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Proven Guilty, or not

Joe Posnanski is my favorite sportswriter, and one of my favorite bloggers on nearly any topic. I don’t link to his stuff very often here in this Tohu Bohu, often because I don’t have anything to add to it. His recent note on The 40th Anniversary of the Washington General’s win was lovely, for instance, but other than recommending that people read it, even if they aren’t interested in sports, I don’t have anything to say about it. I do have some things I could add to his excellent recent Hall of Fame pieces, and perhaps I will write about them at some point.

But of course what actually gets me to write about something is disagreeing with it. And I disagree with some of his Innocent Until Proven Guilty post. Actually, I don’t disagree with the main point, which is that it is preposterous to refuse to vote for a great player’s inclusion in the Hall of Fame because he might have used steroids or other performance-enhancing drugs. But the discussion, which was sparked by an essay by Ed Price, centers on whether innocent until proven guilty is a legal idea or a more general idea. Mr. Posnanski calls it “a fundamental right of society”. And I disagree. Or, at least, I don’t entirely agree.

I suspect that the disagreement is over the word proven, and might be washed away by defining our terms somewhat better. Mr. Posnanski does concede that a legal reasonable doubt standard might not be appropriate for the Hall of Fame, but insists that the basic concept must hold anyway. I’ll quote:

If an employer charges you with stealing petty cash, if your parent charges you with breaking the living room vase, if your friend charges you with backstabbing her at a party, don’t they need at least SOME standard of proof? Every single day of our lives, we are faced with some test of innocent until proven guilty, and it seems to me that those words are not about legalities, they are about common decency.

And yet I lock the door to my house when I leave. Every day when I walk around the library that employs me, I curse the imbeciles who leave their valuables lying around where anyone could pick them up. Yes, it is nice to assume that the whole population of the library or of my metropolitan area is honest and immune to temptation, but seriously? Not. I assume that somebody out there is guilty, and I do so without proof.

You can argue that these are general cases, and that he is talking about the specifics. That’s a legitimate distinction—I may be traducing people in general, but I am not traducing anyone in specific, nor does any honest person lose anything when I lock my door or carry my laptop to the men’s room. Or if I assume that anybody driving after dark on New Year’s Eve is drunk and high, altogether without evidence. But I think that in many ways that skepticism is as important to society as the common decency that Mr. Posnanski encourages.

And it does apply to individuals. If I am hiring a babysitter, do I assume the hopeful candidate is capable and honest, or do I get references? I get references. My current employer got references when they hired me; they didn’t assume that I was honestly describing my work history. We often require some evidence that a person deserves hiring, promotion, dessert, a good grade, a vote, a roll in the hay, a handout, a smile. The standard of evidence is going to be different for different things, as it should be. But there should be one.

Now, it is very important that the skepticism I’m talking about be held in tension with the innocent until proven guilty value. That's why it's so incredibly important to apply it to legal matters, and not just in criminal court but across the government. The assumption of innocence is an absolute bedrock to equality under the law. And (as we see in times of crisis) when we are willing to give it up as a more general social value, it will deteriorate in the government as well. And to that extent, Mr. Posnanski’s rant is a valuable one, a necessary one, a good deed. But it’s not all there is.

Back when there was a good deal of discussion of whether Clarence Thomas created a hostile work environment for Anita Hill, many people said that he was innocent until proven guilty, and that therefore it would be wrong to deny him lifetime tenure on the Supreme Court. I said that it would be wrong to imprison him, perhaps, or to fine him, and frankly wrong to fire him from the seat he held on the bench at the time without some more formal and rigorous investigation, but that it was perfectly reasonable to withhold promotion. That was politically motivated, no doubt, but I think it’s still a reasonable stance. But then, I do think that the preponderance of evidence was against him, so perhaps that’s the standard I was holding for that matter. Or even a lower more-likely-than-not standard. And given that a plaque in the Hall of Fame is permanent, and that being denied it doesn’t really damage a modern player very much, perhaps a where-there’s-smoke standard is defensible.

But my point, really, is that even a Big Hall guy like me should assume that any given player—Kirk Rueter or Roger Clemens—should not get a plaque until there’s some proof that he should.

And that you shouldn’t leave your laptop lying on a table in the library. Even if you are just going to the restroom.

Tolerabimus quod tolerare debemus,


I'm not persuaded of your position in your disagreement with Mr. Posnanski because I don't think that the examples you are presenting actually pertain to guilt as such. When you lock your door or ask for references before hiring a baby-sitter, you are indicating that you do not believe all people are trustworthy, so that when you are dealing with people you don't know, you are not presuming that they should be trusted. If you obtain evidence that a person is trustworthy, you extend them trust. In the case of locking your home, you have no way of establishing if every person who will pass through your neighborhood while you are out is trustworthy, so you can never extend full trust to the community as a whole. But to assume that some people are untrustworthy is not the same thing at all as saying "somebody out there is guilty," as you claim you are doing. Unless you are going to take up a theological position pertaining to original sin or the sins of the parents being visited upon the children unto the seventh generation or something like that, no one is guilty of anything until a crime has been committed. It is only after a crime is committed that guilt becomes a relevant concept and can be assigned, and it must be assigned specifically, because guilt by association is morally repugnant.

So in assessing the validity of Mr. Posnanski's claim, the question becomes whether the circumstances that arise when Hall of Fame electors consider the issue of steroid use are correctly understood as a situation in which people are deciding whether to extend trust or a situation in which people are assigning guilt for a crime. I submit that it is both, which is what makes the situation especially difficult, morally. In the very general case--how any person might decide whether there is reason to fear that Jeff Bagwell is untrustworthy as a role model for impressionable young Americans everywhere--I think that your representation of it (as I interpret your case) as being a question of whether or not to extend trust is valid. However, in the specific case of the actual electors--members of the BBWAA with 10 years standing--I think Posnanski is right. Notice that the examples he presents involve people who know one another well--friends, family members--not strangers. When you are dealing with friends and family members, you already know enough to have decided to extend that trust, so, if you are suspecting them, you are in a "determining guilt" situation. If you find yourself in a lot of "determining guilt" situations with this friend or family member, then you might decide to withdraw your trust even if you don't find them guility, but you would only do that after several things have been mysteriously broken and the culprit cannot be determined.

The reason that the BBWAA has been given authority to elect players to the Hall of Fame is because they, it is thought, know the players in ways that no one else outside the business of baseball itself does. Moreover, they have a critical perspective on the players that baseball insiders would not, because reporters spend their professional lives covering the doings of these players and doing (it is imagined) investigative reporting about what goes on behind the scenes in sports, when that is warranted. For the writers' unique authority to make the determination of which players should be honored in The Hall of Fame to be valid, then they must be the people who have the knowledge to decide reliably to whom honor and trust should be extended. If they can't do this, then they should have no particular standing for electing people to the Hall of Fame. They are thus not in a position to use moral claims that are appropriate for deciding whether or not to extend trustworthiness in the absence of knowledge: if they don't have better knowledge, then they haven't been doing their jobs. The moral scandal here is that the writers looked the other way about performance-enhancing drugs in baseball for a very long time, and now, the very writers who were willfully ignorant enablers of the players' behavior are claiming that they can't vote for this or that player because, without specific knowledge to the contrary, they can't trust that he was not a user. Or, somewhat less invidiously, a writer who did due diligence with the players on his or her local beat and has a pretty good idea of who the users on his or her home teams were, also knows very well that many writers looked the other way, and so they are afraid to accept a lack of accusations or rumors about a player's use of steroids as reliable evidence that the player really wasn't using. And so those writers might be more justified in exercising caution. But when they do so, they are accepting, but not publicly acknowledging, the complicity of their own profession in the lawless behavior that characterized major-league baseball during the Steroid Era. So, what I take Posnanski to be implying is that the writers, in order to cover up (if they are hypocrites) or avoid facing (if they are moral cowards) this complicity, are screwing over their friends by publicly dissing them and treating each of them, individually, like criminals unless they can prove their innocence. And I think he's right, but he's too nice a guy to call out his fellow writers directly.

I am still thinking about this, as there is much to chew over. I'm not convinced by the line you draw that a specific incident is necessary for guilt within the context of the innocent until proven guilty concept. I do take your point about the specific knowledge that the reporters are assumed to have—ought to have, really. I'm not sure if Mr. Posnanski had that in the front of his mind, but it's a great point. But then, from his other posts on the topic, I wonder if Mr. Posnanski really feels that the BBWAA is almost uniquely unqualified for voting on Hall of Fame membership…


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