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U.S. v. K

May 31, 2001


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


I. Introduction:

The question posed is whether the court may defer sentence of a defendant to permit him to complete the Special Options Rehabilitation Service (S.O.R.S.) Program, an innovative remediation procedure administered by this district's Pretrial Services officers. The answer is yes. While protecting the public, the federal district judge's duty is to try to save as many of the people before the court as it can — one person at a time in accordance with the law.

Defendant's continued participation in the S.O.R.S. program will enable the court to evaluate rehabilitation of defendant before sentencing him. Sentencing can be deferred to allow this young, nonviolent offender — whose physical and mental fragility renders him particularly susceptible to abuse in prison — further time to demonstrate rehabilitation under the strict control of Pretrial Services.

This approach permits appropriate and necessary circumvention on a case-by-case basis of rigid Guidelines that in some cases have unnecessarily destroyed the lives of defendants — particularly minorities — and their families, and added substantially to taxpayers' burdens by requiring the construction of a large and rapidly expanding prison system. As demonstrated below, unnecessary cruelty by requiring incarceration in cases such as this one is not required by federal law.

Once it imposes sentence, the court under the Guidelines lacks the power to modify the sentence to meet changing circumstances and demonstrated rehabilitation unless upon the request of the prosecutor. See Fed.R.Crim.P. 35(b), (c) (reduction of sentence); U.S. Sentencing Guidelines Manual § 5K2.19 (2000) (post-sentencing rehabilitation efforts after sentence of a term of imprisonment are not permitted). Deferring sentencing in selective cases allows the court to follow the statutory requirement that rehabilitation be considered as one of the viable and continuing sentencing criteria. See 18 U.S.C. § 3553 (a)(2)(D). Saving rather than destroying defendants is permitted under the Guidelines.

II Facts:

A. K's Background

K is a twenty-one year old Asian-American male. He is slight in build and reticent. Born in mainland China, he is the elder of his parents' two children. The family emigrated to the United States when defendant was four years old. He is a United States citizen. His sister is attending college.

Defendant's parents speak little English. They have worked long hours at low-paying jobs to meet the family's financial needs. K's father is employed as a cook in a Bronx restaurant. Until recently his mother was a seamstress in a garment factory. Defendant's grandfather, unable to speak or read English, babysat for the two children when they were younger.

Psychiatric evaluations reveal that defendant functions in the low-average range of intelligence, with poor insight and judgment. Until recently he was unemployed and dependent on his parents for financial support.

Since K's arrest, his mother has become terminally ill. She lost her job at the garment factory and is without medical insurance. As required by his Pretrial Services officer supervising defendant while he is on bail, K is now working full-time at a Brooklyn auto electronics shop. His co-workers describe him as hard-working, friendly, and unfailingly polite. He contributes all but $20 of his weekly salary to his mother's health care costs. K now plans to prepare for a vocation helping poor people in the health field.

B. Offense

In April 2000, at a time when defendant was unemployed and drug-dependent, he was contacted by two government informants masquerading as prospective buyers. Defendant met with the informants at his parents' residence in Brooklyn where he agreed to supply them with 15,000 tablets of methylenedioxyamphetamine, a drug commonly known as Ecstasy, by July 4, 2000. K could supply only 1,000 tablets. Despite continuing negotiations, ultimately, he was unable to procure any additional tablets. K was arrested in August 2000.

C. Procedural History

1. Arraignment

Defendant pled guilty in December 2000 to one count of knowingly and intentionally attempting to distribute, and possessing with the intent to distribute, Ecstasy in violation of sections 841(b)(7)(c) and 846 of Title 21 of the United States Code. Significantly, the government agreed to base the plea on the 1,000 tablets of Ecstasy the defendant actually sold rather than on the 15,000 tablets he allegedly conspired to sell, thereby reducing estimated incarceration under the Guidelines from 46-57 months to an estimated 12-18 months. He was released on bail.

2. Post-release activity

Following his release from jail, defendant was cooperative, compliant and eager to please. He met with his Pretrial Services officer several times a week. K's Pretrial Services officer referred him to the Fortune Society, where he attended remedial classes twice weekly in preparation for the General Equivalency Diploma examination. He received passing scores on two G.E.D. pretests. He also provided clerical services as a volunteer at both the Fortune Society and the Manhattan office of the Legal Aid Society.

A routine criminal record check in February 2001 revealed that K had been arrested in December 2000 and charged with Aggravated Harassment in the New York state court system. He had allegedly left a menacing message on the answering machine of someone who owed him money.

When confronted with the arrest and his failure to report the incident to his Pretrial Services officer, the defendant insisted that he was "just kidding around." The state prosecutor identified K as a likely candidate for rehabilitation. The misdemeanor charge was deemed "adjourned in contemplation of dismissal." That means that the state prosecution is postponed with a view to ultimate dismissal if the defendant stays out of trouble for six months. See N.Y.Crim. P. Law § 170.55(1), (2), (8) (McKinney 2000).

3. Sentencing hearing on rehabilitation

In March of 2001, defendant, accompanied by his attorney, appeared for sentencing. Defendant's Pretrial Services officer as well as a representative of Probation who had prepared the presentence report were present. The court asked defendant to summarize his progress in the S.O.R.S. program. K responded, "I'm going for my G.E.D. right now. . . . Working [a]t the Legal Aid, clerical work. . . . I'm going into this thing called Vesid . . . for people who have learning disabilities to help you find a job." Defendant was extremely timid and soft-spoken. He appeared sincere and somewhat naive, a person open to suggestion.

Several other people appeared in support of K. His mother, father and uncle were present. K's attorney described how defendant had started to take a keen interest in his own future because of his work with Pretrial Services. Following counsel's statement, K's Pretrial Services officer discussed his progress in mental health counseling, volunteer work and academics. The General Equivalency Diploma Coordinator at the Fortune Society submitted a letter commending K for his academic achievements, positive attitude, and desire "to further his education and be a credit to his community."

Based on this record of adjustment K's Pretrial Services officer opined that defendant's criminal behavior could best be curtailed through additional supervision by Pretrial Services and treatment for his learning disability. She stated, "[K] does have very poor judgment, but I think if he is guided properly, that judgment might be improved."

The government suggested that defendant be enrolled in the Shock Incarceration program, a six-month correctional boot camp for low-risk offenders, as an alternative to the 12 to 18 months of incarceration that the Sentencing Guidelines required. The court was reluctant to follow this suggestion partly because of recent studies indicating that the Shock Incarceration program has not proved effective in preventing recidivism among young naive offenders like K. See, e.g., Faith E. Lutze, "No Greater Rehabilitation Found in Shock Incarceration Programs," 15 Justice Quarterly 547 (1998) (shock incarceration programs are not proving successful in lowering rates of recidivism for young of fenders because they lack "two components — a safe environment and a climate in which support and emotional feedback are provided to reinforce internal change-necessary for successful rehabilitation."); Correctional Boot Camps: A Tough Intermediate Sanction 293-94 (U.S. Department of Justice 1996) ("[R]esults clearly show that the core elements of boot camp programs — military-style discipline, hard labor, and physical training — by themselves did not reduce offender recidivism."); David C. Anderson, Sensible Justice, Alternatives to Prison 139 (1998) (boot camps do not rehabilitate, but save money by shortening sentences).

Because of K's progress in the S.O.R.S. program, the court decided not to sentence him immediately. It warned K that he must fully cooperate with the Pretrial Services officer, and admonished the defendant's family about the need for their support.

4. Post-sentencing-hearing activity

D. The Special Options Rehabilitation Service (S.O.R.S.) Program Before Imposition of Sentence

Shortly after K's arrest, the magistrate judge recommended him to Carlene Jadusingh of this district's Pretrial Services as a likely candidate for the S.O.R.S. program. Ms. Jadusingh interviewed the defendant in jail, and determined that he was eligible. The defendant was released three days later on a $250,000 secured bond. He was immediately enrolled in the S.O.R.S. program.

1. Purpose

The purpose of the S.O.R.S. program is to provide courts with an alternative to sentencing in the case of young, nonviolent offenders whose backgrounds demonstrate a high probability of rehabilitation under proper guidance. Defendants are monitored and supervised intensively prior to sentencing with an aim of stabilizing the defendant's behavior and reducing the risks of recidivism.

2. Selection process

The magistrate judge or judge may order participation in the S.O.R.S. program as a "Special Condition" of bail. The criteria for selection in the program are still being developed; it was launched only last year. Generally defendants are ordered to participate in the S.O.R.S. program only if Pretrial Services agrees and they meet one or more of the following requirements: 1) a history of unemployment or sporadic employment; 2) HIV and/or AIDS; 3) battered women's syndrome; and 4) need for direction or supervision. Offenders must be twenty-one years old or younger without a prior criminal record and lack a sufficient parental or otherwise beneficial influence in their lives.

3. Methodology

The S.O.R.S. program is premised on the notion that efforts to rehabilitate criminal offenders are most successful when social services programs tailored to the defendant's individual needs are combined with adequate law enforcement. It provides defendants with counseling, job training, employment placement, community service placement, education, vocational training, and referrals for jobs and housing when needed.

Pretrial Services has referred S.O.R.S. participants to a wide range of not-for-profit service providers. The Fortune Society, a community based organization dedicated to educating the public about prisons, criminal justice issues, and the root causes of crime, helps participants through education, job training, and job placement. The Bridge, Inc., a New York City-based agency whose mission is to serve adults with mental health problems or disabilities that prevent them from leading productive lives, provides S.O.R.S. participants with mental health treatment as well as vocational training.

Social services are coupled with strictly enforced conditions of release, including frequent random drug testing, curfews, and on-site visits by the Pretrial Officer to the defendant's home, place of employment and counseling center to ensure that the defendant is fulfilling his or her responsibilities. In addition to insisting that the defendant complies with the conditions of release, it is the duty of the Pretrial Officer to make sure that he or she promptly returns to ...

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