Ryan Braun, reigning National League MVP, was suspended by Major League Baseball for 50 games after testing positive for a performance-enhancing drug—and now he’s off the hook on a technicality. By a vote of two to one, a panel of arbitrators overturned the suspension because the tester who collected Braun’s urine put it in his fridge instead of sending the sample to the lab right away, as he couldn’t find a FedEx store that was open on a Saturday night. According to Yahoo’s Jeff Passan, the tester’s behavior was “standard-operating procedure in every major doping program across the world.” Nevertheless, Braun’s attorneys argued successfully that the fridge storage was a violation of the agreed-upon protocol—“absent unusual circumstances,” urine samples were supposed to go to the lab on the day they were collected.
Does Braun’s escape serve the interests of justice, no matter how bad it makes Major League Baseball look? Or do we all lose when someone who seems guilty gets off due to a procedural screw up? On the one hand, MLB agreed to the rules for handling samples and then broke them. On the other, Braun can now proclaim his innocence when it doesn’t seem he was proven innocent at all.
This is a classic legal debate between strictly enforcing procedural rights and worrying more about the substance of guilt and innocence than process. The framers of our Constitution came down squarely on the side of procedural protections. It’s a powerful and ingrained idea: Safeguard the right to be free from unreasonable searches, for example, and you’ll keep the government’s law enforcement powers in check. Better to let a few guilty people off on a screw-up than to weaken the underlying procedural protection—because that way, the framers thought, lay tyranny. In the 1960s, the Warren Court doubled down on that bet with decisions like Mapp v. Ohio, which said that no evidence collected in violation of the constitutional protection against unreasonable search and seizure could be introduced at trial, no matter how small the breach, how key the evidence, and how probable the defendant’s guilt.
There’s a straight line from that ruling to the overturning of Braun’s suspension—the glitch in the chain of custody could just as easily be about a DNA sample as a urine sample. It’s also, however, a peculiarly American straight line. As Adam Liptak pointed out in his terrific New York Times series on American legal exceptionalism, Canadian judges don’t automatically throw out evidence because it’s tainted by an unlawful search. (The term of art for excluding this kind of evidence, “fruit of the poisonous tree,” always make me think of Eden and the snake.) Australian judges don’t toss everything either: As Liptak explains, they use a balancing test that weighs the seriousness of the police misconduct against “the gravity of the crime and the power of the evidence.”
Apply that rule to Braun and he’d surely lose. The fact that his pee spent two days in the fridge—after Braun himself signed to show he agreed it had been properly sealed and packaged—is tiny potatoes when weighed against baseball’s interest in punishing doping athletes and the importance of this particular test in making the case against Braun. The Roberts court would probably take this approach: In a 5 to 4 decision in 2009, the justices backed away from a strict application of the Mapp rule, decreeing that evidence need not be excluded if the police error amounts to nothing more than isolated carelessness.
Still, are we better off with our traditional constitutional approach, even if today’s conservative justices don’t have the stomach for it and other countries think we’re nuts? Defense lawyers have long argued yes, prosecutors have argued no, and where you fall in the debate has tended to line up with which side you reflexively favor—whether you worry more about convicting innocent people, or letting guilty ones go. But a recent book by William Stuntz, a Harvard law professor who sadly died last year at age 52, added a forceful new argument to the traditional mix. Stuntz thought that the framers blew it by enshrining procedural rights over substantive justice. They should have worried more about equality in law enforcement, he said—like the French, who in their Declaration of the Rights of Man “eschewed procedure beyond the simplest safeguards against erroneous convictions, and instead placed tight limits on what conduct could be criminalized.”
That quote actually comes not from Stuntz, but from Judge Richard Posner, who gave the book an approving review in the New Republic (subscription required). Posner and Stuntz both wonder if Warren Court decisions like Mapp caused a political backlash that has actually harmed more defendants than it’s helped, by encouraging Congress and state legislators to criminalize more conduct and impose longer sentences. “Even if, by virtue of the procedural rights that the Court has given criminal defendants, fewer innocent people are convicted nowadays, those fewer innocent defendants are on average punished more severely,” Posner writes. “So that the aggregate suffering of the innocent may be no less than before the Warren Court intervened heavy-handedly in criminal procedure.”
I’m not sure Posner’s right—give the cops and the DA an inch of wiggle room and they may take a mile. And in the case of Ryan Braun, there was a lot at stake for the baseball star: Along with the blow to his reputation, Major League Baseball would have come down hard. A 50-game suspension is a big whack for a guy who’d never flunked a drug test before. Before we give up on being procedural sticklers, then, maybe we need to reconsider another piece of American exceptionalism—harsh punishment for a first offense.
