Barely Legally

Confessions of a Moot Court Bailiff

How to Get Away with Manslaughter

Former NYPD officer Peter Liang, who was actually convicted for manslaughter for the death of an unarmed black man, isn’t going to prison. He will receive five years of probation instead:

Liang faced up to a 15-year prison sentence for the second-degree manslaughter of Akai Gurley, but New York supreme court judge Danny Chun reduced his conviction to criminally negligent homicide moments before the sentence was delivered. The prosecution stated its intention to appeal against the reduction in charges. But the sentence handed down was nearly identical to what was recommended by the DA, Ken Thompson, in March.

There’s a lot going on here. I’m most struck by the silence of the NYPD Patrolman’s Benevolent Association, the largest of the half-dozen unions which represent police officers. Usually, when an officer kills someone, PBA’s President Pat Lynch screams his head off about what a perfect angel the officer was, and what a cowardly thug the deceased was. This case might represent the most that Lynch—the Thrasymachus of Manhattan—has kept his mouth shut in fifteen years.

Then there’s the District Attorney, who after successfully convincing a jury to convict Liang of second-degree manslaughter, recommends five years of probation and community service. (Note that second-degree manslaughter is a Class C Felony punishable by up to fifteen years in prison.) The judge agrees with the DA and metes out the recommended sentence, but reduces the charge to criminally negligent homicide, a Class E Felony punishable by four years in prison.

So what’s the difference between second-degree manslaughter and criminally negligent homicide? In Liang’s case, there’s no difference. The DA recommended probation and community service for the one, and the judge sentenced Liang to exactly that for the other crime. But this here’s a law blog, so roll up your sleeves.

a distinction without a difference

Second-degree manslaughter is very straightfoward. You’re guilty if you recklessly cause the death of another person. That’s it. The New York Penal Code defines recklessness here:

A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards 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 disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.

Note the elements here: (1) a substantial and unjustifiable risk [of death]; (2) defendant is aware of that risk; (3) defendant consciously disregards that risk; (4) the risk is so great that taking the chance is a gross deviation from what a reasonable person would do.

The first three elements seem pretty simple, right? (1) Walking around a small area with your finger on the trigger of a loaded gun is definitely risky. (2) You’re a cop who’s had firearms training, so you know that’s risky. (3) You still keep your finger on the trigger, consciously disregarding that risk. The fourth element, about what a reasonable person would do, is a little more complicated. We’ll come back to that in a bit.

In the meantime, the New York Penal Code has this to say about criminal negligence: “A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person.” Not super helpful until we flip back to the definition of 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.

Note the elements: (1) a substantial and unjustifiable risk [of death]; (2) the defendant fails to perceive that risk; and (3) the risk is so great that failing to perceive it is a gross deviation from what a reasonable person would do, i.e. notice the risk.

Recklessness and negligence are pretty similar. They both feature substantial and unjustifiable risks, and the only real difference is whether the defendant notices and disregards the risk, or fails to notice that there’s a risk at all. In homicide cases in New York, failing to notice that risk is the difference between fifteen and four years in prison.

Except not

But it turns out that this is all moot. In a parallel universe, we could argue about all sorts of things. Liang killed Gurley with a bullet that ricocheted off at least one wall in a dark stairwell. The two men probably never saw each other. How could Liang have perceived a risk to a person he didn’t know was there? How would a reasonable rookie police officer handle the pressure of keeping his finger off the trigger in the dark? What if I told you Liang wasn’t supposed to be in the stairwell at all?

None of it matters. Whichever felony Liang was convicted of, he won’t spend a day in prison for it. The DA’s office explains a little bit why:

Noting that Liang did not intend to harm Gurley, Thompson said last month that “due to the unique circumstances of this case, a prison sentence is not warranted”. At the sentencing on Tuesday, assistant DA Joe Alexis said that Liang had made a “terrible mistake”, but that the former police officer was “not someone we need to lock up to protect society”.

There are lots of reasons we lock people up, besides protecting society. Maybe Liang can spend a few hundred hours of his community service teaching assistant district attorneys about the various philosophies of criminal justice. Here are the ones I remember from first-year criminal law:

  1. Incapacitation: locking people up to keep them from committing crimes against society.
  2. Rehabilitation: reforming criminals into productive members of society.
  3. Deterrence: creating negative consequences for lawlessness to promote well-socialized behavior.
  4. Retribution: exacting punishment for criminal actions against society.
  5. Denunciation: a communal expression of disapproval of criminal behavior by society.

Again, Liang was fired from the NYPD a while back. He’s not patrolling any stairwells, and so locking him up probably doesn’t keep anyone safe. But we could… you know… imprison him for killing someone. It could Deter other police officers from accidentally shooting their guns, or Punish the person who killed another person, or serve to Denounce police who fail to serve or protect their city.

If you’re wanting for actions to Deter or Punish or Denounce, chew on this one: neither Liang nor his partner administered CPR nor called for an ambulance in the minutes following the shooting. Instead, they texted their union representatives.

Actions have consequences. I’m simply baffled by the suggestion that, since Liang is unlikely to kill anyone else, there’s no point in putting him in prison. No harm, no foul, right guys?

Let’s ask Akai Gurley’s family:

Gurley’s family said the sentence “sends the message that police officers who kill people should not face serious consequences. It is this ongoing pattern of a severe lack of accountability for officers that unjustly kill and brutalize New Yorkers that allows the violence to continue.”

It’s weird how the family of the man killed by a police officer isn’t on team “no harm no foul.”

One More Thing

Amid the failure of the legal process to hold yet another police officer accountable for the death of yet another unarmed black man, it’s easy to lose sight of the forest for the trees here. There are broader socioeconomic and political structures at work: as Alan Feuer in the New York Times put it, If Police Stairwell Shooting Was Accidental, Circumstances Around It Were Not.

But if the killing of Mr. Gurley was a kind of crime of chance, what of the conditions that preceded and permitted it? Would a private building on the Upper East Side have had an elevator persistently out of service as was the case at the Louis H. Pink Houses in East New York? Would the stairwell lights in such a building have been broken? Would armed officers—one of them with his gun drawn—have been on patrol inside? […]

Alex S. Vitale, a professor of sociology at Brooklyn College, said that he would take a literal approach to the “broken windows” theory of policing, a favorite strategy of the police commissioner, William J. Bratton.

“For too long, the department’s emphasis has been on making communities safer through zero-tolerance policing,” Mr. Vitale said, “but they don’t actually fix any broken windows. The physical dynamic in the Pink Houses was a major contributing factor to what happened. And if the city was really focused on making the place better, it wouldn’t just criminalize behavior, it would fix elevators and lights, and think of ways to empower people to better manage their environments.”

In 2016, the NYPD’s budget will be $4.8 billion. The New York City Housing Authority responsible for the Pink Houses will have a budget of $3.3 billion. That kind of money would fix a lot of broken windows.