Why Barry Bonds Must Be Convicted

Last week, noted sportswriter Sally Jenkins used her Washington Post column to ask why the United States government was devoting so many resources to the prosecution of baseball star Barry Bonds.  Why, she asks, with so many problems in the country, are we expending so much effort trying to convict the all-time home run leader of the crime of perjury, when his real offense, the use of illegal drugs, is so relatively minor.  Better, she says, to let Major League Baseball deal with this problem, and let the federal government tackle people who are guilty of more serious offenses.

To my mind, Jenkins has it all wrong.  It is especially important that Bonds be convicted.  In the United States, baseball has always been more than just a game.  From the 1870’s onward, major league baseball has been equally entertainment and morality play.  Every season involves the enactment of a public ritual that emphasizes and validates our most important common values.  In a society that celebrates individualism, but only within the constraints of moral norms, baseball celebrated individual accomplishment but always within the context of team play.

The ability of ordinary young men to rise from rural pastures or urban sandlots, through the minor leagues, to the major leagues reiterated the “rags to riches” vision of the United States as a society of unlimited opportunity for people with natural talent and self-discipline.  Even the annual example of once great players having to step aside because of age or injury emphasized that in the larger society each generation had to give way to the next and that current ability, rather than reputation or social status, was what really mattered.  In other words, major league baseball was a kind of perfect social Darwinist fable.

One of the central rules of American society has long been that while aggressiveness and cleverness are to be rewarded, cheating is not an acceptable path to excellence.

Rules of lesser importance, like the ones that govern play on the field, can be bent without undermining the basic message of baseball, but the fundamental rule that only honest effort should be rewarded is not to be violated.  Sneaking a spitball past the umpire or only pretending to touch second base while turning a double play are acceptable actions, but bribing an umpire or an opponent or physically harming an opponent while off the field are not.

Obviously this was always been more myth than reality, and traditional American values have been under attack since the 1960’s.  Nevertheless, the myth of American values remains an important myth and one that plays an important role in insuring social cohesion.

What Barry Bonds did by using prohibited performance enhancing substances and then lying under oath about his actions was to violate not just the integrity of baseball but of core American values as well.  Moreover, violating them in the context of baseball made his actions even worse.  That he, and his steroid-enhanced cohorts, robbed Henry Aaron and Roger Maris of the home run records, the most prized examples of worthy accomplishment, makes his offense especially reprehensible.

Because playing Major League Baseball has been the dream of tens of millions of American males for nearly a century and a half, we have a certain quiet sympathy for those who might violate the merit principle to obtain a goal made unattainable by nature’s denial of physical talents.  The baseball-loving, but physically inept college chemistry instructor of the movie “It Happens Every Spring” comes to mind, as does the middle-aged insurance salesman who sells his soul to the Devil for a chance to play in “Damn Yankees.”  Bonds, however, deserves no such sympathy since his God-given talents made him one of the greatest players of his generation, making his turn to steroids nothing more than the expression of deplorable greed.

To convict Barry Bonds of steroid-related perjury is to reaffirm the continued significance of values that have long been central to the American experience.  Texas v. Johnson notwithstanding, no one has the right to desecrate a national symbol and certainly not for no reason other than personal aggrandizement.

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SCOTUS Says Judge May Consider Post-Sentencing Rehabilitation at Resentencing

In a new decision earlier today, Pepper v. United States (No. 09-6822), the United States Supreme Court ruled that federal district judges may consider post-sentencing rehabilitation when a case is remanded for resentencing.  This may sound like a very technical question of criminal procedure, but the facts in Pepper nicely illustrate the human dimension to the question.  Pepper was convicted of meth trafficking and faced a Guidelines sentence of 97-121 months.  The judge departed downward, however, and imposed a sentence of 24 months.  In June 2005, the Eighth Circuit reversed and remanded for resentencing.  In the interim, Pepper completed his 24 months and was released.  In May 2006, the district held a resentencing hearing, at which much evidence was presented of Pepper’s successful post-sentencing rehabilitation, including completion of drug treatment, commencement of college courses, and part-time employment.  Pepper’s probation officer recommended that the original sentence be reinstated, and the district judge agreed.  The government appealed, and the Eighth Circuit again reversed, ruling that post-sentencing rehabiltiation was an impermissible sentencing factor.  The case then bounced around inconclusively in the court system for several years before finding its way to the Supreme Court.  Pepper, still free, has apparently continued to do quite well in school and work.  The question now is whether he must nonetheless be returned to prison after five years in the community, which would likely wreck much of what he has accomplished for himself and his family.

In holding that post-sentencing rehabilitation is a permissible consideration at resentencing, the Court addressed a couple of notable legal questions.  What is perhaps most remarkable about Pepper, however, is not the legal analysis, but the prefatory rhetoric with which it was framed.

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Racial Disparities in the Federal Death Penalty: Uncovering the Key Role of Geography

The federal death penalty is plagued by two important types of disparity.  One is racial: as of last year, nearly half of federal death row inmates (28 of 57) were black.  The other is geographic: out of the 94 federal districts, just 16 have produced 75 percent of the death sentences, and nine have produced nearly half.  Although both disparities have been much commented on separately, it seems they are actually connected.  Or so argue G. Ben Cohen and Robert J. Smith in an interesting new paper, “The Racial Geography of the Federal Death Penalty,” 85 Wash. L. Rev. 425 (2010).

Their thesis is simply stated.  A vastly disproportionate number of federal death sentences come from counties with high minority populations that are located in districts that are heavily white overall.  Think diverse urban cores surrounded by lily-white suburbs.  Given that federal juries are typically drawn from the entire district, this means that capital trials in these districts are apt to involve minority defendants being judged by white-dominated juries.  Having minimal racial diversity on the jury means that black defendants have little protection from the unconscious racial biases that most of us carry around.  This, in turn, drives both the racial and geographic disparities in federal death sentences.

The patterns are striking. 

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