- If you shoot yourself in the leg with your own unlicensed gun, that should be punishment enough.
- Burress is charged with two counts of illegal weapon possession. I am tickled to think he could have shot his other leg with another gun, too. *
- And now the serious: he faces 3.5 years in jail. Mandatory minimum.
- To put this in perspective, just to pull an example out ex recto, Mike Tyson served three years for rape.**
- Burress will probably plead down. Maybe he can even plead to a lesser charge. He has a good attorney.
- Of course, not everyone has a good attorney, and mandatory minimums are everywhere. Which is the real problem here, not Burress. I’ve heard the argument made to the effect: more parity in sentencing, by reducing judicial discretion, is more just. I am unconvinced.*** This is the αιτια of judges. Discretion is what they’re for.
*I suppose it’s more likely that one count was for the gun, the other for having it loaded, or something.
** Yeah, yeah, I know, he was sentenced for six. But still. Rape. Shooting oneself in the leg.
***Largely because all it does is shift the game to getting charged with the right thing, which is already part of the game, but makes it worse for people without great representation.
42 comments
December 3, 2008 at 7:33 am
Spike
Shooting one’s self in the leg is cosmic justice for being a jackass, but there also needs to be some penalty for bringing a loaded gun into a crowded nightclub. Bringing loaded guns into nightclubs is a leading cause of nightclub shootings.
December 3, 2008 at 7:42 am
kid bitzer
plexiglas? i think you meant, ‘o tempered glass, o morons!’
sully links to a good question: why isn’t the nra and its noise machine decrying the outrage here?
couldn’t have anything to do with this being a black man, could it?
like maybe the white, rural, republican gun-nuts are actually just fine with restricting the rights of urban black gun-owners?
December 3, 2008 at 7:45 am
dana
Bringing loaded guns into nightclubs is a leading cause of nightclub shootings.
Sure. I didn’t say no penalty, just no mandatory minimum penalty. And while bringing a loaded gun into a nightclub is a bad idea, it’s important to note that this a) wasn’t a nightclub shooting and b) as near as I can tell from skimming the news, it’s not the presence of the gun in the nightclub that’s the crime, but the lack of a permit.
December 3, 2008 at 7:56 am
Spike
Well, presumably he brought the gun into the nightclub on the off chance he would feel compelled to participate in some nightclub-shooting related activities. I think that’s what the law needs to be discouraging here.
I do agree that mandatory minimums are a bad idea, and I think sentences in general are too long. I think a year in the pen sounds about right, or six months with good behavior. 3.5 years is too much.
December 3, 2008 at 8:32 am
bitchphd
The whole mandatory sentencing thing was the one hesitation I had on our recent proposition to change mandatory jail time to mandatory rehab for drug offenses. (Which I voted for anyway, and which didn’t pass.) OTOH, I think the way judicial discretion works in real life is that instead of finagling to get charged with the right offense, you had to finagle to get the right judge.
Basically I’m dubious about the entire criminal justice system.
December 3, 2008 at 9:18 am
dana
I think that’s what the law needs to be discouraging here.
But what’s weird is that’s not what the law is, as near as I can tell. The 3.5 years, in other words, doesn’t seem to be mandatory because he was at a crowded nightclub, or for being reckless, or even for illegal discharge of a firearm or something. It’s just for not having the gun licensed.
December 3, 2008 at 9:31 am
PorJ
As a lifelong fan of the New York FOOTBALL Giants, I invite you all to check out the message boards over at Giants.com. Its fascinating on so many levels – from the racist rants to the commentary on justice, to the economics of the situation, etc. But one particularly engaging point – there’s a thread over there basically saying we’re living in a world where nobody can get away with anything anymore. That former athletic heroes – like Lawrence Taylor, Mickey Mantle, even the Babe himself – would be fined, suspended if not expelled, and locked in prison if they had to live in today’s media environment. It made me think of Boorstin’s chapter on the death of heroism in The Image.
Plus, I think the name Plaxico is one of the all-time great names in American history. There’s a funny clip out there (I couldn’t find it) from Super Bowl media day where he’s asked about his name. He says something like: I bet you thought I’m the only one, huh? No – I’m named after my Uncle.”
December 3, 2008 at 9:50 am
silbey
It’s just for not having the gun licensed.
I’m guessing it’s one of those “Al Capone got sent up for taxes” kind of things, where the heavy punishment comes for the crime of which they can be sure of a conviction.
That former athletic heroes – like Lawrence Taylor, Mickey Mantle, even the Babe himself – would be fined, suspended if not expelled, and locked in prison if they had to live in today’s media environment.
I don’t particularly see this as bad, or necessarily true. There’s a sort of golden romanticism about legendary “bad boys” that’s kind of silly. It’s akin to the other hoary sports cliché about how players “were really better back in the day.”
In any case, I’m not sure it’s true. Lots of NBA players (per Josh Howard’s remarks) smoke pot on a regular basis. Lots of NFL players do steroids (and even when it gets out, no one cares–quick, name the four Carolina Panthers who tested positive for steroids last year…). Lots of NBA players father lots of children by lots of women.
Finally, I’m suspicious of mandatory sentencing too, but Plexico Burress doesn’t strike me as a particularly sympathetic case.
December 3, 2008 at 10:07 am
John Emerson
You don’t understand. Burres had been held out of a game because of a leg injury. The leg was messing with his bread and butter, and Burris lost it. The motherfucker was goddamn lucky he didn’t empty the gun on it.
December 3, 2008 at 10:33 am
foolishmortal
I’ve long felt that plaxico burress is a much better name for a legal term than a football player.
December 3, 2008 at 10:45 am
dana
Or maybe a naval or other combat maneuver.
I’m guessing it’s one of those “Al Capone got sent up for taxes” kind of things, where the heavy punishment comes for the crime of which they can be sure of a conviction.
I get that, but the combination of that + a mandatory minimum is toxic.
December 3, 2008 at 10:51 am
ari
It seems like the key here is to disentangle mandatory minimums from the particular case of Plexico Burress, Rootin’ Tootin’ Cowboy of the New York Nightclub Scene. Forgetting Burress — who I’m happy to see face a severe penalty — is there a strong case to be made in favor of mandatory minimums?
December 3, 2008 at 11:30 am
washerdreyer
But one particularly engaging point – there’s a thread over there basically saying we’re living in a world where nobody can get away with anything anymore. That former athletic heroes – like Lawrence Taylor, Mickey Mantle, even the Babe himself – would be fined, suspended if not expelled, and locked in prison if they had to live in today’s media environment.
I’m not following this. First, I don’t know what the media environment has to do with Plaxico, it wasn’t media sleuthing that broke this story, was it? That’s not rhetorical, I know the hospital didn’t report the story to the police, but I don’t know who originally got the word out.
Second, is it supposed to be the case that those people committed crimes of equal seriousness as discharging an unlicensed firearm in a crowded public place, that the media at the time knew about it, and didn’t report it?
Third, is this anything but a call for celebrities to be held to a different, lesser, standard than non-celebs?
December 3, 2008 at 11:48 am
John Emerson
Celeb justice is very erratic. Sometimes they’re treated leniently, and sometimes they’re made whipping boys. Media figure in because a lot of judges really are swayed by public opinion.
December 3, 2008 at 2:06 pm
TF Smith
Don’t forget, we have (at least) 51 legal systems in this country – 52, counting the UCMJ, all of which are often changing in terms of procedural issues sentencing guidelines/requirements. Given the differences inherent in the US of A, I don’t think anyone would suggest that federalism is not a good thing in this area…
As far as the CJ system goes, I have much more confidence in the mechanisms in California, say, than in other states. The DP is a good example.
So mandatory minimums for Burress under NY state law and for Tyson under wherever he was prosecuted (if not NY) are presumably legal apples and oranges…If Tyson was prosecuted under NY state law and got the sentenced referenced above, however, than that’s just weird.
And a matter for Albany and the voters of NY state.
December 3, 2008 at 4:24 pm
bitchphd
It’s just for not having the gun licensed.
Well, but clearly *that* is so that the cops have a way to deal with gun violence–you may not be able to prosecute someone for murder or robbery or drug dealing or what have you, but you can prove that the gun they have on them is unlicensed. Which actually, I’m okay with, but that’s because I’m a gun-hating liberal.
December 3, 2008 at 4:26 pm
Matt W
presumably he brought the gun into the nightclub on the off chance he would feel compelled to participate in some nightclub-shooting related activities.
I will put on a pro-gu hat and note that in the last two years two NFL players have been shot and killed, and a third shot and paralyzed ; so if you were an NFL player who thought that guns are good for self-defense, you might think that you should have a gun with you even if you didn’t think there was any chance you should use it offensively.
[One of the players was shot during a robbery of his home, and I don't think the other two would've been helped if they had guns; but people who have guns frequently do make this kind of self-defense argument, and so I think that might be why he'd have a gun he didn't plan to use.]
December 3, 2008 at 4:59 pm
foeb
put on a pro-gu hat
Like this?
December 3, 2008 at 5:57 pm
silbey
you might think that you should have a gun with you even if you didn’t think there was any chance you should use it offensively.
Luckily, there is a state licensing program that will help you get one of these “guns” to carry.
(/sarcasm)
December 3, 2008 at 6:03 pm
dana
Which actually, I’m okay with, but that’s because I’m a gun-hating liberal.
I’m really not okay with it, for liberal reasons. “The law’s ridiculous, but it only affects bad people” doesn’t usually refer to a law that passes the smell test.
December 3, 2008 at 6:15 pm
Matt W
Luckily, there is a state licensing program that will help you get one of these “guns” to carry.
Indeed. My pro-gu comments were meant only to address the claim that he must have had something nefarious in mind if he was taking a gun to a nightclub, not to say that he shouldn’t have got a license before carrying a gun around. Before carrying a gun around, he would also have been well advised to learn how not to accidentally shoot himself (or someone else) with it.
December 3, 2008 at 8:11 pm
silbey
well advised to learn how not to accidentally shoot himself
Amen to that.
December 3, 2008 at 8:33 pm
Michael
Dana- are you suggesting that bitchphd was saying “The law’s ridiculous, but it only affects bad people”? I don’t read her as saying that the law is ridiculous at all. I read her as saying the law makes sense to her. Anyway, I think it makes sense.
I’m definitely not a law & order type, although I do come from a gun-toting family (Hi, Mom!). But I have to say: I live in Manhattan, in a neighborhood filled with clubs like the Latin Quarter, and idiots who carry guns and clearly don’t know how to use them scare the sh*t out of me. (Incidents like this happen all the time. They just don’t usually make it out of the Metro section.)
Any law that takes said scary, dangerous idiots off the street is not one I would call ridiculous. I mean, if you can’t get it together to license your weapon…
I don’t want to play “rank the offense.” Rape is rape. But discharging a weapon in a crowded room is no joke, either.
And kid bitzer: When you ask, “Why isn’t the nra and its noise machine decrying the outrage here? couldn’t have anything to do with this being a black man, could it? like maybe the white, rural, republican gun-nuts are actually just fine with restricting the rights of urban black gun-owners?”
- you are invoking a stereotype as unjust as those you accuse NRA members of having.
The NRA’s mission is predicated on lawful, responsible ownership and use of guns, right? What outrage, exactly, would they decry? I guy illegally carrying and concealing a fire arm? And discharging it in a crowded public space?
December 3, 2008 at 9:11 pm
dana
Michael, I just see the line of argument “…but the cops need the mandatory minimum for a regulatory violation because making the case for the actual crime is hard” to be a bad one.
Any law that takes said scary, dangerous idiots off the street is not one I would call ridiculous. I mean, if you can’t get it together to license your weapon…
See, the way I’m looking at it is that having the license probably wouldn’t have prevented Plaxico from having the gun in the club (people have pointed out that the man could have hired bodyguards, who could have been armed legally), or from shooting himself in the leg. In fact, had he been licensed and shot himself in the leg, I don’t think he’d be charged with anything at all. That really seems a little strange if it’s public safety.
(Does NYC not have a statute about illegal discharge of a firearm or something?)
What outrage, exactly, would they decry?
I take your point, but last year the NRA was all up in arms (ha) over the case of a guy who shot intruders on his neighbors’ property while on the phone with the 911 operator who told him not to shoot, and the guy was in no danger personally. The bar for being outraged is usually pretty low.
December 4, 2008 at 3:01 am
andrew
I wonder how many of the sentences that might end early here (for reasons of overcrowding and poor prison health care) were mandatory minimums.
December 4, 2008 at 8:27 am
Michael
Dana-
I see what you’re saying, but I still have to disagree on a couple points. First, the technicalities of the case:
You write, “having the license probably wouldn’t have prevented Plaxico from having the gun in the club,”
and “In fact, had he been licensed and shot himself in the leg, I don’t think he’d be charged with anything at all.”
He would still be charged because he didn’t have a concealed carry permit. They’re hard to get in NY, unless you’re a person of note. Which Plaxico is. But I think the flavor of Plaxico’s celebrity may have made it more difficult, not less, for him to get one.
Also, licensed or otherwise, my understanding is that reckless discharge of a weapon will get you busted, too.
All of the above, to my mind, improves public safety.
Second, the larger point about the wisdom – as I see it – of having strict enforcement of gun laws:
My understanding is that generally the main benefit, in fact the reason, you choose to carry a concealed, untraceable weapon is so that you can shoot people and not get caught. (Either that or you’re a convicted felon who’s not legally allowed to carry.)
To be fair, I truly doubt this is the case with Plaxico. But I still believe he ran afoul of a wise law, and I think a 3 1/2 year sentence (which I’ll bet he doesn’t get, no matter how much they huff and puff now) would serve as a deterrent.
And finally, I’m not going to defend the NRA (although I do see a difference in the case you mention and Plaxico’s) but kid bitzer’s response struck me as the the left/liberal knee-jerk flip-side to the right’s knee-jerk ACLU-bashing.
I truly don’t get it. I mean, both organizations are expressly committed to supporting the Bill of Rights, for crying out loud! Surely we can agree or disagree about the various interpretations of the Constitution by one group or the other or both without saying, “because you disagree with my interpretation of the Second Amendment (or the Ninth) I assume you’re a racist (or a hell-bound fornicator).”
December 4, 2008 at 8:29 am
Chris
Michael, I just see the line of argument “…but the cops need the mandatory minimum for a regulatory violation because making the case for the actual crime is hard” to be a bad one.
I agree – it seems to me to amount to “We have to prosecute him for this because we can’t prove that he actually did anything actually wrong; we just think so.”
Well, if you can’t prove that he actually did anything actually wrong, why are you prosecuting him *at all*? The criminal justice system does not exist to enforce your hunches, even when you’re really really sure you’re right but can’t prove it.
Even if you are a law enforcement professional, your instincts are not a substitute for evidence and a trial. Really. If you don’t believe me, there’s lots of psychological research on human instincts and exactly how trustworthy they’re not. (And if the system trusted your instincts, it would also have to trust your colleagues’ instincts, and some of your colleagues are crooked, even if you don’t know which ones.)
But then, I’m not a gun-hating liberal; I’m a people-who-shoot-people-hating liberal. I prefer to separate responsible, reckless and malicious gun use and punish the third harshly, the second moderately and the first not at all. Plaxico clearly falls into the reckless category, and as such, the only really interesting question (for me) is whether or not his fine should be jacked up in line with his income so he doesn’t just shrug it off.
December 4, 2008 at 8:52 am
Michael
Hi Chris-
First, “if you can’t prove that he actually did anything actually wrong, why are you prosecuting him *at all*?” is a straw man argument, isn’t it? They’ve charged him precisely because they’re convinced he did something wrong. Two things wrong, actually. Two counts.
Second, Allegedly. Proving this, of course, will not occur – if it does occur – until there’s a trial or a plea deal. Thus, ‘if you are a law enforcement professional, your instincts are not a substitute for evidence and a trial. Really. If you don’t believe me (etc.)” is a straw man argument, too, it seems to me.
Because who’s arguing otherwise? Not the cops. Not the DA. Not me. Or do you really believe that any of the above would argue against your assertion that “(t)he criminal justice system does not exist to enforce your hunches”? Plaxico will get a trial, won’t he? Or cop a plea?
December 4, 2008 at 8:56 am
Michael
Also, are you suggesting that someone who illegally conceals an already illegal weapon and then recklessly discharges it deserves nothing more than a fine? Or do you mean, a fine in addition to prison?
December 4, 2008 at 10:19 am
bitchphd
“The law’s ridiculous, but it only affects bad people” doesn’t usually refer to a law that passes the smell test.
Wait, why is it ridiculous to have a law that requires people to have a license if they own a gun?
December 4, 2008 at 10:46 am
Michael
Preach.
December 4, 2008 at 11:29 am
dana
Wait, why is it ridiculous to have a law that requires people to have a license if they own a gun?
It’s ridiculous to make the penalty for not filling out paperwork two-three years in prison, not the requirement for the license itself.
Also, licensed or otherwise, my understanding is that reckless discharge of a weapon will get you busted, too.
What’s curious to me is that is what he *hasn’t* been charged with. I’d rather have the penalty be harsher on firing the weapon than on the paperwork (though I still think mandatory minimums are wrong.)
December 4, 2008 at 12:51 pm
washerdreyer
dana, a quick scan of the New York Penal Code (and no examination of case law at all) suggests that the only provision related to discharge of a weapon which Plax arguably violated is 265.35(3)(c).
December 4, 2008 at 1:57 pm
Michael
Or there’s this, washerdreyer:
“Section 120.20 Reckless endangerment in the second degree
A person is guilty of reckless endangerment in the second degree when he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person.
Reckless endangerment in the second degree is a class A misdemeanor.
Section 120.25 Reckless endangerment in the first degree
A person is guilty of reckless endangerment in the first degree when, under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person.
Reckless endangerment in the first degree is a class D felony.”
I don’t know why Plaxico hasn’t been charged with one or the other of these yet. Maybe he will be after the investigation is complete.
December 4, 2008 at 2:01 pm
Michael
And Dana, with all due respect, I don’t think carrying an unlicensed weapon can be accurately, honestly characterized as “not filling out paperwork.”
December 4, 2008 at 6:16 pm
washerdreyer
a depraved indifference to human life
Russian Roulette is a paradigmatic example of a depraved indifference homicide, what you posted is the equivalent of an attempted depraved indifference homicide, and Plax’s behavior wouldn’t meet that threshold.
I didn’t post second degree because I suspect, but don’t know, that the caselaw defines it in ways which make it non-applicable to this situation.
December 4, 2008 at 7:14 pm
dana
And Dana, with all due respect, I don’t think carrying an unlicensed weapon can be accurately, honestly characterized as “not filling out paperwork.”
Sure it can. Because that’s what’s the crime charged here *is*. It doesn’t seem to be *firing* the weapon that created the criminal charge (except that it brought it to their attention); if Plaxico had been able to show he had a concealed carry permit, this wouldn’t be an issue at all.
(I’m willing to admit that my intuitions on this are influenced by being from a “shall-issue” state, where getting a concealed carry permit is arguably less hassle than going to the DMV.)
That someone who carries an unlicensed weapon might be more likely to do a bad thing than someone who has a licensed weapon may well be true, but that doesn’t seem like the sort of thing that should make this a crime with a mandatory minimum.
December 4, 2008 at 9:13 pm
silbey
Sure it can. Because that’s what’s the crime charged here *is*. It doesn’t seem to be *firing* the weapon that created the criminal charge (except that it brought it to their attention); if Plaxico had been able to show he had a concealed carry permit, this wouldn’t be an issue at all.
The prosecutors went after him with the charge that 1) they felt sure they could prove, and 2) carried a fairly stiff penalty. If they hadn’t charged him with this, they would have charged him with something else. Unless you’re arguing that, absent the illegal possession law, Burress wouldn’t have been charged at all?
Because that’s what it comes down to: the prosecutors had a menu of charges they could have hit him with and they chose the one they felt most confident about. That’s why I said earlier that this wasn’t a good case to argue over; it’s not that they were searching to find *anything* that they could charge him with, it’s that they had a plethora of options and this is what they went with.
There are lots of cases where the criminal justice system breaks down horribly and traps innocent people in it. This isn’t one of them.
December 5, 2008 at 8:37 am
Michael
“Sure it can. Because that’s what’s the crime charged here *is*” -
Really? For someone to be charged with “not filling out paperwork,” as you say, that person has to not only omit (intentionally or otherwise) one action, but also (intentionally) take a series of other actions that brings his or her omission to the awareness of law enforcement. “Not filling out paperwork” will not get you busted without these other actions.
So, In this instance, Plaxico had to not only not fill out paperwork, he had to take the weapon out of his drawer (or wherever), load it, stuff into the waistband of (apparently) his sweatpants, and walk it out his door and into public.
Making it appear like no more than a bookkeeping error trivializes what seems to me to be a wise law.
December 5, 2008 at 9:38 am
dana
“Not filling out paperwork” will not get you busted without these other actions.
Surely your argument can’t be that the punishment for the violation is merited because most of the time you wouldn’t have been caught unless you were doing something else bad. A) I’m not sure that’s true — Plaxico is not a sympathetic case, just a publicized one B) the law does not punish “bringing one’s activities to the attention of law enforcement”, but those activities themselves.
Look, back when Lawrence v. Texas was being debated, one of the things that I heard from some quarters was that these sodomy laws were just fine. Because most of the time, the cops weren’t going to be charging two consenting adults, but it was just something that law enforcement could use to tack a few more years on the sentence of a child molester. In fact, one could say “‘sodomy’ will not get you busted without these other actions.” Didn’t seem to comfort people much about sodomy laws being on the books.
And here I’m arguing not that it should be legal to possess an unlicensed weapon, just that a mandatory minimum for it makes no sense. And it seems, from the article, that most of the time they end up charging the person with something weaker (90%) of the time, because the mandatory minimum seems like too much.
December 5, 2008 at 3:22 pm
Michael
You’re right, Dana, that’s not the argument I’m making. (And I’m not sure how anti-sodomy laws illuminate the argument.)
My argument, as stated above, is that “I don’t think carrying an unlicensed weapon can be accurately, honestly characterized as ‘not filling out paperwork.’”
As if the paperwork could have been for a gym membership, not for the right to walk around with a deadly weapon.
By listing the various actions Plaxico took that day, I hoped to demonstrate the dangerous, potentially deadly, nature of the offense, and why we have laws that take this sh*t seriously.
I doubt many law enforcement officers think “not filling out paperwork” is an accurate description of the offense.
December 9, 2008 at 3:31 am
gravity’s rainbow » Feminism Tuesday
[...] Penalty for rape: 3 years. Penalty for shooting yourself in the leg with an unlicensed gun: 3.5 ye… [...]