State v. Russell

477 N.W.2d 886, 1991 Minn. LEXIS 301, 1991 WL 261218

• Court: Supreme Court of Minnesota
• Decided: December 13, 1991
• Docket: C3-91-22, C7-91-203
• Status: Published

Opinions

WAHL, Justice.

We are asked, in this pre-trial appeal, to consider the following certified question:

Does Minnesota Statute 152.023, Subd. 2(1) (1989), as it is applied, violate the equal protection clauses of the Fourteenth Amendment of the United States Constitution and the Minnesota Constitution, Article 1, Section 2?

Under Minn.Stat. § 152.023, subd. 2, a person is guilty of a third degree offense if he or she possesses three or more grams of cocaine base [hereinafter “crack cocaine”]. Under the same statute, a person must possess ten or more grams of cocaine powder to be guilty of the same offense. A person who possesses less than 10 grams of cocaine powder is guilty of a fifth degree offense. Minn.Stat. § 152.025 (1990).

Pursuant to these statutes, possession of three grams of crack cocaine carries a penalty of up to 20 years in prison while possession of an equal amount of cocaine powder carries a penalty of up to five years in prison. Under the sentencing guidelines, the presumptive sentence for possession of three grams of crack cocaine is an executed 48 months imprisonment. The presumptive sentence for possession of an equal amount of cocaine powder is a stayed 12 months of imprisonment and probation.

Defendants, five African-American men who were charged with violating Minn.Stat. § 152.023, subd. 2, jointly moved the trial court to dismiss the charges on the ground that the statute has a discriminatory impact on black persons and violates the equal protection guarantees of the federal and state constitutions.

The trial court found that crack cocaine is used predominantly by blacks and that cocaine powder is. used predominantly by whites.¹ As a result, a far greater percentage of blacks than whites are sentenced for possession of three or more grams of crack cocaine under Minn.Stat. § 152.023 with more severe consequences than their white counterparts who possess three or more grams of cocaine powder. The trial court concluded that the law has a discriminatory impact on black persons.

The trial court then determined that no rational basis supported the distinction between crack-cocaine and cocaine powder and that the law therefore violated constitutional guarantees of equal protection. The trial court granted the defendants’ joint motion to dismiss and certified the question of the statute’s constitutionality to the court of appeals pursuant to Minn. R.Crim.P. 28.03. We granted a joint petition for accelerated review filed by both the state and the defendants pursuant to Minn.R.Civ.App.P. 118 and Minn.R.Crim.P. 29.02, subd. 1. We affirm.

Review of an equal protection challenge under the federal rational basis test requires (1) a legitimate purpose for the challenged legislation, and (2) that it was reasonable for the lawmakers to believe that use of the challenged classification would promote that purpose. Western & S. Life Ins. Co. v. State Bd. of Equalization, 451 U.S. 648, 668, 101 S.Ct. 2070, 2083, 68 L.Ed.2d 514 (1981)².

The state argues that the challenged statute passes muster under that test. It contends that the legislature has a permissible and legitimate interest in regulating the possession and sale of crack cocaine and cocaine powder and that it was reasonable for lawmakers to believe that the three grams of crack — ten grams of powder classification would regulate the possession of those drugs by the “street level” dealers at whom the statute was primarily aimed.

Even if we were to agree with the state’s argument as to the analysis under the federal test, we strike the statute as unconstitutional under the rationale basis test as articulated under Minnesota law. Since the early eighties, this court has, in equal protection cases, articulated a rational basis test that differs from the federal standard, requiring:

(1) The distinctions which separate those included within the classification from those excluded must not be manifestly arbitrary or fanciful but must be genuine and substantial, thereby providing a natural and reasonable basis to justify legislation adapted to peculiar conditions and needs; (2) the classification must be genuine or relevant to the purpose of the law; that is there must be an evident connection between the distinctive needs peculiar to the class and the prescribed remedy; and (3) the purpose of the statute must be one that the state can legitimately attempt to achieve.

Wegan v. Village of Lexington, 309 N.W.2d 273, 280 (Minn.1981) (quoting Guilliams v. Commissioner of Revenue, 299 N.W.2d 138, 142 (1980)).

This court has not been consistent in explaining whether the rational basis standard under Minnesota law, although articulated differently, is identical to the federal standard or represents a less deferential standard under the Minnesota Constitution.³ What has been consistent, however, is that in the cases where we have applied what may be characterized as the Minnesota rational basis analysis, we have been unwilling to hypothesize a rational basis to justify a classification, as the more deferential federal standard requires. Instead, we have required a reasonable connection between the actual, and not just the theoretical, effect of the challenged classification and the statutory goals. See McKnight, Minnesota Rational Relation Test: The Lochner Monster in the 10,000 Lakes, 10 Wm. Mitchell L.Rev. 709, 726 (1984) (analyzing the cases of Wegan v. Village of Lexington, 309 N.W.2d 273 (Minn.1981); Nelson v. Peterson, 313 N.W.2d 580 (Minn.1981); and Thompson v. Estate of Petroff, 319 N.W.2d 400 (Minn.1982)).

Nothing prevents this court from applying a more stringent standard of review as a matter of state law under our state constitutional equivalent to the equal protection clause. Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 461 n. 6, 101 S.Ct. 715, 723 n. 6, 66 L.Ed.2d 659 (1980). Moreover, there is every reason for us to continue to articulate and apply an independent Minnesota constitutional standard of rational basis review. See In Re Estate of Turner, 391 N.W.2d 767, 771-73 (Minn.1986) (Wahl, J., concurring specially). To harness interpretation of our state constitutional guarantees of equal protection to federal standards and shift the meaning of Minnesota’s constitution every time federal case law changes would undermine the integrity and independence of our state constitution and degrade the special role of this court, as the highest court of a sovereign state, to respond to the needs of Minnesota citizens. Id. at 773. It is particularly appropriate that we apply our stricter standard of rational basis review in a case such as this where the challenged classification appears to impose a substantially disproportionate burden on the very class of persons whose history inspired the principles of equal protection.

We therefore hold that under our state constitutional standard of rational basis review the challenged statute cannot stand. First, the statute fails for lack of a genuine and substantial distinction between those inside and outside the class. In order to meet this standard, the state must provide more than anecdotal support for classifying users of crack cocaine differently from users of cocaine powder. The primary justification advanced by the state in support of the crack/cocaine classification is that it serves to facilitate prosecution of “street level” drug dealers.⁴ The three grams of crack — ten grams of powder formula was adopted because it was thought those amounts indicated a level at which dealing, not merely using, took place.

The primary testimony before the legislature on the distinction between crack cocaine and cocaine powder in terms of the respective amounts of the drugs that indicate street-level dealing came from Mr. James Kamin of the Hennepin County Attorney’s Office. He stated at legislative hearings that his knowledge of the quantities possessed by drug dealers did not come from study but “simply from talking with people like Sergeant Strauss and informants, people who have been convicted or are being prosecuted for drug offenses. My knowledge of these numbers come from the streets.” Minnesota Senate Criminal Law Subcommittee, 76th Minn.Leg., March 16, 1989.

This purely anecdotal testimony does not establish a substantial and genuine distinction. A statutory distinction that provides the basis for prescribing widely disparate criminal penalties is not sufficiently justified when based on the anecdotal observations of one expert witness. This is especially true in light of evidence presented that undermines the conclusion reached by the legislature. For instance, respondents point to a recent report by the Minnesota Department of Public Safety Office of Drug Policy⁵ that states that police and prosecutors contacted by researchers are not persuaded by the “street dealer” distinction because they believe that most cocaine powder users are dealers as well. Minnesota Department of Public Safety Office of Drug Policy, Minnesota Drug Strategy 1991, p. 14. Without more factual support, the three grams of crack — ten grams of powder distinction appears to be based upon an arbitrary rather than a genuine and substantial distinction.

The second proffered basis for the disparate treatment of crack versus cocaine powder users is that crack is more addictive and dangerous than cocaine powder. The evidence on this point similarly fails to establish a genuine and substantial distinction between those inside and outside the class. The primary legislative testimony on this point was presented by Michael Strauss, an officer from the Minneapolis Narcotics Division, who testified from his experience and training in the Narcotics Division but who did not profess to be a trained scientist.

Further evidence on the chemical properties and physiological effects of crack and cocaine powder was presented to the trial court through the testimony of Dawn Speier, a chemist for the City of Minneapolis. She testified that there is a difference between crack and cocaine powder in the severity of the attack on the central nervous system and respiratory function, and, based on what she had read or heard, that a smaller amount of crack will produce the same effect as cocaine powder. She also testified, however, that the mood altering ingredient in both powder and base was the same — cocaine. Further, she testified that the difference in effect between the two was based on the way the drug was ingested (cocaine powder being generally sniffed through the nostrils, crack cocaine being smoked). In fact, Speier confirmed that if cocaine powder is dissolved in water and injected intravenously, the effect on the body is similar to the effect of smoking crack cocaine. Thus, as respondents argue, evidence as to the degree of dangerousness between crack and cocaine powder is based on testimony as to effects resulting from different methods of ingestion, rather than on an inherent difference between the forms of the drug. Disparate treatment of crack and powder cocaine users is not justified on the basis of crack’s greater dangerousness when there is evidence that powder cocaine could readily produce the effects purported to justify a harsher penalty for possession of crack.

There is also evidence in the legislative record that there is more violence associated with the use of crack than with the use of cocaine powder. This evidence is not only anecdotal, but pales in light of official observation that if there is more violence associated with crack use, “that difference could be caused more by factors such as gang warfare and certain group behaviors than by the pharmacological effects of crack.” Minnesota Department of Public Safety Office of Drug Policy, Minnesota Drug Strategy 1991, p. 14. Although under the more deferential rational basis test, we may not second guess the scientific accuracy of legislative determinations of fact absent overwhelming contrary evidence, Moes v. City of St. Paul, 402 N.W.2d 520, 525 (1987), the rational basis test under the Minnesota Constitution requires more factual support than is present here to establish a genuine and substantial distinction between the two substances.⁶

The crack-cocaine distinction also fails because the classification is not relevant to the statutory purpose. Without more evidence to support the asserted dealership levels of drug possession, the three grams of crack — ten grams of cocaine distinction does not further its statutory purpose of penalizing street level drug dealers. Without more evidence, it is as easily assumed that individuals jailed for possession of three grams of crack are mere personal users who were arbitrarily penalized as dealers. Furthermore, a statute which permits a person possessing less than ten grams of powder cocaine, which can be easily converted into more than three grams of crack,⁷ to be punished only for 5th degree possession of cocaine, is not only irrelevant to its purpose of penalizing drug dealers, it is also arbitrary and unreasonable.

Lastly, the crack-cocaine classification, while perhaps aimed at the legitimate purpose of eradicating street level drug dealers, employs an illegitimate means to achieve that purpose. The legislature determined that three grams of crack and ten grams of powder indicate a level at which dealing, not merely using, takes place. Once possession of the indicated amounts is proved, intent to sell is presumed, justifying a harsher penalty than that for mere possession. In effect, the statute punishes a person for possession with intent to sell without requiring the prosecution to prove, as an element of the crime, that an actual sale was intended, thus creating an irre-buttable presumption of fact. Leavenworth, Note, Illegal Drugs and New Laws, 16 Wm. Mitchell L.Rev. 499, 526 (1990). This court has recognized that statutes creating conclusive presumptions of law or fact have been almost uniformly declared unconstitutional as denying due process of law. State v. Kelly, 218 Minn. 247, 250, 15 N.W.2d 554, 557 (1944). Because the statute creates an irrebuttable presumption of intent to sell without affording the defendant an affirmative defense of lack of intent to sell, and on the basis of that presumption automatically metes out a harsher punishment, the means chosen to effect its purposes are constitutionally suspect.

We answer the certified question in the affirmative and affirm the decision of the trial court. Minn.Stat. § 152.023, subd. 2(1) (1989), violates the Minnesota Constitution, Article 1, Section 2.

Affirmed.

1 . Among the many statistics provided to the trial court were those showing that of all persons charged with possession of cocaine base in 1988, 96.6% were black. Of all persons charged with possession of powder cocaine, 79.6% were white.

2 . To invoke strict scrutiny of a statute that has a racially discriminatory impact, under current federal equal protection analysis, requires a showing that the legislature enacted the particular statute " “because of not merely ‘in spite of ” an anticipated racially discriminatory effect. McCleskey v. Kemp, 481 U.S. 279, 298, 107 S.Ct. 1756, 1770, 95 L.Ed.2d 262 (1987). This standard not only places a virtually insurmountable burden on the challenger, who has the least access to the information necessary to establish a possible invidious purpose, but it also defies the fundamental tenets of equal protection. In the words of Professor Tribe,

Government officials cannot be held accountable to the constitutional norm of equality unless they “selected or reaffirmed a particular course of action at least in part “because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” This overlooks the fact that minorities can also be injured when the government is "only" indifferent to their suffering or “merely” blind to how prior official discrimination contributed to it and how current acts will perpetuate it.

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If government is barred from enacting laws with an eye to invidious discrimination against a particular group, it should not be free to visit the same wrong whenever it happens to be looking the other way. If a state may not club minorities with its fist, surely it may not indifferently inflict the same wound with the back of its hand.

L. Tribe, American Constitutional Law, § 16-21, at 1518-19 (2nd ed. 1988).

There comes a time when we cannot and must not close our eyes when presented with evidence that certain laws, regardless of the purpose for which they were enacted, discriminate unfairly on the basis of race, e.g., that for the murder of a white person in Georgia, a black person is more than twice as likely as a white person to be sentenced to death (See McCleskey v. Kemp, 481 U.S. at 286, 107 S.Ct. at 1763); that, in Minnesota, the predominantly black possessors of three grams of crack cocaine face a long term of imprisonment with presumptive execution of sentence while the predominantly white possessors of three grams of powder cocaine face a lesser term of imprisonment with presumptive probation and stay of sentence.

We have our state constitution and in interpreting our state equal protection clause, “we are not bound by federal court interpretation of the federal equal protection clause.” AFSCME Councils 6, 14, 65 & 96 v. Sundquist, 338 N.W.2d 560, 580 (Minn. 1983) (Yetka, J., dissenting). While we are ordinarily loathe to intrude or even inquire into the legislative process on matters of criminal punishment, the correlation between race and the use of cocaine base or powder and the gross disparity in resulting punishment cries out for closer scrutiny of the challenged laws. Under Article 1, Section 2 of the Minnesota Constitution, the statistics showing the effect of the statute in operation combined with relevant factors that appear in the statute’s history could be held to create an inference of invidious discrimination which would trigger the need for satisfaction of a compelling state interest not shown on the record before us. This issue need not be decided today, however, because we find the statute unconstitutional under the Minnesota rational basis test.

3 . This court has recognized that our state constitution embodies principles of equal protection synonymous to the equal protection clause of the Fourteenth Amendment to the United States Constitution. See State v. Forge, 262 N.W.2d 341, 347 n. 23 (Minn.1977).

4 . In fact the state argues to this court that this purpose was the sole basis of the legislation and that any pharmacological difference between the substances is irrelevant to the constitutional analysis.

5 . Cited by the trial court in her Supplemental Findings of Fact and Conclusions of Law.

6 . The legislature has recently recognized that there is cause for further study of the distinction between crack and cocaine as it relates to sentencing. In a recent bill the legislature has directed the sentencing guidelines .commission to study sentencing practices under Minn.Stat. § 152.023, subd. 2(1) including review of the proportionality of the penalties for and severity level ranking of crack possession, the characteristics of offenders sentenced for crack use relative to other controlled substance offenders and harm to the community resulting from crack possession relative to other controlled substance crimes. 1991 Minn.Laws ch. 279 sec. 37.

7 . The trial court found, based on the testimony of Dawn Speier, that powder' cocaine can be converted into crack cocaine by removing the hydrochloride from the powder cocaine with baking soda and water. Speier stated that nine grams of powder cocaine that is 90% pure will convert into a little over eight grams of crack cocaine.