Wednesday, May 16, 2007

 

Law 010: Principles of Sentencing (for Dilettantes)

"It is not a matter of fairness, it's a matter of correctness," said Stu Jackson, NBA executive vice president, "and this is the right decision at this point of time."

And thus, even though the Spurs' Robert Horry was the only one who actually committed violence, it will be the Phoenix Suns whose roster will be seriously harmed for Game 5, and the Spurs came out ahead.

I certainly won't be the only one looking at NBA and NHL discipline side-by-side today; it's appropriate. My main take is that while justice administered arbitrarily is hardly worthy of its name -- the Colin Campbell Wheel of JusticeTM ain't a term of endearment -- neither is justice administered by formula.

My objection to the Wheel has never been that seemingly similar transgressions have been punished differently, but rather how difficult it is to glean what criteria are used and how they are weighed. If that seems a little fuzzy, read on.

Since criminal law has thousands of years of history on supplementary discipline in pro sports, and about infinity times more scholarship, I think it's instructive to look at theories of criminal punishment if we're trying to voice an intelligent objection to the way the NHL and NBA go about their businesses. From everybody's 2nd-favourite website (behind imdb.com), Wikipedia:
There are five main goals of criminal justice: retribution, deterrence, incapacitation, rehabilitation and restitution. Jurisdictions differ on the value to be placed on each, if any at all.

So let's look at the jurisdiction that is the NHL, shall we?

Incapacitation: setting aside other factors, a serial killer needs to be locked up so that he can't kill more innocent people. There's not really an NHL analogue to this. I know that every so often in Junior B or minor pro leagues, a player is "banned" in part for this reason. However, I know of no NHL precedent where a player was given a long or indefinite suspension expressly for the protection of other players.

Rehabilitation: likewise. Sending a hockey player to anger management classes or some such thing just isn't analogous to the objective -- however effective it might be -- of transforming a criminal into a productive member of society, via education/therapy/whatever.

Deterrence: this is an obvious aim of NHL Supplementary Discipline, both individual deterrence ("maybe this'll make you think twice before you crosscheck someone in the face again") and general deterrence ("any of you other clowns want to try something similar, be aware that this is what'll happen to you"). The rough consensus among fans and media seems to be that the NHL doesn't do enough in this regard. I don't really want to get into it, but I will note this sentence from the Wikipedia article, which is consistent with everything else I've read on the subject of general(e.g. death penalty scholarship): "While of useful rhetoric value, studies do not generally suggest increasing penalties for a specific offence reduces the commission of that offence."

Retribution: this is the other primary aim of NHL S.D., and please don't confuse it with revenge. It's simply the idea that, regardless of other considerations, offenders ought to suffer consequences for their misdeeds. It appeals to our general sense of right and wrong (fairness), as thinking humans.

Clearly these two factors -- deterrence and retribution -- are what is weighed when the NHL considers supplementary discipline. And for the record, I think (conceptually) it is entirely appropriate and just. I strongly disagree with the segment of the fans/media who argue -- generally in the aftermath of a suspension that seems too short -- that there ought to be specific penalties for specific acts, period. (In other words, that sentencing should be all or mostly about deterrence: you get 10 games for doing X, 3 games for doing Y, etc.)

Mandatory minimums and zero tolerance can sound great in theory, but they have less than illustrious histories, and too often result in situations that are patently unjust. You get a schoolkid being expelled for bringing a butter knife in this lunch to put cream cheese on his bagel, or suspended for popping a Tylenol. And you get the NBA VP admitting that, "Hey, it's brutally unfair, but rules are rules."

The other problem with this is that when you give the act (e.g. hitting someone from behind) more weight, you necessarily give the consequences (e.g. whether the victim is injured, and how badly) less weight. That to me is unjust.

Take Jordin Tootoo, Scott Nichol, and Todd Bertuzzi. All were guilty recently of comparable (if not identical) offenses: sucker punching a guy in the back of the head. Tootoo got no suspension; Nichol got 9 games; and Bertuzzi got the most severe suspension in the history of the NHL.

I will listen to arguments that the exact length of any of these suspensions was inappropriate. However, you will never convince me that enraging Ryan Clowe (and receiving a proper beating in return) deserves the same punishment as breaking Steve Moore's neck. It is proper and just that Todd Bertuzzi was made to pay a higher price than Scott Nichol (Jaro Spacek was back the next game).

The other end of this spectrum is "eye-for-an-eye", which is also unjust. While (per the previous few paragraphs) I think it's fair for a backchecker who breaks another player's wrist with a slash to suffer greater consequences than someone who does not cause an injury, it stretches the bounds of justice too far to punish 99 versions of a bad act with a two-minute minor and the 100th with a two-month suspension.

This segues somewhat into the 5th principle, which is Restitution. Generally speaking (e.g. in the regular season), it is impractical to impossible to make restitution an element of NHL discipline. If Andrew Ference breaks Ryan Smyth's ankle with a slash, there is nothing the NHL can do -- or force the Bruins to do -- to compensate the Islanders for their loss. Suspending Ference doesn't really help the Islanders -- no more than the rest of the Eastern Conference, anyway.

Even in the playoffs, what are you going to do? Brad May dropped Kim Johnsson like a bag of dirt in G4 of Ducks/Wild, and was suspended for the rest of the series, but as everyone noted, this was not a fair trade-off. It seems like there should be something that the NHL could do to balance things out better, but I don't know what. (Suggestions?) You can't suspend Innocent 3rd-Party Scott Niedermayer; while it would better balance out the Wild's loss of Johnsson, he didn't do anything. (And further, that wouldn't just affect the balance of that series; it could have implications on Niedermayer's future earnings and legacy.)

Apparently, the NHL will be conducting a hearing on Chris Pronger this afternoon. I'm guessing that he'll receive a 1-game suspension, mainly on the basis of deterrence (in short: you just can't go around smashing people's heads from behind into the boards, particularly when you're pissed off because you're getting your ass handed to you). The need for retribution and restitution is (thankfully) minimal, as Holmstrom was not seriously injured (and has also apparently shrugged it off already).

I realize this post has been long and windy, so I hope there's something of interest in here for everyone. I think Colin Campbell could be better at his job, but I wouldn't want it myself, and don't envy him. If there's two things I hope readers take away, these are them:
  1. It is just and proper that NHL supplementary discipline is evaluated case-by-case and takes everything into account: the act, the injury (if any), the situation. While the NHL VP's best judgement seems crappy sometimes, the alternatives are worse.
  2. Next time you're reacting to a light suspension for a dangerous hit, and are tempted to say, "It shouldn't matter that the guy wasn't injured", ask yourself if you honestly believe that (say) paralyzing someone isn't grounds for more severe punishment.
I suspect this whole piece will need a coda or follow-up; we'll see.

Comments:

Awesome post - well thought out and thought-provoking.
 


Great post, though I wish it focused more on the Stoudemire/Diaw ruling, if only because that's what I'm more obsessed with right now. I'm also glad that you gave the Stu Jackson quote I've been staring at for the past twenty-four hours. I just can't get over the fact that an African-American in the 21st century could utter the line, "It is not a matter of fairness, it's a matter of correctness" and not somehow feel dirty about it. Thank God he wasn't Chief Justice of the United States Supreme Court in 1954.
 


I think you've illustrated the issues well here, Matt, and your prediction was indeed accurate.

Next time you're reacting to a light suspension for a dangerous hit, and are tempted to say, "It shouldn't matter that the guy wasn't injured", ask yourself if you honestly believe that (say) paralyzing someone isn't grounds for more severe punishment

I agree that there should be more severe punishment for more severe consequences. But I would suggest, as a corollary to this sentiment, that a lack of a serious outcome (eg. player injury) should not be the sole justification for non-punishment of a dangerous act (eg. elbowing a player's head into the glass from behind.)
 


I have to go back to the NBA's rule for leaving the bench, if only because I know there are lawyers who read this site. My own sense is that the rule is terrible law because it automatically punishes someone not for what they in fact do, but what they might do. No one is really being punished for standing up and walking from point A to point B. Rather, the punishment is being meted out because there's an expectation that standing and walking from point A to point B will lead to violence. But in my opinion, unless the NBA has pre-cogs in their offices, the expectation of something occuring isn't legal justification for inflicting a suspension on a player. What say thou, lawyers of the night? Myself, I don't understand how a lawyer like Stern could let a rule like that be created. Okay, he's an insane control freak who has been running the NBA with an iron fist for over twenty years, so I understand it. But how the hell did the player's union let that one stand?
 


Andy, as to your first comment, that quote's a doozy alright. I'd love for some reporter to ask Stern or Jackson if there's anything else that's a higher priority for the NBA than behaving fairly.

The rule is surely overkill, and seems pretty stupid to me, but I doubt it's anywhere near a "rights" issue (it's collectively bargained, I'm sure). How can it stand?

I'd guess it has at least something to do with the large number of North Americans who simply have hard-ons for strong authority figures, and outright admire someone who will enforce the rules even when it produces unjust outcomes.

Par, agreed, and JP, thanks.
 


The NHL has a similar rule - first off the bench in an altercation is an automatic suspension whether he participates in the altercation or not. My memory is a little fuzzy, but I think I remember someone being suspended for first off the bench even though he was only going out to congratulate his goalie on a win, but a fight had broken out with :01 or :02 still on the clock in the third.

The third-man-in rule works more or less the same way, the player receives a penalty even if he's trying to break up the fight.
 


I think David Stern has been edgy since the brawl in Auburn Hills at the Pistons-Pacers game. The odd thing is that by acting in such a dictatorial manner, he makes it seem as though the players are more of a problem than they actually are (unlike the NFL, which is full of players facing actual criminal charges, instead of walking in the wrong area so it might be possible that they would participate in a brawl, if one were to break out). If he didn't overreact, it wouldn't bring as much attention to it.

And I agree with the notion that severity of punishment has little effect on deterrence. It isn't the severity of punishment that has deterent effect, but the certainty of punishment. It's comparatively easy to pass laws to increase the punishment for certain crimes, though, and building prisons can actually help out a local economy if nothing much else is available to provide jobs. Increasing the certainly of punishment-by more effective policing, etc.-is harder and more expensive. Thus, people once again take the easy way out.

Although I would like to see some kind of guidelines in the form of ranges, even suggestive broad ones; this offense generally nets a suspension of three to ten games, for example, while another is usually five to fifteen. Humans are far too complicated to fit into simple formulas, though.

--Baroque
 


The NBA's rule is a silly and over-inclusive rule intended to protect the League's image, but they're obviously well within their right to make such a rule.

It's similar in some ways to the crackdown in the NFL where players are getting suspended without being convicted of anything (see, for example, Pacman Jones). Is it "fair" to punish a guy who no court of law has found guilty? Maybe not, but the NFL has an image to protect and they're saying that they're not going to tolerate any of the behavior that sullies that image, technically legal or not. As a private employer, they're free to set the rules for the conduct of their employees (within some limits), and that's what the NBA has done here.

It's a silly rule and a questionable application of it, but in a League with an image problem they've chosen to err on the side of casting the wide net and hauling in some innocent folks with the real offenders, which brings me to the next point.

As to how the players' union stands for a rule like that, IMO it's again similar to the NFL - you don't hear their players' union standing up for the Pacmans (Pacmen?) of the world because they realize that when the League's image is cleaned up, it means more comfortable corporate sponsors which mean more revenues for the owners and a higher salary cap and higher salaries for the players.

Maybe it's a bit cynical, but follow the money - in the NFL and the NBA these decisions are about the white guys in suits, not the guys in uniforms, but there is an upside for the players as well. [On a sidenote, perhaps that's why the NHLPA didn't put up any noticeable fight on the instigator rule or defending its players on stick infraction suspensions, etc.]

Bottom line: these Leagues are making their product more palatable to their corporate masters and the players are accomplices in doing so. Some changes are good (I like what the NFL is doing), some aren't (like this rule). Unfortunately, I'm not sure who's looking out for us fans.

And I am an attorney, but please don't hold that against me (and sorry for the lengthy rant).
 


"You get a schoolkid being expelled for bringing a butter knife in this lunch to put cream cheese on his bagel, or suspended for popping a Tylenol. "

You're wrong here. The reason those things happen is the rules are not specific enough.

"The other problem with this is that when you give the act (e.g. hitting someone from behind) more weight, you necessarily give the consequences (e.g. whether the victim is injured, and how badly) less weight. That to me is unjust."

This is absolutely backwards. The act is what should get the scrutiny , not the actual result.

If I shoot you and you don't die, I should get a lighter sentence because I missed? Ridiculous. If 100 players are cross-checked in the face and one of them by mere fluke isn't injured, the guy that did it should get no punishment? Ridiculous.

The potential consequence of the action is what should be considered - not the lucky or unlucky nature of the actual incident.

An inch one way or the other and Holmstrom could never play again. Luckily that didn't happen but it doesn't change the severity of what Pronger did, and shouldn't affect the punishment handed out.

"I think it's fair for a backchecker who breaks another player's wrist with a slash to suffer greater consequences than someone who does not cause an injury"

That's absurd, for the reasons stated above. There's no way you can know whether or not you're going to break the person's hand when you start taking your swing. The simple fact that you know you very well could shows your reckless intent and you should be penalized the same whether the other person is lucky enough to escape injury or not.
 


"ask yourself if you honestly believe that (say) paralyzing someone isn't grounds for more severe punishment"

You're asking the wrong question here. It should be "ask yourself if you honestly believe that you shouldn't get as severe a punishment after hitting someone in the neck with a bat, simply because you didn't hit them in exactly the right spot to break their neck."

Getting lucky and not severely injuring someone should not get you a lighter sentence.
 


"the expectation of something occuring isn't legal justification for inflicting a suspension on a player"

It's about deterring an act that is a clear escalation that could directly or indirectly lead to a larger altercation, and it makes perfect sense to deter this type of thing.
 


"studies do not generally suggest increasing penalties for a specific offence reduces the commission of that offence."
T'is terribly unintuitive: is one just as likely to speed if at risk of a $1 fine as a $10,000? Maybe the severity of punishment is only irrelevant if the chances of being caught are judged to be very low??
I'm so not a lawyer...
 


Paul -

There's a legal doctrine called the "eggshell skull rule" that basically holds that a defendant is responsible for all the consequences of his actions, whether they result in a foreseeable injury or one that couldn't be foreseen.

I'm not saying it's right or should be applied to adjudicating sports discipline, but it's a very commonly-applied legal doctrine.
 



The NHL has a similar rule - first off the bench in an altercation is an automatic suspension whether he participates in the altercation or not.



Rule 72:Leaving the Players' or Penalty Bench

...
c) The first player to leave the players' or penalty bench from either or both Teams shall be suspended automatically without pay for the next ten (10) regular League and/or playoff games of his Team.
d) The second player to leave the bench from either or both Teams shall be suspended automatically without pay for the next five (5) regular League and/or playoff games.
...
u) The Coach(es) of the Team(s) whose player(s) left the players' bench(es) during an altercation shall be suspended, pending a review by the Commissioner. The Coach(es) also will be fined a maximum of ten thousand dollars ($10,000).
 


I might take on Paul's comments later, but for now, I don't think comparing the NBA's "stay off the court during scuffles" rule with the NHL's "leaving the bench" rule is fair at all.

- The matter of the physical barrier (the boards) is relevant, it takes more of a conscious effort to leave the NHL bench.
- NBA players are *not* strictly forbidden from "leaving the bench" in other circumstances, NHL players are.

I think a better analogy to the NBA rule would be if the NHL amended the "3rd man in" rule to say that you couldn't get within 10 feet of a fight. Then you'd have a "no-go zone" appear where there wasn't one before, the instant any kind of confrontation became an "altercation".
 



I might take on Paul's comments later


Somebody definitely should.


I don't think comparing the NBA's "stay off the court during scuffles" rule with the NHL's "leaving the bench" rule is fair at all.

I agree. I posted the rule because there seemed to be some confusion, but I don't think it is a fair comparison either. An additional gray area in the NHL is that players are coming and going all the time with on the fly changes, etc. If a player leaves the bench during an altercation and returns to the bench almost immediately at the urging of his coaches, he probably wouldn't receive the suspension.
 



You're asking the wrong question here. It should be "ask yourself if you honestly believe that you shouldn't get as severe a punishment after hitting someone in the neck with a bat, simply because you didn't hit them in exactly the right spot to break their neck."


What about the person who falls asleep at the wheel and hits a mailbox? Should that person be as severly punished as the person who falls asleep and hits a person? It doesn't make any sense to me to completely ignore the actual damage caused.
 


paul is the consummate bureaucrat. There is a degree of impracticality that's being missed.

"You're wrong here. The reason those things happen is the rules are not specific enough."

You're wrong here. Its impractical to be too specific. The mere effort of trying to account for every eventuality will lead to the breakdown of the system of justice. And hence it's won't be dispensed. Leading to the peanut butter and knife situations (more on that later).

Which leads to the next bit:
"If I shoot you and you don't die, I should get a lighter sentence because I missed? Ridiculous. If 100 players are cross-checked in the face and one of them by mere fluke isn't injured, the guy that did it should get no punishment?"

Yes. In the same vein of using extreme analogies that don't quite fit, if you didn't die when I shot you, can I be tried for murder and given the death penalty (assuming we're playing hockey in Dallas, Texas)? Even if I wanted to kill you? Answers aren't provided by rhetorical questions or mental gymnastics. So I'm not gonna bother with the next comment which led to the conclusion: "The potential consequence of the action is what should be considered" except suffice it to say you would at any given point in the season have suspended half of all hockey players.

"It's about deterring an act that is a clear escalation that could directly or indirectly lead to a larger altercation, and it makes perfect sense to deter this type of thing."

In most situations, you can't prove escalation. Take the Bertuzzi situation. The escalation happened between games, consciously or sub-consciously. What are you gonna do there? In a bench-clearing brawl, 99 times out of 100, the player first off the bench would admit it doing it again in the same circumstance, even if they could go back in time. If that rule actually deterred players, then we would see evidence of it. I think the whole point of that rule is not to deter but what Matt pointed out, retribution - as its usually the team that misses the player more than the other way around. If they really wanted to deter players from piling on the ice, the second man should be suspended with more games than the first. Especially because the second man is following and not leading.

The point to be salvaged in all this if you still can is that rules in general should be applied to specific situations and not that there should be a specific rule for every given situation. which goes back to matt's point evaluating on a case-by-case basis.

Especially, hockey, the game as its played, isn't a game that lends itself to evaluating plays in a discrete, static manner where the flow of the game is not interrupted by taking time to judge, like in say baseball. Anybody else hate the puck over the boards penatly? I would be much happier if a referee was given latitude to judge if it was accidental or not. I wouldn't even mind the blown calls.
 


"Anybody else hate the puck over the boards penatly? I would be much happier if a referee was given latitude to judge if it was accidental or not. I wouldn't even mind the blown calls."

That's the equivalent to peanut butter and knife. forgot to say that.
 


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