Ricky Terrebonne v. Robert H. Butler, Sr., Warden, Louisiana State Penitentiary

820 F.2d 156, 1987 U.S. App. LEXIS 8203, 56 U.S.L.W. 2099

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 30, 1987
• Docket: 86-3403
• Status: Published

Opinions

GEE, Circuit Judge:

This appeal resurrects an en banc controversy that divided our Court short years ago. See Terrebonne v. Blackburn, 646 F.2d 997 (5th Cir.1981). Nothing has changed since then except the Constitution: Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) now requires us to determine whether Terrebonne’s sentence is disproportionate to his crime. That it is neither cruel nor unusual was settled on the former appeal.

Terrebonne’s case is discussed at length in our en banc opinion cited. For present purposes, it suffices to say that he was, when convicted of heroin distribution, a 21 year old addict with two prior felony convictions, one for burglary and one for theft by fraud.

Solem directs us, in reviewing a sentence for disproportionality, to look first and primarily to the gravity of the offense and the harshness of the penalty. These are the same as they were on the former appeal, when we determined that such a life sentence as Terrebonne received — one with small likelihood of release, and none save in the event executive clemency is exercised — was not a cruel or unusual one for the offense of selling heroin. In so doing, we necessarily considered the gravity and harshness factors, for the sentence was obviously not a barbaric one; and we see no need to reconsider them today. It would be a rash magistrate indeed who would undertake to maintain that a life sentence is inappropriate for dealing in heroin. As our brother Reavley’s pre-Solem special concurrence in our earlier en banc opinion states: “Terrebonne was given his sentence because he sold heroin. That ends the Eight Amendment inquiry for me ... [an inquiry] which should compare the sentence only to the severity of-the crime." 646 F.2d, at 1003.

Solem also suggests that it may be “helpful” or “useful” in determining dis-proportionality to consider other objective criteria, offering as examples the sentences imposed on other criminals (and, presumably, for other crimes) in the sentencing jurisdiction and the sentences imposed by other jurisdictions for the same crime. 462 U.S., at 291-92, 103 S.Ct. at 3010. Obedient to that Court’s suggestion (it is not stated as a requirement), we do so.

As for other sentences for the same crime in Louisiana — assuming that wildly disproportionate sentences for the same offense were meant to be forbidden by Solem — no issue is made on this appeal beyond a claim that sentencing an addicted dealer (such as Terrebonne) to life imprisonment is gravely disproportionate to imposing the same sentence upon a non-addicted dealer, a claim that we discuss below. Where other crimes are concerned, Louisiana provides the same sentencing plan for several violent crimes as it does for heroin dealing: murder, aggravated rape, aggravated kidnapping, and so on. Sitting en banc, we have already observed that Louisiana could properly equate heroin dealing with such crimes:

The state could reasonably treat heroin distribution as a serious crime equivalent to crimes of violence. It could conclude:

... The drug seller, at every level of distribution, is at the root of the pervasive cycle of drug abuse. 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.

State v. Terrebonne, supra, 364 So.2d [1290] at 1292 [1978], quoting Carmona v. Ward, [576 F.2d 405 (2d Cir.1978)] supra. Terrebonne willingly participated in the system of distribution, knowing the effects of the drug he procured.

Terrebonne, 646 F.2d, at 1002.

This observation of the en banc Court is patently correct, and we so hold. Except in rare cases, the murderer’s red hand falls on one victim only, however grim the blow; but the foul hand of the drug dealer blights life after life and, like the vampire of fable, creates others in its owner’s evil image — others who create others still, across our land and down our generations, sparing not even the unborn.

As for a comparison of sentences imposed by other jurisdictions for Terrebonne’s crime, the state cites us to several other jurisdictions where a life sentence is provided for heroin dealing: Arizona, Idaho, Missouri, Montana, Rhode Island, and Texas. It is true that these sentencing plans are more flexible and that, in most instances, parole is more easily available than in Louisiana. We are not disposed or authorized to quibble with the legislative judgment in the details of such matters, however. The availability of similar sentences in a substantial number of other states suffices to show that Louisiana’s sentencing provision is not eccentric or outlandish.

Finally, Terrebonne makes much of two collateral facts: that the quantity of heroin which he sold was small, and that he was himself an addict, dealing drugs at least partly to feed his own habit. As to the first, while we must concede that dealing in large quantities of addictive drugs is marginally more reprehensible than dealing in smaller ones, for the reasons we have stated dealing in any quantity of such matter is a serious anti-social act. In addition, it seems apparent that the retail dealer who sells in small amounts to the ultimate consumer is as vital a component in the heroin distribution chain as any other; removing him would halt the evil just as surely as would removing the poppy grower. As to the second, many responses might be made, among them that it is of no help to those corrupted by Terrebonne that he is himself a victim of the scourge in which he traffics. Indeed, being all too familiar with the effects of what he sells, the dealer-addict, in his willingness to visit on others the personal ruin of which he has full experience for money, may well be seen as more, not less, culpable than another. And finally, to draw a bright line for punishment purposes between the addicted and non-addicted dealer would be simplistic and impractical: addiction is easy to claim, easy to feign, and hard to disprove. Let such a line once be drawn, and it will be a rare dealer who is a convict but not an addict.

We conclude that Terrebonne’s sentence was not a disproportionate one to his crime. The judgment of the trial court is

AFFIRMED.