United States District Court, Eastern District of New York
February 19, 1991
UNITED STATES OF AMERICA
BEATRIZ ELENA PEREZ.
The opinion of the court was delivered by: Weinstein, District Judge.
MEMORANDUM AND ORDER
The question posed on sentencing is whether this despondent
and impecunious twenty-five year old woman, who has just
experienced the sudden and unexpected death of her only child,
a son born while she was in custody after her arrest for
dealing in crack, may be sentenced to prison for a period less
than the guidelines require — a range of 41 to 51 months. The
answer is yes.
A downward departure is authorized when there is a
"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." 18 U.S.C. § 3553(b);
U.S.S.G. § 5K2.0; cf. U.S.S.G. § 5H1.3 (mental and emotional
factors on probation). The Commission did not take into account
the emotional blow dealt a mother who gives birth to a child
while she is in custody, gives up her infant son to relatives
because she cannot adequately care for it during her
incarceration, and then is informed, while still in jail, of
his sudden and inexplicable death.
Even the most inhumane would consider this cruel punishment
dealt by the fates sufficient retribution for her
transgression. There are occasions where the law's
implacability must bend and give homage through compassion to
humanity's frailties and nature's cruelties. This is such a
Defendant has already been held at the Metropolitan
Correction Facility for 15 months awaiting trial. Now that she
has pled guilty, there is no point in a prison term. Defendant
is sentenced to time served, a five year term of supervised
release and a fifty dollar special assessment. She will
undoubtedly be deported as an illegal alien, never to return
legally to her friends and relatives who are here. The
government does not object.
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