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Foul BallHow the Justice Department misplayed the steroids investigation.

By Frank Bowman
Posted Monday, Jan. 14, 2008, at 1:54 PM ET

Tomorrow, former Sen. George Mitchell will testify before a House committee about his investigation into performance-enhancing drugs in baseball. When they're done listening, members of Congress should ask some hard questions about the relationship between Mitchell's report and the Justice Department criminal investigation that gave him most of his information.

Make no mistake. As a former prosecutor, I am delighted that the DoJ unleashed the bloodhounds of the criminal justice system on drug cheats in baseball. Taken without a prescription, anabolic steroids and human growth hormone are every bit as illegal as cocaine, heroin, or marijuana. Simple equity suggests that the federal government should be just as ready to pursue jillionaire bat-wielding juicers and their suppliers as penniless crackheads and their dealers. More importantly, allowing obviously chemically enhanced cheaters to stand rich, idolized, and unchallenged at the pinnacle of professional athletics increases the likelihood that the legions of young people who long to be sports heroes will emulate their idols and wreck their bodies in the process.

That said, the Justice Department has mishandled the baseball steroid investigation in two important ways. First, the DoJ is prosecuting, or at least focusing on, the wrong people. The primary targets should be players, not suppliers. At the same time, the U.S. Department of Justice had no business feeding Mitchell, and through him the public, damaging information about players it lacks the evidence or the will to prosecute.

Consider first who is being prosecuted. So far, the government has charged or made plea deals for testimony with those who supplied drugs to players, leaving the players themselves untouched unless, as with Barry Bonds, the player committed apparent perjury. Defenders of this approach, including Mitchell, justify it by claiming it is analogous to customary federal practice in cases involving recreational drugs of going after suppliers, not users. But the analogy is flawed.

Federal prosecutors customarily prosecute dealers rather than users primarily because dealers are considered more culpable. Dealers are the rich, bad-guy beneficiaries of others' weaknesses, while users are destitute victims or inconsequential saps. Dealers affect many people. Users affect only themselves.

The hierarchy of the performance-enhancing drug market for professional athletes is exactly the reverse. The balance of power, money, and culpability lies with the players in their relationships with guys like Roger Clemens' trainer Brian McNamee or former Mets clubhouse attendant Kirk Radomski. McNamee's and Radomski's continued employment in and around the major leagues depended on the favor of players, particularly stars. The nobody suppliers made a few thousand in pin money for supplying the juice. But the real financial gainers were the players: Drugs allowed them to cheat their way into the majors or to enhance and prolong careers worth millions of dollars. If relative culpability is to determine who is prosecuted and who is allowed to go free, it's the players who should be indicted.

The other reason federal prosecutors ordinarily go after dealers, not users, is to have a greater effect on drug markets. But if one really wanted to stop the use of steroids in baseball, which is likely to be more effective—cooperation deals with a few locker room enablers, or the spectacle of big leaguers in prison stripes rather than pinstripes?

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Frank Bowman is a law professor at the University of Missouri-Columbia.
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