Barry Bonds is a lot of things, leading off with obnoxious, but he doesn’t meet my definition of a criminal. There is a growing school of legal thought that says we have a dangerous tendency to “overcriminalize,” using criminal law to try to solve every single social problem in America. Some things are mistakes and not crimes. And some people are jerks, but not jail-worthy.
Just because Bonds used steroids, and might be unethical or morally blameworthy, doesn’t mean he deserves to be hounded by prosecutors for almost a decade. Criminal law should be reserved for our very worst offenders, and to use it on anyone else doesn’t actually strengthen respect for the law, but weakens it. It’s hard to see how the law has been strengthened by the massive, labyrinthine, federal effort against Bonds, which has been an ineffectual joke if “justice” was what we were seeking.
Back in 2003, Bonds gave three hours of testimony before the Balco grand jury during which he admitted to using its products, but said he didn’t know they were laced with steroids. For this, assistant U.S. attorneys Matt Parrella and Jeff Nedrow initially charged him with 15 felony counts related to lying under oath and have pursued him for almost eight years. Meantime, Victor Conte, the man who actually manufactured and sold the steroids, served exactly four months in prison.
Millions of dollars have been spent on Bonds, his indictment rewritten multiple times until the charges are down to five, and the prosecutors repeatedly scolded by the judge for their excesses. Now that Bonds has been finally brought to trial this week, it’s fair to ask, to what end? So that a U.S. attorney can mount Bonds’s antlers on his wall?
Perjury is not a trivial matter, and if Bonds was guilty of it there should be consequences. That’s straightforward enough: You can’t lie under oath with impunity.
But there are issues underlying the Bonds trial that aren’t so straightforward. It’s highly unusual for a perjury case to take this much time and expense. If Bonds were anybody but a home run king, the case would have been disposed of long ago, so San Francisco’s U.S. attorneys could devote their attention to more important matters, like crack.
Bonds is simply being made an example of — and whether that’s a proper use of federal power is a question that should make us all queasy.
“That may be the consequence of a just federal prosecution, but it shouldn’t be the major motivation,” says Brian Walsh, senior legal research fellow at the Heritage Foundation, a conservative think tank. “When government officials devote inordinate resources to making someone’s life miserable because they don’t like him or he’s high-profile, it doesn’t serve an important societal interest.”
It seems pretty clear the prosecution is using the perjury case as a cudgel to punish Bonds for the real offenses of being a bad guy and a juicer. Consider the statement of San Francisco’s U.S. attorney Joseph P. Russoniello when asked by the New York Times why the Bonds and Balco cases were worth so many years of effort. “Stan Musial was my hero when I was a kid, and he smoked cigarettes,” he said. But if curbing steroids is the real objective, the prosecutors would be doing what any other drug crackdown does: targeting suppliers, not users.
Whatever the outcome of the Bonds trial, it should cause us to ask a good question: Do the workplace problems of baseball really belong in federal criminal court? Steroids are in the same legal class with tranquilizers and painkillers, and there are plenty of workplaces in which those are abused, starting with Hollywood film studios.
But we don’t storm movie sets with badges and guns and ask actors under oath if they’ve used, and if they say no, prosecute them with full force. Rather, we treat possession of a controlled substance for the comparatively minor offense that it is. Many athletes test positive for steroids; very few face legal consequences. The message the Bonds case sends is, you only get in big trouble for having too much success with them — and trying to protect your fortune by lying about it. That’s a legal deterrent?
In some ways, the prosecutorial zeal on steroids fits the definition of “overcriminalization” given by the Heritage Foundation. The think tank, which is trying to build bipartisan support for criminal code reform, describes “a trend in America — and particularly in Congress — to use the criminal law to ‘solve’ every problem, punish every mistake (instead of making proper use of civil penalties), and coerce Americans into conforming their behavior to satisfy social engineering objectives.”
The government’s role in ”cleaning up steroids” should be limited to how it handles any other controlled substance. Thus Bonds should be treated like anyone else who uses steroids without a prescription. From a criminal standpoint, how was his act any worse than some guy at the neighborhood Gold’s Gym using to look big on the beach?
The only difference is in what he achieved while using them, but the government has no business getting involved in ensuring fair competition. If it starts trying, will federal reviews of referees and umpires be next?
Lately we punish all sorts of relatively trivial acts as crimes, with nearly 4,500 criminal laws on the books. A good deal of them are fairly recent, including the Anabolic Steroid Acts of 1990 and 2004. Reformers such as Richard Thornburgh, the former U.S. attorney general, suggests countless offenses could be handled more effectively with civil, regulatory, or administrative penalties such as fines, or other sanctions short of criminal. He is unfamiliar with the pharmacology of steroids, but he says, “Criminal law is a big nuclear weapon.”
He recommends streamlining the criminal code and believes senior officials at Justice should review “novel or imaginative prosecutions of high-profile defendants.” President Obama, who is more familiar with the steroid issue, has suggested that performance enhancement is a matter that should be policed by leagues, rather the federal government, and he’s right.
If you are worried about the motive behind the prosecution of Barry Bonds, it doesn’t mean you are soft on crime. Quite the opposite. As Thornburgh has pointed out, there is something “self-defeating” about a code that brands as criminal not just murder, rape, and arson, but also selling mixtures of two kinds of turpentine.
Cases brought to the federal criminal justice system are supposed to be of the highest quality and of overriding importance, and when they’re weak, it hurts the law. If Bonds is genuinely being tried for perjury, fine. But if the prosecutors had something else in mind, they’ve done crime-fighting a disservice.