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Penn State and the Diffusion of Criminal Responsibility

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The NCAA has announced sanctions on Penn State that are unprecedented in their harshness:  fining the school $60 million, banning it from bowl games for four years, and vacating all its wins from 1998 to 2012.  The Wall Street Journal has the story.

No one believes more strongly than I in punishment for wretched behavior, and the behavior of Penn State's assistant football coach Jerry Sandusky was as wretched as it gets, save only for murder.  But for the wrongly decided Kennedy v. Louisiana, he would and should be eligible for the death penalty.

That said, today's NCAA action seems all wrong to me, for several reasons.  First, it does nothing to punish the main actor, Sandusky, who's in jail and will almost certainly remain there for the rest of his life.  Second, it diffuses Sandusky's responsibility by spreading the blame to the football program.  But the program  --  and, indeed, football  --  had only a quite indirect connection to the crime.  Indeed, I have not seen any evidence, or even a suggestion, that a single Penn State football player so much as knew what Sandusky was up to.  Yet it is the players and, more broadly, Penn State students and alumni, who will be hurt most by today's action.

The argument is that those above Sandusky, in particular Coach Paterno and the University's then-President, should have exercised what the NCAA calls "institutional control."  Assuming arguendo the legitimacy of that gossamer concept as applied in this extremely unusual context (sex crimes by an assistant coach), it is still unpersuasive.  Paterno is dead, and the University President got fired months ago. Who's left to take the brunt of this? 

Punishment is all to the good when directed at those responsible, but punishing those who aren't deflects our focus on the real culprit and dilutes the moral authority to punish at all.   

7 Comments

"vacating all its wins from 1998 to 2012"

I do not know if I would concur, were I influential.

The NCAA did similarly and with an even more remote association in the case of FL State, taking wins away in football--Bobby Bowden's program--because of cheating on tests by swimmers and other athletes including a few football players (I recollect).

No proof of knowledge by Bowden or any others in the football program was alleged, I believe, so there was no cover-up such as by Paterno.

~~Adamakis

Adamakis --

Cheating by football players can improve their grades up to the point needed to maintain eligibility to take the field. A team cannot legitimately compete or, a fortiori, win, with ineligible players. Therefore the cheating scandal at Florida State affected, or at least had the realistic potential of having affected, the team's won-loss record in a way that Sandusky's molesting little boys plainly did not have at Penn State.

More evidence of our paternalistic, "overreaching " society.

This was not properly within the confines of NCAA purview in my view. The NCAA's mission is to regulate college athletics to insure renegade programs do not gain a competitive advantage. There was no advantage gained by Penn State's mistakes and mishandling of this tragedy. This is a matter, plain and simple, for the criminal and civil courts.

Overreaching paternalism, like the advanced welfare state, weakens rather than strengthens our society.

Bill, it seems to me your comments are a criticism of virtually ANY disciplinary action taken by the NCAA, as it is very nearly always the case that by the time the NCAA completes its investigation and imposes sanctions, the people who suffer from those sanctions are very nearly always people who had no part in the misconduct (case in point: the recent sanctions against USC, which were levied long after Reggie Bush and Pete Carroll had left the school and taken jobs in the NFL).

I also have to say I disagree with your assessment. Sandusky assaulted his victims in the football locker room, and he used his connection with the football program to lure and groom his victims. The football program (in the persona of Joe Paterno) and the university itself (in the personas of its president, vice president, and athletic director) knew this was going on, yet covered it up and allowed it to continue to avoid bad publicity for the football program. Therefore, both the football program and the university itself as institutions, not just individuals, deserve to be harshly punished for their transgressions. I have zero problems with what the NCAA did.

notablogger,

Two points if I might. First, you are correct that my criticism could be appled to most NCAA penalties. That, however, is not to say the criticism is incorrect; it is to say that the penalties -- nearly always retrospective and poorly aimed, as you suggest -- ought to be changed. There was somewhat more justifiction for them in the Reggie Bush/USC case, however, since the USC culture that encouraged the Bush problem was still on campus. That is not true of Penn State.

Second, there was more attentuation between the offenses and the football program at Penn State than between the offenses and the typical program against which they are levied. Typically, the penalties have to do with the program's trying to get a competitive advantage by recuriting violations or allowing player cheating to remain eligible (as recently happened at North Carolina). What went on at Penn State did not give the program a competitive advantage; indeed, it had nothing to do with the program's success.

Lastly, I have never been a fan of the "X-could-have-done-more-to-prevent-it" theory. It is not up to X to prevent people from illegal and immoral behavior. It is up to the individual himself to refrain from such behavior whether or not X even exists.

I'm sure that you, as a distinguished prosecutror, have heard time and again the ancient excuse that, "The state (or the schools or the parents or you name it) failed the defendant." My guess is that you never fell for it, and uniformly urged the court not to fall for it. Paterno and others in the Penn State hierarchy might well have done more, although that seems to me to be open to question, because I have never been able to find out what they actually knew, as opposed to what that "had heard" or what was suspected or rumored. But Paterno was not in any event dealing with an NCAA violation. As mjs points out, he was dealing with a criminal violation only indirectly linked to football. It just seems misaimed to me for the NCAA to fire the atomic bomb at the football program -- knowing it will hit a whole bunch of innocent people, including (indeed probably mostly) students -- for something much more attenuated from NCAA activities than most of the objects of its ire.

Well, no, they didn't nuke the program, or even give it the "death penalty." (Hopefully my Google Alert for "death penalty" will stop giving me Penn State stories shortly.) Penn State still has a football program. They just won't be in bowl games.

Yes, this penalty is going to hurt a lot of people who had no complicity in the offense. Penalties against organizations generally do. As the OP notes, the people most deserving of punishment on a retribution basis are no longer with the program.

That said, though, I think there is some deterrent value in taking the football program down a notch as a consequence of university leaders putting the program ahead of the kids. You can bet it has the full attention of college coaches and administrators nationwide. The root problem was their devotion to the football program over all other considerations, and knowing that this kind of blow to the program is a possible consequence may encourage others to make more responsible decisions in the future.

Just deserts and deterrence considerations do not always point in the same direction, and when they do not it leaves me feeling a bit conflicted about the outcome.

Kent just stated what I was trying to express in a far clearer, more articulate way as far as explaining why the football program and the university as institutions deserve punishment, and why there is value in that.

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