The opinion of the court was delivered by: FRANKEL
Defendant has pled guilty to two major federal offenses:
(1) participation in a narcotics conspiracy carrying a maximum penalty of 15 years in prison and a $25,000 fine, and
(2) income tax evasion, carrying a maximum penalty of one year in prison and a $10,000 fine.
The plea thus exposed defendant to a theoretically possible maximum sentence of 16 years in prison and $35,000 in fines. The court has today suspended the imposition of sentence and placed the defendant on probation for a period of three years. It may be useful for general understanding to explain the basis of this judgment.
There is no question about the gravity of defendant's crimes, especially the narcotics offense. He was one of several participants in a conspiracy involving a large-scale wholesale and retail business in heroin and cocaine. The defendant's role, however, as shown by his guilty plea and the Government's submissions, was relatively minor, evidently limited to a single transaction. Although less serious in some respects, his failure to file an income tax return in a year in which he realized some $24,000 in gross income cannot be regarded as a technical offense. In this case, however, factors other than the nature of the crimes seem decisively important in determining the sentence.
The events to which defendant has pled occurred in early 1971. In July of that year, the defendant was kidnapped (perhaps in connection with his criminal involvements), subjected to various brutalities, and finally injured desperately when he jumped from a second-story window in an effort to escape. Since that episode, he has been a paraplegic confined to a wheel chair. He has been in and out of various hospitals, including veterans' hospitals (being an honorably discharged veteran of combat in the Viet Nam War). He lacks normal control over the simplest bodily functions, relying upon a urinary catheter and other devices to live through the successive days. The contrast with normalcy may be especially severe for a young man of 30 who is reported to have been notably athletic before his paralysis.
Despite his impairments, defendant appears to be economically self-sustaining through a combination of Veteran's pension funds, receipts from rental property, and earnings from self-employment. Though he lives in a condition of physical torment, he appears to maintain decent spirits and positive social relationships.
It is of further significance that while this defendant pled guilty at the end of the fourth day of a nine-day multi-defendant trial, the other defendants, his alleged co-conspirators, were all acquitted by the jury. Those acquittals are conclusive as to the others. For this defendant, however, on what both he and the Government place before us, we are compelled to know that the things he confesses make him a minor figure compared to several who have gone scot free. We are likewise forced to see with substantial certainty that his fate at the jury's hands would not have been different from that of the others.
In lawyers' logic, the knowledge of what might have been could be immaterial. It cannot be immaterial while sentencing remains, as entitled in a useful book, a "human process."*
How, then, should a sentence be fashioned in such a case? The crimes, as noted, are serious. The narcotics offense particularly is deemed by the Congress and by the public to be among the gravest. We regularly order imposing sentences for dealings in heroin. It is hoped that potential violators will be deterred (that there will in the standard term be "general deterrence") as a result of these long prison terms. We strive also for "specific deterrence" -- to discourage the particular defendant from doing it again. A related objective is "incapacitation;" at least while he or she is locked up, the defendant will not deal in heroin, not in the streets at all events. Sometimes we speak of "rehabilitation," the notion that prison will improve the defendant, a notion less and less accepted as we learn more about what really happens to people in prison. In addition, punishment serves more or less the ends of retribution and denunciation -- making the defendant "pay" and reaffirming the community's outrage against the behavior in question.
Of the several possible ends to be served by imprisonment, three at most could be sought in this case; general deterrence, retribution, and denunciation. We face the question as to how well they would be served and what price we would pay.
It is interesting, and permissible for general enlightenment, to report how two professional agencies react to that problem. Our Probation Office, unsentimental and accustomed to proposing severe sentences for narcotic offenders, concludes that this is not on balance a case for imprisonment; it recommends a long period of probation. Though our United States Attorney prefers usually to stand mute on questions of sentencing, he is asked in some cases to make a recommendation. Needing all possible light in this unusual case, the court made such a request. The resulting recommendation is a thoughtful one. It suggests the probability that the transaction here involved was not defendant's sole involvement with narcotics. On the other hand, it says:
"the Government is mindful of the special circumstances presented by the defendant's physical condition, and of the fact that the transaction to which he allocated was never completed. Further, ...