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United States v. Lawrence

United States District Court, E.D. New York

May 23, 2017

UNITED STATES OF AMERICA,
v.
MURRAY LAWRENCE, Defendant.

          United States Allon Lifshitz Mathew Scott Miller Rena Paul.

          Defendant Samuel Jacobson Federal Defenders of New York.

          JUDGMENT, MEMORANDUM, AND ORDER ON SENTENCING

          JACK B. WEINSTEIN, Senior United States District Judge.

         I. Background.............................................................................................................................1

         A. General Deterrence............................................................................................................2

         B. Community Effect..............................................................................................................9

         C. Specific Deterrence............................................................................................................9

         D. Characteristics of Defendant..........................................................................................10

         E. Conclusion........................................................................................................................11

         II. Facts..................................................................................................................................12

         A. Background of Defendant...............................................................................................12

         B. State Incarceration...........................................................................................................13

         C. Instant Offense.................................................................................................................14

         D. Arrest................................................................................................................................15

         E. Guilty Plea........................................................................................................................15

         F. Sentencing Hearing..........................................................................................................15

         III. Offense Level, Category, and Sentencing Guidelines Range.......................................16

         IV. Law....................................................................................................................................17

         A. Sentencing Commission Guidelines...............................................................................17

         B. Sentencing Considerations..............................................................................................18

         1. 18 U.S.C. § 3553(a).......................................................................................................18

         2. Suicide...........................................................................................................................18

         3. Gang Membership.....................................................................................................21

         V. Conclusion........................................................................................................................23

         VI. Recommendation to Sentencing Commission on Gang Membership.........................24

         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. &?e 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 ...


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