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.

Human community via the Super Bowl

Last night for the first time I saw Super Bowl volunteers in New York. Some were on duty, some making their way home for the night, all wearing yellow windbreakers announcing their role. Perhaps these folks are the NFL’s version of unpaid interns, people who are trying to network their way to a job and meanwhile being exploited by the powerful – and, amazingly, “nonprofit” and tax-exempt – NFL. But my guess is that many are not looking for a job but instead are happy to serve as volunteers for the pleasure of being part of the experience (and the souvenir windbreakers).

They are fans of the Super Bowl itself – and such devoted fans that they give their own time in service on the periphery of an event that they will surely not be able to afford a ticket to attend. I admit it’s hard for me to see this event as the one that people should give their hearts to (I like watching the Super Bowl, but it’s a game and one that a lot of people profit from rather flagrantly). As my wife asked, isn't there a charity these volunteers could be sustaining? Still, tastes differ. We are creatures who often want to be part of the cause and the crowd and the excitement, and it may be that there simply is no bigger event to join in the US right now than the Super Bowl. Slightly more people voted in the 2012 Presidential election (about 129,000,000) than watched the 2012 Super Bowl (about 118,000,000 at the end of the game), but this year isn’t a Presidential election year.  

Perhaps we should accept that human community is a good thing wherever it comes into being, as long as it is not the communalism of mob violence, and so we should welcome the Super Bowl community simply because it is a community. Of course, this is a community built around a game that’s a very violent one, not deliberately lethal in the manner of the gladiatorial contests with which the Romans entertained themselves, but with plenty of immediate risk and visible and invisible longterm harm. I’m not so ready to say that community formed around the sight of others enduring and inflicting danger and pain is always good, but it’s impossible to deny that it touches something deep in many people. Hockey, rugby, boxing, auto racing and other sports make that pretty clear.

At any rate, even if Americans increasingly “bowl alone,” as Harvard Professor Robert Putnam has argued, we can certainly declare that they do not Super Bowl alone.