AMENDED Memorandum and Order
Jack B. Weinstein, Senior United States District Judge.
The defendant has assumed the role of surrogate father to four young second cousins, who are being raised by his maternal grandmother. His relationship with these children is a proper basis for departure under U.S.S.G. § 5H1.6 ("family ties and responsibilities"). That the children are neither his biological nor legal offspring does not change this result.
The defendant, a 27-year-old African-American, pled guilty to interstate receipt of a firearm. 18 U.S.C. § 922(a)(3). He had no prior criminal record.
Raised by his maternal grandmother, the defendant had only sporadic contact with his parents during his formative years. Now the grandmother, 69 and retired, with no pension or Social Security, is raising four of the defendant's second cousins. The children's mother is an addict who is unable to care for them; their fathers have deserted.
To assist his grandmother, the defendant has taken a second job while satisfactorily attending college. Although he lives elsewhere, the defendant contributes to his grandmother's household budget. He also assists her by guiding and serving as a role model for the four children.
A. Extraordinary family circumstances
Guidelines departures based on extraordinary family circumstances are permitted. See, e.g., United States v. Johnson, 964 F.2d 124, 129 (2d Cir. 1992); United States v. Alba, 933 F.2d 1117, 1122 (2d Cir. 1991); United States v. Sharpsteen, 913 F.2d 59, 63 (2d Cir. 1990); United States v. Ekwunoh, No. 91- CR-684, 1994 U.S. Dist. LEXIS 17948 (E.D.N.Y. Dec. 9, 1994); United States v. Gerard, 782 F. Supp. 913, 914-15 (S.D.N.Y. 1991); United States v. Handy, 752 F. Supp. 561, 563-65 (E.D.N.Y. 1990). As the Johnson court noted, "the departure [is] not on behalf of the defendant . . . but on behalf of [the] family." 964 F.2d at 129. See also Eleanor Bush, Considering the Defendant's Children at Sentencing, 2 Fed. Sent. Rep. 194 (1989)(describing desire not to harm innocent parties as "implicit" but universal sentencing consideration).
The "family circumstances" caselaw of this and other circuits recognizes that "courts should . . . attempt to build procedures, dispositions, and structures that foster extended-family and community responsibility." Gary B. Melton, Children, Families, and the Courts in the Twenty-First Century, 66 S. Cal. L. Rev. 1993, 2004 (1993). Given this rationale, no one type of relationship is required to trigger the departure power. See, e.g., Alba, 933 F.2d at 1122 (recognizing effects of incarceration on defendant's children, parent, and grandparent); cf. United States v. Sclamo, 997 F.2d 970, 972 (1st Cir. 1993)(approving family circumstances departure based on defendant's "special and crucially important relationship" with the son of the woman he lived with).
That most "family circumstances" departures involve small children reflects the reality that children at crucial stages of development wither without adult nurture. See, e.g., United States v. Naugle, 879 F. Supp. 262, 267, 1995 U.S. Dist. LEXIS 3613, at *17 (E.D.N.Y. 1995). Whether the defendant is a parent in the biological or legal sense, or has become essential to the child's development in some other manner, cannot be decisive. To hold otherwise would be to penalize children for circumstances not of their own making.
As the Supreme Court has noted in striking down statutes that discriminate against illegitimate children, accidents of birth may not be transformed into disadvantage through operation of law. See Mills v. Habluetzel, 456 U.S. 91, 97, 71 L. Ed. 2d 770, 102 S. Ct. 1549 (1982); Gomez v. Perez, 409 U.S. 535, 538, 35 L. Ed. 2d 56, 93 S. Ct. 872 (1973). The guiding principle of a century of civil rights jurisprudence is that no one should be penalized for the circumstances of his or her birth.
B. Disparate family forms
To hold that legal or biological filial relationships are required for family circumstances departures would ignore the reality of much of modern family life in which married couples raising their biological children are a minority. See, e.g., United States Department of Commerce, Current Population Reports: Household and Family Characteristics: March 1993, at v (1994)(married couples with children accounted for 36 percent of families in 1993, down from 50 percent in 1970); id. at x (noting that "the structure of family households has grown complex and diverse in recent decades"); Elizabeth Shogren, Traditional Family Nearly the Exception, Census Finds, L.A. Times, Aug. 30, 1994, at A1 (discussing census data); Diane Crispell, 'Traditional' Families Have Thin Tradition, Wall St. J., May 12, 1993, at B1 (same). Cf. Anderson v. Edwards, 131 L. Ed. 2d 178, 115 S. Ct. 1291 (Mar. 22, 1995) (upholding California statute defining all children living in the same household under the care of a relative as a family).
Limiting § 5H1.6 departures to "traditional" families might make them unavailable to those who need them most. "[Recent] data, along with the demographics of poverty, support the conclusion that, in New York City, those that are most economically disadvantaged -- African-Americans and Latinos -- frequently turn to their extended family networks for support." Report of the Mayor's Commission for the Foster Care of Children, Family Assets: Kinship Foster Care in New York City 38 (1993). See also Margaret L. Usdansky, 'Blended,' 'Extended' Now All in the Family, USA Today, Aug. 30, 1994 ("Just over 55% of white kids live in [nuclear] families, compared with about 26% of black kids and about 35% of Hispanic kids."); Bureau of the Census, U.S. Dep't of Commerce, Characteristics of the Black Population tbl. 7, at 36 (1994) ("Living Arrangements of Black Persons Under 18 Years by Relationship to Householder and Marital Status of Parents").
Restricting the departure to nuclear families, linked by biology or law, would also raise the specter of invidious discrimination against those whose families do not fit traditional patterns. See, e.g., Mills, supra (discrimination against illegitimate children violates equal protection); cf. N.Y. Exec. Law. § 296(1) (forbidding discrimination on the basis of marital status). Such a restriction would ignore the courts' obligation to respect diversity -- an obligation central to the judicial role in a multi-cultural society and district.
C. Extended families
In this case, the defendant is part of an extended family network. The Task Force on the Black Family, working under the auspices of the Manhattan Borough President, has described such networks as "kinship and friendship groups committed to mutual sustenance and values of nurturance and social responsibility." Task Force on the Black Family, Report on the Focus Group on Extended Care Networks 2-3 (Peggy C. Davis, reporter)(forthcoming 1995, on file with the court) [hereinafter Task Force Report]. The chief role of such networks is to ensure that relatives or friends take care of children whose legal or biological parents are unavailable, or who need caregiving assistance. Id. Such networks are common to -- although by no means unique to -- the African-American community.
As Professors Elmer Martin and Joanne Martin observed in The Black Extended Family:
When we speak of a black extended family, we mean a multigenerational, interdependent kinship system which is welded together by a sense of obligation to relatives; is organized around a "family base" household; is generally guided by a "dominant family figure"; extends across geographical boundaries to connect family units to an extended family network; and has a built-in mutual aid system for the welfare of the family as a whole.
Elmer P. Martin & Joanne Mitchell Martin, The Black Extended Family 1 (1978).
The importance of the family network to the African-American community may date back hundreds of years.
Some trace African-American traditions of extended care to West African culture, while others see those traditions as adaptations to the dangers and dislocations of bondage. Whatever their origin, these networks of mutual obligation have sustained and enriched African-American culture since the seventeenth century.