Mimesis Law
26 September 2020

No Jail For Akai Gurley’s Killer

Mar. 24, 2016 (Mimesis Law) — It has the makings of outrage.  A young black man dead through no fault of his own.  For once, there is no doubt whatsoever that Akai Gurley did nothing, absolutely nothing, to justify the bullet that killed him.  The bullet came from the gun of Peter Liang, a New York City police officer. “A cop killed an innocent young black man” has become a ubiquitous theme, and it should certainly be enough to stoke anger and outrage, because black lives matter.

Liang was tried and convicted for the death of Gurley, and he will be sentenced for the crime of Manslaughter in the Second Degree. Brooklyn District Attorney Ken Thompson, in advance of sentencing, has submitted his office’s recommendation:

In a statement, the district attorney, Ken Thompson, said the case was about “justice and not about revenge,” and urged that the former officer, Peter Liang, receive five years of probation, including six months of home confinement, when he is sentenced next month.

“Mr. Liang has no prior criminal history and poses no future threat to public safety,” Mr. Thompson said. “Because his incarceration is not necessary to protect the public, and due to the unique circumstances of this case, a prison sentence is not warranted.”

No jail? Outrageous? Gurley’s family thinks so.

“We are outraged at District Attorney Thompson’s inadequate sentencing recommendation,” the family said in a statement released by Mandela Jones of Communities United for Police Reform. “Officer Liang was convicted of manslaughter and should serve time in prison for his crime. This sentencing recommendation sends the message that police officers who kill people should not face serious consequences.”

There is certainly great emotional appeal in this assertion, there being overwhelming evidence that the criminal justice system is incapable of addressing killer cops, whether by failure to prosecute, inventing nonsensical excuses or special treatment for the handful who actually face sentence.

But Liang’s case isn’t like so many others. Liang’s crime was his reckless handling of his weapon.  He didn’t mean for it to discharge. He didn’t mean to shoot Gurley.  He wasn’t venal or malicious.

The tendency is to focus on outcome, that there is an innocent dead young man, and that demands retribution.  But the crime isn’t the outcome, even though it’s an aggravating factor.  The crime is the conduct committed. If Liang’s gun discharged and struck no one, he would be no less culpable of recklessness. Of course, he wouldn’t have been prosecuted, tried and convicted, but maybe sent for retraining. Maybe.

There are factors at play here that go beyond the fact that Peter Liang’s monumental incompetence at handling his weapon.  There is the problem with the NYPD’s training, that they would hand a gun to someone so incapable of using it safely that they have no business having a gun at their side.  There is the problem of a cop so fearful, so cowardly, that he had a gun drawn even though there was no threat to justify it.  And there is the problem of systemic racism, that his fear arose from doing a “vertical” in a stairwell in the projects.

Had these factors not been in play, there is a good chance Akai Gurley would be alive today.

But these aren’t the factors to be considered in fashioning a sentence.  The options available to the court on Second Degree Manslaughter range from probation to 15 years imprisonment.  By definition, every person convicted of manslaughter leaves a dead body behind. So what determines where along the sentencing spectrum a defendant should fall?

The legitimate considerations for sentence put it into perspective:

  • General deterrence
  • Specific deterrence
  • Isolation
  • Retribution
  • Rehabilitation

The call for a “message” to be sent to other cops, which falls under general deterrence, is the only factor that militates toward a sentence of imprisonment. In this case, however, where the offense is based upon recklessness, the message would be “don’t be reckless with your gun.” How much time in jail is justified for such an obvious and benign message? Is there an epidemic of cops being reckless? That really isn’t the cause of dead unarmed young black men.

But there is another reason for concern about Thompson’s exceptional reasonableness toward Liang. Why is it that defendants who didn’t wear shields when they committed their crime don’t get the same reasonable consideration as Liang? It’s not that Thompson’s recommendation here is wrong, though it is certainly extremely munificent, but that there is no reasonableness left for anyone else.

9 Comments on this post.

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  • Cindy
    24 March 2016 at 10:24 am - Reply

    You wrote: “He didn’t mean to shoot Gurley.” With all due respect, this is a red herring. Peter Liang was charged with manslaughter in the second degree; he was not charged with murder in the second degree. Intent is not an essential element of manslaughter 2. To prove manslaughter 2, it is necessary to show that the defendant acted recklessly, and in acting recklessly, he caused the death of another. The jury found Peter Liang guilty of manslaughter 2. Peter Liang should serve at least some prison time for recklessly causing the death of Akai Gurley.

  • Roger
    24 March 2016 at 12:04 pm - Reply

    “The call for a “message” to be sent to other cops, which falls under general deterrence, is the only factor that militates toward a sentence of imprisonment.”

    No, if you believe retribution is a legitimate consideration, it militates toward imprisonment. I think our system leans far too heavily on retribution in general, but probation for causing a death pretty much ignores retribution, an overcorrection I suspect we wouldn’t see with a defendant who didn’t wear a badge.

    • shg
      24 March 2016 at 12:11 pm - Reply

      What part of recklessness gives rise to a level of moral culpability that demands retribution? That other defendants wouldn’t receive the same level of reasonableness was already clear, but the solution isn’t to do bad to someone who doesn’t deserve it, but to not do bad to others who also don’t deserve it.

      • Roger
        24 March 2016 at 12:51 pm - Reply

        For me, it’s the part about being aware of and consciously disregarding a substantial and unjustifiable risk that you will kill someone.

        • shg
          24 March 2016 at 1:38 pm - Reply

          Fair enough. It’s a slippery slope, but it’s not unreasonable to feel that warrants greater retribution. Of course, the same is true of every Man 2 conviction, with a minimum sentence of probation, which would make the minimum sentence rather pointless if every person who is convicted of the crime deserves jail regardless.

          • Roger
            24 March 2016 at 4:03 pm -

            That’s a bit of a straw man. I didn’t say everyone convicted of the crime deserves jail. You listed five factors that should be considered, and said only one, general deterrence, weighs in favor of imprisonment. I think retribution weighs in favor as well. If I’m the weigher, he gets some time, though probably not a lot. That doesn’t mean I don’t think someone else could weigh it differently.

          • shg
            24 March 2016 at 4:29 pm -

            Your basis was a generic recitation of the definition of recklessness.

            For me, it’s the part about being aware of and consciously disregarding a substantial and unjustifiable risk that you will kill someone.

            You offered nothing to suggest what distinguishes this case from any other, or why this defendant, as opposed to any other, should get jail. Hardly a strawman. If you had a reason, you should have said it.

  • Cindy
    24 March 2016 at 6:00 pm - Reply

    “Why is it that defendants who didn’t wear shields when they committed their crime don’t get the same reasonable consideration as Liang?”

    Reasonable consideration??

    As we have seen in countless upon countless cases, special rules seem to apply to police officers. A material example of this is the case of Ramarley Graham, where a Supreme Court, Bronx County judge found that there was legally sufficient evidence to support a count of manslaughter 2 against Officer Haste. Nonetheless, he tossed the indictment, stating that the prosecutor gave the wrong instructions to the Grand Jury. However, Grand Jury proceedings are almost entirely under the control of the prosecutor. The appellate courts have ruled that the evidence presented to the Grand Jury is to be viewed in the light most favorable to the prosecution. Furthermore, how many times has a judge ever vacated a manslaughter indictment where the defendant was a poor black man?

    It is not so much that Peter Liang received “reasonable consideration”, rather it is that he received special treatment.

  • Scott Jacobs
    24 March 2016 at 11:51 pm - Reply

    I’m perfectly OK with the officer getting house arrest, if the house he is confined to is in the building where the death occurred…