It Isn't, or Shouldn't Be, the NFL's Job to Punish Crimes

So apparently the official talking point in the Boston sports world about the four-game suspension of Patriots quarterback Tom Brady for what seems to have been his role in actually seriously cheating, at least in the AFC championship game last year right before the Patriots' Super Bowl win (and possibly, like, for many years prior) is that it's an outrage that Brady was suspended for twice as long as Ray Rice was for his domestic abuse. And like, so, the thing is, my instinct about Brady is that the suspension is an outrage, in that it should've been for a whole season. And so the Ray Rice comparison line annoys me, because I basically agree that the Ray Rice thing was handled disgracefully and that he got off awfully light. Certainly the point that, y'know, abusing footballs shouldn't be seen as worse than abusing women or whatever is an accurate one. But like, I dunno... I kind of feel like it isn't, or shouldn't be, the NFL's job to punish crimes? Like, domestic abuse is an offense against the victim and an offense against the state; it's not an offense against the National Football League, and cheating at football in the semifinal game of the NFL playoffs is. We wouldn't want the U.S. government, or the government of Massachusetts, to punish Brady for his cheating at football, I don't think, because it's not that kind of offense.

In my Criminal Law class we discussed at one point the idea of "shaming penalties," where instead of directly, like, punishing the (typically low-level) offender, e.g. by imprisoning or even fining them, but rather just basically publicizes their offense. There's a sense that these punishments manage to be less cruel than, say, incarceration, while still being unpleasant enough to be a deterrent (indeed, perhaps more of one) and maybe even, if done right, having some rehabilitative effects. One line of criticism is that they're humiliating, to which the defenders rather powerfully respond, have you seen our prisons? But another line of attack is that there's something a bit disturbing about where exactly the punishment comes from in these shaming punishments. It comes from everyone in the community. In the most troubling cases, the government seems pretty explicitly to be trying to foster a mob mentality that will enlist the public to carry out the sentence, basically, by basically making the offender persona non grata in that community. And this is kind of troubling. It's almost, like, an embrace of the lynch mob by the government, or at least it can approximate that. Obviously imprisonment often leads to that same kind of informal social sanction afterward, but I kind of think that it shouldn't, or at least not insofar as those sanctions are meant as sanctions rather than as sensible precautions against a potentially dangerous or untrustworthy person. I tend to think that we should let the state punish people, and then once it's had its say, we should welcome people back into society as full citizens, though without turning a blind eye to any dangers they may represent.

Which brings us back to Brady and Ray Rice. Like, it really, really shouldn't be the NFL's job to punish Ray Rice. And people who do bad things, including beat their girlfriends which is a very bad thing, shouldn't just stop being able to be part of society. The idea that sports leagues should have the policy that people who've committed crimes of a certain level should never be allowed to participate in them strikes me as a terrible one. The problem is that this all takes place in the shadow of the well-known fact that the state isn't doing it's effing job with regard to domestic violence, so basically if the NFL doesn't punish Ray Rice, no one will. And in certain ways the NFL is even in a better position to punish him than the state is, because it doesn't need to hear the victim testify, it doesn't need to get proof beyond a reasonable doubt, it can just say, hey, we saw the video, we know what we think went down, we're gonna suspend his ass. But that's a huge problem! For those of us who believe in the ideals of the criminal justice system, and of innocent until proven guilty and the like, the idea that when someone is known to have done a bad thing, this should be handled by having anyone in society who has power over them and who isn't bound by the Bill of Rights should just punish them any way they can, it's, like, it's really problematic, and it really does kind of feel like mob justice.

Now, that doesn't really point to a solution, since it's not like the general unenforcement of domestic violence laws is gonna change any time soon, and I'm not really saying that I think the NFL shouldn't be allowed to discipline its players for their off-field misdeeds. But it's wrong, I think, to reason from the fact that domestic violence is worse than cheating at football to the conclusion that the relative lengths of the Brady and Rice suspensions say something so terrible about the NFL's priorities. The NFL isn't in the business of outlawing domestic violence. It is in the business of making sure dudes don't cheat at football.* One of these things is much, much more its responsibility than the other, and that's not something wrong with the world. That's something right with the world! The NFL shouldn't just decide that, because domestic violence is so bad, it's going to assume as much responsibility for punishing and deterring it as it does for cheating at football, no more than any one of us has the right to go out and become a vigilante.

So, I'm sorry Boston, but pointing at Ray Rice doesn't give you a great argument for why Tom Brady is being treated unfairly.



*Well, arguably it is. Or at least it should be.

The Civil War Continues

In 1866, Congress proposed the Fourteenth Amendment, Section 1 of which was designed to force the states, and in particular the Southern states, to recognize equal civil rights for all, and in particular for the newly freed slaves. That Section, which is unambiguously the most important part of the current Constitution, has four operative provisions. The first overturns Dred Scott v. Sandford and declares that, yes, African-Americans are citizens of the United States. The second prohibits states from violating the privileges or immunities of American citizens. The third prevents them from depriving anyone of life, liberty, or property without due process of law, and the last requires them to provide the equal protection of their laws. These four provisions are, in essence, the terms of settlement of the Civil War.

And in that settlement, as it was originally supposed to work, it was the first two Clauses that were supposed to do most of the work of guaranteeing substantive legal equality. After all, if blacks are citizens and you can't violate the rights of citizens, well, that sounds like black people have rights. Alas the Court has basically pretended that the second provision doesn't exist and that the first one has only a narrow technical meaning rather than a richer substantive one. As a result, the last two provisions are carrying a lot of weight they weren't originally meant to; the Equal Protection Clause in particular is the central doctrinal lynch-pin for just about all of the Court's equality jurisprudence. But the reason why it's there at all, back when they thought the Privileges or Immunities Clause was a thing, was because the Privileges or Immunities Clause addressed itself only to legislatures. But everyone knew that a Southern state could write the world's most even-handed, non-discriminatory legal code and yet legally entrench massive racial oppression, by the simple device of not enforcing those equal laws equally. The paradigm example of this would be a Southern state simply not punishing people who murdered black people.

Hmmm, where have I heard that before? Or, rather, where have I heard that since?

The thing about the Civil War is that it never really ended. We stopped having battles with armies but the central question that the Fourteenth Amendment was meant to settle as the terms of the peace, the question of whether black people are full and equal members of American society, has never quite been resolved. And not just legally: Michael Brown and Eric Garner are just among the latest Civil War casualties. And the failure to punish their killers isn't just racism, it isn't just institutionalized racism, it is quite literally unreconstructed institutional racism, in the very precise sense of being the exact problem that the key Reconstruction Amendment was meant to eradicate. Having this not happen is what we fought that war over. And that means we're still fighting.

Also, Regarding "Justified Shootings"

Okay, one last thought about the whole Ferguson thing. As part of their coverage of the Ferguson outrages this week, Vox.com put up a post called, "When is it legal for a cop to kill you?" The idea was to educate people about the law governing police shootings, which is basically that, as a matter of constitutional law, cops may shoot someone to protect their life or the life of a third party (as may anyone else who's in a position to do so), and they may also shoot a suspect fleeing a crime scene if and only if they have probable cause to think the suspect has committed a violent felony. And the main reaction I kept having to reading the article was, okay, but do you have to actually kill the person? Like, we can put on our philosopher's hats and think about when it's morally justified to kill someone, and we might come up with something a lot like these two situations. The first one makes a ton of sense: in a choice between "murderer kills innocent person" and "attempted murderer is killed," you choose option #2 every time (except, maybe, in some sort of action-movie scripted scenario where the attempted murder in question is actually justified for some reason, heh). The second one is a bit tougher to justify given the level of uncertainty that may often be involved, but at the very least we can see why not letting someone you know to be a murderer flee a crime scene has some of the same elements of not letting someone shoot someone else.

But just because killing the person in question might be somewhere above the ethical replacement-level line, that doesn't mean it's the best thing. Ideally you'd manage to both prevent the violence/apprehend the suspect and not kill anyone. Now, I get why it's not a great idea for cops to shoot dudes who point guns at other dudes in the leg. In that circumstance, I get shoot to kill, and honestly, if you point a gun at someone else and make it pretty damn clear you mean to shoot them, you don't have that much of a complaint if someone else shoots and kills you first.* But in the second circumstance? The only possible reason for preferring to shoot a fleeing suspect in the chest is that you're more likely to hit them that way. Stipulating that your bullet will find its target, shooting in the leg accomplishes 100% of what shooting in the chest would, minus the gratuitous killing. Hell, shooting with some sort of stun gun/tranquilizer dart/tazer would accomplish 100% of what shooting to kill would, minus the gratuitous killing.

So basically what I'm saying is, shouldn't there be some kind of narrow tailoring here? Shouldn't there be some effort to minimize the amount of killing that goes on, rather than just saying, "well, I can make a case that killing this person isn't worse than leaving them uninterfered-with, so I'm gonna kill them"? Shouldn't there maybe be a rule that, if you could've chosen a less-likely-to-cause-someone's-death option that would probably have gotten the job done just as well, you weren't exactly "justified" in using the more-likely-to-kill option instead? Maybe that can't be as a matter of law; maybe you shouldn't be sent to jail for such a decision. But shouldn't you, y'know, get fired for it? Or something? One way or another I know that other countries get by without having their police forces shoot so many people dead, so there must be something we could do to have that happen less often here that wouldn't be a disaster. It seems to me like a moral imperative of the first order that we try.


*Of course, there is the ol' grey zone where someone does something that makes it unclear whether they're about to try to shoot someone. Like, for instance, the guy who was shot earlier this week (not in Ferguson, I believe, just elsewhere in America, the Greatest Country Ever or so I'm told) carrying a toy, plastic rifle around a Wal-Mart. Or when someone goes to fish their wallet out of their pocket for ID or whatever and the policeman thinks they're going for a gun. (Because concealed carry doesn't have any downsides whatsoever...) I feel like the balance that an awful lot of police seem to strike in these situations is to basically give complete, 100% priority to protecting their own life, and 0% priority to making sure they don't kill an innocent person. That does not seem like a particularly good balance to me, since they're both, y'know, human beings who aren't in the act of trying to murder anyone. In fact, since the police officer but not the totally random dude off the street has literally signed up to risk their life in defense of the populace, I think there's a valid though by no means slam-dunk argument for giving more weight to not killing totally random innocent dudes than to letting cops protect themselves. But at the very least they've gotta give more weight to that interest than they do now, right?