A more compelling approach that gives effect to each of the statutory provisions is available by a straightforward reading of the three provisions in order, applying them in three steps. As a first step, under sections 3551 and 3553(a), the court must consider how, given the circumstances of the case, the various purposes of sentencing can best be served. It is aided in this inquiry by considering whether any or all of the seven factors listed in section 3553(a) are applicable and what their relative weight should be.
As part of this first-step inquiry, courts must determine whether the Sentencing Commission's Guidelines and Policy Statements ought to control a given case to the exclusion of all other factors. In this regard, courts will tend to rely on the Guidelines where the case is typical of many like situations and is susceptible to the statistical analysis and compilation techniques used by the Commission in developing the Guidelines. See United States Sentencing Commission, Guidelines Manual 5 (Nov. 1991) ("The Commission intends the sentencing courts to treat each guideline as carving out a "heartland," a set of typical cases embodying the conduct that each guideline describes."). The experience of trial judges in determining whether a case is run-of-the-mill or presents unusual problems or local variations necessarily will inform this decision.
If the conclusion of the first-step analysis is that the Guidelines and Commission Policy Statements ought to apply to the exclusion of other factors, the court proceeds to the second step, which is to follow the directive of section 3553(b) and apply the Guidelines and Policy Statements according to their terms. In this endeavor the court will look to the published work of the Commission, seeking to construe the terms of the current Guidelines Manual to determine the appropriate Guidelines sentencing range.
The court's third step is to consider (a) the sentencing options provided, if any -- e.g., imprisonment or probation -- and (b) whether any exceptions recognized by statute or the Guidelines themselves apply -- e.g., not adequately considered aggravating or mitigating factors.
Even in a case where the court must sentence under step one because the Guidelines do not control, it will be desirable in many instances to go through steps two and three so that the court can reconsider its step one conclusion by checking it against the national averages in the closest analogous cases. Given the great power of the sentencing court to affect the lives of the people before it, as well as a wide circle of relations and others and society as a whole, and given the lack of any precise method for determining the just sentence in any paricular case, humility in the nisi prius court is essential. It must look not only to the legislative scheme and general principles justifying punishment, but to the views of other judges, the Sentencing Commission's statistical analyses and judgments, the arguments of counsel, the Probation Office's guidance, the judge's own heart and experience, and, finally, the oversight of a panel of appellate judges. In addition, the Eastern District of New York has a practice by which the sentencing judge may consult with a panel of two other judges in the district, a practice utilized in the instant cases. This elaborate process for checking the particular sentencing judge's views can moderate and protect against the extremes of error, but cannot promise perfection. See, e.g., Yoram Shachar, Sentencing As Art -- A Response: Sentencing as a Just System, id. at 662. Despite the conceptual and practical difficulties, the court may not avoid decision. Congress, sensitive to the tentative and uncertain nature of the enterprise, has wisely directed the courts to impose sentences "not greater than necessary." 18 U.S.C. § 3553(a).
In some instances, the trial court will not need to go beyond step one. For example, if the defendant is an extremely dangerous person, the concern of section 3553(a)(2)(C) to protect the community may override all other purposes and call for incapacitation for the maximum term permitted by law. The Guidelines would then be irrelevant. To avoid wasted effort by the Court of Appeals in considering details of steps two and three when they have no bearing, the trial court should usually indicate on which of the factors in section 3553(a)(1), (2), (3), (6) and (7) it is relying. Usually, of course, the district court's rationale will be obvious to the Court of Appeals from the record.
The Supreme Court's statement in Mistretta v. United States, 109 S. Ct. 647 (1989), that the Sentencing Reform Act created guidelines that are "binding" on courts does not counsel against adopting the interpretation that flows most naturally from the statutes' pattern and plain language. The Court wrote:
[The Sentencing Reform Act] makes the Sentencing Commission's guidelines binding on the courts, although it preserves for the judge the discretion to depart from the guideline applicable to a particular case. . . . §§ 3553(a) and (b).
Id. at 62. Mistretta concerned the constitutionality of Congress's delegation of powers to the Sentencing Commission. The above sentence appears in the opinion as part of a background thumbnail sketch of the Guidelines as a means of highlighting the delegation and separation of powers questions facing the court -- it presents what the Court considered to be the typical sentencing scenario under the Guidelines. As the citation to sections 3553(a) and (b) as a unit makes clear, Mistretta did not confront the issue now before the court of the proper interpretation of sections 3551 and 3553 or of the relation between Guidelines and non-Guidelines sentences.
Statutory provisions detailing the duties and powers of the Commission, see 28 U.S.C. §§ 991-95, do not address the question of how Article III judges are to use the Commission's product in sentencing. Nor is there anything in the remainder of section 3553 or in surrounding provisions in Chapter 227 that casts doubt on the need of the court to consider all the factors listed in § 3553(a) before deciding to follow the Guidelines. Section 3553(d), like section 3552, deals with presentence reports and procedure. Section 3553(e) requires a motion by the government before a court may sentence below a statutory minimum. Section 3553(c) requires the court to state the reasons for choosing a point within or outside a Guidelines range "if the sentence" is predicated on the Guidelines. Id. (emphasis added).
Other related provisions in Chapter 227 do not bear directly on the application of the Guidelines. See 18 U.S.C. § 3554 (forfeiture order); id. 3555 (order of notice to victim); id. 3556 (restitution order); id. 3557 (review of sentence; cross-referencing § 3742 governing appeals); id. 3558 (implementation of sentence; id. § 3559 (classifying offenses).
18 U.S.C. § 3742, governing appellate review of sentences, does emphasize appeals of Guidelines sentences. It could be argued that, where a sentence is not imposed pursuant to section 3553(a)(4) and (5) there is no power to review it -- i.e., the sentence should be treated as it was prior to the Sentencing Reform Act, with no appellate review of sentences. Such a sharp distinction between Guidelines and non-Guidelines sentences for purposes of appeal would create intractable appellate jurisdictional issues and is unwarranted by the overall language of the section, particularly since sections 3742(a) and (b) have general clauses permitting review of any sentences "imposed in violation of law." Since the section 3553(a) factors are so interrelated, an assumption by the Courts of Appeal of the power to review all sentences, whether or not imposed under the Guidelines, is sound. Nevertheless, the Courts of Appeal have interpreted their role narrowly, essentially restricting themselves to checking the district courts' math, and properly leaving basic judgments as to the justice of individual sentences to the trial courts. Cf. Haim H. Cohn, on the Immorality of Punishment, 25 Isr. L. Rev. 283, 299-300 (1991) ("In the same way as sentences of trial judges are mere guesswork as to what justice really demands, so are the conclusions of appellate courts mere guesswork (and the guesses are not neccessarily better.)") (citing Jerome Frank, Courts on Trial 157 (1973)).
In undertaking the three-step approach outlined above, the court should explore all relevant sources of information as mandated by section 3661 of Title 18:
No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.
When many defendants are sentenced at once, the court must be especially careful to minimize disparities. Such caution is directed by 18 U.S.C. § 3553(a)(6).
In the cases now before it, the court has thoroughly explored the factual background of the crimes and of each defendant. It has carefully observed each defendant in court on repeated occasions in the company of friends, relatives, children and attorneys, and has questioned each in detail about her criminal acts and her background. Each of the factors set out by Congress in section 3553(a), including Sentencing Commission Guidelines and Policy Statements, has been considered in arriving at each defendant's sentence. The sentences imposed have required emphasis on the criteria set forth in 18 U.S.C. § 3553(a)(1), (2)(A), (B) & (D), (6) and (7): general deterrence and rehabilitation in that order, are, as noted in this memorandum, the overriding concerns of the court.
b. Sentencing Guidelines
Even though the Guidelines are not controlling in these cases, the court finds it useful to "consider," see 18 U.S.C. § 3553(a), together with all the other pertinent factors, the Sentencing Guidelines and the Sentencing Commission's Policy Statements. The Guidelines suggest offense-specific terms of imprisonment, probation with terms and conditions, supervised release, fines, restitution and payment of costs of imprisonment or probation.
The prison sentences deemed relevant to these defendants' offenses by the Guidelines are considered below with respect to each individual defendant. As an alternative to prison, probation is provided as an option under the Guidelines is the minimum term of the relevant punishment required by the Guidelines is less than or equal to six months. For Guidelines prison terms of greater than one month but not more than six months, a sentence of probation is generally permitted, but the court must impose probation for a specified period of time up to five years, see United States Sentencing Commission, Guidelines Manual § 5B1.2 (Nov. 1991), and only if it imposes a condition or conditions on the probation of confinement to one's home or community facilities for a period at least as long the relevant minimum prison term. Id. § 5B1.1 (Application Notes, 1(b)). Combinations of imprisonment and home detention or confinement in a community treatment facility are permitted and are described in connection with each defendant's case, infra. Id. § 5C1.1(c), (d), (e).
The Guidelines and sentencing statutes also provide for terms of supervised release. Imposition of supervised release is mandatory except in cases where the defendant is sentenced to a prison term of one year or less, in which cases it is discretionary. Id. § 5D1.1 et seq. The period of supervised release is determined either by the terms of the statute under which a defendant is convicted or by the class of felony or misdemeanor which the defendant has committed. In the instant cases, supervised release terms of up to three years are permitted. This means that after a defendant is released from prison she is under the Probation Department's supervision. Violations of the terms of supervised release can result in re-imprisonment.
The Guidelines provide for restitution of ill-gotten gains in accordance with underlying statutory law. Id. § 5E1.1. In addition, they contain a table for the imposition of fines that corresponds to each defendant's offense level. Id. § 5E1.2.
c. Departures From the Guidelines
Even in those instances when the Guidelines are of predominant importance compared with the other governing criteria set forth in section 3553(a), courts are authorized to depart from them under certain conditions. Under § 5K1.1, the government may suggest that the court depart downward because the defendant has "provided substantial assistance in the investigation or prosecution of another person who has committed an offense." The court has discretion to grant such a request. In other circumstances, a court should depart from the Guidelines if it "finds that there exists an aggravating or mitigating circumstance, of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines. . . ." 18 U.S.C. § 3553(b). A non-exhaustive list of such grounds for departure, either upward or downward, is provided in § 5K2 of the Guidelines (e.g. crime resulted in death or injury, crime provoked by victim). That section, however, must be read in light of § 5H1, which enumerates various factors relating to the character of the defendant that a court normally ought not consider bases for departing (e.g., age, education, race, gender).
An important issue in the cases now before the court is the relevance of a defendant's status as a single mother, particularly where the children are young or have special medical problems and the defendant is responsible for their custody. The Sentencing Commission's Policy Statement § 5H1.6 reads in part: "family ties and responsibilities and community ties are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range." This statement applies primarily to considerations of incarceration: the Policy Statement goes on to add that "Family responsibilities that are complied with may be relevant to the determination of the amount of restitution or fine." As a Policy Statement, § 5H1.6 is merely advisory. See Daniel J. Freed, Federal Sentencing, supra, 101 Yale L.J. at 1732.
The policy statement of section 5H1.6 is not useful in the present situation. It tells us that a defendant-mother is not generally entitled to credit for her motherhood. It does not address the more critical problem of whether the court can consider the welfare of her child or children in determining the sentence. In this instance, it would be especially ironic if the court could not do so when the very program the defendant abused is for the benefit of children. The government is, as the AFDC name suggests, concerned with aid for dependent children, not dependent mothers. Aid is given to the mother to assist her in caring for the child. Insofar as the absence of the mother may have profoundly deleterious effects on her child or children, their care must be relevant in considering whether there should be incarceration or other forms of punishment.
Although not addressing identical concerns, Judge Sweet came to the conclusion that a downward departure would be considered where a defendant was the sole care provider of her two teenage children. United States v. Gerard, 782 F. Supp. 913 (S.D.N.Y. 1992). Rather than impose a sentence within the Guidelines range of 33 to 41 months, the court in Gerard placed the defendant on probation for five years and required her to make restitution. Compare United States v. Johnson, 964 F.2d 124 (2d Cir. 1992) (downward departure approved for defendant upon whom infant and three young children depend); United States v. Joyner, 924 F.2d 454, 459-61 (2d Cir. 1991) (departure affirmed where imprisonment of defendant "might well result in the destruction of an otherwise strong family unit") with United States v. Carr, 932 F.2d 67 (1st Cir.) (dependency of children not basis for departure), cert. denied, 112 S. Ct. 112 (1991); United States v. Brand, 907 F.2d 31 (4th Cir.), cert. denied, 111 S. Ct. 585 (1990) (same); United States v. Brewer, 899 F.2d 503 (6th Cir.), cert. denied, 111 S. Ct. 127 (1990) (same).
In many of the defendants' families there has been a succession of adult males, almost all of whom have renounced any connection with or obligation to the children. Removing the mother in such a matriarchal setting destroys the children's main source of stability and guidance and enhances the possibility of their engaging in destructive behavior. Cf. United States v. Leasehold Interest in 121 Nostrand Avenue, 760 F. Supp. 1015, 1022 (E.D.N.Y. 1991) (noting matriarchal structure of extended family). Experience in this district has demonstrated that imprisonment of a parent tends to result in the child ending up in prison as well. Even incarceration within the community and forced work for the community without pay is bound to have some adverse effects on the child. Nevertheless, these consequences cannot be entirely avoided. While the sins of the mother should not be visited on the child, the child may learn from her experience that crime does not go unpunished.
The court would have ordered incarceration of some defendants in a community treatment facility with the child or children accompanying the mother in cases where this sentence would be appropriate. There are, however, no correctional facilities in the New York metropolitan area which allow children to live with their parent.
3. Denial or Limitation of Future Benefits
The court has a circumscribed role in denying or limiting future receipt of welfare payments by a mother convicted of welfare fraud. The reasons are both pragmatic and statutory.
As a practical matter, AFDC is intended primarily to benefit children: parents who receive funds essentially act as caretakers and guardians within the family setting. When putting provisions on the table, the law cannot realistically deny a mother the opportunity to share a meal with the children. Although many parents have practiced such selflessness, no sane government policy could mandate and enforce this degree of self-denial in the home.
Under the Social Security Act, 42 U.S.C. § 601 et. seq., a state may secure the return of improperly received public assistance funds from a person still on assistance through recoupment, i.e., deductions from the client's legitimate welfare payments. Recoupment is limited by the statute to ten percent of these payments. 42 U.S.C. § 602(a)(22); 45 C.F.R. 233.20(a)(13). New York State's AFDC implementing statute and regulations mirror the federal statute except that they impose a five percent recoupment ceiling in cases where the recipient can prove undue hardship. See Soc. Serv. Law § 106-b; NYCRR § 352.31(d).
The Social Security Act does grant to the states the power to amend their AFDC programs so as to discount the needs of any individual within an AFDC family who has been found by a
Federal or State court or pursuant to an administrative hearing . . . to have intentionally --
(1) made a false or misleading statement or misrepresented, concealed, or withheld facts, or
(2) committed any act intended to mislead, misrepresent, conceal, or withhold facts or propound a falsity, for the purpose of establishing or maintaining the family's eligibility for [assistance]. . . .