United States v. Lawrence
| Decision Date | 23 May 2017 |
| Docket Number | 16-CR-243. |
| Citation | 254 F.Supp.3d 441 |
| Parties | UNITED STATES of America, v. Murray LAWRENCE, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
Allon Lifshitz, Mathew Scott Miller, Rena Paul, U.S. Attorney's Office, E.D.N.Y., 271 Cadman Plaza East, Brooklyn, NY 11201, for United States.
Samuel Jacobson, Federal Defenders of New York, One Pierrepont Plaza, 16th floor, Brooklyn, NY 11201, for Defendant.
JUDGMENT, MEMORANDUM, AND ORDER ON SENTENCING
D. Characteristics of Defendant...447
II. Facts...448
A. Background of Defendant...448
III. Offense Level, Category, and Sentencing Guidelines Range...450
IV. Law...451
A. Sentencing Commission Guidelines...451
B. Sentencing Considerations...451
VI. Recommendation to Sentencing Commission on Gang Membership...455
Defendant in the instant case pled guilty to a serious crime. He is either a gang member or on the verge of becoming one. He recklessly fired an illegally possessed handgun repeatedly down a public street, with the likelihood that a passing pedestrian might be hit: in fact he wounded
his companion.
This case presents some of the critical difficulties in federal sentencing. It requires balancing general deterrence (and, relatedly, incapacitation) by a relatively long prison term with specific deterrence (and its other aspect, rehabilitation) by a relatively short term in prison. Both must be considered under section 3553(a)(2)(B) of section 28 of the United States Code. By compromising, and reducing a somewhat draconian sentence (possibly less effective for general deterrence), or increasing the sentence (possibly less effective for rehabilitation), the sentence may risk frustrating either goal.
The subtle weighing of alternatives is made more difficult by the presence of numerous competing vectors (such as family or work or criminal history). In the present case the court accepted, and acted on, testimony of an expert witness that increasing the length of incarceration does not proportionally increase general or specific deterrence.
A. General Deterrence
The theory of general deterrence is that imposing a penalty on one person will demonstrate to others the costs of committing a crime, thus discouraging criminal behavior. The prevailing argument is that in order to treat a defendant such as the present one, who recklessly fired a gun on an urban street, as an exemplar for others who need to be deterred from carrying and using guns, a long prison term is required.
New York City has strict gun control and licensing requirements. The large number of guns brought into the City from other states where legal control of guns is minimal poses a serious problem in general deterrence.
A recent study examined the purchase history of the nearly 53,000 crime guns recovered by law enforcement in New York between 2010 and 2015. It concluded that 74 percent of all guns connected to a crime and recovered by law enforcement originated out-of-state, and 86 percent of recovered handguns came from out-of-state. OFFICE OF THE ATTORNEY GENERAL ERIC T. SCHNEIDERMAN, TARGET ON TRAFFICKING: NEW YORK CRIME GUN ANALYSIS (2017), https://targettrafficking.ag.ny.gov/#toppart; see also Barack Obama, The President's Role in Advancing Criminal Justice Reform, 130 HAR. L. REV. 811, 856–58 (2017) ().
In connection with the gun problem, the court must consider gang control. Induction of new members often results in killing, either as an element of gang warfare or as a kind of initiation.
Imposing a long sentence in a case where a defendant possessed an illegal gun and ammunition may deter those importing shipments of illegal guns into the state and selling them on the streets of New York City. Arguably it will deter the illegal purchase and use of guns, especially by gang members: a long sentence warns members of the community that being caught and prosecuted for carrying an illegal gun will result in a substantial term in prison—and intuitively, the longer the sentence, the more effective the deterrence.
Professor Jeffrey Fagan, Ph.D. provided expert testimony challenging the assumption that a longer term of incarceration will necessarily have a general deterrent effect on future gun crimes. See Def.'s Ex. B (Report of Jeffrey Fagan. Ph.D.); Hr'g Tr., Feb. 28, 2017 ("Feb. 28 Hr'g Tr."). Dr. Fagan is the Isidor and Seville Sulzbacher Professor of Law at Columbia Law School and a Professor in the Department of Epidemiology at the Mailman School of Public Health at Columbia University. Def.'s Ex. B ), at 1. He has extraordinary qualifications as a leader in the fields of criminology and mental health, with a large number of peer-reviewed publications in sociology and criminology. This expert for the defendant concluded—without contradiction from a government expert—that, although general deterrence is one of the essential justifications for criminal punishment, the deterrent effect of criminal sanctions for gun violence are specific to the risks of detection, not to the severity of punishments. Id. ; Feb. 28 Hr'g Tr.
He explained that "[a] ‘rational offender’ will decide whether or not to commit a crime by weighing the benefit of not committing a crime with the benefit of committing the crime without being caught and the benefit of committing a crime that results in being caught and punished." Def.'s Ex. B , at 4.
A decision not to commit the crime requires knowledge by the would-be offender of the law prohibiting the act, the risks of detection, and the risks of punishment; it assumes that each potential offender is capable of rationally weighing the costs and benefits of a decision. Id.
Feb. 28 Hr'g Tr. at 11:21–12:4.
Many offenders do not act rationally. Whether they can calculate the consequences of their actions depends on a variety of factors, including the type of offense and the offender's age, emotional maturity, level of education, and experience with decisionmaking. Id. at 46:14–50:12.
Feb. 28 Hr'g Tr. at 14:25–15:17.
Professor Fagan concluded that there is no reliable evidence that appreciably longer periods of incarceration for violent crimes have a general deterrent effect on the population. Id. at 50:10–12; Def.'s Ex. B , at 6–8.
Feb 28 Hr'g Tr. at 12:5–19.
For gun crimes there is little reliable evidence "of a general deterrent effect of lengthy sentencing enhancements that impose additional years of incarceration for crimes committed with a firearm." Def.'s Ex. B , at 8–12 ...
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...§ 5K2.18 -- violent gang membership -- would still have contravened Guidelines principles. Cf. United States v. Lawrence, 254 F. Supp. 3d 441, 455 (E.D.N.Y. 2017) (Weinstein, J.) ("The Guidelines do not consider gang membership as a factor in sentencing, except for defendants who are senten......
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