State v. Groethe

*558HENDERSON, Justice

(dissenting in part, concurring in result in part).

In my special concurrence in Myers, cited by the majority, I wrote “[t]he majority opinion sidesteps both the conscience of the Court test and the proportionality test.” State v. Myers, 411 N.W.2d 402, 407 (S.D.1987). Without waxing into the details of my special concurrence in Myers, I noted that the majority opinion had adopted the “abuse of discretion test.” I expressed: “Adopting an abuse of discretion test, under this statute, enshrouds a sentence with a rule which is so very broad that variations in sentencing results would be birthed.” Id. Suffice it to say, Myers did not produce the criteria necessary for proportionality review under Solem v. Helm, 463 U.S. 277, 290 n. 16, 103 S.Ct. 3001, 3009 n. 16, 77 L.Ed.2d 637, 649 n. 16 (1983). See State v. Rederth, 376 N.W.2d 579, 581 (S.D.1985) (Henderson, J., concurring in result).

There does not appear to be any satisfaction of the three-prong test in Helm contained in this appellant’s various showings in the lower court’s proceedings or at the appellate level. No statistics were adduced below so we cannot invoke proportionality review. Proportionality of sentences, under the Eighth Amendment, is vital in criminal sentencing. As I reflected in Myers, which is a minority viewpoint, the pronouncing of a sentence including revocation of a driver’s license for a lifetime, is a sentence subject to proportionality review. In State v. Janssen, 371 N.W.2d 353, 356-58 (S.D.1985) (Henderson, J., specially concurring), I noted that the proportionality concept was addressed by three chapters of the Magna Carta. Proportionality, as a constitutional doctrine, is traceable from the Magna Carta, through the English Bill of Rights and George Mason’s Virginia Declaration of Rights, to the Eighth Amendment. Solem, 463 U.S. at 284-86, 103 S.Ct. at 3006-07, 77 L.Ed.2d at 645-46. I do not swerve from my viewpoints, for I fear hysteria, zeal, and majoritarianism. Mood swings can destroy legal principles and people who are subject to the momentary idiosyncrasies of same. No penalty is per se constitutional. Id. The United States Supreme Court has observed that “[i]t would be anomalous indeed if the lesser punishment of a fine and the greater punishment of death were both subject to proportionality analysis, but the intermediate punishment of imprisonment were not.” Solem, 463 U.S. at 289, 103 S.Ct. at 3009, 77 L.Ed.2d at 648. Like imprisonment, lifetime license revocation is somewhere between a fine and death. Proportionality cannot be shunted aside.

Therefore, I cannot join the majority opinion on its continued adoption of the abuse of discretion test; rather, I would adopt the test handed down by the United States Supreme Court in a case which arose on appeal from this very Court.

Here, appellant is unquestionably an alcoholic and has a history of DWI. This Court has obviously tempered its previous decision in Myers by the concluding paragraph in the majority opinion. Expressing the power of this Court under SDCL 23A-32-19, the majority opinion has seen fit to modify the suspension of appellant’s license for the rest of his life by opening a little crack in the door that he might, one day, understand the waywardness of his driving on the public highways. I agree that he cannot go on jeopardizing the lives of innocent people. This direction, nay mandate, from the Highest Court of this State, to the trial court, adds a dimension of grace which heretofore did not exist under the Myers majority. Therefore, believing that there is hope for alcoholics, and further knowing that SDCL ch. 34-20A has created a detailed state plan for the prevention, treatment, and rehabilitation of alcoholism and drug abuse, I concur in the result of the final segment of the majority opinion. Again, I call to the attention of the Bench and Bar of this State, as well as the Department of Commerce and our State Legislature, that SDCL 32-12-31 provides:

Unlicensable persons — Habitual alcohol or drug user. The department of commerce and regulation shall not issue any license under this chapter to any person who is an habitual drunkard, or is an habitual user of narcotic *559drugs, or is an habitual user of any other drug to a degree which renders him incapable of safely driving a motor vehicle. (Emphasis added.)

Therefore, our state lawmakers, as elected representatives of the people, have enacted legislation empowering a state department of government to confront and correct the problems and danger arising from alcoholics and drug abusers. Succinctly, it is this: When you become a menace on the highway, we shall no longer license you. Courts create law by case law; lawmakers create law by legislation. South Dakota has legislation on the statute books pregnant to the inquiry before us.