Gilbert Arenas, Plaxico Buress and Prosecutorial Fairness in Gun Cases

The recent news that the NBA Star Gilbert Arenas received a sentence of 30 days in halfway house and 2 years probation for unlawful possession of firearms calls to mind the infinitely unjust sentence imposed upon the NFL player Plaxico Buress in New York not too long ago. Whereas Arenas will not even serve one day in jail and will be back playing hoops next season, Plaxico remains in a state prison more than one year later on his 2 year sentence for essentially the same crime.  It’s unclear whether Plaxico will ever get to play football again.

In November 2008, Plaxico went to a New York nightclub and brought a gun with him for protection. His teammate had been robbed at gunpoint on a New York street just a few days before, and in the months preceding Plaxico’s arrest, there was a spate of gunpoint robberies targeted against NFL Players.  Plaxico, obviously fearing for his safety, brought a handgun with him out that night and kept it in his waistband. Unfortunately for Plaxico, the gun accidentally discharged and he shot himself in the leg.

Soon thereafter, many pundits and politicians, including Mayor Bloomberg, were calling for Plaxico to be dealt with harshly. The Office of the District Attorney, New York County,  refused to make Plaxico an offer, even though they have a reputation for being reasonable and fair, and have made plea-bargain offers to other offenders with the same charges in the past.  Having no viable defense, Plaxico was forced to plead guilty and accept the mandatory minimum sentence of two years.  He remains in prison.

Justice was not served in the case of People of the State of New York v. Plaxico Buress. Like many other states, New York has very harsh mandatory minimum sentences for people in possession of loaded weapons, and there are many sound public policy reasons for the same.  Such harsh sentencing laws can sometimes be appropriate for people who carry guns with ill intent- such as those who carry them to commit robberies or other violent crimes.  Yet Plaxico did not carry a weapon to commit a robbery or some other type of crime. He brought it for protection, because as a celebrity athlete he was a target, a potential victim.  Sean Taylor, another NFL pro, was shot and killed the year before in a robbery attempt.  Plaxico had every reason to believe his life was in jeopardy when he went out that night- he had a good reason for carrying the weapon.

Surely, the harsh sentences available under New York’s tough gun laws were not intended for someone like Plaxico Buress.  He was a potential victim, not a miscreant looking for trouble.  Moreover, as a Celebrity living in New York City, Plaxico merely needed to apply for a carry permit and his application would very likely have been approved.  Apparently, he mistakenly (but not unreasonably) believed that his Florida carry permit gave him permission to carry the gun in New York.

It is hard to fathom that the failure to submit an application warrants a two year prison sentence.   It doesn’t.  The prosecutors wanted to make an example out of Plaxico.  They wanted to tell the world that if you carry a gun without a permit in New York you are going to prison.  This may be good public policy, but it is patently unfair when an individual loses his liberty as a result.  Plaxico was a sacrificial lamb.

Justice demands that the punishment be commensurate with the crime.  Before Plaxico was sentenced, he had already paid a high price for his supposed transgression- he seriously injured himself and lost his job for the season.  He was publicly humiliated.  He had to deal with investigations by both the NYPD and the NFL into the incident.  He had to bear the heavy burden of knowing that he let down his teammates and that he may likely go to prison for his actions.   It is almost a certainty that Plaxico didn’t sleep very well for a long time.

In light of all of the crimes against other NFL players and other professional athletes, it can hardly be said that Plaxico’s belief that he needed a gun for protection was unreasonable. The punishment must fit the crime, not whatever message the prosecutor wants to send to the public.  Plaxico lost his liberty and his livelihood  because he didn’t put in the proper paperwork.  That is not justice.  And ultimately, justice must be the goal of every district attorney, regardless of who the defendant is…