On appeal from Superior Court of New Jersey, Law Division, Middlesex County 96-11-1415.
Before Judges Stern, A. A. Rodríguez and Payne.
The opinion of the court was delivered by: Payne, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 10, 2004*fn1
We hold in this appeal that a pregnant, drug-addicted woman who has violated the conditions of her probation cannot be sentenced to prison for the avowed purpose of safeguarding the health of her fetus. To have done so is contrary to law and constituted an abuse of discretion.
The facts follow: On January 29, 1998, defendant Simone Ikerd pled guilty to one count of third-degree theft by deception (welfare fraud), N.J.S.A. 2C:20-4. It was her first indictable conviction. Ikerd was sentenced on March 16 of that year to a five-year period of probation, conditioned upon entry into and completion of drug treatment and restitution of $2,675 at the rate of $25 per month, payable through probation, as well as payment of a VCCB penalty of $50 and a SNSF assessment of $75 at the rate of $5 per month. The sentencing judge found the need to deter defendant and others from violating the law as the sole aggravating factor relevant to Ikerd's sentence. See N.J.S.A. 2C:44-1a(9). He found no mitigating factors.
On February 14, 2003, Ikerd appeared before a different judge as the result of a reported violation of probation (VOP). At the time, she had paid only nineteen or twenty dollars in restitution and allegedly had been noncompliant with other probationary conditions. She remained drug-addicted, but she stated that she was undergoing drug treatment through a methadone clinic.
Ikerd had been arrested approximately two to three weeks before the February hearing when she was eight weeks pregnant, and initially had been confined to the Middlesex County Adult Correctional Facility. However, because of her pregnancy, she was transferred to Robert Wood Johnson Hospital for a period of two weeks in order to obtain access to methadone, which was not available in the jail. The hospitalization may also have been required to treat Ikerd's severe asthma. Although Ikerd had appeared in court on multiple occasions (the judge counted thirty-five or thirty-eight), her probation records disclose that this was her third VOP, and that one of the two prior violations had been withdrawn.
At the time of the February hearing, Ikerd was eleven weeks pregnant, a fact that she confirmed upon questioning by the judge. Although there had been some concern regarding the condition of her fetus, hospital tests had found that it remained viable. Ikerd sought continuation of her probation so that she could attempt to finish her drug treatment; the State requested incarceration in State prison because of the risk to both mother and fetus from drug abuse. The prosecutor argued:"There is nothing -- no conditions of probation -- that will help Miss [Ikerd] away from her addiction, help the life of her baby, and they will both be at risk."
The judge characterized Ikerd's situation as creating a"dilemma." She had acknowledged that she desired her present pregnancy. Yet, according to a doctor who had written to the court regarding Ikerd's treatment and condition, methadone maintenance was necessary to the preservation of that pregnancy, and, as the judge recognized, it was not available in county jail. Medical treatment in a hospital setting, the judge observed, would cause"[t]he taxpayers to pay out a fortune." However, if Ikerd's probation were continued, there was no assurance that she would seek the high-risk pre-natal care that had been recommended as medically necessary. The judge believed that only place where Ikerd's addiction and the health of her fetus could be adequately addressed was the Edna Mahan Correctional Facility. He observed:
I dare say, that there isn't a person in this group, who has a personal opinion, you know, put her in jail. Not because we want to punish her; but because we want to save the baby. Because we know, once we release her on the street, she's going to kill herself, she's going to kill the baby, if she doesn't kill herself. It's only because she's developed a tolerance that is beyond words. Because this bright lady, this educated lady, who is a public employee for years, is going to use drugs no matter what we do.
So, we all agree. But how can I ignore the fact that she is pregnant?
After further discussing options with the probation officer, prosecutor and defense counsel participating in the hearing, the judge observed that he did not"feel comfortable" placing Ikerd in county jail. He then directed defense counsel to discuss punishment with Ikerd, stating:
If you want to make my weekend, tell me that Miss Ikerd said,"Judge, sentence me to the minimum amount of time at Edna Mahan, so I know that this child can be born." Please do that. Tell me that ...