The opinion of the court was delivered by: Weinstein, Senior District Judge.
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
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
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
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
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.
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.
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.
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.
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
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
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.
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.
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.
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
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
to make sure that he or she promptly returns to ...