Punishing Paterno

For the past several days, sports journalists, the callers to sports talk radio shows, and just about everyone else has weighed in on the appropriate way to punish Penn State for its failure to disclose the sexual crimes of assistant football coach Jerry Sandusky.

As the report prepared by former FBI director Louis Freeh makes clear, the late Joe Paterno, the long-time head coach of the Nittany Lions, was aware of Sandusky’s crimes, at least since 1998, and took numerous steps to prevent them from coming to light. Paterno passed away shortly after he was fired last fall when the enormity of Sandusky’s crimes was finally brought to light.

The current debate revolves around the appropriate penalty for Penn State for the misfeasance of Paterno and other university officials. Much of discussion has involved the question of whether or not Penn State is an appropriate candidate for the NCAA “death penalty,” i.e., the elimination of its football program for a period of years. Technically, this penalty is available only for schools that were already on NCAA probation, which Penn State was not; moreover, as the Journal Sentinel’s Michael Hunt  and others have pointed out, draconian prospective punishments would most directly harm current players and new coach Bill O’Brien and his staff, none of whom were in any way responsible for the scandal.

I would like to propose the following as an appropriate punishment:

(1) Require Penn State to forfeit all its football victories since 1998 (or whenever Joe Paterno first learned of Sandusky’s crimes and decided not to report them). This would have the effect of removing Paterno’s name from the top of the list of college football coaches with the greatest number of victories. No longer would his name be in any way associated with the concept of coaching excellence, and it would be a meaningful punishment, especially for someone who is already dead.

(2) Require Paterno’s family to repay the more than $5 million dollar “retirement package” that Paterno negotiated while he was knowingly covering up Sandusky’s transgressions. The idea that the university is contractually obligated to make such payments is absurd, as is the idea that it would have agreed to such an arrangement had Paterno revealed that he had been covering up the heinous crimes of his pederast pal for more than a decade. The money can be used to support the victims of Sandusky’s crimes and Paterno’s indifference.

(3) Tear down the statue of Paterno that sits outside Beaver Stadium, the Penn State football field. If Paterno’s supporters in positions of power refuse to do so, then perhaps the good people of State College, Pennsylvania, will be inspired by the example of the residents of New York City in 1776, who on their own and in defiance of formal authority toppled the equestrian statue of King George III on Bowling Green and melted it down into slag.

 

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Judging Mothers

A mother’s choice about whether to breast feed or bottle feed her infant may seem like a purely personal decision. In fact, for decades it has been an individual decision with wide-reaching social, economic and political ramifications. Issues have ranged from the economic interests of large baby formula manufacturers to the introduction of formula in developing countries where there are problems with its safe use to medical advice suggesting that breast milk is superior for babies and social disapproval of women who either don’t nurse their babies or who stop nursing before the recommended one-year mark.

In an opinion piece in today’s New York Times, author Alissa Quart discusses the fact that less than 50% of American babies are breast-fed for at least six months, despite a medical culture that sometimes portrays formula as “evil” and a competitive mothering society where women ask each other “How long did you go?” Quart opines that this is understandable, given the time-consuming nature of breast-feeding, and the demands of many women’s workplaces which offer little or no maternity leave, little on-site daycare, and not enough flexibility to allow women to either structure their hours to allow nursing, or to pump milk while at work for later use by a caregiver. She argues that this breast-feeding obsession is part of a social phenomenon that seeks to eliminate all risks to children, and that we need to allow women to make individual decisions without subjecting them to guilt trips.

In The Conflict: How Motherhood Undermines the Status of Women (newly released in an English edition), French sociologist Elisabeth Badinter argues that the aggressive push for breast-feeding engineered by doctors, governments, and private groups such as the international La Leche League, is a significant part of a larger social agenda to demand perfection in parenting and especially in mothering. This has huge social and economic ramifications, according to Badinter, because seeking mothering perfection along these lines precludes women from equal competition in many professions, and leaves them at a permanent economic disadvantage in the workplace.

So what relevance do these discussions have for a legal blog?

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Miller’s Unanswered Questions and the Future of the Eighth Amendment

Since it was handed down late last month, the Supreme Court’s decision in Miller v. Alabama has deservedly received much attention from lawyers and nonlawyers alike.  The Court held, on Eighth Amendment grounds, that juveniles may not be sentenced to mandatory terms of life imprisonment without parole; “JLWOP” can only be imposed by a judge who has discretion to consider the juvenile’s “youth and attendant circumstances.”  (20)  Miller thus nicely complements the Court’s 2010 decision in Graham v. Florida, in which the Court banned JLWOP for all offenses less severe than homicide.  In Miller, the Court preserved JLWOP as a sentencing option in homicide cases, but only if certain procedural requirements are satisfied, that is, only if the sentencing judge considers “youth and attendant circumstances.”

Like Graham, Miller breaks down a doctrinal barrier between capital punishment and the lesser sentence of life without parole.  In Graham, for the first time in a noncapital case, the Court used the methodology it had developed for determining whether the death penalty could be applied to particular categories of offenders, such as juveniles and the mentally retarded.  Before Graham, it seemed as if there were no meaningful substantive limitations on noncapital sentences.  Similarly, before Miller, there was a well-developed body of Eighth Amendment doctrine regarding the sentencing procedures that had to be followed in capital cases, but no corresponding doctrine for noncapital cases.  Miller suggests that the procedural rules may now be migrating, along with the substantive limitations, into LWOP cases and perhaps beyond.

Graham and Miller may lay the foundation for a revolution in the constitutional law of sentencing.  Or maybe not.  It’s too early to say for sure.  Perhaps this Court just has a soft spot for kids (see, for instance, last term’s decision in J.D.B. v. North Carolina.)

In any event, as the revolution or non-revolution plays out, we are likely to see the courts wrestling with many interesting questions raised by Miller.  I’ll highlight a few in the remainder of this post.

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