There is something missing from the federal prosecution of “corruption” in college basketball: a sense of justice. There have been some small plea bargains and petty-crime verdicts, and another trial is scheduled to start against a couple of minor figures this week. But absent from all of it is a meaningful rationale: Prosecutors have not yet made a convincing case for why these matters are in a courtroom.
If you are uneasy with the strenuous efforts of Southern District of New York prosecutors to turn NCAA recruiting violations into federal cases, you should be. You might not want the same standard applied to yourself. Aspiring agent Christian Dawkins and sneaker consultant Merl Code Jr. face a second trial on fraud charges beginning Monday, though they don’t seem to have had any serious criminal intent to deprive anyone of anything of real value. In fact, they helped schools get exactly what they wanted: skilled players who brought in millions in revenue.
So why are we here? I already can hear the footsteps of the “rule-of-law” martinets as they come scurrying forward, but the fact is that lots of objectionable behavior goes uncharged by fair-minded prosecutors. Not all misconduct belongs in the federal criminal system. Preet Bharara, the former U.S. attorney for the Southern District, writes in his fascinating new best-selling book, “Doing Justice”: “If prosecutors did everything within their lawful and constitutional authority, we’d be living in a hellscape. Discretion, judgment, wisdom, restraint matter too.”
The college basketball prosecutions raise the question of overcriminalization, our tendency to misuse law in an attempt to solve every societal ill and punish every paltry iniquity. Bharara as a matter of ethics declines to comment on any cases handled by his former office. But a conversation with him on the general principle of when to prosecute helps thresh out the issues at stake.
There is a constant “tension” for prosecutors in deciding what is merely objectionable conduct and “a thing that reasonable people would want to see punished,” he says. Sometimes prosecutors walk away though the public may bay for retribution. And sometimes it’s important to prosecute certain conduct even if it seems harmless because, he says, “There can be an undermining of the system and a transgression of fairness without direct personal benefit.”
Here is what Dawkins did wrong: He paid college assistant coaches to recommend him as an agent to players when it came time for them to sign with the NBA. Code’s transgression was to pay top recruits to play for schools sponsored by the company he worked for, Adidas. In any context other than the NCAA rule book, you might call those referral fees. But prosecutors are calling their actions “honest services fraud.”
This is a charge so overly broad and vague that the Supreme Court and the American Bar Association have looked askance at it lately because it too often is misapplied. Here are troubling examples cited by the ABA: a college student convicted simply for plagiarizing and a New York lawyer jailed for side payments to insurance adjusters to accelerate his clients’ claim-processing.
The Supreme Court was so concerned with the misuse of “honest services fraud” that it overturned the conviction of former Virginia governor Robert McDonnell and his wife for accepting $175,000 in loans and gifts. The court cited the need to differentiate between conduct that is merely “distasteful” and truly corrupt. The court also was determined to rein in what it called a tendency toward “boundless interpretation” of the statute by prosecutors.
Wire fraud statutes were written to prevent real stealing. Bribery statutes were meant to apply to corrupt actions by public officials. In the college basketball cases, they have been bent into technicality pretzels, to apply to college sports figures on the tenuous connection that universities receive federal funds and some cash went across state lines.
The last judge whom Dawkins and Code went before, Lewis A. Kaplan, was so queasy over a jury’s decision to find “wire fraud” that he handed down significantly lighter sentences than what the feds asked for — instead of three to five years, he gave them just six months — and has allowed Dawkins and Code to remain free while they appeal. Their lawyers will make a powerful argument in appellate court that jurors did not fully understand the government’s duty to prove intent to defraud.
The Southern District of New York is one of the great legal institutions in this country. It prosecutes thousands of righteous cases, against Russian arms dealers and terrorists and inside traders. But that’s all the more reason its power has to be used sparingly.
When such a powerful office conducts a long investigation, “What often accompanies all this investigative action and forward motion is a dangerous psychological momentum,” Bharara writes in his book. “. . . Investments are being made. And expectations are being set.” Law enforcement agencies, like anyone else, “desperately want something to show for all our work.” He adds, “Walking away can be deeply and viscerally unsatisfying.” Momentum can sweep people “toward an unjust charging decision.”
This is exactly what the defense will argue in the courtroom of U.S. District Judge Edgardo Ramos beginning Monday on behalf of the 26-year-old Dawkins. His lawyer will contend that wiretapping undercover agents didn’t get the results they wanted, so they set out to entrap someone who, while he knowingly broke some rules, lacked a truly criminal state of mind. Prosecutors will argue that the cash exchanges were nevertheless serious federal crimes, deserving enough to brand him a felon, shatter Dawkins’s life and livelihood forever, and imprison him.
While following the trial, it’s worth examining our own state of mind. Do you believe anyone was seriously defrauded? Or do you want a conviction just because you want to punish someone for the lousy system, in which poor, overstriving young men accept cash under the table? Or because you cling with such a nostalgia for a bygone “purity” in sport that you would jail someone over it?
Jim Thorpe took cash under the table to play baseball in the early 1900s; Jack Kramer took it to play tennis in the 1940s; and Olympic track stars took it to run in the 1970s. This is the first time in our history a prosecutor has deemed that system criminal, as opposed to “distasteful.”
It’s worth noting that over time, as a society, we’ve come to see our past judgments of the Thorpe and Kramer eras as overly judgmental and punitive. Bharara points out in his book, “Criminal prosecution is the bluntest and severest of tools available.” It’s not meant to solve every one of our moral ills. It’s the wrong tool for that job.
For more by Sally Jenkins, visit washingtonpost.com/jenkins.