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A drug-addicted pregnant woman cannot be sentenced to a lengthier prison term merely to protect her unborn fetus, the New Jersey Appellate Division ruled last week. While ducking the constitutional issues surrounding a woman’s control of her pregnancy, the court said that it violates state statute to consider the pregnancy as a sentencing factor. The court, in State v. Ikerd, A-5480-02T4, overturned a sentence handed down to Simmone Ikerd that “bore no relationship to the offense that she initially committed, was excessively punitive, and accomplished no penal claim. It thus violated New Jersey law, and likely violated Ikerd’s constitutional rights,” wrote Judges Edith Payne, Ariel Rodriguez and Edwin Stern. At the time of her sentencing for third-degree welfare fraud, Ikerd was undergoing methadone treatment for a heroin addiction. She was also in the first trimester of her pregnancy. Even though she had no extensive criminal record, prosecutors asked for a prison sentence to protect the fetus. Middlesex County Superior Court Judge Phillip Paley said he did not want to send Ikerd to prison but felt compelled to do so to ensure she remained drug-free during her pregnancy. He sentenced her to a three-year prison term, 18 months of which had to be served before parole eligibility, though he said he would reconsider the sentence if Ikerd lost the child during her prison term. Ikerd served out her sentence and gave birth to a healthy child. Prosecutors argued that the appeal was thus mooted, but the Appellate Division said the case raised important statutory implications. Judges should base their sentences on a balancing of aggravating and mitigating factors, and pregnancy falls into neither category, Paine wrote, citing State v. Yarbough, 195 N.J. Super. 135 (App. Div. 1984), and State v. Vasquez, 129 N.J 189 (1992). “A sentencing judge’s personal views as to the nature of appropriate protections in these circumstances cannot substitute for the [Criminal] Code’s carefully delineated sentencing scheme in this regard.” In effect, Payne said, Paley “usurped the powers of the Legislature” in sentencing Ikerd to prison. “Under the criminal code, this sentence was clearly improper,” says Ikerd’s attorney, Assistant Deputy Public Defender J. Michael Blake. Middlesex County Assistant Prosecutor Judson Hamlin declines to comment on the appellate ruling. Assistant Prosecutor Simon Rosenbach, who also represented the state, did not return a telephone call.

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