Mandatory Minimums, Maximum Stupidity

The criminal penalty NFL star Plaxico Burress faces is inflexible and unfair

Last weekend, New York Giants wide receiver and Super Bowl hero Plaxico Burress inadvertently shot himself in the leg at a New York City nightclub and—adding incarceration to injury—now faces a three and a half years mandatory minimum sentence on each of two felony weapons charges. Burress' possession of a loaded firearm outside of his home without a permit, which is a Class C violent felony under New York state law, is more than enough to strip considerable judicial discretion when it comes time for sentencing. (According to Burress' lawyer, the handgun—a .40 caliber Glock pistol—is registered in the receiver's home state of Florida.) The judge will, however, be able to determine whether Burress gets the minimum or anywhere up to the maximum of 15 years per count.

It wasn't always this way.

New York's would-be mayor-for-life Michael Bloomberg, no stranger to the gun rights debate, persuaded the state legislature to toughen the already stringent restrictions on firearms in 2006. From 1998 until that time, mitigating circumstances and judicial discretion could be used to determine appropriate punishment for an offender. The tougher new rules are just one prong in the mayor's many-faceted approach to gun control in the Big Apple, and the nation as a whole. With Burress' surrender to authorities this week, Bloomberg now has a high-profile defendant to help showcase his tough-on-gun-crime legislation.

In recognition of this juicy score—and like any good nanny—Bloomberg used a press conference to roundly scold both the responsible and the peripheral parties to the accident, such as the hospital that failed to report the gunshot wound as required by law, and the Giants organization for apparently failing to immediately throw themselves prostrate and beg forgiveness for their rogue employee.

"[T]he Giants should have picked up the phone right way as good corporate citizens," Bloomberg huffed, "I don't care [if] there is a legal responsibility for them to [report the incident], they are a team that is here in this region…" In Bloomberg's mind, extra-legal responsibilities somehow attach themselves to the Giants via geography and the arbitrary standards of business "citizenship." (It should be noted that the Giants' front office contends that it notified the NFL who, in turn, notified the police.)

In condemning the presumed innocent wideout, the mayor felt it necessary to upbraid him as well, saying that Burress should be thrown in the "slammer" because he makes his "living in the public domain." As one journalist noted, perhaps with her tongue pressed firmly into her cheek, what the mayor meant to say was that no exceptions would be made for Burress due to his celebrity. Surely, Mr. Bloomberg wouldn't possibly make an example out of someone simply for political gain. After all, as the mayor pointedly remarked, cops and (gasp!) children are killed by gun violence in the streets of his fine city. Something must be done!

But Burress' teammate Steve Smith also lives in the public domain. Several days before the mishap at the club, Smith was robbed at gunpoint outside of his home in Clifton, New Jersey. Former Giants teammate and current NBC commentator Tiki Barber discussed the two crimes on Sunday Night Football, explaining that Burress' foolish act may have been rational, if not completely appropriate, given the dangers that NFL players such as Smith have faced.

Looking back at recent gun-related tragedies that have struck the NFL, Barber continued, "We all remember [slain Denver Broncos cornerback] Derrent Willams from a couple of years ago and even last year, and ironically [Washington Redskins safety] Sean Taylor was honored at this game, and he was [fatally] attacked at his home. A lot of people believe that if [Taylor] had a gun, he wouldn't be dead right now." Barber failed to mention an attack earlier this year which left Jacksonville Jaguars offensive tackle Richard Collier paraplegic and without his left leg due to amputation.

Such an oversight is understandable given the surprisingly high number of similar incidents, but even those numbers are not enough to convince longtime NBC Sports broadcaster Bob Costas that protecting oneself with a handgun may be a rational decision. After Barber finished recalling the recently murdered NFL players, Costas launched into a harangue against the ludicrous notion of self-defense, demanding that Tiki provide a singular instance where a player had saved his own life or averted disaster with a handgun.

While Barber agreed with Costas that Burress' actions were irresponsible, he insisted that guns are common to many players, given the violent circumstances he described and the violent neighborhoods many of the NFL's athletes grew up in. They really do rely on guns for self-defense, Barber argued. And it doesn't take any great leap of logic to understand why these athletes don't broadcast the fact. Such an admission in Washington, D.C., San Francisco, or Chicago—all cities with NFL franchises—could land a player in jail, in addition to the fines and suspensions handed down by the league (not to mention local politicians publicly chiding them as if they were irresponsible children).

Leaving aside the wisdom of Burress's actions, the criminal penalty he faces, if convicted, is inflexible and unfair. No judge in the state of New York, no matter what evidence is given, no matter how sympathetic the judge may be to a man whose teammate had a gun pointed at his head less than a week before, no matter what damage lengthy incarceration may do to the man's career, family, and reputation, will be able to lessen the sentence accompanying a guilty verdict.

Such inflexibility bothers vice president and general counsel of Families Against Mandatory Minimums (FAMM), Mary Price: "Establishing mandatory minimums for crimes that do not hold a mens rea requirement," that is, not having to prove criminal intent, "is particularly harsh."

"FAMM isn't against punishment for crimes," Price explained, "and [our objection] is not about any particular sentence for a given crime. But a judge who has all the information on a case, who has access to all the mitigating and aggravating circumstances should be able to make that decision." Mandatory minimum statutes can cause "tremendous injustices in individual cases" by preventing judges from serving their "important and necessary function in our criminal justice process."

Yet the city and state of New York have determined, in their own infinite wisdom, that there is a uniform method by which to handle each and every offense under that statute. Under this view, trained and experienced judges, who deal with criminals daily, should not be trusted with actually judging whether or not a defendant (or society) would be better served by a lighter sentence, or even probation.

There is no question that Plaxico Burress should have handled himself differently over the weekend. He improperly handled a firearm in violation of city and state law, resulting in injury, career damaging publicity, and suspension without pay from a team favored to return to the Super Bowl. But as the circumstances stand, it is apparent that his career and, more importantly, his freedom for the next three-and-a-half to seven years hang in the balance, all so Mayor Bloomberg can showcase his anti-gun fetish. An individual's actions should be judged on an individual basis by an informed judge or jury—not by an opportunistic politician.

Jonathan Blanks is a writer and researcher in Washington, D.C., and a former intern at reason.