Double jeopardy, ex post facto, and Ray Rice

Ray Rice's knockout punch to his fiancée is a serious offense that needs to be treated seriously.

But the way the NFL is treating it isn't right, and for reasons that criminal law worked out long ago.

Here's the sequence of events as I understand it: 

First, Rice is suspended for two games by the NFL.  

Second, the NFL - chastened by criticism of that limited response to Rice's conduct - announces a new policy under which domestic violence will be punished with a 6-week suspension.  

Third, the video of Rice's punch is posted online by TMZ.  

Fourth, Rice is suspended indefinitely.

Suppose the NFL was a government and acted in this same way. We'd feel at once that Rice had been punished twice for the same offense - a violation of the double jeopardy rule found in the Fifth Amendment. Under that crucial protection, once the state has punished you for a particular crime, they can't punish you again for it.

Could it be said here that Rice was punished first for dragging his unconscious fiancée out of the elevator, and then punished later for having punched her? I think that's hard to claim - there's no sign that the NFL ever thought he hadn't punched her.

Could it be said that the offense turned out to be nastier than the NFL initially knew? Maybe - that depends on when they got the video and what other evidence they had. But they decided they had enough evidence to make a judgment on, and I think that once they made that decision they would have been held to it - if they were a government.

Then there's the question of the second sentence. If a government amends its armed robbery statute, for example, to increase the penalty from 5 years' imprisonment to 10, people who commit armed robbery before the amendment can only be sentenced under the law that was in force when they committed their crimes. Here, the NFL announced a new policy of 6-week suspensions but initially - and appropriately - didn't propose to apply the new penalty retroactively to Rice. But then the second video goes online - and then the NFL not only increases Rice's penalty but increases it to more than the new penalty they've just announced! All of this would violate the prohibition on "ex post facto" laws, which can be found in Article I, Section 9 of our constitution.

Obviously the NFL is not a government - though in some ways it is probably more powerful than many governments are. But the double jeopardy and ex post facto rules reflect hard-won understanding of how the power to punish can be abused. Broadly, they require that the power to punish be used deliberately and carefully - and not out of panic or to pander to public passion. It doesn’t seem as if the NFL has learned that lesson.

An extraordinary teaching moment

From David Schalkwyk’s wonderfully thoughtful Hamlet’s Dreams: The Robben Island Shakespeare (2012) (at pages 75-76), this moment from a University of Cape Town classroom around 1991, when apartheid was dying but not yet dead: Schalkwyk’s students were discussing a poem by a white former prisoner, Jeremy Cronin, who describes hearing the singing of uMkhonto we Sizwe guerrillas facing execution. Cronin’s poem includes these lines:

            Three voices

Called or

            Moise

Combine or responding

            Tsotsobe

Weaving

            Shabangu

In the classroom the students began debating whether the white prisoners would really have been close enough to the black prisoners on death row to hear their singing.

Schalkwyk recounts: “In the midst of an earnest discussion, which had divided the class, a quiet reserved man put up his hand. I think Cronin is right, he said. This did happen. A pause. I was there; I am David Moise.”

The class and Schalkwyk were stunned. Moise’s name on Schalkwyk’s class list hadn’t caught his eye, and apparently Moise had, with the other students in the class, read a number of other pieces of prison literature that had not prompted him to identify himself this way. Schalkwyk writes that, “On reflection, I have always been struck by the fact that this revelation was provoked, not by the many memoirs of imprisonment on Robben Island, but by a poem.”

Schalkwyk’s book itself demonstrates, powerfully, that Shakespeare has a lot to say about Robben Island and South Africa. But perhaps nothing can prove the point that literature helps give meaning to life more vividly than this moment when life and literature fused in the classroom before everyone’s eyes.