Tuesday, December 2, 2008



By : E. Franklin Vogelfrei, Esq., Attorney and Legal Scholar, The Public Punishment Institute (PPI)

These days it is hard to pick up a newspaper without reading about some magnificent athlete struggling to face down one criminal charge or another. Whether it is Michael Vick confronting federal authorities about operating an interstate dogfighting ring, or Plaxico Burress appearing before a New York court on felony weapons possession charges, the criminal law always seems to target well-off sports heroes. Prison terms and fines cut short thrilling NFL careers, frustrating fans. This is a disgrace. Americans want to see their sports stars on the field, not in prison. Although Americans also want to see the guilty punished, they would rather tolerate some illegality than see their gridiron greats removed from play. We here at the Public Punishment Institute recommend that State and Federal authorities respect the People’s will. To that end, we recommend a new criminal law principle: Do not prosecute sports stars.

When the criminal law condemns sports stars, it ensnares itself in a classic conflict of interest. The criminal law vindicates the People’s will. The People elect representatives, who then pass criminal prohibitions intended to punish conduct that the People label “wrong.” But the People also want sports. They want to see superhuman quarterbacks, homerun-swatting first basemen, sleek swimmers and 8-foot 3-point throwers work their magic on the playing fields. They live their lives to watch their sports heroes. There is nothing “wrong” with sports. Thus, when the criminal law sends their heroes to prison, it frustrates the People’s will. In essence, the People don’t want to have it both ways. They do not like criminals, but they absolutely detest the idea that their beloved players will be sidelined for violating the law. The People created the law. It should be up to them whether or not it applies to a particular person.

Both Michael Vick and Plaxico Burress are popular heroes. “Bullet” Vick led his Atlanta Falcons to victory in game after game, delighting the People. Burress became a New York hero when he broke through in the Super Bowl last year. The People adored him. The People want to see both Vick and Burress on the field. They want more sports miracles. They want more superhuman feats. They want excitement. They want to talk about their exploits at work. They want to read about their daring victories in the sports pages during their lunch breaks. But they will not get any of these things if Vick and Burress spend their best years rotting in penitentiaries.

What do the People gain by sending Vick and Burress to prison? At the same time, what do they lose? Let us consider the facts. Michael Vick committed “conspiracy to operate an interstate dogfighting ring” under federal law. The People—through their representatives—decided that making illegal agreements to bet money on animal cruelty deserved criminal punishment because it was morally contemptible to profit from killing animals. Plaxico Burress was arrested in New York for “unlawfully possessing an unlicensed firearm in the City of New York,” and “failing to report a gunshot wound” after accidentally shooting himself in the leg. The People—through their representatives—decided that criminally punishing gun possession would make their streets safer by deterring would-be killers from obtaining deadly weapons. These are both sound public goals. By punishing Vick and Burress, the People would satisfy their moral outrage. Vick will suffer for profiting from animal cruelty. Burress will suffer in order to deter would-be assassins in New York.

But the People do not want Vick and Burress to suffer in order to achieve these goals. Let some unknown sap suffer to achieve these goals, not popular sports heroes. True, it would fulfill the People’s will—as inscribed in law—to make Vick and Burress pay the price for their violations. But it would simultaneously frustrate the People’s will to remove two stars from the playing field who bring them untold delight every weekend. How should the law treat cases when punishment would both fulfill and frustrate the People’s will? In our opinion, the law must decide which alternative would more faithfully fulfill the People’s will. Put simply, the People would much rather tolerate a few violations than see their heroes incapacitated.

To violate the law, there must be a defendant. There must be a living, breathing human being who chooses to do what the law prohibits. There are as many potential defendants as there are people in society. Every living person is a potential defendant. The criminal law can fulfill the People’s will no matter who is punished. On the other hand, not everyone in society is a sports hero. In fact, among all the potential defendants in society, there are scarcely 500 true sports heroes. When the criminal law punishes a member of this elite group, it fulfills the People’s will in one sense, but profoundly injures it in another. If a sports star steals a car, the People want to see a potential defendant punished. But they would be horrified if the law yanked a sports star from the field in the middle of a marvelous career. If a beggar stole a car, the People would lose nothing to see him punished. Yet if a sports star goes to prison for 10 years for stealing a car, the People would lose so much more. To avoid that loss, the People are willing to tolerate an occasional car theft.

In essence, when sports stars stand accused, we must weigh the benefits against the burdens of applying the criminal law. In an abstract sense, the People benefit when the law punishes any criminal, because the People—in the abstract—are outraged by any deviation from the moral code they enshrine through their laws. But that is mere abstract benefit; few people feel any real benefit when a common thief or robber receives a 15-year prison term on any given day. In that case, the People gain because the law removes a worthless citizen from their midst. They lose nothing. On the other hand, when the law punishes a sports star, the People stand to lose enjoyment, adoration, vicarious euphoria, fantasy and hope by cutting short a superhuman athlete’s public career. They gain only the “abstract benefit” that comes from punishing any common criminal. The burdens strongly outweigh the benefits in this situation. For that reason, the People’s will dictates that the criminal law should not apply to the sports star.

In our Republic, the People are supreme. Were it not for the People, there would be no Constitution, no Union, no Congress and no government. Without the People, there would be no law. Only the People can give the law its moral force, and for that reason the law must respect the People’s will. When the law contradicts the People’s will, it risks undermining its very foundations. That is why we must stop prosecuting sports stars like Michael Vick and Plaxico Burress. Let the law voice the People’s outrage on nameless defendants, not defendants whose imprisonment would deny happiness to millions of Americans every weekend. There are enough defendants to go around. It makes no sense to treat every defendant equally when society gains no additional benefit from punishing a sports star than it would by punishing a beggar.

Detractors say that the law must treat all cases equally. As appealing as this argument may be from an idealistic standpoint, it ignores the People’s will. Law is a human institution. Human institutions cannot always apply principles equally. In fact, our entire society would collapse if it insisted upon precisely equal treatment for every citizen. What incentive would we have for success if everyone were treated equally? Success means the right to be treated better, not equally. Furthermore, law cannot escape its political roots. Without political support, no one would respect the law. The law must conform to the People’s will. And when punishing a sports star would injure the People’s will more than it fulfills the People’s will, punishment is inappropriate. The People may say that we are all equal under law. But they do not want to lose their heroes. They would rather sacrifice equality in a few cases than sacrifice joyous weekends watching their heroes work wonders on the field. In that light, political necessity dictates that sports stars be treated differently than everyday defendants.

It is time to start respecting the People’s will. Sports are more important to most Americans than law. Anyone can be a defendant, but not everyone can be Michael Vick or Plaxico Burress. When punishing a sports star damages the People’s will more than it fulfills the People’s will, the law betrays the People. And when the law betrays the People, the People will not stand for it. Let this be a political warning to every prosecutor and every judge. Punish the nameless. Set the quarterbacks and linebackers free.

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