Prospectus Feature: How To Fight Crime

Here’s a passage from the Effectively Wild episode on June 13, 2016 that I found fascinating:

SAM: We’ve talked a lot, in various situations like this [Yordano Ventura throwing at Manny Machado], about whether it makes sense to punish the results instead of the intent, or the act. If you should basically treat an intentional pitch inside the same regardless of whether it kills the man or just scares him. If the pitch and the intent are the same, why isn’t the punishment the same?

And I’ve been thinking a lot about that and I think that it actually—the reason it makes sense to punish the outcome is that you want the perpetrator, the agitator, the aggressor, whatever; you want them to have a stake in it not getting too serious. By saying, well, you know, we’re not even going to worry about the intent, we’re just going to worry about what actually happens, there is now an incentive for that person to make sure that it doesn’t happen—that something bad doesn’t happen. By accident, by carelessness, or by intent. Even if it only subtly effects their behavior, if they have some incentive to keep people from getting hurt, then you create this sort of weird psychological market force that promotes good behavior.

In the criminal justice system, the people are represented by two there are two main principles that are used to justify the imposition of punishment. Under the retributive framework, the punishment is tailored to the crime, or more specifically, to the moral culpability of the criminal actor. People are punished because they deserve to be punished for something they did (or attempted to do). On the other hand, under the utilitarian principle, punishment is meted out to maximize future well-being. Instead of focusing on moral judgments, the focus is on creating incentives that will deter future punishment.

Each principle has its flaws, but some combination of the two guides nearly every scheme of criminal punishment. That includes baseball’s scheme of on-field justice, and proposed changes can also be analyzed through these lenses. Giving out punishments for hit-by-pitches and brushbacks based solely on the observed intent of the pitcher is a purely retributive system. It doesn’t matter that you missed the batter’s head, you aimed at it, and so should be punished like the person who did. On the other hand, punishing based only on the result, as Sam discussed on the podcast, is a much more utilitarian system. The downside is that some people we think of as innocent will be punished—e.g., the pitcher who slips and accidentally hits a player—but since claiming a HBP was an accident won’t do future pitchers any good, they’re incentivized to be careful, even if they’re good liars, with the end result being fewer HBPs.

As far as I know, however, baseball’s system of punishment has mostly avoided this kind of thorough consideration. Someone created it, and I’m sure that they put a lot of work into it, but now that it exists, there’s no sense of evolution. I am a baseball liberal, in that I think tinkering with the rules of the game and trying to improve it is a noble and worthwhile pursuit, and I see no reason that shouldn’t extend to suspensions and ejections as well.

So, in this article, I want to think about changing baseball’s justice system. I’m going to do so by borrowing three concepts from criminal justice, analyzing how they might be applied to baseball, and whether that would be a good thing or not in light of the utilitarian and retributive principles. I’m only considering changes to “on-field” justice, so to speak; punishments for violent slides, hit by pitches, charging the mound, etc., not banned substances or anything else that takes place outside the stadium. I also know all of these changes would have to be collectively bargained, probably, and that the union would object strenuously to many or all of them. Think of this as a theoretical exercise rather than a practical guide to change.

Criminal History
This is a good starting point, because it feels like a very obvious change. In fact, baseball already incorporates history in some aspects of its justice system outside the scope of this article (the escalating 80-game/162-game/lifetime PED penalties), so it’s a bit odd that there’s no such consideration for on-field discipline.

In the criminal system, this is extremely common, and exists in nearly every jurisdiction. Usually history is taken into account in sentencing, with the same underlying crime leading to harsher punishments for a person with convictions in their past versus a first-time offender. Some substantive crimes, however, only apply to individuals with a certain level of criminal history (e.g., 18 U.S.C. § 922, which prohibits felons from possessing a firearm).

There are certain names that seem to crop up more often than others in the context of on-field brawls and beanballs. Yordano Ventura and Manny Machado both had been suspended before this most recent altercation, the former for his role in a 2015 brawl with the White Sox and the latter for appearing to throw his bat at Fernando Abad when facing the A’s in 2014. Reliance on criminal history is usually justified on utilitarian grounds; under that conception, Ventura and Machado have demonstrated that normal suspensions haven’t deterred them, and they need a harsher punishment, or perhaps some additional component to the normal punishment (like, say, some counseling or anger management).

A different option from giving more severe punishments for the usual conduct would be punishing a wider range of conduct. A pitcher with a history like Ventura’s could, for example, be fined automatically whenever he hit an opponent, without it needing to be found intentional. This would be my preferred change, of the two; a fairly substantial body of research shows that, in the criminal context, certainty of punishment plays a bigger role in deterrence than severity of punishment, and I see no reason that wouldn’t hold true in baseball. Giving these repeat offenders a punishment no matter what, even just a light one, would go a long way toward reducing recidivism. That would necessarily involve punishing some players who merely made a mistake, however, and therefore depart from the retributive principle. With that in mind, I’d want these punishments to be truly minor. It might not be fair to fine Chase Utley $5,000 every time he tries to break up a double play by sliding hard, but it isn’t that unfair.

Discretion
Discretion, in the general sense, refers to the ability of the authority imposing punishment to take into account individual factors beyond just the offense committed. Ideally, discretion is a way of making punishments more accurate from a retributive standpoint. In the criminal system, for example, a judge with substantial discretion could consider factors like the actor’s upbringing or their motivation for the crime when imposing a sentence, and thus fit the punishment precisely to their moral culpability. Discretion can also take more nefarious forms, however, such as a judge who sentences minorities more harshly than their white counterparts. In 1984, Congress created the Federal Sentencing Guidelines, which stripped judges of much of this discretion, and the result is a fairly mechanical process with much less space for subjectivity.

Baseball’s current method of punishing on-field misbehavior is rather similar, though for a different reason. Instead of a statute laying down the prescribed punishment for each misdeed, baseball’s hands are tied by the precedent that has built up with each prior suspension. The arbitrators that judge the appeals players file when suspended have to look to past suspensions for similar actions. This was why the calls for harsher punishments after the Ventura/Machado scuffle were mostly pointless; MLB has no more power to impose a more severe punishment in a single instance than a judge has to sentence someone to life in prison for petty theft.

It’s possible to imagine a system with even less discretion, likely looking something like the Federal Sentencing Guidelines; different punishments for different events, triggered automatically when that event occurs. The criminal system, however, shows that it’s pretty difficult to eliminate discretion entirely. Under this hypothetical system, the discretion would simply be shifted from “sentencing” to “charging,” as MLB would still have to decide which definitions a given event fit. A pitch that hits the batter on the shoulder could be an “attempted pitch at head” or “pitch to body,” and MLB would still exercise some control.

If there’s going to be a change, it would probably be in the direction of more discretion; perhaps a system where MLB and the union would present their arguments to an arbitrator, much like they do currently, but the arbitrator would not be bound by any previous punishments, and could settle on whatever he or she felt was appropriate. Again, it’s possible to imagine the benefits of this; individualized punishments hopefully lead to more nuanced decisions, and not just in terms of severity of suspension or fine, but in type of punishment imposed. Perhaps some players seem like they would benefit greatly from counseling; the arbitrator could make that decision without any kind of special permission.

The downsides, however, seem just as obvious, and far more problematic. There would be next to no transparency in any case, and players would find it exceptionally difficult to predict what punishments they might face for an action. That brings up utilitarian concerns—it is much easier to deter someone with a defined punishment as opposed to an illusory or ill-defined one—but also legitimate fairness issues. It’s of the utmost importance that people know with at least some certainty what sanction they might face upon taking an action. This is especially true for conduct that not everyone views as unequivocally “wrong,” like throwing at a batter or sliding hard into second. It’s tempting to think this could be a good change, with unbiased and impartial arbiters handing down the perfect sentence in every case, but that’s asking too much of nearly every actor in this system. This is an aspect of baseball’s justice system that I think should stay the same.

Conspiracy/Corporate Liability
The final borrowed concept is actually a pair of concepts, both of which have large utilitarian benefits, but at a steep cost to the retributive principle and fairness generally. I group them together because their application to baseball would be similar. Conspiracy liability arises when a group of people agrees to do some criminal activity together, such as traffic drugs, or rob a bank. Once an actor inside the group has taken some substantial step toward furthering the goal of the conspiracy, like building a false compartment in their car or buying ski masks, any criminal actions taken by another member of the group can be imputed to him or her. So our drug trafficker might just be the driver, but if someone else in the conspiracy shoots and kills someone, both the shooter and the driver (and everyone else in the conspiracy) can be charged with murder.

Corporate liability is somewhat similar, in that it extends liability to those not directly involved in the criminal acts. If a high-ranking employee tries to further the goals of the company, and breaks the law in doing so, the company itself (and through it, the superiors of the employee) can be held liable for the crimes committed, even if the employee had been specifically told not to break the law. The departure from the retributive principle should be obvious in both cases, as someone can be charged with a crime they never committed, intended to commit, or knew that any of their peers intended to commit. Both set-ups are justified, however, by their purported utilitarian benefits. Companies, the argument goes, are much more careful in their instructions to and oversight of high-ranking employees if the company faces potentially enormous consequences if those employees act badly. Similarly, members of a conspiracy are supposed to be more likely to break from the conspiracy, and more likely to turn their potentially violent co-conspirators in, if the non-violent member can face charges for anyone else’s actions.

Whether those regimes actually have any benefit in the criminal context is a much different discussion, but I think they can be safely adapted to baseball, and have an enormous benefit. Teams as a group play a large role in many of the individual actions that baseball punishes. Pitchers frequently don’t decide to throw at a batter unilaterally; it may be signaled by the catcher, or suggested by a fielder, or called for by the manager (or even the front office). In those cases, it only feels fair to hold the entire team responsible for the actions of the individual. Even when it is a unilateral decision, however, slapping the entire team on the wrist would likely go a long way toward changing clubhouse cultures and making these kinds of bad acts taboo and less common. A guy might be able to shrug off a suspension or fine aimed at himself; it’s a lot harder to shrug it off on behalf of all your teammates as well.

Like with the criminal history, my instinct is that this would be best implemented by a broad, but shallow, system of punishment. For example, any suspension of one player could automatically trigger a fine on every teammate, of 0.1 percent of their salary for the year. Like conspiracy liability, this raises real issues of fairness, so keeping the fine small seems important. I have less compunction about imposing more severe punishments for actors with more control over the situation. Managers could be automatically suspended in tandem with their players; the team itself could be automatically fined in the same way. If those actors didn’t specifically order the pitcher to throw at the batter’s head, they at least enabled it, and certainly have the power to stop it from happening again.

Of the three, this is probably the change that I’d most like to see. Some tinkering would have to be done to find the correct severity at each level, so that no player’s future is ruined by the actions of one blockhead, but I think the deterrent effect would be massive, and therefore worth the retributive issues. Really, though, I’d settle for seeing any of the above changes at least discussed. Baseball’s system of punishment has just sort of existed for a long time, with very little critical appraisal of whether or not it’s accomplishing its goals. I think it can be improved, and I’d like to see that happen before someone gets hit in the head and dies.