United States District Court, Southern District of New York
November 6, 1991
UNITED STATES OF AMERICA
BEVERLY MAIER, DEFENDANT.
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is withdrawn and, in a departure from the United States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 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
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
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
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).
Finally, Maier's arrest for possessing heroin and possessing
heroin with an intent to distribute are a direct fallout of
her addiction. It is unlikely that she will ever commit this
crime again, once she is free of
her addiction. Therefore, in light of this, her history and
efforts to date, and her need for continuing effective
methadone treatment, a downward departure is warranted. Maier
has a long road ahead of her, and jail would most likely undo
her efforts to free herself from addiction. Society has much
more to gain from having her become completely independent
from her addiction than from exercising "ritualistic
punishment." Rodriguez, 724 F. Supp. at 1119; see also United
States v. Harrington, 947 F.2d 956, 962 (D.C. Cir. 1991)
(pretrial drug rehabilitation might justify departure); United
States v. Sklar, 920 F.2d 107, 116 (1st Cir. 1990) (same);
United States v. Maddalena, 893 F.2d 815, 818 (6th Cir. 1989)
(defendant's efforts at staying away from drugs grounds for
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, ___ U.S. ___, 111 S.Ct.
2274, 114 L.Ed.2d 725 (1991). See generally Harrington, 947
F.2d at 958-62 (discussing varying approaches taken by courts
to drug rehabilitation efforts under the Guidelines).
Furthermore, the Sentencing Commission has ignored
Congress's mandate to consider the purposes of sentencing in
promulgating the Guidelines. See Kenneth R. Feinberg, The
Federal Guidelines and the Underlying Purposes of Sentencing, 3
Fed.Sent.R. 326 (May/June 1991); United States v. Mercedes, 90
Cr. 0450, slip op. at 3, 1991 WL 210945 (S.D.N.Y. Oct. 4,
1991). A downward departure is proper for this reason also.
Congress requires a court to consider the four traditional
justifications of criminal sentencing when imposing a
sentence: First, there is the need "to reflect the seriousness
of the offense, to promote respect for the law, and to provide
just punishment." Second is the need "to afford adequate
deterrence." Third is the need "to protect the public from
further crimes of the defendant." And fourth is the need to
"provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the
most effective manner." 28 U.S.C. § 3553(a)(2). A court is
required to analyze each of these factors in imposing a
sentence, especially a departure. See, e.g., United States v.
Kalady, 941 F.2d 1090, 1099 (10th Cir. 1991).
The Sentencing Commission is also under a Congressional
mandate to satisfy each of these purposes in promulgating the
Guidelines. See 28 U.S.C. § 991(b)(1)(A). Related to this is
the requirement, largely ignored to date, that the Commission
conduct research to determine which of these purposes the
Guidelines support. See Kenneth R. Feinberg, supra. Without
guidance from the Commission, a departure is justified when the
Guidelines fail to satisfy Congress's mandate.
Much research has been published since the Guidelines were
promulgated showing that comprehensive drug treatment programs
can be effective in reducing both drug use and criminal
behavior. See, e.g., Robert L. Hubbard et al., The Criminal
Justice Client in Drug Abuse Treatment, in Research Monograph,
supra, at 57, 74; Herman Joseph, supra, at 117-24; D. Dwayne
Simpson & H. Jed Friend, Legal Status and Long-Term Outcomes
for Addicts in the DARP Followup Project, in Research
Monograph, supra, at 81, 91-93. As William Bennett noted in a
National Drug Control Policy White Paper, "[w]e now know on the
basis of more than two decades of research that drug treatment
can work." Office of National Drug Control Policy,
"Understanding Drug Treatment,"
30 (June 1990); see also United States v. Harrington,
741 F. Supp. 968, 974 (D.D.C. 1990) (discussing the White Paper),
vacated, 947 F.2d 956 (D.C. Cir. 1991). Moreover, other studies
have "not convincingly demonstrated that incarceration alone,
incarceration plus treatment, or incarceration plus intensive
aftercare supervision were effective approaches to the
rehabilitation of narcotic addicts." James A. Inciardi, Some
Considerations on the Clinical Efficacy of Compulsory
Treatment: Reviewing the New York Experience, in Research
Monograph, supra, at 126, 132.
The Guidelines currently do not take into account the
findings of such research. A downward departure is thus
justified. Drug rehabilitation can produce positive results
and aid patients in abstaining from criminal activity.
See Henrick J. Harwood et al., The Costs of Crime and the
Benefits of Drug Abuse Treatment: A Cost Benefit Analysis Using
TOPS Data, in Research Monograph, supra, at 209. A probationary
sentence conditioned on attending a drug rehabilitation program
therefore falls squarely into the second and third purposes of
sentencing. By breaking the defendant of her habit, she will be
deterred from committing additional crimes of this nature, thus
protecting the general public from the commission of such
crimes. Where there is such a long history of abuse, only
intensive treatment will ensure that the defendant can be cured
of her habit. A rehabilitation program therefore satisfies the
fourth purpose. The first purpose is served through the
imposition of a term of probation, which may be revoked if the
defendant fails to live up to the terms of the sentence.
Finally, the Court notes that one of the other purposes of
the Guidelines is to "reflect, to the extent practicable,
advancement in knowledge of human behavior as it relates to
the criminal justice process." 28 U.S.C. § 991(b)(1)(C). The
studies show that curing a long-term heroin addiction such as
Maier's can require up to a lifetime of care to be truly
successful. Maier has started along the road to recovery, and
the studies and her doctors all point to the conclusion that
incarcerating her now and depriving her of the benefit of
long-term care will be counterproductive. Since the Commission
has failed to adhere to its mandate in this instance also, a
departure is justified.
The Guidelines additionally call for the imposition of a
fine of $10,000 to $1,000,000 plus the cost of incarceration
and/or supervision. However, based on the information provided
to the probation officer, and absent any supporting
documentation, Maier appears unable to pay such a fine.
Section 5E1.2(f) of the Guidelines provides for reduction of
the fine where, as here, the Presentence Report indicates that
Maier possesses minimal financial resources. Therefore only
the mandatory fine shall be imposed.
In a downward departure from the Guidelines, Maier will be
sentenced to a term of four years of probation during which
Maier will participate in a community drug treatment program
providing methadone maintenance. This program shall be
approved by the Probation Department. This period of
supervised release also shall be subject to the following
conditions: Maier shall abide by the standard conditions of
supervised release as recommended by the Guidelines; Maier
shall not violate any laws, Federal, state, or local; and
Maier shall not illegally possess a controlled substance.
Revocation of her supervised release is mandatory for
possession of a controlled substance. The mandatory special
assessment of $50.00 shall be imposed.
It is so ordered.
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