A Word About Guns, the Law, and Mandatory Minimums

I try very hard not to post any political views on my blog. It’s not the purpose of this blog. But I wanted to say a few words about what’s happening to Plaxico Burress, the NFL wide receiver (formerly of the New York Giants).

The facts, briefly: Burress bought and registered a handgun in Florida. Florida has reciprocation in gun registrations with many other states. New York is not one of them. Burress possessed the handgun in New York while at a night club. The gun accidentally went off while in the elastic waist band of his sweat pants, and he suffered a bullet wound. He was indicted by a grand jury today for possessing a hand gun without a license in the State of New York. Officially, he was charged with two counts of criminal possession of a weapon in the second degree, and one count of reckless endangerment in the second degree. Sentencing guidelines require a judge to impose a sentence of no less than 3.5 years in prison if Burress is convicted on all charges.

This leads me to believe this case is another example where mandatory minimums can be a terrible idea. They take away the ability to apply common sense and reasoning to decision making. Burress made a mistake (some would argue a “stupid mistake”), but it’s of a bureaucratic nature. Had he known about the lack of reciprocity in the licensing, he would have registered the gun in NY and not have broken the law.  But since he didn’t know — since he was ignorant of the bureaucracy — he now faces a 3.5 year minimum jail sentence even though he neither caused nor intended harm to anyone or any thing. So the jury considering this case must now look at the non-disputed facts and determine, “do we find the defendant guilty of the crime which he admits to but will result in him being sent to jail for no less than 3.5 years? Or do we think 3.5 years is cruel punishment and doesn’t fit the crime committed, so we’re going to accept the ignorance of the law argument the defendant’s lawyer has made, and find him not guilty even though we know he’s guilty but because we don’t want to send this man to jail for 3.5+ years?” There’s an entire law library full of papers and books on the subject of mandatory minimums and their effectiveness, so I won’t say anything else except that I think this is a clear example where they are wrongly applied.

Separately, this episode also reinforces my opinion that athletes who carry around guns for protection are putting themselves at greater risk than if they didn’t carry a gun. I don’t dispute their Consitutionally-guaranteed right to own and carry a gun. I dispute the wisdom that a gun makes the athlete safer. If you own a gun and someone intends to do you harm, you have two choices: shoot or don’t shoot.  Since we don’t read about athletes regularly shooting people, but we do read regularly about athletes being in bad situations involving criminal elements (whether their own fault or not), I’m going to conclude logically that athletes don’t want to use their guns to shoot criminals. So they shouldn’t carry them around “for protection” in the first place.

Finally, I conclude that if anyone’s ever in trouble with the law in NYC, the last lawyer they should use is Burress’s lawyer, Benjamin Brafman. One of the biggest advantages to having a good lawyer is leveraging his or her ability to “deal” with the prosecutors. Personal relationships between your lawyer and the prosecutors can be very helpful to you, and at the very least, your lawyer should be able to comport himself in such a way that the prosecutor is dissuaded from “throwing the book at you”. Brafman clearly handled this entire situation wrong, as his actions have now caused NYC DA-for-life Robert Morgenthau to make Burress the poster child for weapons possession laws. A more effective lawyer would have made this go away quietly.

What a Great Story

I don’t make many links in my blog to other sites, but I wanted to share this excellent story from today’s New York Times:

A Town Fights to Save an Oasis of Baguettes

Random Thoughts Ahead of the Weekend

• Clint Eastwood’s, “Gran Torino” got shut out of all the major Oscar categories, which comes as a surprise to me. I thought it would get a nod, and possibly win, for Best Picture, Best Actor, and Best Director. I have not yet seen, “Slumdog Millionaire”, so I will hold off on any Best Picture predictions, but I will be rooting for, “The Curious Case of Benjamin Button”. 

• One of American Idol’s broadcasts this week was from Churchill Downs in Louisville, Kentucky. It was cool seeing them at the track like that. Saratoga is still the only place I really want to go, but it might be neat to visit Churchill Downs one day. 

• There has been a lot of news about Christie’s planned auction of “the biggest art collection ever” (no, not really, but hype is good in the fine art world right now), the collection of the late Yves St. Laurent, currently planned for February 23rd.  The latest news, according to to the Times of London, has the Chinese government suing Christie’s to block the sale of two pieces in the collection, a set of animals heads dating to the 1700s worth around $30 million.

• I was up late last night and watching ABC’s overnight network news cast at 3 or 4 in the morning. I found one of these pieces really interesting. It was a commentary on Obama’s first few days in office, and how, during the signing of executive orders in front of the media, he did not just sign the orders. He took the time to read some of the important clauses in the order, then explain what the effects of the order to the gathered press.  He was educating everyone, in a smart but plainspoken manner. I looked around and was able to find the 5-minute video story on ABC News’s website.

• Tom Ricketts, whose father founded Ameritrade, has been selected as the winning bidder for the Chicago Cubs. For some of us, this is a blow as we had been rooting for Mark Cuban, the spirited, emotional, involved owner of the Dallas Mavericks (and IU alum). Cuban, by some reports, turned out to be too controversial a figure to be allowed into the old boys’ club that is MLB.

• I have not commented much about Obama’s choice to nominate Harvard Law School Dean Elena Kagan to be the next Solicitor General of the United States because I have mixed feelings about it.  It is good that a woman is finally getting be the SG.  But I am a bit shy about her courtroom credentials.  The Legal Times reports she was an excellent law clerk for Abner Mikva and a stand-out associate at Williams and Connolly in the late 1980s, but that is the extent of her practical experience.  She has been in the halls of academia for almost 20 years now, and I am uncomfortable predicting how well that will translate to the role of SG. Chief Justice John Roberts and Paul Clement, both former SGs, stood out due to their awe inspiring ability to argue clearly and effectively, well beyond the talents of even long time superstar SCOTUS solicitors. I had expected Gregory Garre might get a chance to be SG, but presumably he must have (or be perceived as having) a conservative lean. I am not happy that the SG is considered a political position; I am fine with the President nominating the position, but I wish it were less on ideological lines and more on effectiveness as a litigator.

• I head to Charles Town Races & Slots tomorrow for the first time in about 3 weeks.  I am looking forward to the Sunshine Millions, $3.5 million worth of purses to be run at Gulfstream Park and Santa Anita.  I am planning on spending the rest of the day today handicapping the Sunshine Millions races.

“Beware of Pity”: Hannah Arendt

This post is lifted entirely from the January 9th, 2009 edition of The New Yorker. The piece is entitled “Beware of Pity” by Adam Kirsch.  I am re-printing it here in its entirety, rather than linking to the New Yorker site’s edition of the article,  in case the link ever goes dead.  I read this while on the airplane to CES and it is one of my favorite New Yorker articles ever. I hope you enjoy it and find it insipirational, too.

BEWARE OF PITY

Hannah Arendt and the power of the impersonal.

by Adam Kirsch

In 1999, the Croatian novelist Slavenka Drakulić visited The Hague to observe the trials for war crimes committed in the former Yugoslavia. Among the defendants was Goran Jelisić, a thirty-year-old Serb from Bosnia, who struck her as “a man you can trust.” With his “clear, serene face, lively eyes, and big reassuring grin,” he reminded Drakulić of one of her daughter’s friends. Many of the witnesses at The Hague shared this view of the defendant—even many Muslims, who told the court how Jelisić helped an old Muslim neighbor repair her windows after they were shattered by a bomb, or how he helped another Muslim friend escape Bosnia with his family. But the Bosnian Muslims who had known Jelisić seven years earlier, when he was a guard at the Luka prison camp, had different stories to tell. Over a period of eighteen days in 1992, they testified, Jelisić himself killed more than a hundred prisoners. As Drakulić writes, he chose his victims at random, by asking “a man to kneel down and place his head over a metal drainage grating. Then he would execute him with two bullets in the back of the head from his pistol, which was equipped with a silencer.” He liked to introduce himself with the words “Hitler was the first Adolf, I am the second.” He was sentenced to forty years in prison. 

On Booker T. Washington

In 1880, Alabama was in the throes of political upheaval following the end of Reconstruction. The black-supported Republican party had all been voted out of office, and the empowerment of the white-supported Democratic party had taken firm control over the state’s legislature and government. Over the next 20 years, despite comprising some 45% of the state’s population, blacks would effectively lose their suffrage. 

But amidst this turmoil, the state legislature voted to fund an institute dedicated to educating blacks — with a special emphasis on practical life and trade skills. Headed by former Virginia slave Booker T. Washington, the Tuskegee Institute opened its doors in July 1881and has evolved into an independent university with over 3,000 students situated on 5,000 acres in 70 buildings. 

Lifting the Veil of Ignorance, Tuskegee Univ.

Washington spent his entire life educating himself and others in numbers, letters, and trades. He often found himself at odds with other black leaders, like W.E.B. DuBois, who believed direct confrontation and aggressive tactics were the way to win freedom. Washington believed the way to progress — the way to change the “pervasive attitudes” towards blacks — was through education and cooperation with open-minded whites.

“A race, like an individual, lifts itself up by lifting others up.”

Washington soon became an advisor to multiple Presidents of the United States, and in 1901, when Teddy Roosevelt invited Washington as his guest, he became the first black man to ever dine at the White House.

I think Washington would be enormously proud of the first black President of the United States being a very highly educated man who believes in collaboration. It seems like the efforts of an emancipated slave, and those who supported him in his mission to educate blacks and empower them to participate in the workplace, were ultimately realized in a 21st century America that is ready to follow a black man as its leader.

Booker T. Washington died today, November 14th, 1915.