(concurring in part and dissenting in part). I must dissent from the majority’s holding that a mandatory life sentence for conviction of possession of 650 grams or more of a mixture containing cocaine does not constitute cruel and/or unusual punishment in violation of US Const, Am VIII or Const 1963, art 1, § 16.
I
Initially, the prosecution argues that, since defendant has not yet been sentenced, defendant’s cruel-or-unusual-punishment claim "is purely hypothetical”. The punishment to be imposed under MCL 333.7403(2)(a)(i); MSA 14.15(7403)(2)(a)(i), for possession of 650 grams or more of a mixture containing cocaine, is mandatory life imprisonment. As defendant was charged with possession of over 650 grams of a mixture containing cocaine, his potential sentence is not "purely hypothetical”. When a statute provides for punishment thought to be cruel and/or unusual, the proper procedure is to attack the constitutionality of the statute itself rather than a sentence imposed within the limits of the statute. E.g., United States v Dawson, 400 F2d 194, 200 (CA 2, 1968), cert den 393 US 1023; 89 S Ct 632; 21 L Ed 2d 567 (1969); accord, People v Lorentzen, 387 Mich 167, 181; 194 NW2d 827 (1972) (holding the minimum penalty of a statute unconstitutional rather than the defendant’s particular sentence); see Cummins v People, 42 Mich 142; 3 NW 305 (1879) ("when within the statute, this Court has no supervisory control over the punishment that shall be inflicted”); Lane v Dep’t of Corrections, Parole Board, 383 Mich 50, 60; 173 NW2d 209 (1970). See also People v Coles, 412 Mich 917; 317 NW2d 189 (1982) (granting leave on the question of whether Cummins should *102be overruled). Since defendant has been charged under MCL 333.7403; MSA 14.15(7403), he has standing to challenge the constitutionality of the statute’s applicable minimum sentence.
II
The power to define crimes and establish punishments rests, in the first instance, with the Legislature. The exercise of that power, however, is subject to judicial scrutiny to ensure that the punishment does not exceed constitutional limits. Furman v Georgia, 408 US 238, 269; 92 S Ct 2726, 2741-2742; 33 L Ed 2d 346, 366 (1972) (Brennan, J., concurring); see Lorentzen, supra.
The Michigan Supreme Court has adopted three stnadards for determining whether a statute imposes a cruel and/or unusual punishment: the punishment must be proportionate to the offense, the punishment must be comparable to punishments imposed in other jurisdictions for the same offense, and the punishment must serve the modern policy factors of rehabilitation, deterrence, and protection of society. Lorentzen, supra; accord, People v Hall, 396 Mich 650, 657-658; 242 NW2d 377 (1976); Wayne County Prosecutor v Recorder’s Court Judge, 92 Mich App 433, 438-439; 285 NW2d 318 (1979), lv den 408 Mich 905 (1980).
(a) Proportionality to the Crime
A punishment, otherwise appropriate, may be so disproportionate to the offense charged as to be cruel and/or unusual.
"To be sure, imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual. But the question cannot be considered in the *103abstract. Even one day in prison would be a cruel and unusual punishment for the 'crime’ of having a common cold.” Robinson v California, 370 US 660, 667; 82 S Ct 1417, 1421; 8 L Ed 2d 758, 763 (1962).
An excessive sentence is cruel or unusual. Lorentzen, supra, p 176. The statute in the instant case imposes a mandatory life penalty for possession of 650 grams or more of a mixture containing cocaine. The statute is equally applicable to a first-time offender as it is to an habitual criminal. The quantity of cocaine actually possessed by the individual is ignored by the statute.
By comparison, only possession of 650 grams or more of a mixture containing heroin and the commission of first-degree murder, MCL 750.316; MSA 28.548, are subject to mandatory life sentences. In contrast, second-degree murder, MCL 750.317; MSA 28.549, first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2), kidnapping, MCL 750.349; MSA 28.581, and taking of hostages by penal inmates, MCL 750.349a; MSA 28.581(1), carry minimum terms of "life or any term of years”.1
While the instant offense carries a minimum life sentence, the maximum sentences for the following crimes are enlightening: assault with a dangerous weapon, four years, MCL 750.82, 750.503; MSA 28.277, 28.771; assault with intent to maim, ten years, MCL 750.86; MSA 28.281; and possession of a firearm during the commission of a felony, two years, MCL 750.227b; MSA 28.424(2).
*104Tested by the provisions of other Michigan statutes dealing with serious criminal offenses, the present mandatory minimum sentence for possession of 650 grams or more of any mixture containing cocaine fails to meet the test of proportionality.
(b) Evolving Standards
The evolving standards test, also referred to as the "decency test”, looks to comparative law in other jurisdictions for guidelines in determining what penalties are widely regarded as proper for the offense under consideration. Lorentzen, supra, p 179.
The penalties for possession of cocaine in the other 49 states and the District of Columbia have been examined. This review discloses that Michigan imposes the most severe penalty for possession of 650 grams or more of a mixture containing cocaine. Accord, People v McCarty, 113 Mich App 464, 471; 317 NW2d 659 (1982). No other jurisdiction imposes such a mandatory minimum. Twenty-four states and the District of Columbia have no minimum sentence for possession of 650 grams or more of pure cocaine. Only five states provide for minimum terms in excess of four years. The harshest minimum sentence, provided by North Carolina, is 35 years, with a maximum possible sentence of 40 years, and with reductions for "good time” and "gain time” available.
In reviewing the sentences provided by other jurisdictions for possession of large amounts of cocaine, it is clear to me that Michigan’s mandatory minimum sentence of life for first time offenders does not meet the evolving standards or "decency” test.
*105(c) Rehabilitation
"This test looks to a consideration of the modern policy factors underlying criminal penalties — rehabilitation of the individual offender, society’s need to deter similar proscribed behavior in others, and the need to prevent the individual offender from causing further injury to society.” Lorentzen, supra, p 180.
Goals of deterrence and prevention are perhaps served by the mandatory life sentence if the argument is accepted that the harsher and longer the punishment, the more likely it would "deter” the proscribed behavior. I believe the sounder view holds that the quicker the steel doors clang on the offender, the better the deterrent effect. The speed with which the offender is apprehended, tried, and punished is the measure of the effectiveness of the criminal justice system, not the length of the sentence. Except for the most serious crimes, the goal of rehabilitating offenders is best served by short sentences. Lorentzen, supra, p 181. The mandatory life sentence provided by the statute under consideration has no rehabilitation potential. The goal of rehabilitation is not served by this statute.
III
Under each test to determine whether the minimum penalty of MCL 333.7403(2)(a)(i); MSA 14.15(7403)(2)(a)(i) violates the prohibition against cruel and/or unusual punishment, the mandatory penalty of the statute fails. I would hold the statute unconstitutional on this ground.
IV
A holding that the penalty provision of a law is *106cruel and/or unusual does not render the law invalid for all other purposes. See Smith v Johnson, 458 F Supp 289, 292 (ED La, 1977), aff'd 584 F2d 758 (CA 5, 1978); cf. People v Stewart (On Rehearing), 400 Mich 540, 553-554; 256 NW2d 31 (1977) (holding that the Court’s finding of a cruel and unusual punishment provision in Lorentzen did not invalidate the statute). Since I find the mandatory minimum provision of the statute unconstitutional, I would hold that the felony-punishment provision of MCL 750.503; MSA 28.771 should apply until a new minimum sentence can be legislatively enacted.
While I interpret the phrase "life or any term of years” to impose a mandatory minimum of one year and one day, People v Harper, 83 Mich App 390, 399; 269 NW2d 470 (1978), lv den 406 Mich 1021 (1979); People v West, 113 Mich App 1, 4; 317 NW2d 261 (1982) (M. J. Kelly, J.), other judges of this Court interpret the phrase as requiring no minimum sentence whatsoever, e.g., West, supra, p 10 (Danhof, J., dissenting).