AI Case Brief
Generate an AI-powered case brief with:
Estimated cost: $0.001 - $0.003 per brief
Full Opinion
STATE of Minnesota, Petitioner, Appellant,
v.
Gerard RUSSELL, Dmitry Deshone Armstead, Michael Odell Johnson, Steve Antonio Morrison, and James Alderson, Respondents.
Supreme Court of Minnesota.
*887 Hubert H. Humphrey, III, Atty. Gen., St. Paul, and Michael O. Freeman, Hennepin County Atty., Lee W. Barry, Senior Asst. County Atty., Minneapolis, for appellant.
David P. Murrin, Frances B. Moore, Richard A. Trachy, Nancy Yost Laskaris, Renee J. Bergeron, Warren R. Sagstuen, Asst. Public Defenders, and William McGee, Legal Rights Center, Minneapolis, for respondents.
Atty. Gen. and Minnesota County Attys. Ass'n, Hubert H. Humphrey, III, Atty. Gen., Paul R. Kempainen, Asst. Atty. Gen., St. Paul, for amicus curiae.
Heard, considered and decided by the court en banc.
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, *888 451 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 rational 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)).
*889 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. *890 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 Policy[5] 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]
*891 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 irrebuttable 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.
YETKA, Justice (concurring specially).
I concur in Justice Wahl's opinion for the reasons set forth herein.
We must understand that the United States has been and still remains a largely homogeneous society and that the problems of minority groups, particularly blacks, often are misunderstood. The judicial branch is charged with protecting the individual rights and liberties of all citizens, and in a case like this, where we lack the actual experience necessary to place ourselves in the respondents' position, we must rely on our imagination, understanding and analytical judgment to reach the just result.
In today's United States, the gap between the have's and the have-not's is constantly increasing. There is a growing subclass that echoes the late President Franklin D. Roosevelt's description of society during the heart of the Great Depression, when one-third of Americans were ill-housed, ill-clothed and ill-fed. Today's subclass is largely urban. Several generations of some families have suffered and been without work due to lack of adequate education and job-skills training. Moreover, they have never experienced the satisfaction of holding a decent job or owning a *892 home. While it is lamentable when people in these circumstances turn to drugs, is it any wonder that some would be tempted to do so in order to escape the grim reality of their lives?
To me, the obvious solution to the drug problem is to return to basic human values, namely, strong families, solid religious communities, and economic and educational opportunities for all citizens. In the 1930's, we had federal programs such as the Civilian Conservation Corps. The Corps took youths out of poverty-stricken environments and put them to work in our nation's forests and parks and taught them social skills as well as job skills so that they could function and prosper in society. It is beyond the court's capabilities to provide similar opportunities today. However, it is our duty to see that the laws are enforced so as to provide equality before the bench to all citizens, regardless of their race or economic status.
Since all parties to this lawsuit appear to agree that blacks constitute the largest percentage of crack users while whites are the largest users of powder cocaine (which is less potent, more refined and more expensive) and since imposing a greater penalty for crack use thus discriminates against blacks, the legislature must be presumed to be aware of these facts as well. The dissenting opinion suggests that the legislature has unfettered discretion to define criminal acts and set punishments. The legislature's power is admittedly broad in this area, but it is not so broad as to allow distinctions that have a harsher impact on minority groups, particularly when those distinctions are based on minimal information.
Certainly we should laud the legislature for attempting to discourage the use of crack, but should not the elimination of all cocaine use be an equal concern? When it deliberately passes laws which effectively penalize a suspect class, it appears to me that, regardless of which equal protection standard is applied, that action violates both the state and federal Constitutions. I agree with the majority's conclusion that strict scrutiny could be applied to this statute since there is enough evidence from which to infer discriminatory purpose. (Majority Op. at n. 2)
I also agree with the majority's finding that the statute is invalid under rational basis as applied under our state constitution. Where the discrimination is so obvious in the application of our Minnesota drug laws, I agree that we ought to apply state constitutional principles to find the law invalid. When the federal Constitution does not go far enough to protect basic rights and liberties, state courts may look to their own constitutions to determine whether broader protections are warranted. E.g., Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 830-31 (Minn.1991); State v. Hershberger, 462 N.W.2d 393, 398 (Minn.1990). As the majority rightly concludes, this is a case where our constitution can and should be used to establish a stricter standard than the federal rational-basis test.
I submit that the mere use of cocaine is the important factor here, not the form in which the drug is used. Society has decreed that it is illegal to use cocaine in any form except for medical necessity. While the comparison between the use of alcohol and cocaine is not technically accurate because the former is legal while the latter is illegal, some comparison is valid. Although use of alcohol is legal, abuse of the same may be an offense. Driving while intoxicated is equally illegal regardless of whether the offender ingested beer, wine, or distilled spirits. Similarly, regardless of whether crack or powder cocaine is used to induce intoxication, it is the level of intoxication that is reached with powder as well as crack that affects one's ability to function. Thus equal penalties should be imposed for the use or possession of cocaine regardless of the form used to administer the drug.
As to defining a drug dealer, I again agree with the majority opinion that punishing possession of a drug, without requiring the prosecution to prove intent to sell as an element of the crime, denies due process of law.
*893 Does society intend to eliminate the use of cocaine? If the answer is yes, then it should stress severe penalties not only for the possession, use and distribution of crack, but also of cocaine in any form. Those penalties should be equally and uniformly applied.
SIMONETT, Justice (concurring specially).
As this court develops an equal protection analysis under the state constitution, I find it important to develop our analysis in a principled manner, understandable to the legislature, the bar, and the courts. Because I share the dissent's concern that the court's opinion may be misconstrued as opening the door to substantive due process, I feel I should write.
I.
Equal protection is confirmed in our state constitution as an "unenumerated" constitutional right. Minn. Const. art. 1, § 16 ("The enumeration of rights in this constitution shall not deny or impair others retained by and inherent in the people."). Article 1, § 2 provides: "No member of this state shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers."[1] One of the inherent rights secured to a free people by section 2 is the inherent right to "equal and impartial laws which govern the whole community and each member thereof." Thiede v. Town of Scandia Valley, 217 Minn. 218, 225, 14 N.W.2d 400, 405 (1944). Put another way, persons similarly situated are to be treated alike unless a sufficient basis exists for distinguishing among them. Bernthal v. City of St. Paul, 376 N.W.2d 422, 424 (Minn.1985).
Until the late 1970's, little attention was given to the equal protection right secured by article 1, § 2, and, when it was mentioned, it was only in conclusory fashion and often intertwined with the constitutional prohibition against special legislation (art. 12, §§ 1, 2), and the constitutional provision requiring uniformity in taxation (art. 10, § 1).[2] For example, Dunnell's states that article 1, § 2 forbids "class legislation," citing six cases from 1871 through 1951; none of these opinions, however, expressly rely on art. 1, § 2, nor do they explore the meaning of section 2. See 7 Dunnell Minn. Digest Constitutional Law § 5.03 (4th ed. 1990).
Interestingly, our early cases tended to examine statutes challenged on equality grounds in terms of whether or not the statute was special legislation. The court viewed class legislation as a type of special legislation. See State v. Cooley, 56 Minn. 540, 550, 58 N.W. 150, 153 (1893) ("All class legislation is special legislation, although all special legislation is not class legislation * * *."). Although these early cases analyzed equality principles in terms of protection against "class legislation," the analysis parallels modern equal protection principles. See Allen v. Pioneer Press Co., 40 Minn. 117, 120, 41 N.W. 936, 937 (1889) (Justice Mitchell sets out a classic equal protection analysis without mentioning "equal protection" or citing art. 1, § 2).
In the late 1970's, about the time of Clover Leaf Creamery Co. v. State, 289 N.W.2d 79 (Minn.1979), rev'd, 449 U.S. 456, 101 S.Ct. 715, 66 L.Ed.2d 659, reh'g denied, 450 U.S. 1027, 101 S.Ct. 1735, 68 L.Ed.2d 222 (1981), our court apparently began to develop its own equal protection analysis. As one commentator points out,[3] in 1981 this court, in Wegan v. Village of Lexington, *894 309 N.W.2d 273, 280 (Minn.1981), found a dram shop notice statute to violate both federal and state equal protection guarantees; in applying a state equal protection analysis, our court borrowed the three-factor test that had been used in tax cases applying our uniformity clause. To satisfy our equal protection guarantee under this test, a law must have: (1) a legitimate legislative purpose; (2) genuine and substantial distinctions, relevant to the purpose of the statute, between those included and those excluded from the statutory classification; and (3) a reasonable connection between the prescribed remedy and the needs peculiar to the class. Guilliams v. Commissioner of Revenue, 299 N.W.2d 138, 142 (Minn.1980); Miller Brewing Co. v. State, 284 N.W.2d 353, 356 (Minn.1979).[4] But 2 years later, in AFSCME Councils 6, 14, 65 & 96 v. Sundquist, 338 N.W.2d 560, 569 (Minn.1983), this court rephrased the test as being whether the statutory classification is "rationally related to the achievement of a legitimate governmental purpose," and in a footnote we stressed that our approach to equal protection was "coextensive with * * * the federal equal protection clause." Id. at 570 n. 12.
What, then, is the equal protection test under our state constitution? A majority of this court now returns to the three-factor uniformity clause test. I assume, therefore, this is now our equal protection test. A vital question remains, however: When and how is the test to be applied?
II.
If there are no restraints on the rational basis test, a court may make its own appraisal of what is rational legislation and substitute its own judgment for that of the legislature, thereby reviving the discredited doctrine of substantive due process. To avoid a "free-wheeling" court, the United States Supreme Court has imposed a variety of restraints on reviewing courts. City of Cleburne, Tex. v. Cleburne Living Center, Inc., 473 U.S. 432, 476, 105 S.Ct. 3249, 3273, 87 L.Ed.2d 313 (1985) (Marshall, J., concurring). If a statute classifies on the basis of race, alienage, national origin, or gender, the federal courts apply heightened levels of scrutiny; if the statute is neutral on its face, the federal courts do not intrude with a heightened scrutiny analysis unless the challenger establishes a prima facie case of discriminatory impact and discriminatory intent. McCleskey v. Kemp, 481 U.S. 279, 298, 107 S.Ct. 1756, 1769, 95 L.Ed.2d 262 (1987).
For the purposes of our state equal protection guarantee, I would modify this approach so as to preserve a proper regard for the civil liberties of this state's people while at the same time according the legislative branch the deference which the separation of powers doctrine requires.
I would hold that where a facially neutral criminal statute has, in its general application, a substantial discriminatory racial impact, this court may then apply its three-factor rational basis test, even though there is no showing that the legislature intended this impact.[5] It seems to me the critical importance of racial equality in our multicultural society warrants this closely tailored modification.
I would further hold that when a facially neutral criminal statute is shown to produce an inadvertent discriminatory impact based on race, a different manner of applying our rational basis test is necessary. In this context, we may apply our rational basis test with less deference than we afford generally to legislative enactments.
*895 By deference, I do not mean the deference appellate courts give trial court factfinders, but constitutional deference grounded in the separation of powers doctrine. In light of this doctrine, this court generally will find a rational basis "upon any conceivable state of the facts, although the court does not perceive all the facts justifying the classification * * *." Loew v. Hagerle Bros., 226 Minn. 485, 488-89, 33 N.W.2d 598, 601 (1948) (citations omitted). Less deference, it seems to me, means we are less willing to conceive supporting reasons and instead require more tangible elaboration of the reasons for the distinctions made by the legislative classification.
III.
The statute involved here creates neither a suspect nor a quasi-suspect class. Nor would anyone argue that the defendants have a fundamental right to be "street level" drug dealers. Whether or not the challengers have shown a prima facie case of racially discriminatory impact, in my view there is absolutely no showing of any discriminatory intent or purpose. In short, we have a facially neutral statute where, under federal analysis, heightened scrutiny is not available.[6]
I would, therefore, apply our state equal protection analysis in this case. I conclude a showing has been made that the statute, in its general application, impacts substantially more on black than white defendants. I would then, using less than normal deference, apply our three-factor rational basis test.
It seems to me there are substantial differences in the form, packaging, and marketing of crack and powder cocaine, as well as in the manner of ingestion. But given the relative amounts of cocaine base and cocaine powder involved for third degree possession, I conclude any difference between the two drugs, in terms of harm and danger to the user and the public, is problematic. Conceivably there is an appreciable difference in the harm and evil consequences caused by the two drug amounts, but with lessened deference given the legislative enactment, more than conceivable bases or tentative suppositions are needed to establish the substantial distinction between those within and without the class which the applicable equal protection test requires. Therefore, I conclude the statute fails to meet the state's equal protection guarantee, and I concur in the court's opinion.
COYNE, Justice (dissenting).
I respectfully dissent: First, because the majority has abandoned the recognized rule for reviewing a facially neutral crime control statute in favor of an activist form of judicial review which allows the court to substitute its view of the basis for and efficacy of the statute for that of the legislature; and second, because, based on its assumption that crack cocaine and cocaine powder are identical substances a matter on which experts disagree the majority proceeds on the false premise that the legislature may not found a legislative distinction on differences in the form and marketing of the two substances.
I begin my analysis by emphasizing the limitations on this court's role vis à vis the legislature in matters relating to crime control and the punishment of crimes. As we have stated in other contexts, the judicial branch of government in Minnesota has no inherent authority to set the terms or conditions of punishment for a criminal act. Instead, the power to define appropriate punishment for criminal conduct rests with the legislature as a corollary to its broader power to define what acts constitute criminal conduct. State v. Osterloh, 275 N.W.2d 578 (Minn.1978). Justice Powell stated it this way in McCleskey v. Kemp, 481 U.S. 279, 319, 107 S.Ct. 1756, 1781, 95 L.Ed.2d 262 (1987):
*896 It is not the responsibility or indeed even the right of this Court to determine the appropriate punishment for particular crimes. It is the legislatures, the elected representatives of the people, that are `constituted to respond to the will and consequently the moral values of the people.' (citation omitted).
Everyone agrees that under the equal protection clause[1] the legislature is not free to make punishment turn on "an unjustifiable standard such as race, religion, or other arbitrary classification." Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446 (1962). However, in reviewing the constitutionality of legislation under the equal protection clause we should remember the words of Justice Holmes, which are as true today as they were nearly 90 years ago:
Great constitutional provisions must be administered with caution. Some play must be allowed for the joints of the machine, and it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.
Missouri, Kansas & Texas Ry. Co. v. May, 194 U.S. 267, 270, 24 S.Ct. 638, 639, 48 L.Ed. 971 (1904) (fourteenth amendment equal protection case). We should not lightly or casually presume discriminatory purpose by the legislature.
Certainly, courts must subject any law that makes a classification based on race any law that is not neutral on its face to the "most rigid scrutiny" and must strike down the legislation as violative of equal protection unless the state can justify the law by demonstrating that the weightiest of considerations necessitated its enactment. McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964) (holding the Florida miscegenation law violated the fourteenth amendment). But a law like the statute at issue, which is facially neutral and serves ends properly within the power of government to pursue, is not invalid under the equal protection clause unless the party attacking it can prove discriminatory intent or purpose.
Proof of discriminatory intent or purpose requires more, however, than showing that the legislature relied on anecdotal evidence, that the legislature's action is of doubtful wisdom, or that the legislature was aware that the law might "affect a greater proportion of one race than of another." Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 2049, 48 L.Ed.2d 597 (1976). The evidence must affirmatively demonstrate an invidious motive or purpose, id. that is, that the legislature acted as it did, at least in part, "because of an anticipated * * * discriminatory effect" and not simply "`in spite of,' its adverse effects upon an identifiable group." McCleskey, 481 U.S. at 298, 107 S.Ct. at 1770 (quoting Personnel Adm'r of Massachusetts v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 2296, 60 L.Ed.2d 870 (1979)) (emphasis in latter added). Only when it has been established that a discriminatory purpose was "a motivating factor" in the legislature's decision, is judicial deference no longer justified. Village of Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252, 265-66, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977).
As background to a consideration of the validity of the Minnesota law which was *897 enacted in 1989, it should be noted that the Minnesota legislation was preceded by the federal Anti-Drug Abuse Act of 1986. That act amended 21 U.S.C. § 841(b)(1)(B) to equate 100 grams of cocaine powder and 1 gram of cocaine base or crack cocaine the so-called "100 to 1 ratio" for the purpose of determining punishment.[2] Under the federal act an offense involving mixtures weighing 5 grams or more containing cocaine base was subject to the same harsh punishment as an offense involving mixtures weighing 500 grams or more containing cocaine powder. United States v. Levy, Additional Information