United States v. Lawrence

254 F.Supp.3d 441

UNITED STATES of America,

v.Murray LAWRENCE, Defendant.

16-CR-243.

United States District Court, E.D. New York.

Signed May 23, 2017

Filed June 6, 2017

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

Jack B. Weinstein, Senior United States District Judge

JACK B. WEINSTEIN, Senior United States District Judge:

I. Background...442

A. General Deterrence...442

B. Community Effect...446

C. Specific Deterrence...447

D. Characteristics of Defendant...447

E. Conclusion...447

II. Facts...448

A. Background of Defendant...448

B. State Incarceration...449

C. Instant Offense...449

D. Arrest...450

E. Guilty Plea...450

F. Sentencing Hearing...450

III. Offense Level, Category, and Sentencing Guidelines Range...450

IV. Law...451

A. Sentencing Commission Guidelines...451

B. Sentencing Considerations...451

1. 18 U.S.C. § 3553(a)...451

2. Suicide...451

3. Gang Membership...453

V. Conclusion...454

VI. Recommendation to Sentencing Commission on Gang Membership...455

I. Background

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) (addressing the "epidemic" of killings resulting from gun violence in the United States).

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 (Report of Jeffrey Fagan. Ph.D.), 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 (Report of Jeffrey Fagan. Ph.D.), 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.

[Defense Counsel] Can you describe for the Court the rational offender economic approach to deterrence?

[Witness] Deterrence relies very heavily on rational offenders, and the assumption is that they will make an accurate perception and calculation of those costs. They would engage in an accurate decision-making process that rationally weighs those costs, costs of punishment against benefits of doing the crime. They will arrive at a net cost benefit calculation that would persuade them not to engage in the crime.

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.

[Defense counsel] Is there an issue both with the knowledge that the rational offender has about the repercussions as well as whether someone is a rational offender to begin with?

[Witness] Yes. There is very little data to show the rationality of an offender in making these kinds of calculations ... on the spot when one is considering doing a crime. Of course, you can imagine doing the difficulty of doing that kind of research. There have been simulations of it in laboratories under varying conditions, and they generally seem to think that the costs of punishment are much less salient to deterrence than other risks of possibility of detection and of the length of punishment.... I think ... a very strong consensus in the theoretical and empirical literature on this relies on the perceptions of the risks of apprehension, and the risk of detection. Less so than the risk of punishment, and certainly, not on the costs of punishment.

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 (Report of Jeffrey Fagan. Ph.D.), at 6–8.

[Defense Counsel] And is there a consensus, according to your research, as to the empirical studies on the effectiveness of general deterrence?

[Witness] Most of the studies agree that there is very little deterrent effect associated with lengthy costs of punishment. That if there is a deterrent effect from criminal justice activity, from enforcement activity, it's in raising the risk of apprehension. ... But the consensus of the literature is that deterrence effects really stop there; that lengthy sentences don't add much to the cost benefit calculation. Most offenders have a hard time seeing, really, the difference between 3 years, 5 years, 10 years, or 20 years [of incarceration].

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 (Report of Jeffrey Fagan. Ph.D.), at 8–12 (citing in support: Steven Raphael & Jens Ludwig, Prison Sentence Enhancements: The Case of Project Exile, in EVALUATING GUN POLICY 251 (Jens Ludwig & Philip J. Cook, eds., 2003); Richard Rosenfeld, Robert Fornango & Eric Baumer, Did Ceasefire, Compstat, and Exile Reduce Homicide? , 4 CRIMINOLOGY & PUB. POL'Y 419 (2005); Colin Loftin & David McDowall, " One with a Gun Gets You Two": Mandatory Sentencing and Firearms Violence in Detroit, 455 ANNALS AM. ACAD. POL. & SOC. SCI. 150 (1981); Colin Loftin, Milton Heumann & David McDowall, Mandatory Sentencing and Firearms Violence: Evaluating an Alternative to Gun Control, 17 L. & SOC'Y REV. 287 (1983); Colin Loftin & David McDowall, The Deterrent Effects of the Florida Felony Firearm Law, 75 J. CRIM. L. & CRIMINOLOGY 250 ...