Mitchell Report Reactions

I'm not a journalist and so am reluctant to offer the "instant analysis" demanded by media outlets. But with the phone ringing off the hook, coupled with my general reluctance to respond to media requests, I thought I'd put a couple of thoughts here on the blog. Take this instant analysis for what it's worth (which is about what you're paying to read this). I'll write something more meaningful down the road. But here are my first thoughts, after the jump.

1. Mitchell's repeated admonition to the Commissioner, the media and fans to "look forward" and not back is both naive and wrong. It's naive because this search for truth is meaningful to everybody: it involves recent events, salient players, and something that matters a lot to sports fans. The Mitchell report, which relies a lot on non-testing evidence, only begins this search; the report's broad claims about a past "steroid era" hardly satisfies legitimate curiosity. The report's admonition is also wrong: you don't tell someone shocked by bad news your prescription for preventing recurrences. The aim of the report (I thought) was to expose the past, not make it irrelevant. Ignore the report's prescriptions, most of which are described in general terms and are subject to collective bargaining. The focus of our attention should be on baseball's immediate past.

2. The report names a lot of players; presumably many more are involved. At some point the law of diminishing returns kicks in and we no longer care. (Is Barry Bonds all that bad of a guy now that we know how widespread was the abuse?) What comes to mind is Jose Canseco's book (Juiced) which I recently read. Clearly Canseco's public image has moved from pariah to prophet. Canseco, who by his own claim more or less introduced supplements to major league baseball, casually suggested eighty percent of players used. Mitchell insisted in his press conference that the abusers were "a minority" of players; what if Canseco (again) is proved correct? What if entire teams had rosters nearly full of players using enhancements? We can be pretty sure as we sit here today that entire competitions in some sports, such as track and field, were heavily populated with dopers. Were the events less enjoyable? Are we fans of competition, or fans of "drug-free" competition? I'm not suggesting an answer at this point, but baseball's huge popularity in the midst of widespread knowledge of baseball's steroid culture does call into question the basis for legal (and private) prohibitions of performance enhancers. There is some evidence that, in mature adults, human growth hormone is a medically safe treatment that promotes healthy living. If that proves true, look for baseball's rules to change, and soon.

3. A lot of the on-air commentary so far has expressed concern with the report's reliance on "non-analytical positives," instead of drug-testing results. Such non-testing evidence includes matters that the law would describe as "hearsay" and "circumstantial," and that in total sum amounts to a quantum of proof that would be less than compelling in a court of law. But so what? This is not a court of law; the Mitchell report is essentially an act of journalism, a public statement in the form of a grand press release. Hearsay is considered and relied on in virtually all walks of life. (What is the media, except a large dose of hearsay?) The Mitchell report's evidence is some proof: not enough to satisfy the "beyond a reasonable doubt" standard of a criminal case, but still proof. It's worth something. It would not be enough for a criminal conviction. But the Commissioner's office, in meting out discipline, is not required to adhere to that most stringent standard. Selig may impose sanctions at his discretion.

4. As far as discipline is concerned, too many players are involved, too many records, too many trophies. Can't unscramble this egg. Declare an amnesty on all past violations, draw a line in the sand as of this date, and punish all future users severely. Or better, given the evidence of widespread usage, reconsider baseball's prohibition. Regulation instead of prohibition might be the prudent course of action.

5. And by the way, all this talk about "hearsay" (I'm watching ESPN) is incorrect. Most of the evidence in the report is not hearsay. When a player asks a trainer to order him some steroids, the player's statement is not hearsay. (It is a party admission specifically exempted from the definition of hearsay.) When a player writes a check for steroid purchases, the cleared check is not hearsay (it's a business record, assuming a foundation could be laid, which would be easy.) When a trainer states he supplied or injected a player with drugs, it's not hearsay (the statement is that of a co-conspirator, and thus is exempted from the definition of hearsay). Little of this report is hearsay; for the most part, the report consists of valid evidence. The only question about the report is whether or not the (valid) evidence it gathers is sufficient to conclude the named player actually used illicit enhancements. It's a question of the weight of the evidence, not its validity.

Vick's Sentence Too Long

Twenty-three months in a federal prison without the possibility of parole.

That's a harsh sentence for Michael Vick. The federal sentencing guidelines provide for lesser presumptive sentences for conduct that seems at least equally serious, if not more serious. For example, a lower base punishment is prescribed for an aggravated assault against another human being, which means a felonious assault with a dangerous weapon leading to serious bodily injury. Similarly, a lower presumptive sentence is provided for the crime of abusive sexual contact, defined as "causing sexual contact with another person by threatening or placing the vicitim in fear." Now, to be clear, these penalties are presumptive baselines only, and the guidelines allow plenty of room for upward enhancements to reflect serious behavior or consequences. My only point in this paragraph is to make clear that, even under the generally stiff federal guidelines, Vick's sentence is very substantial.

Vick is guilty of a serious crime, and his sentence reflects that seriousness. But it is too harsh? Is the penalty too great, given Vick's conduct? Yes, it is. Vick's sentence should have been lesser, not greater, than that of his co-conspirators. Twenty-three months' imprisonment is just too much. Here's why:

1. It is the dirty secret of criminal sentencing that an offender's criminal sentence is not derived solely from the offender's criminal conduct. Offenders are also sentenced for their non-criminal, legal conduct. Sound crazy? In my view, it is. Vick's sentence can be (and apparently was) increased because Vick failed to "accept responsibility" adequately for his conduct. Even assuming that's true in this case (Vick did, after all, plead guilty and thus formally accept the prosecution's charges: how much more "acceptance" do we need?), what that means is that Vick was given additional imprisonment for not being cooperative and for having a bad attitude in his dealings with the police and prosecution. I thought we citizens have a constitutional right to fight charges and not cooperate? What if Vick had committed the ultimate act of uncooperation: pleading innocent and putting the government to its proof at trial? Could Vick be sentenced for invoking his constitutional right to a trial by jury? You bet: the guidelines provide for about a six-month term of imprisonment for exercising one's constitutional rights.

2. The answer to my concern is to cite to the accepted practice of plea bargaining: it is routine, the argument runs, that offenders plead guilty to lesser charges or enter into sentence agreements, and do so in expectation of reduced sentences. In other words, it is common that
offenders trade off their constitutional right to be "uncooperative" (and stand trial) in exchange for a reduced sentence. Just because one can plausibly characterize this trade the other way (as offenders getting enhanced sentences for exercising constitutional rights), although semantically correct, is disingenuous, as it overlooks the essentially voluntary nature of the transaction. Thus my position is ultimately demagogic, as the offender is not "sentenced" for exercising constitutional rights; he's merely not given a sentencing reduction for relinquishing his rights.

3. The problem with this standard position is twofold. One, it makes the criminal sentence into currency. The offender must risk an enhanced period of incarceration should he wish to exercise his rights; no other means of "payment" for standing trial is possible. In Vick's case, if Vick preferred to fight his charges, to be uncooperative, then he must pay in increased time. Why couldn't Vick have been allowed to use another currency, like say legal tender? What if Vick, a wealthy man, offered to pay the prosecution's expenses should he be found guilty after a trial? Could the prosecution still complain about Vick's refusal to plead and about the cost of putting the government to its proof? The prosecution should not always be able to condition sentencing breaks on a defendant's willingness to forgo his constitutional rights.

4. Second, conditioning sentencing on "acceptance of responsibility" is ineluctably subjective. Here, remember, Vick plead guilty. The government did not have to prove its case; Vick saved the government that expense. Nevertheless, the prosecutor and judge decided that Vick was guilty, not of animal cruelty, but of being uncooperative. No proof beyond a reasonable doubt was necessarily adduced to establish this latter contention, and no jury ever weighed the prosecution's perceptions against Vick's reasons or explanations for his apparent lack of cooperation. The prosecutor refused to recommend a sentence reduction for cooperation, the judge agreed (presumably according to the lessened "preponderance of the evidence" standard of proof), and that's it: Vick gets added terms of imprisonment for his post-crime, post-indictment conduct. (The alleged failed drug test and alleged lies fall in the same category.) Why should the prosecutor, Vick's nominal opponent in this adversarial system, have it within his discretion to add to Vick's sentence? How reluctant would any criminal defendant be to fight charges knowing that, by the simple act of fighting the charges, one's adversary can unilaterally decide to increase the punishment? In the civil system, which handles less serious, non-criminal disputes, no adversary has any such power over his opponent. In this less-serious branch of the law, each side pays for his own counsel fees, regardless of the trial outcome. Why should our most serious branch of the law, the criminal law, feature a system where the loser pays, as long as the loser is the citizen charged with a crime? (The government does not pay if the defendant is acquitted.) And why must that payment be in terms of a period of one's life, and not something else, like money?

5. Vick's sentence is in effect much greater than twenty-three months. Vick loses his NFL contract and his endorsement deals. This article puts the loss at about 142 million dollars. Add to that the fact that Vick will lose most of his opportunities to earn a substantial wage in his livelihood. Should we care? Should any upper limit be placed on the extent to which we will punish and bankrupt a man, even a man who has committed a serious crime? Vick's co-conspirators, who stand to lose no money (comparatively speaking) got less time. If Vick is forced to trade a period of incarceration for exercising his constitutional right to stand trial (or to be uncooperative), shouldn't he also be entitled to have his very, very substantial loss of income be at least considered in the imposition of a sentence? Is the guidelines penalty for this crime twenty-three months, or is it twenty-three months plus complete bankruptcy of a man who has earned his money legitimately? Where does the guidelines say the latter? Nowhere. But that's what Vick got.

6. The sentence should have been twelve months. That's supposedly the figure the prosecution thought Vick would get in the wake of his agreement to plead guilty. Twelve months in prison is a lot of time, especially when that sentence in reality includes for Vick a forfeiture of his bonuses, his NFL contract and his endorsements. The judge could not have been blind to Vick's situation. Twelve months puts Vick out of the NFL for one season (a large income loss), and allows him to resume some semblance of his pro career. Instead, the twenty-three month sentence takes Vick out of two seasons' play, and leaves him without a job even into the third NFL season. It is a devastating sentence, and probably ends Vick's career.

7. Vick in fact got a twelve-month sentence: twelve months for dog fighting. So don't write me and say that Vick got twenty-three months for dog fighting or that dog fighting deserves twenty-three months. Vick got twelve months for his crime. He also got eleven extra months for failure to cooperate. Is eleven months too harsh for being perceived to be uncooperative, for being less than candid with the prosecutor, and for smoking marijuana? None of these were charged crimes; indeed not all of these are crimes. That people in this country are put in prison for failing to cooperate with people who aim to do them harm remains a scandal and a blemish on the criminal justice system. I used to teach criminal sentencing. What happened to Michael Vick is precisely the reason I left it.