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November 6, 1991


The opinion of the court was delivered by: Sweet, District Judge.


Defendant Beverly Maier ("Maier") pled guilty on April 3, 1990, to one count of distributing and possessing with the intent to distribute heroin, 21 U.S.C. § 812, 841(a)(1) and 841(b)(1)(C). Pursuant to an opinion dated July 1, 1991, this Court sentenced Maier to 51 months of imprisonment followed by three years of supervised release, subject to modification as a result of her sentencing hearing. At the sentencing hearing, which was held October 24, 1991, the Court received additional information that was not available when the original sentencing opinion was prepared.

For the reasons set forth below, the July 1, 1991, opinion is withdrawn and, in a departure from the United States Sentencing Guidelines ("Guidelines"), a sentence of four years of probation will be imposed. Pursuant to 18 U.S.C. § 3013, a special assessment of $50.00 is mandatory.

The Guidelines

The Presentence Report prepared by the United States Probation Office grades Maier's offense conduct under the United States Sentencing Guidelines ("Guidelines") at a total offense level of 24 and assigns her a Guidelines criminal history category of I. The Guidelines provide for an imprisonment range of 51 to 63 months and a supervised release period of 3-5 years. A departure from the Guidelines is warranted when "`there exists an aggravating or mitigating circumstance . . . not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.'". Guidelines § 5K2.0 (quoting 18 U.S.C. § 3553(b)).

In establishing the Guidelines, "it was not Congress' aim to straitjacket a sentencing court, compelling it to impose sentences like a robot inside a Guidelines' glass bubble, and preventing it from exercising discretion, flexibility or independent judgment." United States v. Lara, 905 F.2d 599, 604 (2d Cir. 1990). Nor did it intend to remove rehabilitation entirely from the sentencing process. Id. Rather, a sentencing court must consider, among other things, "the history and characteristics of the defendant," and the need for the sentence to "protect the public from further crimes of the defendant" and to "provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner." 18 U.S.C. § 3553(a). Thus each defendant must be treated as an individual in the sentencing process. United States v. Rodriguez, 724 F. Supp. 1118, 1119-20 (S.D.N.Y. 1989) (Leval, J.); see also U.S.S.G. § 1B1.4.

A downward departure is appropriate in this instance. Maier is a first-time offender who has endured a trying life. Her childhood was one of abuse, neglect, and terror in an alcoholic environment. She has been addicted to heroin for over fourteen years, and her life during this period has been a textbook example of the devastation heroin addiction can inflict.

At the time of her arrest, Maier was injecting herself with .50 grams of heroin daily. Since then, Maier has attempted to rid herself of her drug dependency. She currently is participating in a methadone program at St. Lukes/Roosevelt Hospital and is making progress toward completely freeing herself from the throes of addiction. She also has gone back to school to learn how to become a court reporter and is presently employed.

Fourteen years of heroin addiction cannot be cured overnight. The process is gradual and trying, requiring both mental and physical support. See Herman Joseph, The Criminal Justice System and Opiate Addiction: A Historical Perspective, in III Nat'l Institute on Drug Research, Compulsory Treatment for Drug Abuse: Research and Clinical Practice, Research Monograph 106, 123 (1988) [hereinafter Research Monograph]. "Cold turkey" withdrawal frequently is not effective in such situations, as evidenced by Maier's experience in the Government-sponsored three-week Mt. Carmel program. There, her dosage was reduced to 5 mg. a day from 30 mg. a day, achieving a "drug-free" state for the last three days. Once the program was completed, however, there was no after-care program to help the patient adjust, and Maier, having endured physical suffering, was unable to succeed in achieving total abstinence without additional support. She therefore reentered St. Luke's methadone program and continues to receive treatment there.

If incarcerated, Maier would be unable to continue methadone treatment in an effective manner. Only one federal institution allows some methadone maintenance therapy, the Metropolitan Correctional Center in New York City. The program there, however, is limited to 7 to 21 days, a time period that has already been proven ineffective in the present instance. See also, Herman Joseph, supra. Moreover, her psychoanalyst, Dr. Richard Goldstein, notes:

  If denied methadone at this time and for the
  foreseeable future until she reaches her goal of
  becoming methadone-free (a time to be measured
  not in weeks or even months, more likely in
  several years, if successful), I truly fear for
  her life. If she is thrust into a drug-free "cold
  turkey" state, the consequences are unpredictable
  with any reasonable degree of medical certainty.
  What is predictable is that she will suffer in a
  fashion enormously cruel. . . .

Letter from Dr. Richard Goldstein 8 (Oct. 9, 1991).

The Government argues that the defendant's drug addiction militates in favor of incarceration. In support of this position, the Government relies on Guidelines Policy Statement § 5H1.4. It states that "[d]rug dependence or alcohol abuse is not a reason for imposing a sentence below the guidelines. Substance abuse is highly correlated to an increased propensity to commit crime." However, Maier seeks to end her dependency and end any propensity she has for committing crime. The Policy Statement therefore is not applicable. See Harrington, 947 F.2d 962 (D.C. Cir. 1991); United States v. Sklar, 920 F.2d 107, 116 (1st Cir. 1990). But see United States v. Martin, 938 F.2d 162, 163 (9th Cir. 1991); United States v. Pharr, 916 F.2d 129, 132-33 (3d Cir. 1990), cert. denied, ...

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