concurring:
Except as to the last three paragraphs I concur in Judge Rubin’s opinion and as to the excepted portion I concur in Judge Reavley’s concurrence.
FRANK M. JOHNSON,' Jr., Circuit Judge, with whom GODBOLD, Chief Judge, KRAVITCH, POLITZ, HATCHETT, ANDERSON, SAM D. JOHNSON, THOMAS A. CLARK and WILLIAMS, Circuit Judges, join, dissenting:
I respectfully dissent.
The facts of this case are adequately set forth in the plurality opinion as well as in the original panel opinion, see Terrebonne v. Blackburn, 624 F.2d 1363 (5th Cir. 1980). Suffice it to say that 21-year-old Ricky Terrebonne, a known heroin addict, while attempting to withdraw from his addiction, violated Louisiana law when he brokered a single purchase of a small amount of heroin for undercover police officers, at the insistence of the officers, in order to get for himself a badly needed fix. Upon conviction of this criminal act, Terrebonne could have received, at best, one of the two sentences: 1 (1) an enforced life sentence or (2) a suspended life sentence with or without a term of probation.2 Without the benefit of a presentence report,3 the sentencing judge chose and imposed the enforced life sentence. Unless a majority of the Louisiana Board of Pardons recommends a pardon or commutation of sentence and the Governor then accepts the recommendation and acts accordingly,4 Terrebonne will spend the rest *1004of his life in prison. See La.Const. art. 4, § 5; La.Rev.Stat.Ann. § 15:572.
As approached by the plurality, this case presents two questions: (1) Is the statutory scheme under which Terrebonne was sentenced, which imposed a mandatory sentence for life subject to possible suspension of the sentence or subsequent commutation or grant of pardon by the Governor acting upon the favorable recommendation of the Board of Pardons, so arbitrary on its face as to constitute cruel and unusual punishment under the Eighth Amendment; and (2) Was the statutory scheme applied in this case in a sufficiently arbitrary manner to constitute cruel and unusual punishment? After briefly delineating my view of the viability of the disproportionality analysis as applied to this case, I will deal with each question.
I.
The plurality opinion acknowledges that, while the Supreme Court in Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980), indicated that a dispróportionality analysis has only a limited use in invalidating sentences under an Eighth Amendment challenge, the Rummel Court nevertheless employed the concept of dis-proportionality. In the words of the plurality, the Rummel Court determined that the recidivist statute there at issue served “an obvious and substantial state interest and hence was not, in fact, grossly disproportionate.” Ante at 1002 (citing Rummel v. Estelle, supra, 445 U.S. 283-287, 100 S.Ct. at 1144-45). Using an approach similar to the approach of the Rummel Court, the plurality inquires only whether the sentence imposed on Terrebonne under the Louisiana statutory scheme serves a “substantial state interest.” Concluding that it does, the plurality dismisses the Eighth Amendment challenge. I agree that the Rummel Court found inapplicable to the facts of that case the three-pronged disproportionality analysis that this Court had earlier applied, see Rummel v. Estelle, 587 F.2d 651 (5th Cir. 1978); I also agree that the Rummel Court in fact utilized the concept of disproportionality in reaching its conclusions. Where I part company with the plurality is with its implicit conclusion that the only inquiry Rummel allows is whether the statute at issue serves a substantial state interest. In my opinion, in this case the Eighth Amendment and the Rummel decision require more than the plurality’s cursory review.
Ricky Terrebonne’s situation is readily distinguishable from the situation in Rummel. At issue in Rummel was a recidivist statute, a fact emphasized by the Supreme Court. Relying on the peculiar characteristics of recidivist statutes, the Court methodically dealt with the three-pronged analysis this Court had urged. The first prong, that of inquiry into the nature of the crime, was dismissed because the governmental interest underlying the recidivist statute was “not simply that of making criminal the unlawful acquisition of another person’s property; . .. [but also that of] dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law.” Rummel v. Estelle, supra, 445 U.S. at 276, 100 S.Ct. at 1140. Because the governmental interest was not focused on one specific crime, inquiry into the nature of the criminal acts committed by Rummel was deemed to be irrelevant. In Terrebonne’s case, however, the governmental interest is focused on one specific crime,5 that of distrib*1005uting heroin. Thus, inquiry into the nature of the criminal act committed by Terrebonne is relevant, as is the question whether and to what extent the governmental interest advanced by the Louisiana statutory scheme is directed toward incarcerating for life persons who engage in the activity engaged in by Terrebonne, namely, brokering a small quantity of heroin to police officers who instigated the entire transaction and paid Terrebonne with a small portion of that heroin.
The Rummel Court also relied upon the particular traits of the recidivist statute to conclude that the second prong, namely, comparing punishments for similar crimes in other jurisdictions, was not helpful. As pointed out by the Rummel Court, recidivist statutes of different jurisdictions embody different criteria, see Rummel v. Estelle, supra, 445 U.S. at 279-280, 100 S.Ct. at 1141-1142. For example, some states require one or more of the underlying felonies to be “violent” to support a life sentence; others leave the imposition of a life sentence to the discretion of the judge; and others require a mandatory life sentence upon conviction of a certain number of felonies. Because of the varying requirements of the statutes, comparison was difficult. Furthermore, because the extent to which parole and probation opportunities varied from state to state, comparison of the actual sentence likely to be served was difficult, if not impossible. Such is not the case here. The elements of the crime of which Terrebonne was convicted are easily ascertainable, and closely related counterparts of this statute exist in most, if not all, American jurisdictions.6 Moreover, comparison of the length of the sentence likely to be served is much less difficult because barring favorable action by both the Board of Pardons and the Governor — action that is purely discretionary — Terrebonne will spend the rest of his life incarcerated. See supra note 4. Hence, the reasons the Rummel Court deemed not helpful a comparison of punishments for similar crimes in other jurisdictions are simply not present in Terrebonne’s situation. The reasons not being present, I believe the comparison becomes relevant and, in this case, most appropriate.
The unique characteristics of recidivist statutes also formed the basis of the Supreme Court’s rejection of the validity of comparing other punishments provided by the same state for different crimes, which was the third prong of this Court’s Rummel analysis. “If nothing else, the three-time offender’s conduct supports inferences about his ability to conform with social norms that are quite different from possible inferences about first- or second-time offenders.” Rummel v. Estelle, supra, 445 U.S. at 283 n.27, 100 S.Ct. at 1143 n.27. The extremely valid interest that states have in punishing or isolating those criminals who have demonstrated a propensity for committing criminal acts cannot easily be compared to the interest of a state in making criminal one specific act. On the other hand, it is much easier to compare the state interests underlying two statutes *1006making criminal two specific acts. Even though the statutes may be aimed at two completely different evils or may be aimed at one relatively isolated evil as compared to one part of an evil, statutes that focus on the prohibition of specific conduct are more readily comparable with statutes aimed at punishing and isolating recidivists.
From the foregoing, it is apparent that, although the Rummel Court found the three-pronged criterion urged by this en banc Court when it considered Rummel not to be helpful in analyzing an Eighth Amendment challenge to a recidivist statute, the Supreme Court did not foreclose the use of that criterion in challenges to other statutes. Moreover, when the Court acknowledged that the imposition of punishment is subject to “those strictures of the Eighth Amendment that can be informed by objective factors,” Rummel v. Estelle, supra, 445 U.S. at 284, 100 S.Ct. at 1144 (emphasis supplied), it indicated a willingness to use other criteria to evaluate Eighth Amendment challenges. What the other criteria might be the Court chose not to reveal. As a member of the original panel that heard this case, I felt that the identification and development of the objective factors necessary to a determination of disproportionality in this case were best left to the participants below in a hearing before the district court. Although I continue to adhere to the position that the district court is the proper forum to identify and develop the pertinent objective factors,7 since there is to be no district court hearing I find it appropriate for purposes of my discussion to enunciate a few possible objective factors bearing on an Eighth Amendment challenge.
One factor is the degree of judicial flexibility or discretion inherent in the sentencing process. A lengthy sentence may be cruel and unusual if it must be imposed upon conviction of a particular crime; that same sentence, however, might pass Eighth Amendment muster if it is selected from a range of potential punishments and imposed by a judge who is familiar with the peculiar facts of the crime and the individualized circumstances of the defendant. A second possible factor is the degree to which the severity of the punishment corresponds to the severity of punishments imposed upon defendants who share the characteristics of the defendant and who committed similar crimes within the punishing jurisdiction. In other words, the inquiry is whether similarly situated defendants are treated similarly within the jurisdiction. For example, if judges within a jurisdiction systematically exercise their discretionary sentencing authority to impose light sentences on young drug offenders who have no record of serious criminal behavior, a young drug offender with no record of serious criminal behavior who receives the maximum sentence may have been subjected to cruel and unusual punishment. Other possible objective factors exist, and my enumeration of the above two factors is not intended to impart to them greater significance than to the other unnamed factors. I delineate these two factors only as an example of the type inquiry I deem appropriate in a case such as this and because, from the undeveloped record presently before us, these factors seem to be pertinent to the facts of this particular case.
II.
The plurality now determines that the facial challenge to the statute is meritless, reasoning that, since the sentencing judge was allowed to impose alternative sentences and could take into account any factors that might properly weigh in favor of clemency, “Terrebonne’s facial challenge can succeed only if Louisiana could not properly choose *1007life imprisonment as a maximum sentence.” Ante at 1001. Since I agree that life imprisonment may be constitutional in some instances of drug dealing,8 if meaningful alternatives had in fact been available to the sentencing judge I would agree with the plurality’s conclusion that the facial challenge is meritless. However, I think it obvious that the sentencing judge was not faced with meaningful alternatives. Indeed, it appears that the judge thought he had only one option.9 But as a matter of law the judge was afforded two options. He could have sentenced Terrebonne to life imprisonment, knowing that he had no hope of release in the absence of favorable action by both the Board of Pardons and the Governor. Alternatively, he could have sentenced Terrebonne to life imprisonment, suspended the sentence, and, if desired, placed Terrebonne on probation with a condition of probation being imprisonment for a term not to exceed one year. See La. Code Crim.Proc.Ann. art. 895. I submit that these two options are so widely divergent as not to be options at all;10 at the very least they do not constitute meaningful alternatives.11
If, as I believe, the Louisiana statute removes all practical discretion from the sentencing judge, the statute falls short of Eighth Amendment requirements. In practical effect, the statute requires that “every offense in a like legal category . .. [receive] an identical punishment without regard to the past life and habits of a particular offender.” Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337 (1949); see Woodson v. North Carolina, 428 U.S. 280, 296-97, 96 S.Ct. 2978, 2987, 49 L.Ed.2d 944 (1976) (plurality opinion). As a common sense proposition, it is well recognized that “individual culpability is not always measured by the category of crime committed.” Furman v. Georgia, 408 U.S. 238,402, 92 S.Ct. 2726, 2810, 33 L.Ed.2d 346 (1972) (Burger, C. J., dissenting) (quot*1008ed in Roberts v. Louisiana, 428 U.S. 325, 333, 96 S.Ct. 3001, 3006, 49 L.Ed.2d 974 (1976) (plurality opinion). In Eighth Amendment challenges in capital cases, this proposition rises to the level of a constitutional requirement. E. g., Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). In noncapital cases, however, “the established practice of individualized sentences rests not on constitutional commands, but on public policy enacted into statutes.” Id. at 605, 98 S.Ct. at 2965. This is so because
[t]he need for treating each defendant in a capital case with that degree of respect due the uniqueness of the individual is far more important than in noncapital cases. A variety of flexible techniques— probation, parole, work furloughs, to name a few — and various postconviction remedies may be available to modify an initial sentence of confinement in noncapital cases.
Id. at 605, 98 S.Ct. at 2965. The Supreme Court has never been faced with a noncapital situation in which the sentencing authority, for all practical purposes, lacks discretion to impose a sentence less than life and in which, barring action on the part of the Board of Pardons as well as the Governor, the convicted defendant will, in fact, spend the rest of his life in prison.12 In many respects, a sentence such as Terrebonne received more closely approximates a death sentence than it does a regular prison sentence. True, the sentence Terrebonne received is not irrevocable; but its finality approaches that of a death penalty since only gubernatorial action based on a favorable recommendation from the Board of Pardons can reduce Terrebonne’s sentence to less than life. Moreover, the life sentence contemplated by the Louisiana statute necessarily rejects the possibility of rehabilitation, a characteristic the Supreme Court has attributed to the death penalty. See Rummel v. Estelle, supra, 445 U.S. at 272, 100 S.Ct. at 1138; see also Woodson v. North Carolina, supra, 428 U.S. at 304, 96 S.Ct. at 2991 (plurality opinion). Indeed, the main purposes of the sentence imposed on Terrebonne seem to be deterrence and isolation, two frequently named purposes of the death penalty.
In light of the similarities between the sentence imposed in this case and the death penalty, I believe the Eighth Amendment requires that the procedures for imposing the instant sentence approximate the procedures for imposing the death penalty. This is not to imply that the two procedures should be identical; indeed, the crucial distinction between extinguishing a human life and imprisoning a person without prac*1009tical hope of release may be recognized. But by the same token the Constitution affords defendants faced with the possibility of spending the rest of their lives imprisoned without practical hope of release greater safeguards than a defendant charged with a speeding violation. At the very least, the Eighth Amendment requires that the sentencing judge be given discretion, in the practical sense, to impose a lesser sentence than a life sentence corn-mutable only if the Board of Pardons recommends commutation and the Governor concurs and acts.
Even if, as the plurality holds, the sentencing judge had available meaningful a!ternatives, it seems to me that a statutory scheme that allows only (1) incarceration for life or (2) incarceration for a year or less is so irrational and arbitrary as to violate the Eighth Amendment. Even the State of Louisiana concedes that inherent in the prohibition of cruel and unusual punishment is the requirement that punishments be rationally related to the governmental interests and that punishments be meted out in a fair and rational manner.13 I simply cannot conceive how the Louisiana scheme can possibly be deemed rational or nonarbitrary when it allows only two extremely divergent options-incarceration for a period not to exceed one year and incarceration for life.
III.
As to Terrebonne’s challenge to the constitutionality of the statute as applied to his particular situation, I adhere to the view expressed in my concurrence to the panel opinion. Prerequisite to a meaningful review is a full development of pertinent objective factors. As discussed in Part I of this dissenting opinion, I believe that, although the Rummel decision restricts the use of our three-pronged analysis in cases of recidivist statutes, the analysis is nevertheless valid under the particular facts of this case. Moreover, Rummel indicates that other objective factors may be used to evaluate an Eighth Amendment claim. Until these factors are developed, any appellate review is merely a speculative exercise, an exercise in which I decline to participate.
I observe that, assuming the plurality’s approach is an acceptable one, few, if any, criminal statutes could fail to pass Eighth Amendment standards. Even the example for which the Rummel Court explicitly acknowledged a disproportionality analysis would be proper&emdash;punishing overtime park- ing by life imprisonment&emdash;might withstand the test employed by the majority. Cer- tainly a state has a “substantial interest” in regulating traffic, assuring ready access for all citizens to its parking facilities, and maintaining a general respect for the law. According to the majority of the judges on this Court, in order to legally justify the imposition of a life sentence eommutable only by the Governor of the State only upon recommendation of the Board of Pardons, the Constitution requires no more. I dissent. JERRE S.
WILLIAMS, dissenting:
. The statute under which Terrebonne was convicted was phrased in mandatory terms, specifying that “upon conviction [defendant] shall be sentenced to life imprisonment at hard labor;” the Louisiana courts have held, however, that even though the statute mandated the imposition of the life sentence it did not preclude suspension of the sentence. See State v. Mallery, 364 So.2d 1283, 1284 (La.1978). The statute has been amended to provide for a sentence of “life imprisonment at hard labor without benefit of probation, or suspension of sentence ....” La.Rev.Stat.Ann. § 40:966 (Supp.1981).
. Under La.Code Crim.Proc.Ann. art. 895 the sentencing judge could require as a condition of probation that Terrebonne serve a term of incarceration not to exceed one year.
. In a brief filed in the Supreme Court of Louisiana Terrebonne alleged that the sentencing judge did not receive a presentencing report; the record before us does not reveal whether the State disputed this allegation. The district court did not make a finding of fact on this or any other point. For purposes of this appeal, I take as true Terrebonne’s allegation.
. Under La.Rev.Stat.Ann. § 15:574.4 the Louisiana Board of Pardons is prohibited from granting parole to a person who has been sentenced to life imprisonment until after the life sentence has been commuted to a term of years. By La.Rev.Stat.Ann. § 15:572 and La.Const. art. 4, § 5, the Governor is granted the power to commute sentences upon the recommendation of the Board of Pardons. Thus, for Terrebonne to become eligible for parole, at last three of the five members of the Board of Pardons must recommend the commutation of Terrebonne’s sentence and the Governor must actually commute the sentence. See La.Rev.Stat.Ann. §§ 15:572, 15:574 (Supp.1981). A favorable recommendation from the Board of Pardons is similarly required for the Governor to issue a pardon. La.Const. art. 4, § 5. Actions by the Board of Pardons and the Governor in this field are totally discretionary, and “[n]o person [has] a right of appeal from a decision of the board of pardons or the governor regarding clemency.” La.Rev.Stat.Ann. § 15:572.6.
The plurality points out that “[t]his power [apparently referring to the Governor’s power to commute sentences] appears to have been *1004exercised with some frequency.” Ante at 1000. In support of this assertion the plurality cites statistical reports of the Louisiana Department of Corrections, reports that are not part of the record before us. These reports do not reflect the frequency with which the Governor has commuted sentences, but only the frequency with which the Board of Pardons has recommended the commutation of sentences. There is no indication in the record or in any authority cited by the plurality concerning the frequency with which the Governor commutes life sentences to terms of years. If a district court hearing was to be held, this would be an appropriate area for inquiry.
. The suggestion that La.Rev.Stat. 40:966 is unique, being directed at only a part of the total evil of drug abuse, and thus the statute cannot be fruitfully compared to statutes proscribing other criminal acts reflects a simplistic analysis of criminal law. It is true that a drug statute *1005could be based on a legislative conclusion that, measured “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, 364 So.2d 1290, 1292 (quoting Carmona v. Ward, 576 F.2d 405, 411 (2d Cir. 1975)). But other, if not all, statutes that focus on particular criminal activity express a concern for the far-ranging consequences of the behavior. For example, statutes proscribing forgery indicate a legislative judgment that the taking of another’s property be prohibited; however, forgery statutes also reflect a concern for the stability of our banking institutions and our economy which is so dependent upon those institutions. Likewise, statutes outlawing rape embody a concern for “the personal integrity and autonomy of the female victim;” these statutes also, however, seek to protect the “community’s sense of security.” Coker v. Georgia, 433 U.S. 584, 597-98, 97 S.Ct. 2861, 2868-69, 53 L.Ed.2d 982 (1977). Hence, statutes that outlaw drug dealing in part because of the social consequences of drug addiction are by no means unique.
. See, e. g„ Ala.Code § 20-2-70 (1975) (maximum sentence of 15 years); Fla.Stat.Ann. §§ 775.082, 893.13 (Supp.1981) (maximum sentence of 15 years); Ga.Code Ann. § 79A-811(d) (Supp.1980) (maximum sentence of 15 years); Miss.Code § 41-29-139 (Supp.1980) (maximum sentence of 14 years or $15,000 fine).
. I read the plurality opinion as suggesting that the pertinent criteria should be developed by an appellate court. See ante at 1001, n.5. But an appellate court cannot intelligently decide a case until an adequate factual record is developed at the trial level. In this case the district court did not hold a hearing and the parties did not have an opportunity to establish facts that, under my analysis of the applicable constitutional principles, may have constituted the “objective factors” referred to by the Rummel Court. If such a presentation had been made at the trial level, we would now be in a position to evaluate the legal effect of the factors.
. United States v. Valenzuela, 646 F.2d 352 (9th Cir., 1980), illustrates a case in which life imprisonment without parole imposed for drug dealing may be constitutional. In Valenzuela defendant was convicted of nine offenses, including one conspiracy count, seven substantive narcotic counts, and one continuing criminal enterprise count. For the conspiracy count and three of the substantive counts, he received four fifteen-year sentences, to run consecutively. For the four remaining substantive counts, he received four more fifteen-year sentences, to run consecutively. For the criminal enterprise count, he received life imprisonment without the possibility of parole. The two sixty-year terms and the life term were to run consecutively. The Ninth Circuit rejected defendant’s Eighth Amendment challenge to the sentence, distinguishing the panel opinion in this case because “the district court [in Valenzuela ] exercised its discretion under 21 U.S.C. § 848 in imposing a life sentence, based upon its finding of a long-term, large-scale, highly profitable drug operation.” United States v. Valenzuela, supra, 646 F.2d at 354.
. The trial judge at sentencing stated as follows:
The Court: As you know, you’ve been found guilty of the crime of distribution of heroin. This Court has no choice in what it may do. The Legislature has prescribed the punishment that is mandatory. I must sentence you to what I do, you understand that? Mr. Terrebonne: Yes, sir.
The Court: I have no choice. The Court sentences you to life imprisonment at hard labor. You will be committed to the Louisiana Department of Corrections for execution of said sentence. I will give you credit for any time served in this matter. 1 wish you luck, somehow something will work out for you down the line.
. I take judicial notice that Louisiana judges are elected officials. La.Const. art. 5, § 22; see La.Const. of 1921, art. 7, § 69. In light of the current public concern over drug abuse, it would be unrealistic to assume that even the most dedicated Louisiana trial judge would not to some extent feel political and/or social pressures not to reduce the sentences of those convicted of distributing drugs. In Beck v. Alabama, 447 U.S. 625, 645 n.22, 100 S.Ct. 2382, 2393 n.22, 65 L.Ed.2d 392 (1980) the Supreme Court acknowledged the practical obstacles confronting a judge who has the option to reduce a jury recommendation of death to a lesser term. I think these obstacles are similarly significant when a judge is faced with suspending a legislatively mandated life sentence.
. I agree with the plurality’s implicit premise that, in the absence of alternative sentences a life sentence for the activity encompassed by La.Rev.Stat.Ann. § 40:966 cannot stand. I differ only in my conclusion that the practical effect of the statutory scheme is the removal of alternatives from the sentencing process.
. My research has not revealed a Supreme Court or Fifth Circuit case addressing Eighth Amendment requirements in cases carrying mandatory life sentences without parole or probation. Rather, the cases have dealt with mandatory life sentences with parole or probation as a possibility, Rummel v. Estelle, supra, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382, mandatory sentences less than life, United States v. Del Toro, 426 F.2d 181 (5th Cir. 1970) (upholding 5-year mandatory minimum sentence for selling heroin); United States v. Drotar, 416 F.2d 914 (5th Cir. 1969) (upholding 5-year mandatory minimum sentence for second offense of possession of marijuana); or sentences imposed in the sentencing authority’s discretion within a statutorily defined range of punishment, e. g., King v. United States, 565 F.2d 356 (5th Cir. 1978) (upholding 15-year sentence for conspiracy to import heroin imposed consecutively on another sentence); United States v. Bondurant, 555 F.2d 1328 (5th Cir. 1977) (upholding life sentence for kidnapping a 4-year-old girl; sentencing judge considered defendant’s personal history, psychiatric reports, the nature and circumstances of the crime, and defendant’s prospects for rehabilitation in imposing the maximum sentence); Salazar v. Estelle, 547 F.2d 1226 (5th Cir. 1977) (upholding 45-year sentence without benefit of probation for selling heroin; sentence was assessed by jury after holding a separate punishment proceeding, at which time both sides presented witnesses); United States v. Gamboa, 543 F.2d 545 (5th Cir. 1976) (upholding 5- and 10-year concurrent sentences for seven counts of possession of unregistered firearms without serial numbers and one count of possession of a firearm during the commission of a felony; sentence imposed after trial court reviewed a presentence report and sentence was within the 10-year per count maximum); Howard v. Maggio, 540 F.2d 1280 (5th Cir. 1976) (upholding 99-year sentence for armed robbery without benefit of parole, probation, or suspension of sentence; sentence was within the 5-year to 99-year statutory range and record reflected a killing by gunshot during the robbery).
. The following colloquy occurred during oral argument before the en banc Court:
Q: (by Judge Frank Johnson): Do you agree that when the legislature passes an act that mandates a certain sentence there must be some rational basis for the sentence that is mandated?
the State): Yes .... Q: And a statute
that does not allow any flexibility or a statute that does not have any rational basis is unconstitutional, can we as- sume that? A: I’d assume that
A: I’d assume that ....