One of last week’s less prominent news stories of the past week was Mike Vick’s decision to file for bankruptcy. As everyone reading this post presumably knows, Vick was the Atlanta Falcons’ star quarterback; he was convicted of running a dogfighting enterprise in violation of federal law. His punishment is not only the 23-month prison sentence he is now serving, but tens of millions of dollars in lost salary and endorsements.
Vick’s case raises two problems that our legal system has never solved. The first is how to punish the wealthy and powerful when they commit serious crimes. Equality would seem to suggest that defendants like Vick should serve the same time as defendants who have none of the money and fame he enjoyed. But is that equal justice? Vick has lost much, much more than the typical criminal defendant who has much less to lose. How is equality to be measured in such cases? I don’t know the answer, but I don’t like the answer our justice system gives in cases of this sort. If Vick had not been the celebrity athlete he was, he would never have been prosecuted. Maybe rich celebrities deserve to be held to a higher standard than the rest of us—but if so, I’m not sure why.
The second problem has to do with the charge for which Vick was convicted. The federal dogfighting statute is not very old, and to my knowledge, was never enforced before this case—at most, I’d bet, there were a tiny number of low-profile prosecutions before this one. When the law changes, when conduct that once was legal becomes a crime, what punishments can fairly be imposed on the first few defendants prosecuted for that crime? If new criminal prohibitions can’t be enforced because they’re new, legislators are effectively barred from defining new crimes. On the other hand, if no allowances are made for defendants who can rightly claim that their conduct was long tolerated, those defendants become tools—a means of announcing to the rest of the world that the rules have changed. That’s fine for the rest of the world, but it doesn’t seem quite kosher for the defendants who serve as the justice system’s loudspeaker.
Even apart from those two problems, Vick’s prosecution seems worrisome to me: in a justice system that punishes so many black Americans, federal prosecutors should be wary of targeting black athletes unless they’re also examining the conduct of some of their white teammates. If we’re going to punish Barry Bonds for lying about steroid use, we’d better nail Roger Clemens too. The mix of race and enforcement discretion is an old and sad issue in American criminal justice; it merits and has received a lot of attention from those who think and write about the justice system. The two issues noted above have seen a good deal less attention than they deserve. For my part, I’d love to know how to think about the question whether defendants like Vick get what they deserve—or whether they get much worse.