Crime and Punishment and Shortstop: in Defense of the Mets and Jose Reyes

There has been a great deal of virtual ink and airtime committed over the last few weeks to former All-Star shortstop Jose Reyes’s impending return to the New York Mets. There have been a number of takes on it that I think are good– in particular, I’d recommend Stacy May Fowles at Vice Sports and Kate Feldman of Amazin Avenue, both of whom think Jose Reyes should not be given a second chance to play Major League Baseball.

I happen to come down on the other side of the issue. As bad as the allegations against Reyes were, there are a number of reasons why I believe that a lifetime ban from Major League Baseball is too harsh a punishment. I also believe that, given what we know, fans can (and perhaps should) root for Reyes to succeed.

To answer this question requires tackling questions that have occupied the minds of philosophers, political theorists and legal scholars for centuries. Why do we punish? How does punishment relate to justice? And does punishing someone necessarily achieve justice for others?

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This is what we know happened.

On October 31, 2015 at around 2:22p.m., Jose Reyes was arrested in Maui and was charged with misdemeanor domestic violence. When police arrived, Reyes’s wife told them that Reyes had “grabbed her off of the bed and shoved her,” and then “grabbed her by the throat and shoved her into a sliding glass door.” According to the 911 call from the hotel, she sustained injuries to her left leg and some scratches on her neck.  She was taken to Maui Memorial Medical Center. 

Beyond that, all we have is speculation and conflicting reports. Some sources said that Reyes and his wife were intoxicated that afternoon. Other sources speculated about the extent of the injuries or what took place inside the room despite no additional information beyond what was in the police statement and 911 call.

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If you’re looking for a TL;DR, here it is. Even if you were to take all of the allegations against Reyes as true, we live in a society where we punish those who commit bad acts and consider their debt to society paid.

That the allegations were not proven in a court of law does not mean that Reyes is innocent. That his wife refused to cooperate with prosecutors does not mean that the allegations are not exactly true. It is not necessary to say that Reyes was only charged with the lowest level misdemeanor (Hawaii Penal Code 709-906 for Abuse of Family or Household Members).

Jose Reyes was suspended (losing around $7 million), has undergone counseling, has donated money to domestic violence charities, appears apologetic and contrite, has spoken to his minor league teammates about it, and appears to have done everything in his power to repair his relationship with his wife.

The allegations against Reyes are bad. But he, like everyone, deserves the opportunity to take a bad act and put it behind him by paying his debt to society and moving on to pursue happiness. There is little good that would come from branding the man for life and casting him aside instead of giving him the opportunity to redeem himself.

I would feel the same either way, even if Reyes went to trial and was convicted of what was described (in fact, it would likely be better for him if he had been). But in order to fully understand my position, we must tackle the questions we set forth at the beginning.

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In the law, there are two primary so-called “theories of punishment,” each of which gives a different answer of when and whom to punish: retributivist theory claims that punishment is justified as a response to moral wrongdoing, and utilitarian (or deterrence) theory claims that punishment is justified as a means of preventing harm. (Politics and Punishment: Reactions to Markel’s Political Retributivism).

If you are a retributivist, you want to punish wrongdoers that deserve punishment. But how do you measure what is fair retribution for a crime? Is it equivalent to what the victim lost, or the harm occasioned to society? Is it to provide satisfaction to the victim and make up for that grievance, or is it punishment which is intended to satisfy society as a whole? Or does it just feel good to punish someone?

If you are a utilitarian, you want don’t care to punish as much as do what is best for society. But is the intention to remove an offender from society so that they cannot offend, or is it to deter others from committing crime? Does it justify punishing people who cannot be deterred, such as people who were merely reckless or is unaware of the laws? And perhaps most importantly, does deterrence even exist?

As a whole, the theory of punishment in United States is (and rightly ought to be) a combination of both forward-looking (utilitarian) and backwards-looking (retributivist) theories. But there will always be tough cases:

  • A intends to shoot B and misses. How, and under what theory, do we punish A even though no harm was occasioned? And should B get a lesser punishment because of his poorer aim?
  • A and B are two adults who have consensual intercourse, but are homosexuals in a state where that conduct is illegal. How, and under what theory, do we punish A and B if nobody was harmed?
  • A’s daughter is sick and she cannot afford the medicine. She steals it. How much punishment does society deem is appropriate for A?

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The criminal law, and it’s interaction with our normal every day lives, is incredibly complex and ever-changing. Even after 240 years of being a Nation, questions about the existing criminal law comes before the Supreme Court of the United States every term.

Just last week, the Supreme Court decided a case pertaining to domestic violence called Voisine v. United States. 579 U.S. ___ (Docket No. 14-10154). In Voisine, the majority and the dissent both discussed the nature of domestic violence and the many shades of gray in between intentional, knowing, and reckless conduct. The Court used several illustrations to differentiate when someone can be injured recklessly.

There is the intentional use of force which recklessly injures someone, like the Angry Plate Thrower, who throws a plate at the wall near their spouse and injures them with a shard, or the Door Slammer who slams the door on someone following close behind. Contrast that with the non-volitional use of force which also leads to injury, such as the Soapy-Handed Husband, who drops a dish and cuts his wife, or the Chivalrous Door Holder, who accidentally lets slip a door they intended to hold.

In all of these situations, a victim has been harmed by the reckless acts of another, yet the law treats them very differently. The Court in Voisine needed to make that distinction because of the different categories we put these offenders into. These distinctions are gravely important, as it impacts whether or not we punish the offender, and what kind of impacts the offender will have to deal with for the rest of their life.

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One of the problems with a purely “retributivist” theory is that it thinks very little about the impact the punishment will have on the offender, their family, their community, and society.

But is society actually served by taking those convicted of crimes and essentially ejecting them from mainstream life? Is there any justice in placing someone on the sex offender database for urinating in public (the law in 12 states)? How about consensual sex between teenagers that can make someone a sex offender for life, even when the two teenagers get married and have children they need to support? (Slate).

Federal law prohibits some people with criminal records from obtaining student loans or living in public housing. State law denies people with felony convictions from working in more than 90 professions including barber, manicurist and commercial fishing. (Seattle Times). Felons lose the right to vote for life, causing their neighborhoods — and their innocent spouses and children — to be underrepresented in our democracy.

In an interview with the New York Times, Cindy Southworth, the executive vice president of the National Network to End Domestic Violence emphasized a point that she said could seem counterintuitive: Reyes being allowed to continue his career could benefit his wife and others who find themselves in abusive relationships with athletes.

“What we don’t want is for someone, the moment the police are called, is for an athlete to lose his entire career,” she said. “It would create huge, unfathomable pressure not to call 911 if they knew their loved one’s career would be in jeopardy.”

We live in a world surrounded by people who have made mistakes in judgment or in conduct, people who have been at the wrong place at the wrong time, people who have chosen to commit violent crimes or frauds. The Mets manager has a DWI that was so egregious he was driving on a flat tire and swerving all over the road. The Mets just aired a special on Lenny Dykstra’s new book, while Dykstra is a three-time felon (bankruptcy fraud, money laundering) who was accused of a litany of other crimes (sexual harassment, grand theft).

Yes, it feels good to punish. Yes, it feels good to be “harder on crime” than your peers. But we live in a society and, as part of that, we have to make tough choices every day.

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Jose Reyes was accused of misdemeanor domestic violence, and because of that I think less of him today than I did before. Beyond the $7 million suspension, and the harm to his relationship with his wife, these accusations are something he is going to have to deal with for the rest of his career and beyond.

Nonetheless, my view of the purpose of the criminal law and my respect for due process prevents me from taking a stronger stand against the Mets re-acquiring Jose Reyes. As I mentioned at the outset, Reyes has undergone counseling, has donated money to domestic violence charities, appears apologetic and contrite, and has spoken to his minor league teammates about it.

In the United States, we balance our desire to punish the wrongdoer with what is best for society and the hope that the individual can be rehabilitated. We make important distinctions between different types of conduct, like the Angry Plate Thrower and the Soapy Handed Husband.

This is not a case of Major League Baseball and a player minimizing or downplaying the seriousness of domestic violence allegations; in fact, it is much the opposite. Reyes has been the model for a player who was accused of something terrible but who seems willing and able to own his wrongdoing and salvage the rest of his life.

I wouldn’t want the Mets go to out and acquire every player who has done something wrong, simply because they’re cheaper — probably the worst version of “Moneyball” that I could think of — but I can’t fault them for looking at Jose Reyes and treating him like a human being.

Everyone can draw their own personal line where they want to, which is why I’ve never told anyone who is anti-Reyes that they are stupid or wrong about this. You’re not wrong if you don’t want to cheer Reyes when he makes his debut tonight. But please don’t fault me when I do.

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Brian Mangan is an attorney living in New York City. He has interned in two District Attorney’s offices — one which had a “no drop” policy in domestic violence cases. He also participated in a Capital Defender Clinic representing individuals convicted of capital crimes and awaiting execution.

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This is not a full appendix but here are some useful links, some of which were linked in the article and some which were not. :

A Misdemeanor Conviction Is Not a Big Deal, Right? Think Again