"grossly disproportionate" to the crime); R. v. Smith, 1 S.C.R. 1045 (1987) (Canadian law providing minimum seven-year sentence for importation of any amount of any kind of drug -- even one marijuana cigarette for personal use -- is disproportionate and violates Canadian constitutional provision barring cruel and unusual punishment).
In this case, the application of a minimum sentence is not so shocking and disproportionate as to warrant addressing the constitutional issue. The statute requires a minimum of five grams or more of a mixture containing cocaine base or 500 grams of a cocaine-source mixture before the five-year minimum takes effect. 21 U.S.C. §§ 841(b)(1)(B)(ii), (iii). The statute is quite different from the Canadian provision struck down in Smith. Given the great dangers Congress might have seen in the use of cocaine base, or "crack" as it is commonly known, it is not possible to say that a five-year penalty for possessing five grams with intent to distribute is unconscionable. A finding of unconstitutionality as to subservient women might well encourage drug dealers to employ such women to carry out their crimes. Cf. United States v. Arize, 792 F. Supp. 920, 921 (E.D.N.Y. 1992) (drug smugglers use of pregnant women as couriers in hopes of gaining leniency for them).
IV. APPLICATION OF LAW TO FACTS
Had defendant not pled guilty she probably would not have been able to successfully plead duress. She was not faced with a stark and immediate choice between physical harm and commission of the particular crime for which she was indicted. While it would have been an act of extraordinary courage and perhaps recklessness, she could have left her husband. She knew she was committing a crime by participating in drug dealing and she chose to exercise whatever free will she had to act criminally.
Nevertheless, a full appreciation of defendant's relevant mental state must include the effect of her circumstances on the decisions she made. Until her arrest, defendant's life had been an extraordinary trial of physical and emotional abuse and coercion. Her actions were legally "voluntary," but they were not the result of free rational decisionmaking. Her life is a classic example of the plight of a subservient, abused woman.
As explained by her psychiatrist's report and established by defendant at the sentencing hearing, she has long suffered from anxiety and depression, lacked any self-esteem, blamed herself for her suffering and greatly feared her husband and his associates. At the time she committed this crime, defendant was acting under the influence of all these conditions.
Defendant continues to suffer the severe effects of her history of abuse. Incarceration for an extended period would hamper defendant's chances of recovery from her psychic injuries and possibly make them worse.
A downward departure is ordered. Defendant is sentenced to the statutory minimum of 60 months imprisonment, to be followed by five years of supervised release. The court recommends that defendant be deported upon her release from prison.
Jack B. Weinstein
United States District Judge
Dated: Brooklyn, New York
October 22, 1992
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