"Main Threat to Burress Is a Sentencing Law"

Today's must-read is this terrific piece by Michael Schmidt in the New York Times that provides some of the back story on the mandatory minimum sentencing law that may make it very hard for Plaxico Burress to avoid jail time in the state pen for his (seemingly minor?) gun possession crime.  Here are snippets from a piece that all sentencing fans should read in full:

[P]erhaps more important than the question of whether Burress ever plays for the Giants again is the question of whether his future will include time in prison. [L]egislation ... signed into law in November 2006 by then-Governor George E. Pataki ... eliminated a provision that gave judges the option of not imposing jail time on people found guilty of illegally possessing a loaded firearm.

Instead, the three-and-a-half year minimum sentence was established. As a result, legal experts said Tuesday, Burress may have little wiggle room as he tries to avoid prison time. “Even if he pleads down, he can only plead down one count and he would still face a minimum of two years in prison,” said Robert C. Gottlieb, a New York-based criminal defense lawyer and a former prosecutor in the Manhattan district attorney’s office. “The other wiggle room is that he could try and prevent the district attorney’s office from charging him with this crime and charge him with a lesser crime.”

In fact, John M. Caher, a spokesman for the New York State Division of Criminal Justice Services, said that fewer than 10 percent of the people in New York City who were charged with criminal possession of a weapon — the charge Burress is facing — were convicted of that charge and that many ended up being convicted of a lesser charge.

However, Gottlieb noted that the public attention made it unlikely that prosecutors would accept a lesser charge. Another option, some experts said, would be for Burress to provide authorities with information that would lead them to prosecute others, although that seems unlikely considering the narrow circumstances of his case.

As [Burress's lawyer Benjamin] Brafman begins to plot his legal strategy, he cannot help but think back to that argument [he had with an NYC lawyer] nearly two years ago. “The point I made then, and I will continue to make, is that laws involving criminal justice that do not have exceptions for extraordinary circumstances are inappropriate in a democracy where we pride ourselves on fair play,” Brafman said in a telephone interview Tuesday.... 

On Monday, Bloomberg drew attention to the issue when he sharply criticized Burress and said that the authorities should prosecute him to the fullest extent of the law.  Brafman said that Bloomberg’s comments damaged Burress’s legal standing.  “When you have the mayor of New York demanding the maximum sentence in a case which has just begun and nobody has been convicted, it certainly doesn’t help,” Brafman said. “Mr. Bloomberg may have cost my client his job and cost him an ability to get a fair trial.” 

This article confirms some of what I expressed in my first post on the Burress case  — namely that Mayor Bloomberg's comments on Monday may ensure that Plaxico may soon become a poster-child and a great test case for groups like Families Against Mandatory Minimums that have long argued about the unfairness of mandatory minimum sentencing terms (especially for first offenders).

The only important point missing from the NYTimes article (and from Brafman early efforts to develop pro-Burress public sentiments) is the Heller Second Amendment issue I often champion.  As I noted in my prior post, if the Second Amendment is applied to the states after Heller (which seems very likely) and if Burress says he carries a gun for personal self-defense (which seems very plausible), anyone with a serious commitment to the right of persons to possess a gun for self-defense (like those at the NRA) should be very troubled by the notion that Burress is facing years in prison for merely possessing a gun.