(concurring in part; dissenting in part)—
Marijuana is an intoxicant. It is one of three major recreational drugs used in the United States; the other two are tobacco and alcohol. It is smoked regularly by nearly 15 million Americans; probably in excess of 30 million citizens have tried it. National Institute on Drug Abuse, Secretary of Health, Education and Welfare, 6th Annual Report to United States Congress, Marihuana and Health (1976). In every state there is some penalty for the possession of marijuana. 3 National Governors Conference Research and Case Studies, Marijuana: A Study of State Policies and Penalties 99-104 (1977). It is probable "no other 'crime' is prosecuted so rarely in relation to the number of times it is committed, and no other conduct is so consistently rejected as being 'criminal' by so many people." Soler, Of Cannabis and the Courts: A Critical Examination of Constitutional Challenges to Statutory Marijuana Prohibitions, 6 Conn. L. Rev. 601, 686 (1974). In Washington, a person who possesses more than 40 grams (28 grams equals 1 ounce) of *355marijuana may be arrested and convicted of a felony with a maximum sentence of 5 years in a state prison, a fine of up to $10,000, or both (RCW 69.50.401(c)) (now RCW 69.50-.401(d)), and will lose certain rights. See, e.g., RCW 29.01-.080, RCW 42.04.020, RCW 4.44.160 and Const. art. 6, § 3. See generally Grant, The Collateral Consequences of a Criminal Conviction, 23 Vand. L. Rev. 929 (1970).
I agree with the majority that constitutional rights of equal protection and privacy are not offended by RCW 69.50.401(a), (c). I do not, however, agree with the majority as to the inapplicability of the eighth amendment to the United States Constitution and Const, art. 1, § 14. I would hold RCW 69.50.401(c) as it applies to mere possession of marijuana to violate these constitutional provisions which prohibit cruel and unusual punishment. I do not contend RCW 69.50.401(a), which makes it a crime "to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance", violates either the federal or state constitutions.
While the majority recites both the history of cruel and unusual punishment and the general view taken by the courts for application of the constitutional restraint, it fails to delineate fully the tests developed by courts to trigger the application of the constitutional requirements or to measure RCW 69.50.401(c) against those tests.
Although legal literature and cases on the use of the Eighth Amendment are meager, some general principles have evolved. See, e.g., Note, The Cruel and Unusual Punishment Clause and the Substantive Criminal Law, 79 Harv. L. Rev. 635 (1966); Soler, supra at 676; Comment, The Eighth Amendment, Beccaria, and the Enlightenment; An Historical Justification for the Weems v. United States Excessive Punishment Doctrine, 24 Buffalo L. Rev. 783 (1975); Comment, Marijuana Possession and the California Constitutional Prohibition of Cruel or Unusual Punishment, 21 U.C.L.A. L. Rev. 1136 (1974); Coker v. Georgia, 433 U.S. 584, 53 L. Ed. 2d 982, 97 S. Ct. 2861 (1977); People v. Lorentzen, 387 Mich. 167, 194 N.W.2d 827 *356(1972); In re Lynch, 8 Cal. 3d 410, 503 P.2d 921, 105 Cal. Rptr. 217 (1972); see generally Length of Sentence as Violation of Constitutional Provisions Prohibiting Cruel and Unusual Punishment, Annot., 33 A.L.R.3d 335 (1970).
In Weems v. United States, 217 U.S. 349, 367, 54 L. Ed. 793, 30 S. Ct. 544 (1910), the Supreme Court stated:
[I]t is a precept of justice that punishment for crime should be graduated and proportioned to offense.
In State v. Fairbanks, 25 Wn.2d 686, 689, 171 P.2d 845 (1946), we said:
It may be conceded that duration of imprisonment fixed as a penalty may be so incommensurate with the gravity of the offense committed as to be violative of this provision of the state constitution and of the kindred provision contained in the eighth amendment to the Federal constitution.
Not only must the proportionality of the punishment to the offense be considered, it must be considered "in the light of contemporary human knowledge". Robinson v. California, 370 U.S. 660, 666, 8 L. Ed. 2d 758, 82 S. Ct. 1417 (1962). See also Trop v. Dulles, 356 U.S. 86, 2 L. Ed. 2d 630, 78 S. Ct. 590 (1958). In a recent review of the Eighth Amendment, the Supreme Court said:
[T]he Eighth Amendment bars not only those punishments that are "barbaric" but also those that are "excessive" in relation to the crime committed. Under Gregg [Gregg v. Georgia, 428 U.S. 153, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976)], a punishment is "excessive" and unconstitutional if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime. A punishment might fail the test on either ground.
Coker v. Georgia, supra at 592. In this case, only the question of proportionality is relevant.
The question is not whether the state can or should regulate or discourage the use of marijuana; both are clearly within its power. Nor is the question before us the social *357desirability of discouraging the use of marijuana. Rather, it is whether the punishment chosen by the legislature for violating its statutory regulations as to the possession of over 40 grams of marijuana is disproportionate to the offense when tested against "evolving standards of decency". Trop v. Dulles, supra at 101.
As to the question of cruel and unusual punishment, the trial court concluded:
Finally, the defense has argued that the felony statute, in providing for a prison sentence of five years, constitutes cruel and unusual punishment. Again, the authorities cited by counsel do not establish that the defendant has standing to make this argument prior to conviction and sentence. Notwithstanding, as with the other constitutional arguments raised by the defendant, the hazards presented to society by the use of marijuana do not permit this court to conclude that RCW 69.50.401(c) is not fairly and substantially related to a legitimate legislative purpose.
The trial court's use of the rational relationship test may have been appropriate for determining whether the statute violated equal protection guaranties. It is not, however, appropriate for determining whether the sentence imposed under the statute is grossly disproportionate to the crime and constituted cruel or unusual punishment. The proper analysis to determine whether the felony classification for conviction and the maximum 5-year sentence and $10,000 fine is excessive or overly severe is a threefold test which appears to be generally accepted for determining if the punishment is disproportionate to the crime and thus violative of the prohibitions against cruel and unusual punishment. See In re Lynch, supra; In re Jones, 35 Cal. App. 3d 531, 110 Cal. Rptr. 765 (1973); In re Grant, 18 Cal. 3d 1, 553 P.2d 590, 132 Cal. Rptr. 430 (1976); Downey v. Perini, 518 F.2d 1288 (6th Cir. 1975), vacated and remanded on other grounds, 423 U.S. 993, 46 L. Ed. 2d 367, 96 S. Ct. 419 (1975); State v. Mitchell, 563 S.W.2d 18, 28 (Mo. 1978) (Seiler, J., dissenting); 21 U.C.L.A. L. Rev., supra at 1146. *358Those tests (only the last of which is even mentioned by the majority) are:
1. The degree of danger the offender and the subject matter of the offense, in this case marijuana, present to society;
2. A comparison of the punishment for possession of marijuana with the punishment for more serious crimes and for offenses of a similar nature; and
3. A comparison of the punishment for marijuana possession in Washington with the punishment for the same offense in other jurisdictions.
I
I see nothing to be gained by arguing with the majority or the trial court over the evidence as to the dangers of marijuana nor is it necessary to do so. The views of the plaintiffs and defendants were fully documented before the trial court, the trial court made a thorough review of the evidence, and its findings contained in the memorandum decision are sufficient. The following documents were admitted in evidence before the trial court: National Institute on Drug Abuse, United States Department of Health, Education, and Welfare, Marijuana Research Findings: 1976 (Petersen ed. 1977); L. Grinspoon, Marijuana Reconsidered (2d ed. 1977); National Institute on Drug Abuse, Secretary of Health, Education, and Welfare, 4th through 6th Annual Reports to the United States Congress, Marijuana and Health (1974-76); National Commission on Marihuana and Drug Abuse, 1st Report, Marihuana: A Signal of Misunderstanding (Shafer Rep., 1972); National Commission on Marihuana and Drug Abuse, 2d Report, Drug Use in America: Problem in Perspective (Shafer Rep., 1973); Consumers Union Report, Licit & Illicit Drugs (Brecher ed. 1972); Report of the Commission of Inquiry into the Non-Medical Use of Drugs, Cannabis (Canada 1972); L. Miller, Marijuana Effects on Human Behavior (1974); Hearings Before the Subcommittee to Investigate the Administration of the Internal Security Act and other *359Internal Security Laws of the Senate Committee on the Judiciary, 93d Cong., 2d Sess., Marihuana-Hashish Epidemic and Its Impact on United States Security (1975); G. Nahas, Keep Off the Grass (1976); J. Tinklenberg, Marijuana and Health Hazards (1975); M. Braude & S. Szara, 1 and 2 Pharmacology of Marihuana, A Monograph of the National Institute on Drug Abuse (1976); G. Nahas, Marihuana Chemistry, Biochemistry, and Cellular Effects (1976).
In its decision, the trial court said:
It is apparent from the evidence presented by both sides in this proceeding that marijuana has been grossly misunderstood by many Americans of both high and low stations in life.
Despite exhaustive research by the medical profession and other scientists in this country and abroad in recent years, and observations of entire cultures of marijuana smokers over generations around the world, there does not appear to be a single documented case of permanent physiological or psychological harm from this drug. Clearly, marijuana is most notable for the psychological "high" it produces, a form of intoxication similar in some respects to that produced by alcohol. It is this "euphoria" which has encouraged in excess of 30 million people in this country to try it, and which keeps perhaps half of that number coming back.
The intensity of the effect of the drug is dependent upon the quantity consumed, although it is accepted that tolerance to the drug is developed with regular use, and there often is a moderate seeking of higher dosage levels. However, there is not an addictive quality, and even psychological dependency is very unusual. The rare case of anything related to withdrawal symptoms seems to occur with only extremely heavy usage, and even then moderate irritability seems to be the only apparent symptom.
The "stepping-stone" theory as a characteristic of marijuana use simply is not true. There is no evidence that marijuana leads one on to the use of other drugs. No cause and effect relationship exists. The fact that certain personality types may use marijuana and then go on to other drugs cannot bolster any condemnation of marijuana. It would seem more logical to suggest that many *360people who might seek out relatively more dangerous drugs do not do so by virtue of their "discovery" of marijuana.
Marijuana does not make the user more violent or aggressive. To the contrary, the effect of marijuana intoxication is to relax and make one less aggressive.
No evidence has been developed to substantiate the frequently stated belief that marijuana use causes an increase in criminal activity of any kind, much less violent crime. However, to say that there is no cause and effect relationship between marijuana and crime is not to say that some people who use and enjoy marijuana will not steal and rob to obtain the funds with which to buy the drug. Particularly for young people, marijuana is not inexpensive, and there is uncontroverted testimony in this record of one former drug user that regularly stole to obtain the wherewithal to buy marijuana.
Although it may be safe to say that moderate or even moderately heavy use of marijuana has not been shown to be harmful to the human organism, that is not the same thing as saying that science may not soon show that it does cause harm as studies and research techniques improve. Marijuana is a psychedelic drug and it is presently well established that it does have a measurable effect on humans and animals. Already, reputable scientists are convinced that the burning vegetable matter of which marijuana is composed will be shown to be' cancer producing in much the same way as tobacco. However, this concern is moderated somewhat by the fact that moderate use of two or three joints per day is not comparable to the typical cigarette smoker's consumption of twenty to forty cigarettes per day.
Marijuana use does make the heart work harder, and increases the demand for oxygen. It has been shown to increase pain in angina patients, and carries a real risk for heart patients, and for those who are unaware that they have heart problems. It does reduce blood pressure.
Although low dose smoking does dilate or open lung passages, continued regular use over several weeks does cause cellular irritation and bronchitis, both of which impair lung function.
Although effects on the body's immune response system, chromosomes, and endocrine system have been demonstrated, at normal levels of usage there is as yet no *361clinical evidence that the user is more likely to contract illness or conceive defective children than the non-using population, and despite some contradictory studies, there is no reliable evidence that even heavy long-term use of marijuana causes any permanent brain damage or permanent impairment of brain function.
It is important to note that the studies which have permitted the foregoing conclusions have been very largely based upon studies of healthy male subjects in the prime of life. Very little research has been done on groups for whom harm from marijuana use may prove a reality. These would include women, especially those in their child bearing years. Children, and especially those just achieving sexual maturity, have not been studied. Also, those of advanced years and those with known bodily infirmities have not received careful attention. Finally, little is known about the interaction of this drug with other drugs in the body, an area deserving of substantial additional attention.
The foregoing review of the known or suspected harm from marijuana would seem to provide an inadequate foundation on which to base a felony statute. The remote prospect of some future harm does not seem to constitute a fair and substantial basis for such an enactment. If the statute is to stand, its justification must be found in the acute or immediate effect of the drug, and those effects will now be examined.
Thus, the trier of fact found the "harm" alleged or suspected from marijuana use was not a sufficient basis for a statute which made possession of more than 40 grams a felony. Rather, in upholding the statute the trial court relied on what it called the "acute or immediate effect of the drug". In its concluding summary, the trial court detailed these effects as follows:
Marijuana creates a euphoric state of intoxication which impairs learning, incentive, efficiency, and motor coordination, matters clearly affecting the health, education and welfare of the people of the state.
In summary, the trial court found: Marijuana has never been shown to cause physiological or psychological harm. It is not addictive. Users do not suffer withdrawal symptoms. There is no evidence the use of marijuana leads to the use *362of other drugs. Marijuana does not make the user more violent or aggressive. There is no cause and effect relationship between marijuana and criminal activity. There is no clinical evidence that a marijuana user is more likely to become ill or conceive defective children than nonusers. There is no reliable evidence that even heavy, long-term use of marijuana causes any permanent brain damage or permanent impairment of brain functions. See also State v. Zornes, 78 Wn.2d 9, 475 P.2d 109 (1970).
This is an impressive catalog of what marijuana does not do. The findings of the trial court strike directly at the many emotional assertions and superstitions as to the nature of marijuana and marijuana use and show them to be false. The court did find, however, that marijuana does create a euphoric state of intoxication in which learning, incentive, efficiency and motor coordination are impaired. Does this degree of danger to a marijuana user and the surrounding society in any way justify 5 years in a state prison, a $10,000 fine and the loss of a person's rights? I cannot believe it does. I do not disagree that there are some dangers associated with the use of marijuana and that the people, acting through the legislative process, may respond to those dangers. Nor do I contend policies and programs to discourage the use of marijuana are inappropriate or improper. Furthermore, it may well be there are some as yet undiscovered and unverified long-term dangers. But it hardly seems like the hallmark of a civilized society nor is it constitutional "in the light of contemporary human knowledge" (Robinson v. California, supra at 666) to obtain public awareness of the dangers, known or unknown, of marijuana by branding persons felons for the mere possession of anything over 40 grams of the substance, subjecting them to the prospect of 5 years in a state prison, a $10,000 fine, and the certainty of the loss of the right to vote, the right to hold public office, and other "civil rights".
We have long since decided with reference to the possession of other substances, the ingestion of which causes harmful effects, that felony statutes are not appropriate. *363Such common and easily available household drugs as alcohol, tobacco and caffeine — the long-term deleterious effects of which are well documented and well known — come readily to mind. See Soler, Of Cannabis and the Courts: A Critical Examination of Constitutional Challenges to Statutory Marijuana Prohibitions, 6 Conn. L. Rev. 601, 617-19 (1974). Once the underbrush of superstition and false information has been swept aside as has been so ably done by the trial court, the penalty, given the danger to the offender and to society, is totally out of proportion to the offense. To use the language of the majority, this "punishment is . . . shocking to the sense of justice".
In this connection, it may be noted there is another vegetable substance common to Washington possessed in varying quantities — invariably over 40 grams — by large numbers of our citizens. It is poisonous if ingested and can cause death. See 6 Encyclopaedia Britannica, Macropaedia Noxious Ericads 955 (15th ed. 1974). The response in this state has been not to send people to prison for possession of this plant, but rather to warn them against the danger and, by action of the legislature, to declare it the State Flower. It is the rhododendron. See RCW 1.20.030.
II
Next, how does the punishment for possession of over 40 grams of marijuana compare with the punishment for more serious crimes in this state, or for offenses of a similar nature? No mention of this test is made by the majority. Even a cursory reading of RCW 9A gives convincing evidence of the disproportionate nature of RCW 69.50.401(c). All of the following offenses, each far more serious than possessing over 40 grams of marijuana, are class C felonies and subject a guilty person to 5 years in the state penitentiary or a maximum fine of $5,000 or both: second-degree manslaughter, when, with criminal negligence, the death of another is caused, RCW 9A.32.070; third-degree assault, RCW 9A.36.030; second-degree theft, RCW 9A.56.040; unlawful imprisonment, RCW 9A.40.040; extortion in the *364second degree, RCW 9A.56.130; first-degree reckless burning, RCW 9A.48.040; second-degree malicious mischief, RCW 9A.48.080; riot with a deadly weapon, RCW 9A.84-.010; forgery, RCW 9A.60.020; taking of a motor vehicle, RCW 9A.56.070; bigamy, RCW 9A.64.010; incest, RCW 9A.64.020.
I find it grossly disproportionate to include the mere possession of over 40 grams of marijuana in the same category as the crimes cataloged above. Furthermore, except for a third conviction for unlawful use of the official liquor control board seal (RCW 66.44.120), none of the penalties for violating the alcoholic beverage control statutes (RCW 66.44) is more than a gross misdemeanor. The known dangers of alcohol to an individual and society, which far exceed the "acute or immediate effect of marijuana" are too well known to require review here. If, on the other hand, a person at home had a meeting aimed at overthrowing the government by force (RCW 9.05.040); possessed a collection of switchblades or brass knuckles (RCW 9.41.250) or dangerous inhalants for sale (RCW 9.47A.050); had beaten someone in a simple assault (RCW 9A.36.040); or discharged a gun in the neighborhood (RCW 9.41.230); or had driven on the public highway while intoxicated, clearly endangering the lives of others (RCW 46.61.515), no felony charge would be made. RCW 69.50.401(c) does not meet the second test for constitutionality.
Ill
How does the penalty in Washington compare with other states? While the data used by the majority in comparing state statutes is accurate, it approaches the question from the wrong perspective. It is far more illuminating to list those states where the mere possession of the amount of marijuana, or less, which is proscribed by Washington law can result on the first offense in a penalty of 5 years in prison. There are only 10 states, including Washington, or 20 percent, which have such a severe penalty. In only 6 states (12 percent), including Washington, is the fine for *365the first offense, regardless of the prison term, $10,000 or more. Additionally, while RCW 69.50.401 distinguishes the various activities associated with marijuana use in our society, it does not impose less stringent penalties for mere possession of the controlled substance. Most other states impose greater penalties for sale and possession with intent to distribute than for mere possession. Only 6 states (12 percent), including Washington, fail to make this distinction. In contrast to the views of the majority, it does appear that Washington is in a small minority among the states in the severity of its penalties for mere possession of marijuana.
The majority contends the strictures of the article 1, section 14 provision should not apply unless the punishment inflicted is in fact cruel and unusual; that mere conviction is not enough. State v. Fairbanks, 25 Wn.2d 686, 171 P.2d 845 (1946). In raising a proportionality challenge under the Eighth Amendment, a defendant may challenge the sentence actually imposed on him as unconstitutionally disproportionate to the offense which he committed. See, e.g., State v. Fairbanks, supra; Davis v. Davis, 601 F.2d 153 (4th Cir. 1979). The defendant also can challenge a criminad statute on its face as setting a penalty that is unconstitutionadly disproportionate to the offense proscribed by the statute. See, e.g., Gallego v. United States, 276 F.2d 914, 918 (9th Cir. 1960); see also, e.g., Downey v. Perini, 518 F.2d 1288, 1291-92 (6th Cir. 1975), vacated and remanded on other grounds, 423 U.S. 993, 46 L. Ed. 2d 367, 96 S. Ct. 419 (1975); In re Lynch, 8 Cal. 3d 410, 503 P.2d 921, 105 Cal. Rptr. 217 (1972), explained in People v. Wingo, 14 Cal. 3d 169, 175-76, 534 P.2d 1001, 121 Cal. Rptr. 97 (1975); see generally Annot., 33 A.L.R.3d 335, at section 4 (1970).
Defendaint Smith raises both types of challenges in this case. He claims that (1) the penalty actually imposed on him — the imposition of felony status and consequent loss of civil liberties — is unconstitutionally disproportionate to the offense which he committed; and (2) RCW 69.50.401(c) (now (d)), on its face violates the Eighth Amendment *366because the statutorily prescribed penalty (imprisonment for 5 years and/or $10,000) is unconstitutionally disproportionate to the offense of simple possession of more than 40 grams of marijuana.
I believe the better rule is that the maximum term permitted by the statute — 5 years — must be considered rather than the actual sentence imposed by the judge or the action of the Board of Prison Terms and Paroles (see In re Lynch, supra; Downey v. Perini, supra; Hart v. Coiner, 483 F.2d 136 (4th Cir. 1973), cert. denied, 415 U.S. 983, 39 L. Ed. 2d 495, 94 S. Ct. 1454 (1974); see also State v. Lee, 87 Wn.2d 932, 558 P.2d 236 (1976). Even if the maximum sentence is not imposed, " [i]f . . . the sentence prescribed by [the] statute is cruel and unusual within the meaning of the Eighth Amendment, the statute itself is unconstitutional and any sentence imposed thereunder must be set aside". Gallego v. United States, 276 F.2d 914, 918 (9th Cir. 1960). Defendant is unable to enforce any expectation for a deferred execution of the sentence and probation. Therefore, the court must look to the maximum sentence to which defendant is liable and not to any conditional deferral granted by the trial court. Rummel v. Estelle, 445 U.S. 263, 63 L. Ed. 2d 382, 100 S. Ct. 1133 (1980), and see also Powell, J., dissenting at page 285. Nevertheless, even under the majority position, the Eighth Amendment and article 1, section 14 would be violated. Upon conviction under RCW 69.50.401(c) (now (d)), a person becomes a felon. RCW 9A.04.040. To assume the status of a convicted felon, to lose the right to vote (Const. art. 6, § 3; RCW 29.01.080), or to hold public office (RCW 42.04.020), and your "civil rights" (see 23 Vand. L. Rev. 929 (1970)); RCW 4.44.160; 28 U.S.C. §§ 1861, 1865 (1976) (service on juries), simply for mere possession of over 40 grams of marijuana does not comport with current standards of decency.
I do not believe RCW 69.50.401(c) meets any of the three tests of constitutional validity under the cruel and unusual punishment clauses of the United States and Washington *367constitutions. While the legislature is accorded broad discretion in enacting penal statutes and in specifying punishment for crime, and while we must give deference to the legislature as it makes its determinations, under the constitution the final judgment as to whether the punishment decreed by the legislature exceeds constitutional limits is a judicial function. When a statute comes before us which imposes penalties disproportionate to the offense we are bound to hold that statute unconstitutional. To punish a person by 5 years in a state prison and a $10,000 fine and to take away that person's rights for mere possession, and no more, of over 40 grams of marijuana does, in my opinion, violate both the Eighth Amendment and Const. art. 1, § 14.
I would not hold and do not contend that criminal penalties cannot be assessed for possession of marijuana. It should be emphasized that a declaration that RCW 69.50-.401(c) is unconstitutional does not remove all criminal sanctions for possession. RCW 69.50.401(d) (now (e)), which makes possession of any amount of marijuana a misdemeanor meets the requirement of the Eighth Amendment and Const. art. 1, § 14, and would continue to be valid. The penalty is "imprisonment in the county jail for not more than ninety days, or by a fine of not more than two hundred and fifty dollars". RCW 9.92.030. While the wisdom of this penalty may be questioned by some, since its constitutionality is clear the determination is properly within the province of the legislature. See Furman v. Georgia, 408 U.S. 238, 258, 280, 33 L. Ed. 2d 346, 92 S. Ct. 2726 (1972) (Brennan, J., concurring).
I would declare RCW 69.50.401(c) (now (d)) unconstitutional and reverse all convictions under this section of the statute. I would affirm the other convictions.
Hicks and Williams, JJ., concur with Dolliver, J.