United States v. Perez, 756 F. Supp. 698 (E.D.N.Y. 1991)

Andrew J. Maloney, U.S. Atty., Beryl Howell, Asst. U.S. Atty., E.D.N.Y., Brooklyn, N.Y., for appellant.

Casey Donovan, New York City, for defendant.

WEINSTEIN, District Judge.

The question posed on sentencing is whether this despondent and impecunious twenty-five year old woman, who has just experienced the sudden and unexpected death of her only child, a son born while she was in custody after her arrest for dealing in crack, may be sentenced to prison for a period less than the guidelines require a range of 41 to 51 months. The answer is yes.

A downward departure is authorized when there is a "mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." 18 U.S.C. § 3553(b); U.S.S.G. § 5K2.0; cf. U.S.S.G. § 5H1.3 (mental and emotional factors on probation). The Commission did not take into account the emotional blow dealt a mother who gives birth to a child while she is in custody, gives up her infant son to relatives because she cannot adequately care for it during her incarceration, and then is informed, while still in jail, of his sudden and inexplicable death.

Even the most inhumane would consider this cruel punishment dealt by the fates sufficient retribution for her transgression. There are occasions where the law's implacability must bend and give homage through compassion to humanity's frailties and nature's cruelties. This is such a case.

*699 Defendant has already been held at the Metropolitan Correction Facility for 15 months awaiting trial. Now that she has pled guilty, there is no point in a prison term. Defendant is sentenced to time served, a five year term of supervised release and a fifty dollar special assessment. She will undoubtedly be deported as an illegal alien, never to return legally to her friends and relatives who are here. The government does not object.

So ordered.