drug felonies. N.Y.Penal Law § 70.00-2(a). For an A-l felony the minimum sentence permitted was 15 years, for an A-II felony it was six years and for an A-III felony it was one year. N.Y.Penal Law §§ 70.00-3(a)(i), (ii), (iii), 220.43, 220.41, 220.39. Cocaine, the drug involved in this appeal, is classified as a narcotic drug. Penal Law § 220.00(7); N.Y.Public Health Law § 3306. See notes 13 & 19, infra, for other provisions.

4

. Appellees also make an °qual protection attack on the sentencing statutes. Judge Motley rejected this argument below. 436 F.Supp. at 1173-76. Although Eighth Amendment and Equal Protection analysis are not identical, there are similar elements involved in the two tests. See Furman v. Georgia, 408 U.S. 238, 257, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (Douglas, J., concurring); Rudolph v. Alabama, 375 U.S. 889, 84 S.Ct. 155, 11 L.Ed.2d 119 (1963) (Goldberg, J., dissenting from denial of cert.). Here where no suspect class or fundamental interest is involved, we find that a punishment which is not so excessive in relation to the crime as to violate the Eighth Amendment, is not so irrational as to violate the Fourteenth.

Appellees also argue that the failure by the legislature when basing the crime to be charged on the aggregate weight of the drug to distinguish between possession of a pure and of a cut ounce of cocaine is so irrational as to make the statute constitutionally infirm. We find Judge Oakes’ opinion in United States ex rel. Daneff v. Henderson, 501 F.2d 1180 (2d Cir. 1974) persuasive on this point and therefore reject the argument.

5

. In Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910) the Court found that a penalty imposed in the then United States possession, the Philippines, for the crime of falsification of documents was cruel and unusual. The punishment provided, inter alia, for 15 years painful labor while chained at the hands and the wrists, lifetime supervision and civil interdiction. In Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962) the Court held that imprisonment for the status of being a drug addict was cruel and unusual punishment. A plurality of the Supreme Court in Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) found that after a deserter from the armed forces was courtmartialed and given a dishonorable discharge to further punish him by stripping him of his citizenship violated the Eighth Amendment.

6

. E. g., Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977); Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

7

. As one commentator has noted:

[T]he severity half of the proportionality equation for crimes and punishments is evolutionary and depends directly upon the manner in which the public views each crime and each punishment. In a governmental structure in which determinations of public opinion are properly the province of the legislative branch, it is fundamentally impermissible for the judicial branch to arrogate that function to itself .

Wheeler, Toward a Theory of Limited Punishment: An Examination of the Eighth Amendment, 24 Stanford L.Rev. 838, 856 (1972).

Mr. Justice Holmes recognized that declaring a legislative choice unconstitutional “is the gravest and most delicate duty that [a] Court is called on to perform.” Blodgett v. Holden, 275 U.S. 142, 147-48, 48 S.Ct. 105, 107, 72 L.Ed. 206 (1927) (Holmes, J., concurring).

8

. People v. Mosley, 46 A.D.2d 476, 363 N.Y.S.2d 151 (4th Dept.1975); People v. James, 46 A.D.2d 922, 362 N.Y.S.2d 1023 (2d Dept.1974) (no opinion); People v. Broadie, 45 A.D.2d 649, 360 N.Y.S.2d 906 (2d Dept.1974); People v. Venable, 46 A.D.2d 73, 361 N.Y.S.2d 398 (3d Dept.1974).

9

. The district court relied on two cases striking down the imposition of the death penalty for rape. Coker v. Georgia, supra, 97 S.Ct. at 2869; Ralph v. Warden, 438 F.2d 786 (4th Cir. 1970), cert. denied, 408 U.S. 942, 92 S.Ct. 2846, 33 L.Ed.2d 766 (1972). However, when asked to apply Ralph’s principles to a non-capital punishment case, the Fourth Circuit refused, stating: “Ralph has no application to the case at bar; it involved the imposition of the death penalty, which occupies a special place in eighth amendment jurisprudence.” Hall v. McKenzie, 537 F.2d 1232, 1235 (4th Cir. 1976). We agree.

The recidivists’ statutes which provide for longer sentences for repeat offenders present an example of a penalty created by the legislature because of considerations other than the specifics of the final underlying crime. E. g., Griffin v. Warden, 517 F.2d 756 (4th Cir.), cert. denied, 423 U.S. 990, 96 S.Ct. 402, 46 L.Ed.2d 308 (1975) (imposition of mandatory life imprisonment on third felony offender who had been convicted of breaking and entry, burglary and grand larceny is not cruel and unusuai punishment). See generally Note, Don’t Steal a Turkey in Arkansas — The Second Felony Offender in New York, 45 Fordham L.Rev. 76 (1976).

10

. The profit that can be reaped from the sale of cocaine, the drug involved in both appellees’ convictions, is enormous. A kilogram may be purchased wholesale for between $14,000-20,-000, and it may be sold at retail, after it has been cut for $125,000. McLaughlin, Cocaine: The History and Regulation of a Dangerous Drug, 58 Cornell L.Rev. 537, 549 (1973). More recently, the figures have been placed at $50,-000 wholesale and $300,000 retail. N.Y. Times, Mar. 21, 1978 at 37, col. 1.

11

. Appellees are not aided by the fact that their convictions were based on cocaine and not heroin. Cocaine is a dangerous drug that causes damaging psychological and physiological effects in its users. McLaughlin, Cocaine: The History and Regulation of a Dangerous Drug, 58 Cornell L.Rev. 537, 552-54 (1973). The Alaska Supreme Court, recently upholding the classification of cocaine as a dangerous drug, discussed the evils associated with the drug. State v. Erickson, 574 P.2d 1 (Alaska 1978).

12

. A recent report stated “58% of the men imprisoned in New York are users of drugs. Of the drug users 80.9% have committed major crimes other than drug-law violations — usually robberies or burglaries to get money to support their drug habits.” Sheehan, Annals of Crime — The Prison and its Prisoner, The New Yorker, October 31, 1977 at 46, 56.

13

. People v. Broadie, supra, on this point is readily distinguished from the appeals at hand. When Broadie was decided the 1973 Drug Law provided that persons convicted of class A drug related offenses could never be discharged from parole. N.Y.Correction Law § 212(6) and (8). This has been repealed to allow class A drug felons to be discharged from parole on the same basis as all other parolees. Ch. 904, §§ 2, 3: § 259-j, 1977 McKinney’s N.Y.Sess.Laws 1873, 1885. Therefore the lifetime threat that a parolee may return to prison has been removed.

14

. E. g., Williams v. Ward, 556 F.2d 1143 (2d Cir.), cert. denied, 434 U.S. 944, 98 S.Ct. 469, 54 L.Ed.2d 323 (1977); Holup v. Gates, 544 F.2d 82 (2d Cir. 1976); Haymes v. Regan, 525 F.2d 540 (2d Cir. 1975).

15

. Such a sentence without hope is indeed severe yet the Sixth Circuit in Moore v. Cowan, 560 F.2d 1298, 1302-03 (6th Cir. 1977) upheld, despite an Eighth Amendment attack, the imposition of a life sentence without parole for rape.

16

. N.Y.Penal Law §§ 125.27 (murder first degree), 125.25 (murder second degree); 150.20 (arson), 135.25 (kidnapping), 70.00(2)(a). First degree murder required the imposition of the death penalty. N.Y.Penal Law § 60.06. However, in People v. Davis, 43 N.Y.2d 17, 400 N.Y.S.2d 735, 371 N.E.2d 456 (1977), cert. denied - U.S. -, 98 S.Ct. 1653, 56 L.Ed.2d 88, 46 U.S.L.W. - (July 3, 1978) the New York Court of Appeals struck down the death penalty as provided for in § 60.06.

17

. Federal courts have continually upheld long periods of imprisonment for narcotic offenses. E. g., Salazar v. Estelle, 547 F.2d 1226 (5th Cir. 1977) (45 years); United States v. Fiore, 467 F.2d 86 (2d Cir. 1972) (20 years without parole); McWilliams v. United States, 394 F.2d 41 (8th Cir. 1968) (25 years without parole); Smith v. United States, 273 F.2d 462 (10th Cir. 1959) (en banc), cert. denied, 363 U.S. 846, 80 S.Ct. 1619, 4 L.Ed.2d 1729 (1960) (52 year sentence and $30,000 fine on a 51 year old first offender); Black v. United States, 269 F.2d 38 (9th Cir. 1959) (30 year sentence imposed on 51 year old first offender). In the two instances where a sentence for a drug offense was found by a federal court to be cruel and unusual, the drug involved was marijuana. Downey v. Perini, 518 F.2d 1288 (6th Cir.), vacated and remanded on other grounds, 423 U.S. 993, 96 S.Ct. 419, 46 L.Ed.2d 367 (1975); Davis v. Zahradnick, 432 F.Supp. 444 (W.D.Va.1977) (40 years and $20,000 fine for offenses involving less than 9 ounces of marijuana). Society’s opinion is in flux concerning that particular drug. See Criminal Law, 1976 Annual Survey of American Law 313-51; compare Ravin v. State, 537 P.2d 494 (Alaska 1975) (relative harmlessness of marijuana) with State v. Erickson, 574 P.2d 1 (Alaska 1978) (dangerousness of cocaine).

18

. As the following quotation indicates the evidence on the effectiveness of the 1973 Drug Law is inconclusive.

The fundamental question whether the New York law has succeeded in reducing drug traffic and removing narcotics addicts and dealers from the streets has yet to be conclusively answered. Existing evidence is ambiguous, pointing to success in some areas and failure in others.

Despite the fear expressed by many New Yorkers that juries would prove reluctant to convict under a law entailing such harsh penalties, the conviction rate for narcotics offenders has remained relatively stable since 1973. The conviction rate in New York County (Manhattan) is approximately seventy-five percent, slightly above the seventy-two percent rate for narcotics cases tried under pre-1973 law. More significantly, the percentage of convicted narcotics offenders sent to prison increased from thirty-five percent in 1973 to sixty-two percent under the new law.

The 1973 law has also succeeded in adding to the number of narcotics informants who, fearing the more stringent penalties, aid the police in apprehending major narcotics violators. The New York City police department reports a twenty-five percent increase in the number of informants. As a result of information received in this manner and of cooperation between federal and city prosecutors, more than 250 major narcotics violators have been arrested and most of them convicted. There is less convincing evidence that drug-related crime has decreased since passage of the 1973 law. In March 1975, the New York Times reported a decline in narcotics-related murders of more than thirty-six percent in contrast to a rise in the number of other felony-related murders.

Other evidence shows, however, that the 1973 law has performed no better than the prior law in reducing drug traffic and narcotics-related crimes, while it has raised additional problems and imposed additional costs upon New York’s law enforcement agencies. A static conviction rate for narcotics offenders hides a marked decline in the number of narcotics arrests and indictments. In 1972, 11,431 people were arrested for narcotics offenses in New York City, but this number dwindled to 7,634 arrests in 1974. The decline in indictments, though less dramatic, was still apparent.

The 1973 law has also placed additional burdens upon New York’s courts and prosecutors. Although many defendants continue to opt for guilty pleas under the new law, the restrictions on plea bargaining have induced many more defendants to demand trials, thereby intensifying the burden upon the judicial system. Moreover, a majority of those convicted under the 1973 law have been marginal offenders. Their demands for trials have diverted scarce prosecutorial and judicial resources from the most crucial task of bringing major offenders, who are often the key to curtailing drug traffic, to justice. In fact, illicit drugs are as readily available on New York’s streets today as they were before the 1973 law; apparently, addicts and dealers have hardly been deterred at all by the threat of long prison sentences.

Criminal Law, 1976 Annual Survey of American Law 313, 354-56 (footnotes omitted). As at least one commentator has noted, courts are particularly ill-equipped to judge the deterrent effect of penal sanctions. Note, The Cruel and Unusual Punishment Clause and the Substantive Criminal Law, 79 Harv.L.Rev. 635 , 643 (1966).

Experts in the field have maintained that “harsh penalties . . . are a necessary component of a successful drug strategy.” McLaughlin, The Poppy Is Not an Ordinary Flower: A Survey of Drug Policy in Iran, 44 Fordham L.Rev. 701, 724 (1976); see Hardt & Brooks, Social Policy on Dangerous Drugs: A Study of Changing Attitudes in New York and Overseas, 48 St. John’s L.Rev. 48, 54-59 (1973).

19

. Since its passage the Drug Law of 1973 has been under constant legislative scrutiny. This has already resulted in several changes such as eliminating the life-time parole provision for class A drug offenders, see note 13, and allowing class A — III offenders, previously prevented from doing so, to plead to a lesser charge. N.Y.Crim.Proc.Law § 220.10.