The writ is dismissed as improvidently granted, it appearing that the judgment of the court below rested on independent and adequate state grounds.

Chief Justice BURGER, concurring:

The Court today concludes that the Florida Supreme Court relied on independent and adequate state grounds when it affirmed the suppression of over 100 pounds of marijuana discovered aboard a fishing vessel-the evidence upon which respondents' convictions for possession and importation of marijuana were based. The Florida Supreme Court did not expressly declare that its holding rested on state grounds, and the principal state case cited for the probable cause standard, Florida v. Smith, 233 So.2d. 396 (Fla.1970), is based entirely upon this Court's interpretation of the Fourth Amendment of the Federal Constitution. I write not to challenge today's determination that the State Court relied on independent and adequate state grounds, however, but rather to emphasize that this Court has decided that Florida law, and not federal law or any decision of this Court, is responsible for the untoward result in this

case.

The two bases of state law upon which the Florida Supreme Court appears to have relied are Art. 1, sec. 12 of the State Constitution and Florida Statute sec. 371.58 (1977), currently codified at Florida Statute sec. 327.56 (1983 Supp.). Article 1, sec. 12 of the Florida Constitution is similar to the Fourth Amendment of the Federal Constitution. I question that anything in the language of either the Fourth Amendment of the United States Constitution or Art. 1, sec. 12 of the Florida Constitution required suppression of the

drugs as evidence. However, the Florida Supreme Court apparently concluded that state law required suppression of the evidence, independent of the Fourth Amendment of the United States Constitution.

The people of Florida have since shown acute awareness of the means to prevent such inconsistent interpretations of the two constitutional provisions. In the general election of November 2, 1982, the people of Florida amended Art. 1, sec. 12 of the State Constitution. That section now provides:

This right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court....

Articles or information obtained in violation of this right shall not be admissible in evidence if such articles or information would be inadmissible under decisions of the United States Supreme Court construing the 4th Amendment to the United States Constitution.

As amended, that section ensures that the Florida courts will no longer be able to rely on the State Constitution to suppress evidence that would be admissible under the decisions of the Supreme Court of the United States.

With our dual system of state and federal laws, administered by parallel state and federal courts, different standards may arise in various areas. But when state courts interpret state law to require more than the Federal Constitution requires, the citizens of the state must be aware that they have the power to amend state law to ensure rational law enforcement. The people of Florida have now done so with respect to Art. 1, sec. 12 of the State Constitution....

Discussion Notes

1. Reread Paul Bator's criticism of Justices of the United States Supreme Court using their dissents to "campaign to enact into unreviewable state constitutional law" their views, on page 77. Would Bator criticize Chief Justice Burger's opinion?

2. With respect to the Florida amendment, at what point in time are "decisions of the United States Supreme court construing the 4th Amendment" considered binding on the state courts? Are decisions after adoption of the amendment binding? See Bernie v. State, 524 So.2d 988 (Fla.1988).

Commonwealth v. Colon-Cruz 393 Mass. 150, 470 N.E.2d 116 (1984)

LIACOS, Justice.

In District Attorney for the Suffolk Dist. v. Watson, 381 Mass. 648, 411 N.E.2d 1274 (1980), this court declared unconstitutional the capital punishment statute, c. 488 of the Acts of 1979. The court held that the penalty of death was impermissibly cruel under art. 26 of the Declaration of Rights of the Massachusetts Constitution. That article then provided, in its entirety: "No magistrate or court of law, shall demand excessive bail or sureties, impose excessive fines, or inflict cruel or unusual punishments."

On November 2, 1982, the voters approved a constitutional amendment which added a second and third sentence to art. 26: "No provision of the Constitution, however, shall be construed as prohibiting the imposition of the punishment of death. The general court may, for the purpose of protecting the general welfare of the citizens, authorize the imposition of the punishment of death by the courts of law having jurisdiction of crimes subject to the punishment of death." Art. 116 of the Amendments to the Massachusetts Constitution. This amendment had been adopted by joint sessions of the General Court in the years 1980 and 1982.

On December 15, 1982, both houses of the General Court enacted c. 554 of the Acts of 1982, providing for capital punishment in certain cases of murder in the first degree. The act was approved by the Governor on December 22, 1982, and took effect on January 1, 1983, to apply to offenses committed on or after the effective date. St. 1982, c. 554, sec. 8. . . . We conclude that art. 26 now prevents this court from construing any provision of the Massachusetts

3. For literature on this phenomenon, see Ronald K.L. Collins, "Foreword: Reliance on State Constitutions-Beyond the 'New Federalism'," University of Puget Sound Law Review 8 (Winter 1985): x-xi; James M. Fischer, "Ballot Propositions: The Challenge of Direct Democracy to State Constitutional Jurisprudence," Hastings Constitutional Law Quarterly 11 (Fall 1983): 43; Donald E. Wilkes, Jr., "First Things Last: Amendomania and State Bills of Rights," Mississippi Law Journal 54 (June 1984): 223; Janice C. May, "Constitutional Amendment and Revision Revisited” Publius: The Journal of Federalism 17 (Winter 1987): 169-79.

Constitution, including art. 26 itself, as forbidding the imposition of the punishment of death. We do not, however, see anything in the new language of art. 26 which prevents us from invalidating a particular death penalty statute under the Massachusetts Constitution on a ground other than that the imposition of the punishment of death is forbidden.

We do not consider that our invalidation of this statute is equivalent to prohibiting the imposition of the punishment of death. When, in Commonwealth v. Gagnon... we held that G.L. c. 94C, sec. 32 (a), was unconstitutionally vague and therefore was void, the Commonwealth lost the authority to execute the tenyear prison sentences which had been imposed on the defendants under that section. That result did not mean that we were construing either the United States Constitution or our own as prohibiting the imposition of ten-year sentences of imprisonment. Ten-year prison sentences are in themselves constitutional; the particular statutes which provide for them may be unconstitutional for a variety of reasons.11

"'One of those reasons might be that, in particular circumstances, a ten-year prison term is a cruel or unusual punishment. Likewise, we consider that the art. 26 ban against cruel or unusual punishment still may apply to a statute authorizing the death penalty. Instead of operating to prohibit the imposition of the death penalty, however, art. 26 now operates to regulate it. For instance, hypothetical statutes such as those described in note 14 infra still may be ruled unconstitutional under art. 26. Furthermore, a statute may be ruled unconstitutional under art. 26 although it might not be construed as unconstitutional under the Eighth Amendment to the United States Constitution. If the proponents of art. 116 had wished to tie the standard of review under art. 26 to that under the Eighth Amendment, they could have done so. See Fla. Const. art. 1, sec. 12 (as amended Nov. 2, 1982).

The first joint session of the General Court to adopt art. 116 did so on September 19, 1980, while Watson was pending before this court. The amendment was adopted in joint session by the next General Court on June 21, 1982. The sparse history of this amendment in the General Court sheds little light on the purpose for which it was adopted by either joint session. Nothing in that legislative history, however, indicates any notion that the amendment would shield all death penalty legislation from review under the Massachusetts Constitution. Nothing in the legislative history contradicts the natural inference that art. 116 was principally designed to overrule this court's interpretation of art. 26 as forbidding the death penalty and to forestall the possibility that any other provision of the Constitution would be interpreted thus....

That inference is sustained by the summary of the proposed amendment which was circulated to the voters and was printed on the ballot in the manner required by the Massachusetts Constitution, art. 48, General Provisions III and IV of the Amendments, as amended by art. 74, sec. 4, and art. 108. That summary read: "The proposed constitutional amendment would allow the legislature to enact laws authorizing the state courts to impose the death penalty on the conviction of crimes to be specified by law. The proposed amendment would provide that no provision of

13These arguments were circulated to the voters in accordance with art. 48, General Provisions, IV. So also was the minority report of the joint Committee on Criminal Justice, which began, "Today the Joint Committee on Criminal Justice recommends that, after 35 years, we reinstate the death penalty and that in order to do so we repeal the prohibition of it embodied in Article 26 of the Declaration of Rights." 14The Commonwealth's construction of art. 116 also would mean that a statute authorizing the imposition of the death penalty for shoplifting or prescribing the use of torture to carry out a death sentence would be valid under the Massachusetts Constitution. Nothing in the language or history of art. 116 persuades us that the people intended it to have this consequence either. See note 11 supra.

15In People v. Anderson, 6 Cal.3d 628, 100 Cal.Rptr. 152, 493 P.2d 880, cert. denied, 406 U.S. 958, 92 S.Ct. 2060, 32 L.Ed.2d 344 (1972), the California Supreme Court held that death was an impermissibly cruel punishment under former art. 1, sec. 6, of the California Constitution, proscribing cruel or unusual punishment. In November, 1972, art. 1, sec. 27, of the California Constitution was enacted by initiative. It provides: "All statutes of this state in effect on February 17, 1972, requiring, authorizing, imposing, or relating to the death penalty are in full force and effect, subject to legislative amendment or repeal by statute, initiative, or referendum. The death penalty provided for under those statutes shall not be deemed to be, or to constitute, the infliction of cruel or unusual punishments within the meaning of Article 1, Section 6 nor shall such punishment for such offenses be deemed to contravene any other provision of this constitution."

the state constitution may in the future be construed as prohibiting the imposition of the punishment of death. A YES vote would change the state constitution to allow the State Legislature to authorize the death penalty for crimes. A NO vote would not change the present prohibition against the death penalty." Nothing in the arguments for and against the amendment circulated to the voters concerned the total insulation of death penalty legislation from constitutional review. 13

The words of an amendment "are to be construed in such way as to carry into effect what seems to be the reasonable purpose of the people in adopting them.” Raymer v. Tax Comm'r, 239 Mass. 410, 412, 132 N.E. 190 (1921). The construction of art. 116 which the Commonwealth urges us to adopt would mean that a statute establishing the death penalty for members of one particular race only or providing for the imposition of the death penalty without trial would be valid under the Massachusetts Constitu-tion. In the absence of any indication to the contrary in the language and history of the amendment, we cannot accept the Commonwealth's radical construction of art. 116 as carrying into effect the reasonable purpose of the people.14 See People v. Superior Court of Santa Clara County, 31 Cal.3d 797, 806-809, 183 Cal.Rptr. 800, 647 P.2d 76 (1982).15

In People v. Superior Court of Santa Clara County, supra, a majority of the California Supreme Court ruled unconstitutionally vague subdivision (a)(14) of Penal Code sec. 190.2. That subdivision set forth as a "special circumstance[]" that "[t]he murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity." The penalty mandated under that section for a defendant found guilty of murder in the first degree in any case where that or any other special circumstance was charged and specially found to be true was death or confinement in State prison for a term of life, without possibility of parole.

The court rested its decision on art. 1 secs 7(a) and 15, of the Constitution of the State of California, as well as on the due process clause of the Fourteenth Amendment to the United States Constitution. It rejected the State's argument that art. 1, sec. 27, of the California Constitution insulated from State constitutional review all statutes, substantive and procedural, relating to the death penalty and thus precluded the court from reviewing the subdivision at issue under the California Constitution. See People v. Superior Court of Santa Clara County, supra, 31 Cal.3d at 807-809, 183 Cal.Rptr. 800, 647 P.2d 76. The court stated that "[n]owhere in the section or the legislative history is there any indication that the drafters or proponents intended to affect the continuing applicability of the state Constitution in death penalty trials insofar as the defect in the statute in question does not relate to the death penalty per se." Id. at 808, 193 Cal.Rptr. 800, 647 P.2d 76. It also based its conclusion as to the intention behind sec. 27 on the absurd results which would be produced by the logical extension of the State's interpretation of the section. For example, the vagrancy law's

The unconstitutionality of the questioned provisions. The death penalty provisions enacted in St.1982, c. 554, violate art. 12 of the Declaration of Rights of the Massachusetts Constitution. They impermissibly burden both the right against self-incrimination and the right to a jury trial guaranteed by that article. We base this conclusion on the fact that according to the terms of St.1982, c. 554, the death penalty may be imposed, if at all, only after a trial by jury. Those who plead guilty in cases in which death would be a possible sentence after trial thereby avoid the risk of being put to death. The inevitable consequence is that defendants are discouraged from asserting their right not to plead guilty and their right to demand a trial by jury...

HENNESSEY, Chief Justice (concurring).

I concur in the opinion of the court. Under the recent amendment to art. 26, the death penalty itself is not forbidden by any provision of the State Constitution. However, the amendment does not preclude consideration of the constitutionality of the statutory implementation of the death penalty. Under c. 554, a defendant who pleads guilty to murder in the first degree cannot be sentenced to death. Consequently, it is clear that any defendant who does not plead guilty, is found guilty after a trial, and is subsequently sen

15(cont.)

"common drunk" provision, which the court had determined to be void for vagueness, precluding imposition of a county jail term, could not have been invalidated under the State Constitution if the penalty for being a "common drunk" had been death. Id. at 809, 183 Cal.Rptr. 800, 647 P.2d 76.

At oral argument before us, the Commonwealth sought to distinguish the California case in that the statutory subdivision there ruled unconstitutional had to do with the process of determining guilt or innocence. See id. at 803, 183 Cal.Rptr. 800, 647 P.2d 76. The Commonwealth conceded at oral argument that art. 116 does not insulate statutory provi

Discussion Notes

1. Why would Chief Justice Hennessey want to rest the court's decision on the federal constitution?

2. Does it make sense that state constitutional civil liberties decisions, many of which protect

tenced to death, has been, under art. 12 of the Declaration of Rights, unconstitutionally penalized for exercising his right to try his case rather than to plead guilty. This conclusion is unavoidable unless one distorts and "rewrites" in an impermissible manner the clear language of the legislation.

I add that I should prefer that the court rests its conclusion of unconstitutionality upon the United States Constitution. If the court had done so, it would be unnecessary at this time to reach the issue of the scope and meaning of art. 116 of the amendments to the State Constitution. In United States v. Jackson, 390 U.S. 570, 581, 88 S.Ct. 1209, 1216, 20 L.Ed.2d 138 (1968), the Supreme Court stated: "Our problem is to decide whether the Constitution permits the establishment of such a death penalty, applicable only to those defendants who assert the right to contest their guilt before a jury. The inevitable effect of any such provision is, of course, to discourage assertion of the Fifth Amendment right not to plead guilty and to deter exercise of the Sixth Amendment right to demand a jury trial." In a number of cases the Supreme Court has relied on the Jackson principle in vacating death sentences.... Chapter 554 suffers from the same defect found in Jackson and is clearly unconstitutional under the Fifth and Sixth Amendments to the Constitution of the United States.

sions dealing with the process of determining guilt or innocence from State constitutional review. It stated that art. 116 was wholly concerned with disposition.

Although the subdivision invalidated by the California court was concerned with the determination of guilt, the language of the court quoted above indicates that it considered more than just statutory provisions so concerned to be subject to State constitutional review. Furthermore, we see no more justification for interpreting art. 116 as insulating provisions dealing with sentencing from review under the Massachusetts Constitution than for interpreting it as so insulating provisions dealing with the determination of guilt. See notes 11 and 14 supra.

minorities, can be overturned by a simple majority of those voting on a state constitutional amendment? Is there any alternative? What pitfalls are associated with alternatives? See May, "Constitutional Amendment and Revision Revisited," p. 178.