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February 6, 2009

Friday forum for prosecutors: Has Michael Phelps now been punished enough?

The sports page of USA Today is asking here, "Is Michael Phelps' latest punishment fair?"  Here is how they set up the inquiry:

We see that USA Swimming has brought the hammer down on Michael Phelps. The organization has suspended him for three months after a photo of him smoking marijuana appeared in a British tabloid.

In addition, Kellogg's, one of his biggest sponsors, has dropped him, saying his image was not consistent with the breakfast cereal....

USA Swimming will also withhold Phelps' training grant money, which for the multi-gold medalist is probably more symbolic than punitive. Although they also decided to make Phelps' latest problem more of a punitive moment than a teaching one.

Phelps, who told the Baltimore Sun yesterday that he is re-thinking everything, including the 2012 Olympics, said he plans to swim in the world championships in July.

The superstar swimmer has apologized for his actions numerous times since the photo appeared. So the question this morning is, is Phelps reaping what he sowed or are we punishing a guy too strictly because of his fame?

As the title of this post suggests, I want to refine this question by asking actual or would-be prosecutors  whether all this extra-legal punishment for Phelps would or should influence their decision whether to bring charges against him for a state drug crime. 

As detailed here, South Carolina authorites have already talked up the possibility of a state drug charge.  Practically speaking, I think extra-legal factors often play a huge role in prosecutors' charging and bargaining choices, though these extra-legal factors rarely are the subject of open discussion. For today's forum, I hope the comments become a place for such an open discussion, with golden boy Phelps as our subject du jour.

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February 6, 2009 at 11:33 AM | Permalink


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I have a different question: who should decide whether criminal charges should be filed? (A) the individual line prosecutor who draws the case; (B) the duly elected chief prosecutor of the district; (C) the legislature or centralized body located in the state capital; (D) a federal prosecutor in the local federal judicial district? Does there need to be some written principles of prosecution? If so, what should they be?

Posted by: A Friend of the Blog | Feb 6, 2009 1:37:01 PM

Prof Berman--

If a John Doe college student were the accused, I am highly skeptical that an assistant prosecutor would move forward with a tattle-tale marijuana possession/paraphenalia case on these facts alone.

However, once the facts are brought to a prosecutor--and he or she has probable cause that the offense occurred, then for fairness, I think that charges should be brought, if the evidence suffices, no matter who the accused is.

Now to bring misdemeanor criminal charges against Phelps does smack of overkill, but what is the alternative? Let him off and set a bad example for all those American minors watching? I think that basic charges should be brought--maybe only MM possession. Also, I think that extra-legal punishment already received should be much more relevant to the sentencing than to the charging. At the complaint/indictment stage, the inquiry focus should be more on the offense, less on the offender.

And for Phelps--to whom much is given, much is required, right?

Posted by: Gov'tGirl (Rachel) | Feb 6, 2009 2:08:11 PM


Posted by: Gov'tGirl (Rachel) | Feb 6, 2009 2:09:44 PM

Due to the preservation of prosecutorial resources, I don't see them bringing a case in which they don't stand a chance of gaining a conviction. Where's the evidence?

Posted by: Mark | Feb 6, 2009 6:14:42 PM


>And for Phelps--to whom much is given, much is required, right?

I don't agree. :-).

To whom much is given, much may be expected from family, schoolteachers and coaches, or the general public. But I certainly don't think that much should be 'required' in any sense, especially in the form of how we assess his punishment.

If Michael Phelps chooses to squander his talent by sitting on the couch, eating Doritos, watching Jerry Springer and Maury, day after painful day, we might lament over what we perceive as wasted talent. But I think he has every right to do so, should have every right to do so, and perhaps has his own reasons for doing so.

Posted by: Moritzian (Leon) | Feb 6, 2009 11:17:43 PM

"what is the alternative? Let him off and set a bad example for all those American minors watching?"

I get the sense it's not the "bad example" that makes people mad but more that his example contradicts all the fallacies and lies told to justify marijuana prohibition.

Potheads are lazy, do-nothings who can't hold a job or succeed in at anything they do, we're told over and over. Michael Phelps disproves all those stereotypes. Very few people indeed can claim to work harder or demonstrate a greater dedication to personal and professional excellence.

That's what's making the drug warriors angry. Phelps doesn't match the caricature they're constantly promoting, and it infuriates them.

I also agree with Mark that the photo in question doesn't necessarily prove any crime without other evidence.

Posted by: Gritsforbreakfast | Feb 7, 2009 6:39:59 AM

Grits you are 100% right.

I am wondering why some of these pro marijuana organizations have not approached Phelps. I can think of no one better to promote the cause.

In one poll I saw on ESPN 75% of people polled do not think any less of Phelps.

Posted by: Tarheel | Feb 7, 2009 9:04:29 AM

Thanks Grits. This is one of the hypocrisies of the drug war.

Posted by: beth | Feb 7, 2009 7:56:42 PM

If Phelps is prosecuted it probably won't be because some saintly prosecutor worries about the harm Phelps' bad example will do to impressionable teen-agers.

Forgive my cynicism, but after nearly two years of book-research on the federal system I'd put my money on publicity seeking and career advancement, not a lauditory inclination to "do good".

A Friend's question (who should be the decider on whether to bring charges?) is a good one. In a better world, my answer would be a grand jury. But as everyone knows, grand juries are rubber stamps for the real deciders...whichever prosecutor in the AUSA's office has the most to gain personally or politically.

So far in my research I've yet to come across any federal agent or prosecutor I could imagine being the guy in the meeting who asks: "Did this target actually do anything wrong here?".

It strikes me as a militaristic, arm-punching culture in which nobody wants to be (dares to be) that guy.

Posted by: John K | Feb 8, 2009 11:32:09 AM

Our president has admitted marijuana AND cocaine use. We better charge him too.

Posted by: Ron | Feb 10, 2009 4:16:49 PM

No average person would be charged with possession of marijuana based simply on a pic and an admission. Half the pictures of Myspace are of underage kids with Sparks or a beer in their hand.

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