Mimesis Law
27 September 2020

NYPD Officer Peter Liang Gets Probation For Killing Akai Gurley

Apr. 20, 2016 (Mimesis Law) — It wasn’t a shock. Brooklyn District Attorney Ken Thompson had already announced that he would not seek prison time. His reasoning was unsurprising as well.

The decision not to imprison Mr. Liang followed the recommendation of Ken Thompson, the Brooklyn district attorney. Mr. Thompson announced in March that he would not ask for prison time in part because no evidence existed that Mr. Liang had meant to kill or injure Mr. Gurley.

And so, probation it is, with a kicker.

Though Mr. Liang, a rookie officer, had faced up to 15 years in prison for his conviction in February on manslaughter and official misconduct charges, Justice Danny K. Chun reduced the charge to criminally negligent homicide moments before the sentencing.

And 800 hours of community service, which is not an inconsequential period of time (do the math, at 40 hours per week, this is 20 weeks). But what it is not is incarceration.

Mr. Thompson recognized that difference in a sentencing memo issued last month, which referred to Mr. Gurley as “a completely innocent man who lost his life for no reason” but also said Mr. Liang had no prior criminal history and posed no threat to public safety and should therefore not face time in prison.

Sounds fine on its surface, but to suggest that it was that innocent, that accidental, misses a critical piece. After all, Liang was prosecuted. Liang was convicted after a trial by jury of manslaughter 2, with the mens rea of recklessness, even though it was reduced before sentence to criminally negligent homicide, a class E felony, which has a mens rea of criminal negligence:

“Criminal negligence.” A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.

Liang had a gun. He handled it poorly. Handling guns poorly constitutes a gross deviation of the standard of care. Akai Gurley, who all conceded had no reason in the world to die in a stairwell that day, is dead.

There is no reason to believe, aside from a few conspiracy theorists wearing tin foil hats, that Liang knew Gurley was there and fired out of fear of someone in the dark. It’s not that it’s impossible, but there is no evidence to prove it happened, and law being law, it didn’t happen.

But is it enough that Liang didn’t mean to kill, even to shoot, to give him probation?

This is a very hard question. Certainly, mishandling a firearm, whether recklessly as the jury found, or criminally negligently as the judge reduced the verdict, is hardly a mere “oopsie.” It’s a gun. As those who enjoy firearms are quick to say, nobody who holds a gun in his hand could justifiably handle it as horribly as Liang. They are not sympathetic to Liang, as he reflects the sort of person who should never have been allowed near a gun. And his mishandling of the gun reflects poorly on those who handle weapons with great care.

But that still doesn’t explain whether a sentence of probation is the right sentence. Not when Akai Gurley is dead.

The legitimate considerations going into a sentence are well established:

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

There is an argument to be made that a sentence of probation sends the wrong message, such that it disserves the general deterrence consideration. A cop mishandling his weapon, killing someone, will get the message that it’s hardly serious from a sentence of probation. But then, many contend that sentences don’t serve any message sending purpose anyway, and in the situation of a cop, the loss of a job, pension makes probation something they take more seriously than on might suspect.

There is likely no argument on the specific deterrence, isolation or rehabilitation prongs, as Liang isn’t a danger to anyone anymore. To the extent he was a danger before, it wasn’t due to his nature, per se, but his gun handling. That’s in the past.

So what about retribution? That’s the prong that Thompson says doesn’t demand incarceration, that Liang does not deserve to be harshly punished because he intended no harm. Of course, his lack of specific intent was already covered by his charge, verdict and now reduced verdict. In other words, to the extent his lack of intent warranted a break, he already got it.

As he was sentenced, after the reduction, to a class E felony, he could have been sentenced to a determinate sentence of up to four years. What’s a human being’s life worth? There are two at stake here, Akai Gurley and Peter Liang.

There’s no magic to sentencing, despite what anybody tells you. Where along the spectrum of probation to four years the right amount of retribution falls is impossible to say objectively. Liang got probation plus 800 hours community service. No sentence would have given Akai Gurley his life back. Was that the right sentence?

11 Comments on this post.

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  • David Woycechowsky
    20 April 2016 at 11:19 am - Reply

    I think a year would have been optimal, but am okay with what he got. Less bothered by the light sentence than the abstract reduction from “recklessness” down to “negligence.” This botheration, on my part, is mostly because he was a police officer and presumably got a lot of state funded training that presumably told him to be careful with guns. My taxes paid for him to get that message, and he is more culpable than a regcit in similar hypothetical circumstances who received no such state funded training.

    To convert this back to a deterrence based argument: a year in prison would do more to change (in a good way) the behavior of those who train police officers about how to use firearms.

    • shg
      20 April 2016 at 11:30 am - Reply

      I agree, both with the bullet as well as the reduction. I would not have made the same decision as the judge.

      • Richard G. Kopf
        21 April 2016 at 10:11 am - Reply

        SHG,

        In New York, how time would the defendant actually serve if he were sentenced to one year? And, in what type of facility would he have served the time?

        Your post captures the problem very well, although I don’t agree that rehabilitation writ large should be a legitimate goal of sentencing. In my view, it simply doesn’t work. That said, this is a quibble.

        All the best.

        Rich Kopf

        • shg
          21 April 2016 at 10:42 am - Reply

          A year means a year, and it would be served in a local jail such as Rikers Island. But I suspect he would be eligible for shock incarceration, and he would be out in 8 months.

          As for rehab, we both agree that it doesn’t work, though I believe we lay blame on different sides for the failure.

          • Richard G. Kopf
            21 April 2016 at 1:19 pm -

            SHG,

            Thanks. I think a year sentence under the circumstances you describe would be appropriate for general deterrence reasons.

            All the best.

            RGK

          • shg
            21 April 2016 at 1:49 pm -

            I think a year was the right number too.

  • JoAnne Musick
    20 April 2016 at 7:44 pm - Reply

    I’m bothered by the inequity of police vs. private citizens. It is not uncommon for the average joe, in the same circumstance, to actually serve jail time for shooting off a pistol on the 4th of July where the bullet strikes and kills some innocent third party. In Texas, where we love our guns, we still incarcerate the individual who chooses to recklessly discharge a weapon that results in death. Yet, for some reason, the cop gets a break others would not have gotten.

    • shg
      20 April 2016 at 8:24 pm - Reply

      That’s a very serious concern, and I can’t imagine anyone but a cop getting probation.

  • Peter
    20 April 2016 at 8:31 pm - Reply

    Punishing Liang amounts to going after the symptom; as opposed to the in-your-face lawlessness of the NYPD. But then again, our whole criminal justice system is based on seeking out individuals to punish for what are by and large social problems–if not outright contrived problems, like drug use.

    Saying that, that this caught my eye,

    “There is likely no argument on the specific deterrence, isolation or rehabilitation prongs, as Liang isn’t a danger to anyone anymore.”

    Since when did the “being a danger no more” standard start getting honestly upheld (at least for those without money or a police union backing them up)? The Manson family murders–clearly brainwashed–come to mind. And if some psychiatrist can prove they still are a danger, then prison is clearly the wrong place for them.

    • shg
      20 April 2016 at 9:23 pm - Reply

      Those are the considerations to be used in determining a sentence. A sentence should reflect all of the factors, to the extent relevant. Your Manson example isn’t about sentence, but about post-sentence release, and you can’t pick one factor out of the middle and ignore the others.

  • Paul
    20 April 2016 at 11:18 pm - Reply

    My state is small enough that an interested person could assemble every homicide sentence given in the last 30 years (including reckless and . I have. Only one person in that time got a no time sentence, and he was paralyzed from the neck down in the car crash that killed the passenger. And he had to plead guilty.

    The idea of a judge sentencing a defendant convicted of a homicide, after trial, is mind-boggling.

    With that said the 800 hours of community service is stupid. If the judge wants Liang to have a job while he is on probation (which any judge should want, since people with jobs commit far fewer crimes) then he would have to work every weekend for the next year, not counting the extra hours arranging the community service. Any purpose behind the community service, whether to rehabilitate Liang, punish him or deter others would be served with hundreds fewer hours. 800 hours just shows the judge is too much of a chicken to sentence Liang to straight probation without some cartoonish number of hours to make him look like he isn’t giving a cop a break.