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
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?