MANHATTAN (CN) — A former police officer who raped a New York City schoolteacher in broad daylight drew no sympathy from New York’s highest court, which unanimously affirmed his 75-to-life sentence on Valentine’s Day.
Michael Pena, now 32, had been off-duty on the morning of Aug. 19, 2011, when he pulled his loaded and police-issued gun on a young woman. The 25-year-old was on her way to her first day of teaching in the Bronx, when Pena pulled her into the courtyard of an Inwood apartment building and raped her.
Prosecutors broke down Pena’s assault into three separate offenses in his indictment, with each carrying a 25-year sentence.
Pena appealed to the New York Court of Appeals, the state’s highest court, after a lower court upheld his sentence in 2015, rejecting the ex-cop’s claim that this punishment was unfairly multiplied.
Pena’s lawyer Ephraim Savitt has emphasized that his client’s penalty is 63 years longer than the average rape sentence. “If that disparity is not cruel and unusual, then perhaps there’s no purpose to having the Eighth Amendment on the books any more," Savitt said in a phone interview on Tuesday.
In unanimously upholding Pena’s sentence this morning, the Court of Appeals noted that the Pena’s counsel did not invoke alleged violations of U.S. and New York Constitutions.
“Although defendant generally objected to the length of the sentence before the sentencing court, arguing that the sentence was draconian, he did not alert the court to his constitutional argument,” Judge Sheila Abdus-Salaam wrote for the six-judge court.
“Thus, the sentencing court was never given an opportunity to address any of the constitutional challenges that defendant now lodges with this court,” she added.
Chief Judge Janet DiFiore joined the ruling, as did Judges Jenny Rivera, Leslie Stein, Eugene Fahey and Michael Garcia.
Attorney Savitt bristled at this reasoning. "The Sixth Amendment now takes precedence over weight to give to it than the Eighth Amendment,” he said in an interview.
Another sentencing disparity in Pena's case involves that between the average U.S. sentence as opposed to other advanced nations.
Marc Mauer, the executive director of the advocacy group Sentencing Project, surprised many in congressional testimony last year by proposing an upper limit of no more than 20 years – barring "exceptional circumstances" – in the federal sentencing structure.
That Pena had been a police officer when he committed his horrific crime likely contributed to his heavy sentence, but Pavitt asserted that international politics may have played a role as well.
Just days after Pena’s attack, New York City prosecutors were forced to withdraw charges against Dominique Strauss-Kahn because of evidence discrediting the hotel maid whom the then-director of the International Monetary Fund director had allegedly raped.
Activists accused Manhattan District Attorney Cyrus Vance at the time of blaming the victim.
Savitt suggested that this political climate created a tough posture in prosecuting his client, though this argument did not come up in Pena's appeal.
Judge Rowan Wilson did not take part in the decision as he only joined the court in January.
Judge Abdus-Salaam is the first Muslim woman to sit on the state’s highest court.
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