(dissenting).
i
The issue presented in the instant case is whether the Legislature intended to limit the types of factors that a sentencing court may consider in determining whether "substantial and compelling” reasons exist for a departure from a mandatory minimum sentence, pursuant to MCL 333.7401(4); MSA 14.15(7401)(4). After examining the statutory language, and after considering the legislative intent, I would hold that the Legislature specified that the controlled substance sentencing departure from the mandatory minimum sentence threshold is a substantial and compelling reason. The Legislature did not specify any limitations on the types of factors a sentencing court may consider, nor did it specify the appropriate weight to be given any traditional sentencing factors. Therefore, a sentencing court may consider the individual circumstances of a case, i.e., all the factors and circumstances surrounding the offender and the offense. Moreover, because sentencing relates to this defendant, and to this sentencing judge, then, by deñnition, the weighing of all the factors and circumstances before the sentencing court must be subjective.
I respectfully dissent because the majority is *91improperly adding limitations to judicial discretion that the Legislature has not intended.
n
In the instant case, the defendant pleaded guilty of possession with intent to deliver 50 to 225 grams of cocaine.1 Consequently, the applicable statutory term of imprisonment was "not less than 10 years nor more than 20 years.” MCL 333.7401(2)(a)(iii); MSA 14.15(7401)(2)(a)(iii). The statute also provides:
The court may depart from the minimum term of imprisonment authorized under subsection (2)(a)(ii), (iii), or (iv) if the court finds on the record that there are substantial and compelling reasons to do so. [MCL 333.7401(4); MSA 14.15(7401X4). Emphasis added.]
The "substantial and compelling” provision first appeared in SB 277 (Substitute H-2), which was enacted as 1987 PA 275. At that time, the Legislature reduced the mandatory minimum terms of imprisonment with the idea that the lower minimum terms would be more readily imposed. House Legislative Analysis, SB 277 (Substitute H-2), First Analysis, December 16, 1987. The bill also allowed departures from these mandatory minimums for substantial and compelling reasons. The recognized importance of judicial sentencing discretion emerged among the arguments supporting the bill:
By reducing certain minimum terms, and allowing judges to depart from them, the bill would moderate what has been an uncompromising law and would give judges greater flexibility in making sentencing decisions based on the individual cir*92cumstances of a case. At the same time, strong measures for major controlled substance violations would be retained. [Senate Fiscal Agency Analysis, SB 277 (as enrolled) (1987 PA 275), Revised Third Analysis, January 5, 1989. Emphasis added.]
In 1989 PA 143, the Legislature doubled the mandatory minimum sentences. It did not change the "substantial and compelling” standard.
Until today, we have not specifically addressed the issue before us now. However, in People v Schultz, 435 Mich 517; 460 NW2d 505 (1990),2 four members of this Court underscored the importance of judicial discretion in sentencing under this statute. Justice Archer3 noted that even though the Legislature increased the mandatory minimum terms of imprisonment in 1989, it retained the departure policy. He added:
Thus, the legislative mandate is clear: The sentencing courts of this state are authorized to exercise discretion and, in appropriate cases presenting substantial and compelling circumstances, to depart from the Public Health Code’s mandatory minimum terms. [Id. at 531.]
Justice Boyle, in her concurring opinion, also stated:
I have confidence that the trial judiciary of this state will apply today’s decision in a manner that implements a public policy that decries the scourge of drugs while reflecting, in appropriate cases, the equally important belief that only the rarest individual is wholly bereft of the capacity for redemption. [Id. at 533-534. Emphasis added.]
*93in
I turn now to the history of the misguided addition of the "objective and verifiable” limitation to the statutory "substantial and compelling” standard.
The scope of "substantial and compelling” was first addressed by the Court of Appeals in People v Downey, 183 Mich App 405; 454 NW2d 235 (1990). After observing that the Legislature did not define "substantial and compelling,” the Downey panel looked to dictionary definitions of those terms and to statutes of Minnesota and Washington, which also used the "substantial and compelling” standard.4
After reviewing the history of sentencing in *94Michigan, the Downey panel properly noted that the rehabilitative potential of the individual is an appropriate factor for the sentencing court to consider.5 The Downey panel provided a "nonexhaustive” list of appropriate factors to consider:
(1) the facts of the crime which mitigate defendant’s culpability . . ., (2) defendant’s prior record, (3) defendant’s age, and (4) defendant’s work history. [Id. at 414-415.]
The panel then stated:
We should, however, state that the term "substantial and compelling” implies that the factor must be capable of verification and thus is an objective standard as opposed to a subjective one. For example, a defendant’s prior criminal record is *95readily verifiable and objective. On the other hand, a defendant’s protestations of remorse and his actions after his arrest which are relied upon to show his remorse and rehabilitative potential are much more subjective and thus would not, absent other exceptional circumstances, be appropriate factors to consider. [Id. at 415-416. Emphasis added.][6]
The Downey panel had to infer an "objective” limitation because there was no such direction from the Legislature. It further illustrated the difficulties of drawing an objective/subjective line by its attempt to characterize external actions as subjective. I think actions are observable by others and they are, therefore, verifiable.
The difficulties of an arbitrary objective/subjective line were illustrated in People v Krause, 185 Mich App 353; 460 NW2d 900 (1990). The Krause panel adopted the "objective and verifiable” limitation, but disagreed with the Downey panel’s conclusion regarding the "subjectivity” of certain factors. The Krause majority stated:
[W]e disagree with the Downey panel’s conclusion that, because an action is taken or an incident occurs after a defendant’s arrest, such action or incident becomes subjective. . . . The fact that a defendant expresses remorse, whether orally or in writing, is an objective action which can be confirmed. However, a defendant’s intent when he expresses remorse is within his own mind and is, therefore, subjective. It cannot be confirmed by his own statement. Consequently, his mere protestation of remorse should not be considered as a *96balancing factor for determining substantial and compelling reasons to depart from the mandatory sentence.
On the other hand, a defendant’s active involvement in volunteer work, or cooperation with the police after his arrest, are events which exist outside the minds of the persons involved in deciding the defendant’s sentence and can be verified. ... It is only when the sentencing court, upon an evaluation of all the objective, verifiable information, reaches the conclusion that the collective facts provide substantial and compelling reasons to depart from the mandatory sentence that it may, in the exercise of discretion, decide to do so. [Id. at 358-359. Citation omitted.]
Judge Griffin wrote the majority opinion in People v Troncoso, 187 Mich App 567; 468 NW2d 287 (1991), which became temporarily binding on the Court of Appeals under the first-out rule of Administrative Order No. 1990-6. Judge Griffin reviewed principles of statutory construction, found that the terms "substantial and compelling” were undefined by the Legislature, and looked to common dictionary definitions. He concluded:
In light of these definitions and the Legislature’s expressed intent to expand sentencing discretion, we cannot subscribe to the Downey restrictions which limit the sentencing court’s consideration to prearrest factors capable of objective verification. The terms used by the Legislature plainly contemplate a broader scope of relevant criteria. . . . The litmus test invented by the Downey panel is a creative construction of a penal statute which is unsupported by any legislative history and not evident from a fair reading of the words used by the Legislature. [Id. at 574.][7]_
*97In People v Hill, 192 Mich App 102; 480 NW2d 913 (1991), a superpanel majority resolved the conflict in the Court of Appeals panels by adopting the Downey and Krause approach. In so doing, the Hill majority quoted and relied upon a legislative analysis that was written in 1978. In particular, the Hill majority quoted an argument against mandatory sentences that advocated greater sentencing discretion. Id. at 116-117, quoting House Legislative Analysis, HB 4190, Third Analysis, May 17, 1978. The majority stated: "This latter point of view was obviously rejected when the mandatory minimum sentencing statutes were adopted.” Hill at 117.
What is "obvious,” is that in 1987-88, some ten years later, this "latter view” was clearly reflected in the addition of § 7401(4). The Hill majority not only took statements out of context (by completely ignoring the accompanying statements in 1987-88 regarding increasing judicial discretion), it also relied on statements made in another time frame. The majority improperly failed to recognize that, in 1987-88, the Legislature did not reenact the approach that the majority claimed to be giving effect to. This fatal flaw in the majority’s analysis led it to overemphasize the legislative intent to stiffen drug penalties, by completely disregarding the accompanying legislative intent to increase judicial sentencing discretion, and to give relief *98from "an uncompromising law.” Senate Fiscal Agency Analysis, SB 277 (as enrolled) (1987 PA 275), Revised Third Analysis, January 5, 1989.
The Hill majority further stated:
Regardless of whether the original mandatory minimum sentencing statutes and subsequent amendments have the desired results, we find that if trial judges can use factors that are both subjective and not verifiable, they would have freedom to depart from the mandatory minimum for almost any reason they choose to use and they would hold in their hands the power to defeat the legislative purpose at will, subject only to review for abuse of discretion and lack of proportionality under People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990), the same standards that apply to sentences that are not mandatory. [Id. at 118. Emphasis added.]
The Hill majority exaggerated the extent of the sentencing court’s discretion. I believe that the review standard is higher than the Milbourn proportionality standard. The Legislature has established the standard of review of discretion, and that standard is substantial and compelling reasons — not just "any” reason.8
The Hill panel continued:
The threshold decision that the trial judge must make is whether there are substantial and compelling reasons to depart from the mandatory mini*99mum sentence .... It is with respect to this threshold decision that the Legislature has evidenced its intent to limit to extreme cases departure from the statutory minimum sentence. However, once the trial court determines that there are substantial and compelling reasons to depart from the statutory minimum sentence, there are no limits in the statute of the factors that the trial judge may apply in deciding how far below the statutory minimum sentence the court should go. [Id. at 119. Emphasis added.]
That is the whole point. The Legislature specified no limitations on the types of factors the sentencing court may consider. It only specified the threshold that the sentencing court must reach, and that threshold is that the circumstances of the case must establish a substantial and compelling case for a sentencing departure.
Judge Griffin, in his dissent in Hill, adhered to his approach in Troncoso:
There is nothing in the language of the statute or its legislative history that limits the discretion of sentencing judges to consideration of only those sentencing factors that are both "objective” and "verifiable.” Such restrictions are neither expressed nor implied in the law. The statute requires the articulated reasons for departure to be "substantial and compelling,” nothing more, nothing less.
The majority has chosen to rewrite the statute at issue. Its use of preamendment legislative history is puzzling. It appears that the majority relies upon the Legislature’s now-discarded intent of permitting no deviation from the mandatory minimums only because there is no support for Downey-Krause in the legislative history of the 1987-1988 amendments.
The test created by the majority is a judicial invention never contemplated by the Legislature. *100The key terms "objective” and "verifiable” remain undefined and are therefore unworkable. We cannot look to the Legislature for guidance, because the Legislature has not used these terms.
The problem of applying such vague standards is readily apparent in this case. Whether defendant Hill’s substantial family support is an "objective” and "verifiable” sentencing factor is anyone’s guess. [Id. at 121.]
After Hill, the Court of Appeals has addressed numerous factual challenges under the "substantial and compelling” standard. If anything, I think the cases indicate that the "objective and verifiable” limitation is unworkable.
One good demonstration of the problem is found in People v Harvey, 203 Mich App 445; 513 NW2d 185 (1994). The Harvey panel stated:
In this case, the trial court made objective findings that defendant had no prior record . . . and was thirty-three years of age at the time of his arrest. He also had strong family support and had been steadily employed at General Motors for fourteen years. In addition, he had been on a tether program (for the less serious conviction) for about a year before being sentenced for the instant offense and had been, in the words of the trial court, "an exemplary probationer.” We ñnd no clear error in the trial court’s determination that there were substantial and compelling reasons for a downward departure. [Id. at 448-449. Emphasis added.]
Notice that "family support” was one of the factors expressly rejected in Downey. The Hill majority intended to limit sentencing court discretion. But, by using circular terms, it has not limited appellate court discretion — if the appellate court wants to uphold a particular sentence depar*101ture, it need only state that the factors were objective and verifiable. If the appellate court wants to vacate the departure, it need only state that the factors were subjective. Is "family support” objective or is it subjective? There is no absolute answer. That is the flaw with an arbitrary objective/subjective test. The proper inquiry should be whether the nature and the extent of this defendant’s family’s support rise to the level of substantial and compelling reason, in the mind of this sentencing judge, to depart from the mandatory minimum sentence.
iv
In the case at bar, the majority concludes that "substantial and compelling” reasons should be limited by the "objective and verifiable” test that was approved in Hill. The majority argues that this limitation will better serve the Legislature’s' intent. Brickley, C.J., ante at 69-70. It states further that leaving the interpretation of "substantial and compelling” to sentencing courts "belies the legislative purpose” in enacting this statute. Id. at 70. The majority has ignored the other legislative intent to "give judges greater flexibility in making sentencing decisions based on the individual circumstances of a case.” Senate Fiscal Agency Analysis, SB 277 (as enrolled) (1987 PA 275), Revised Third Analysis, January 5, 1989.
I am troubled by many of the majority’s "observations” in part iv. For instance, the majority states that mitigating circumstances surrounding the offense should appropriately be given "considerable weight in deciding whether to depart from the statutory minimum.” Brickley, C.J., ante at 76. The majority finds such circumstances "especially compelling because of the possibility that *102the Legislature did not consider this type of behavior when it set the statute’s harsh minimum sentences.” Id. at 76 (emphasis added). My first response is that the Legislature is presumed to know what it is doing.9 Moreover, if the Legislature did not know what it was doing, the argument becomes even stronger that sentencing courts should have broader sentencing discretion. And, finally, I do not see how a mere "possibility,” which may or may not be true, can ever be "especially compelling.”
I would further add that if a factor can count both for and against the defendant, then, by deñnition, the sentencing court must have the ability to subjectively consider all the circumstances that surround the particular offender and the particular offense.
For example, the educational background of the defendant may directly suggest rehabilitative potential.10 For instance, an individual who has put himself through college reveals his ambition to try to improve his life. Moreover, whatever grades and success that the individual achieved in pursuing an education are personal achievements — not simply advantages of status. By comparison, an individual who, by accident of birth, comes from a wealthy status and yet fails to be graduated from high school or college, has perhaps revealed a lack of ambition, and, consequently, the educational *103background may suggest lack of rehabilitative potential.
Likewise, an employment history can reveal characteristics of this individual and may well better inform the sentencing judge about his culpability and rehabilitative potential. A work history can be bad. An individual who, for no particular reason, drifts from job to job reveals a lack of persistency. By the same measure, consider an individual who, by accident of birth, lives in an area with high unemployment and low standards of living. If that individual has persistently tried to hold a job, even if unsuccessfully, that individual again has revealed an ambition to try to improve his life. In such a case, I would argue that the individual’s specific work history should legitimately be considered as a factor. Moreover, because the individual’s work history can work either for or against that particular individual, then, by definition, the sentencing court must have the ability to subjectively consider all the circumstances that surround the particular offender and the particular offense.
Additionally, an individual’s age can count both for and against that particular individual, and consequently, its significance must fall within the subjective discretion of the sentencing court.
In sum, because individual offenders and individual offenses involve radically different circumstances, by definition, the totality of the circumstances must be considered by the sentencing court in determining whether substantial and compelling reasons exist to depart from the statutory minimum sentence.
v
In § 7401(4), the Legislature did not define "sub*104stantial and compelling.” Clearly, the statute provides that one or more factors must be deemed substantial and compelling to the trial court that is sentencing the individual defendant. I believe that there could be no universal agreement about what rises to the level of substantial and compelling. It relates to this defendant and to this sentencing judge, who is examining this individual and this offense. If this type of discretion is not what the Legislature intended, it can and will say so. It certainly could have enumerated all the factors and the respective weight to be given to each.
Starting from the premise that the Legislature is presumed to be familiar with the principles of statutory construction,11 it can be presumed that the Legislature intended that the Court first apply the plain meaning rule of statutory construction. Further, the Legislature can be presumed to know that the Court will also seek "to give effect to legislative intent.” Gardner v Van Buren Public Schools, 445 Mich 23, 44; 517 NW2d 1 (1994) (citation omitted). Under the plain meaning rule of statutory construction, the legislative intent is ascertained from what the Legislature said, not from what it could have said.12 There is absolutely no direction from the Legislature in either the language of § 7401(4), or in the legislative history surrounding its enactment, that we should limit substantial and compelling reasons to "objective” factors. Therefore, I cannot agree with the majority’s assertion that this was the Legislature’s intent.
I agree that the factors must be verifiable — for the simple premise that a reviewing court must *105have an evidentiary basis to review the sentencing court’s discretion. Therefore, the evidentiary basis logically must be verifiable. But how the individual factors are weighed, by definition, must be subjective.
I cannot make, the leap to an "objective” limitation that the Downey panel made. I think Judge Griffin correctly predicted that the test is unworkable. Harvey demonstrates that a reviewing court can twist the "objective” linguistics test to support a desired result. For instance, is extreme remorse purely subjective if the defendant demonstrates outward signs of it? Again, one reviewing court can state that the remorse is subjective and reject the factor; another reviewing court can state that the remorse is objective and accept the factor. The better test is whether the sentencing judge is satisfied that the nature and the extent of the defendant’s remorse are substantial and compelling reasons to support a sentencing departure.
The Legislature could have expressly listed appropriate mitigating or aggravating factors. For comparison, we can look at sentencing provisions used by other legislatures. For instance, a Rhode Island statutory provision uses the "substantial and compelling” standard, but, unlike our statute, expressly limits what may be considered substantial and compelling. For illegal possession of quantities of one ounce to one kilogram of a controlled substance, the statute provides:
In all such cases, the justice imposing sentence shall impose a minimum sentence of ten (10) years imprisonment and may only impose a sentence less than that minimum if he or she finds that substantial and compelling circumstances exist which justify imposition of the alternative sentence. Such a finding may be based upon the character and background of the defendant, the *106cooperation of the defendant with law enforcement authorities, the nature and circumstances of the offense, and/or the nature and quality of the evidence presented at trial. If a sentence which is less than imprisonment for a term of ten (10) years is imposed, the trial justice shall set forth on the record the circumstances which he or she found as justification for imposition of the lesser sentence. [RI Gen Laws 21-28-4.01.l.][13]
Likewise, a Florida statute provides mandatory minimum sentences when greater amounts of a controlled substance are involved; offenders with lower amounts of a controlled substance are sentenced according to the sentencing guidelines.14 The statute contains a sentencing departure provision that is limited to motions from the government based on the defendant’s substantial assistance to law enforcement agencies:
The state attorney may move the sentencing court to reduce or suspend the sentence of any person who is convicted of a violation of this section and who provides substantial assistance in *107the identification, arrest, or conviction of any of that person’s accomplices, accessories, coconspirators, or principals or of any other person engaged in trafficking in controlled substances. The arresting agency shall be given an opportunity to be heard in aggravation or mitigation in reference to any such motion. Upon good cause shown, the motion may be filed and heard in camera. The judge hearing the motion may reduce or suspend the sentence if the judge finds that the defendant rendered such substantial assistance. [Fla Stat Ann 893.135(4).]
Statutes in Alabama, Delaware, Georgia, Idaho, and Nevada also track this language, i.e., mandatory mínimums may be reduced only on a motion from the government based on the defendant’s substantial assistance to law enforcement agencies.15
These statutes are specific — Michigan’s is not. The argument that departures should be limited to "substantial assistance” cases does not apply to the Michigan situation because the statute itself does not limit the types of reasons that may be substantial and compelling.16_
*108Another example is a Kansas statute that provides a presumptive sentencing grid that is drug-crime specific. The statute specifically lists aggravating factors in drug crimes that "may be considered in determining whether substantial and compelling reasons for departure exist . . . .” Kan Stat Ann 21-4717 (as amended by 1994 Kan Sess Laws 341, § 3).17 A non-drug-specific provision of *109the Kansas statute provides a "nonexclusive list of mitigating factors [that] may be considered in determining whether substantial and compelling reasons for a departure exist . . . Kan Stat Ann 21-4716 (as amended by 1994 Kan Sess Laws 341, § 2).18
In sum, the Michigan Legislature has not expressly provided any limitations on the types of factors to be considered, or the weight to be given any particular factor in the statute at issue in the instant case. Section 7401(4) simply provides that if the sentencing court finds substantial and compelling reasons to depart from the minimum term, it may do so.
The majority misses the point when it reviews other statutory schemes to reinforce its "belief” that the Michigan Legislature had a corresponding intent. If the Michigan Legislature had wanted to *110limit the sentencing court to enumerated factors, it could certainly have done so. The Michigan Legislature chose not to. Because the Legislature chose not to, I believe that the majority is improperly limiting the scope of judicial sentencing discretion.
VI
In the instant case, the defendant, who had no prior convictions, pleaded guilty of one count of possession with intent to deliver more than 50 but less than 225 grams of cocaine. Under the statute, the mandatory sentence was ten to twenty years. The sentencing judge found substantial and compelling reasons to depart from the mandatory sentence and imposed. a five- to twenty-year sentence. The judge explained:
All right. Well, the Court is satisfied, and the record should reflect that I have read the presentence report, the letters that came on your behalf, both the sentencing memos, and I am satisfied that the law applicable, at this time, is People v Troncoso, 187 Mich App 567, decided in 1991. Troncoso indicates that absent a statutory definition or controlling judicial definition, we must comply with the legislative directive to construe statutory language according to the common and approved usage of the words.
I’m satisfied that there are some factors here that would allow this Court to come to the conclusion that there are some — that there is substantial and compelling reason to deviate from the mandatory 10-year sentence. However, I would agree with the Prosecutor that this problem, regarding cocaine, is a terrible problem that is absolutely just — not only — I’ll start over. It’s a cancer and, you know, with the amount of drugs that were involved here, clearly incarceration would be appropriate.
*111I’m satisfied that the basis for my deviating from the mandatory 10-year is that you’re a young man of 24 years of age and you have no prior record. I’m also satisfied — standing alone obviously wouldn’t matter but you just were over the 50 gram mark, the 54 grams. This appears to be, based upon the record, your only involvement that can be established.
You had a good job for over five years with a good work record, and I’m taking into consideration the extreme remorse that I see from you. You are devastated by this. You’ve admitted your guilt, and you’ve accepted your responsibility.
You’ve got family friends and co-workers, as evidenced by the letters, indicate you do — are a person capable of rehabilitation. I think you have a potential for rehabilitation, and I’m satisfied that your motivation to help others, although totally in some respects outbalanced, at least it indicates that you’re not a cold, callous drug dealer out to profit solely for your own benefit.
Taking all these into consideration, I’m satisfied that there will be a deviation, but there has to be a significant penalty for someone who sells in excess of 50 grams of cocaine for approximately $2,300 at street value.
Therefore, taking all those factors into consideration, it will be sentence and judgment of this Court [that] you be confined to the jurisdiction of the Michigan Department of Corrections for a minimum term of five years and a maximum term of 20 years ....
The Court of Appeals reversed and remanded for resentencing because the sentencing court relied on factors that were improper under Hill.19
I find that the sentencing court thoroughly examined both positive and negative circumstances of the case before it. I see no abuse of discretion in *112its determination that substantial and compelling reasons for a sentencing departure existed.
VII
In conclusion, the Legislature provided the threshold for controlled substance sentencing departures: substantial and compelling reasons. This is not unlimited discretion. The evidentiary record will have to demonstrate to a reviewing court that such reasons exist. I find that such a record exists in the case at bar. Therefore, I would reverse the Court of Appeals decision and reinstate the trial court’s sentence, because the sentencing departure was based on substantial and compelling reasons.
Levin, J., concurred with Cavanagh, J. Weaver, J., took no part in the decision of this case.MCL 333.7401; MSA 14.15(7401).
There, the issue was whether the amendments of the controlled substance statute should be applied retroactively.
Justice Levin and I concurred.
Those statutes expressly limited the acceptable mitigating factors to consideration of the facts of the crime. The Minnesota statute provided that the following factors were permissible for departures:
"(1) The victim was the aggressor ....
"(2) The offender played a minor or passive role ....
"(3) The offender . . . lacked substantial capacity . . . when the crime was committed. . . .
"(4) Other substantial grounds exist which tend to excuse or mitigate the offender’s culpability . . . .” [Downey at 411, quoting Minnesota Sentencing Guidelines II.D.2.a (1988).]
The Washington statute similarly provided:
"(a) To a significant degree, the victim was the initiator
"(b) Before detection, the defendant compensated, or made good faith effort to compensate, the victim ....
"(c) The defendant committed the crime under duress, coercion, threat, or compulsion ....
"(d) The defendant . . . was induced by others to participate in the crime.
"(e) The defendant’s capacity . . . was significantly impaired
"(f) The offense was principally accomplished by another . . . .” [Id. at 411-412, quoting Wash Rev Code Ann 9.94A.390G).]
*94The panel found these statutes distinguishable because the general sentencing guidelines in Minnesota and Washington had already taken into consideration the individual characteristics of the offender in determining the presumptive ranges before applying the expressly limited mitigating reasons in the "substantial and compelling” statute. Id. at 412-413.
The Downey panel stated:
The Michigan Supreme Court in People v Snow, 386 Mich 586, 592; 194 NW2d 314 (1972), found the following factors to be proper criteria in determining the length of sentences: (1) the disciplining of the wrongdoer, (2) the protection of society, (3) the potential for reformation of the defendant, and (4) the deterring of others from committing similar offenses. The Legislature’s imposition of presumptively mandatory sentences for certain drug offenses reflects the Legislature’s, and thus society’s, determination that the length of the sentences contained in the statute are necessary to discipline the offender, to protect society and to deter others from committing drug offenses. The statutory amendment allowing deviation in exceptional circumstances reflects a desire to give judges some flexibility in making sentencing decisions based upon individual circumstances. . . . For these reasons we believe that the factors which go into determining the rehabilitative potential of the defendant may be considered when determining if substantial and compelling reasons exist to deviate from the presumptive sentence. [Id. at 414. Citation omitted.]
6 In its review of the individual cases, the panel rejected the following factors that had been used by the sentencing courts: post-arrest enrollment in college and volunteer work, expressions of remorse, strong family support, and postarrest cooperation with the police. The panel accepted such factors as: lack of a prior record, minor role in the crime, and regular work history. Id. at 417-420.
7 Judge Griffin quoted the Downey nonexhaustive list of four factors and concluded:
*97We adopt and affirm this nonexhaustive list of factors but reject Downey’s objective, verifiable, and prearrest-conduct limitations. While we agree that the sentencing judge does not possess "unfettered discretion” to depart from the presumptive mínimums, discretion nevertheless exists in appropriate cases. We hold that the articulated reasons for deviation need not necessarily be "objective” and "verifiable” so long as they are "substantial and compelling.” The parameters of the limited judicial discretion afforded by the statute will become more clearly defined through our case by case review. [Id. at 577.]
The Hill majority also stated:
The Legislature appears to have spoken in a manner that indicates that mandatory minimum sentences are required in order to rid society of the scourge of drugs and that exceptions to mandatory minimum sentences should be in only rare and exceptional cases where the original legislative purpose would not be defeated. [Id. at 118.]
While I may disagree with the policy, I agree that this was one of the Legislature’s goals.
"It is a well-known principle that the Legislature is presumed to be aware of . . . all existing statutes when enacting new laws.” Walen v Dep’t of Corrections, 443 Mich 240, 248; 505 NW2d 519 (1993). See People v Schultz, supra at 543-544 (Bkickley, J., dissenting): "[T]he Legislature is presumed to act with knowledge of existing law.” Therefore, the Legislature would be presumed to know of the novelty of lesser-included offenses, and would be presumed to know that a particular defendant can be less culpable, and can be convicted of a less serious crime than coactors.
See Downey at 414 (rehabilitative potential is an appropriate consideration in sentencing).
People v Hall, 391 Mich 175, 190; 215 NW2d 166 (1974).
2A Singer, Sutherland Statutory Construction (5th ed), § 46.01, p 82 (citation omitted).
13 Nearly identical language is used for quantities over one kilogram. RI Gen Laws 21-28-4.01.2.
For instance, one section provides:
Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of 28 grams or more of cocaine . . . but less than 150 kilograms of cocaine . . . commits a felony of the first degree, which felony shall be known as "trafficking in cocaine.” If the quantity involved:
a. Is 28 grams or more, but less than 200 grams, such person shall be sentenced pursuant to the sentencing guidelines and pay a fine of $50,000.
c. Is 400 grams or more, but less than 150 kilograms, such person shall be sentenced to a mandatory minimum term of imprisonment of 15 calendar years and pay a fine of $250,000. [Fla Stat Ann 893.135(l)(b)l.]
Ala Code 13A-12-231, 13A-12-232(b) (prosecutor); Del Code tit 16, 4753A(c) (Attorney General); Ga Code Ann 16-13-31(f)(2) (district attorney); Idaho Code 37-2732B(8) (prosecuting attorney); Nev Rev Stat 453.3385, 453.339, 453.3395, 453.3405(2) (appropriate motion).
The federal sentencing scheme also statutorily defines limited judicial discretion in imposing statutory minimum sentences. See 18 USC 3553(e):
Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as minimum sentence so as to reflect a defendant’s substantial assistance in the investigation or prosecution of another person ....
See also Lowenthal, Mandatory sentencing laws: Undermining the effectiveness of determinate sentencing reform, 81 Cal L R 61 (1993) (for summary of the federal sentencing procedure). This commentator explained the departure grounds:
*108The principal grounds for departure from applicable guidelines ranges are set forth in [Guidelines Manual] §§ 5K1.1, 5K2.0. The first of these provisions permits the court to depart from the guidelines on motion by the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person. . . . The second provision permits a departure if the court finds " 'that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.’ ” [Id. at 89, n 127, quoting Guidelines Manual, quoting 18 USC 3553(b)- Citations omitted.]
The statute provides:
The following aggravating factors, which apply to drug crimes committed on or after July 1, 1993, under the sentencing guidelines system, may be considered in determining whether substantial and compelling reasons for departure exist:
(1) The crime was committed as part of a major organized drug manufacture, production, cultivation or delivery activity. Two or more of the following nonexclusive factors constitute evidence of major organized drug manufacture, production, cultivation or delivery activity:
(A) The offender derived a substantial amount of money or asset ownership from the illegal drug sale activity.
(B) The presence of a substantial quantity or variety of weapons or explosives at the scene of arrest or associated with the illegal drug activity.
(C) The presence of drug transaction records or customer lists that indicate a drug sale activity of major size.
(D) The presence of manufacturing or distribution materials such as, but not limited to, drug recipes, precursor chemicals, laboratory equipment, lighting, irrigation systems, ventilation, power-generation, scales or packaging material.
(E) Building acquisitions or building modifications including but not limited to painting, wiring, plumbing or lighting which advanced or facilitated the commission of the offense.
(F) Possession of large amounts of illegal drugs or substantial quantities of controlled substances.
*109(G) A showing that the offender has engaged in repeated criminal acts associated with the manufacture, production, cultivation or delivery of controlled substances.
(2) The offender possessed illegal drugs:
(A) With intent to sell, which were sold or were offered for sale to a person under 18 years of age; or
(B) with the intent to sell, deliver or distribute or which were sold or offered for sale in the immediate presence of a person under 18 years of age.
(3) The offender, 18 or more years of age, employs, hires, uses, persuades, induces, entices or coerces any individual under 16 years of age to violate or assist in avoiding detection or apprehension for violation of any provision of the uniform controlled substances act K.S.A., . . . regardless of whether the offender knew the age of the individual under 16 years of age.
The list includes:
The victim was an aggressor or participant ....
The offender played a minor or passive role in the crime ....
The offender . . . lacked substantial capacity . . . [and]
The degree of harm . . . was significantly less than typical for such an offense. [Kan Stat Ann 21-4716 (as amended by 1994 Kan Sess Laws 341, § 2).]
Unpublished memorandum opinion of the Court of Appeals, issued February 19, 1993 (Docket No. 147473).