JT and Johnny Football

Two stories in today’s Akron Beacon Journal intersect in instructive ways.  

I am a life-long athlete and sports fan, using illustrations like these requires me to examine these stories as a scholar—not as a fan or fellow athlete (or if you hate sports, to examine these as a scholar and not a sports-hater). 

We want to use these stories because they are so familiar that we understand them and their contexts without much effort.  At the same time, we want to use them to deepen our analysis of law and politics, we want to abstract out from these stories lessons about the relationship between official discretion and the rule of law that are hidden in plain sight.

JT Barrett was suspended by the team for Ohio State’s next game, against Minnesota, for a misdemeanor charge of driving under the influence.  The OSU starting quarterback was stopped at a Columbus check point early Saturday morning.

First, we all know (and any athletes among us often know from personal experience) that star quarterbacks are subject to a different set of rules—the law means something different when applied to them…Behavior that is illegal and worthy of zero tolerance for an inner city thug is ‘just a good guy sowing his wild oats’ or ‘making the same mistakes we all made at that age,’ and deserving of our understanding and assistance so he can stay on the straight and arrow (read: on the field on Saturday).

This does not surprise anyone.  It frustrates many, but that fact that the law changes meaning when the person breaking the law is a football star is so commonplace as to not be news.  

We want to start by highlighting this, because this is only possible when cops, prosecutors, judges, coaches, school officials, journalists, university presidents, powerful alumni, and others work hard to influence the ongoing struggle over the meaning of the law…and those who are government agents do this in the way they choose to exercise their official discretion.

With that, let’s turn to these two stories from today’s paper.  First the JT Barrett story.

“The school’s drug and alcohol policy would have required a two-game suspension for the 20-year-old Barrett if he had been charged with a felony. The misdemeanor charge gives coach Urban Meyer the discretion to pass down the punishment.”

If we put aside how much we want OSU to win (or how much we want to see star athletes taken down a peg)…we can see here that the officers running the check point made a discretionary choice to charge Barrett with a misdemeanor.  There can be no doubt that these law enforcement experts knew exactly what their choice would mean.  Then school officials made a second discretionary choice to apply the minimum punishment required by school policy.  These choices change the meaning of the law:  different choices would have resulted in different sanctions. 

We have seen many non-legal factors matter a lot in this struggle over the meaning of the law (race, personal position on the merits of the voting law, ideological preferences, a teenager’s willingness to admit her mistake, a desire to be an effective problem solver, a desire to avoid a rigid application of law that would undermine the spirit of the law, a partisan failure to even ‘see’ fraud, and more) and now we can add ‘being a star athlete.’

This is an illustrative list only.  We can all imagine additional factors that are also not in the law, but matter (disrespect shown to the officer, personal beliefs about the proper 'place' for women, a bias against Muslims or religions in general, etc).  The precise list is NOT the point.  

The list merely illustrates an insight:  we observe in many different arenas that it is common place for officials to make choices (exercise discretion) in ways that change the meaning of the law on the basis of factors not in the law.

Notice I stated that insight in terms that allows us to further add that this can be done in ways that some see as positive (problem solving, flexibility, taking circumstances into account) or negative (prejudiced, misinformed, partisanship).

And we can go one step deeper here.  If we imagine an 8-0 OSU team that had only one star quarterback…can we imagine the officers at the check point making a different discretionary decision (changing the meaning of the law again) or school officials making a different choice (to, say, challenge the charge so that it ends up in court and is not resolved until the season is over)?

Let’s look at the second, related, story in today’s news, about Johnny Cleveland.

Johnny Manziel is likely to escape punishment from the league or team for being pulled over in Avon on suspicion of driving under the influence and domestic assault.  Beacon Journal columnist Bob Dyer wondered in today’s paper if the officer letting Manziel go without a breathalizer test gave the Brown’s quarterback a gift.

“If I’m a cop,” according to Dyer, “and a witness says a guy was driving 90 mph on the left berm and had his girlfriend pinned to a window, and when I approached him and smelled alcohol on his breath and he admitted to have a ‘couple of’ beers, would I just say ‘OK’ and let him go?”

Good question.  Dyer wants to know how the cop could make this choice, use his discretion in this way, and if he made this choice because the law-breaker is a football star.

Dyer asked the Hudson Chief of Police for some help sorting this out and the Chief said

“The way the law is written you can only administer a Breathalyzer test after somebody has been arrested for OVI.” 

Dyer than summarizes the chief’s explanation as follows: 

An officer won’t arrest unless she observes signs of intoxication (swerving on the road, eyes, breath, speech, answers to questions).

If the driver fails any of these the cop will ask him to take a series of field sobriety tests.

Flunking these triggers arrest.

On the DV charge, the chief explains that after Manziel’s clearly intoxicated girlfriend told the officer that “he struck me twice in the fact,” the officer looks for marks and sees none. Dyer then notes that she ‘retracted her initial claim,’ but we cannot tell from his account when she did that.

The chief concludes with this observation: “I know quite a bit about addictions.  If he was in rehab for 10 weeks and he’s drinking, it’s not a good sign…for him personally—or for a longtime fan of the Cleveland Browns.”

When we unpack Dyer’s summary we see that there are multiple decision points here, with multiple opportunities for this officer to make discretionary choices. 

The officer chooses NOT to see the smell of alcohol on Manziel’s breath as a trigger for an arrest, but she could have.

The officer chooses NOT to give Manziel a field sobriety test, even though it is hard to imagine if it were you or I she pulled over that we would be treated so gently, given the circumstances.

Yet, the ‘circumstances’ include that the law-breaker is a star athlete.

The officer chooses NOT to arrest Manziel for domestic violence, even though he could have. 

The officer chooses see Manziel as ‘worthy’ of going the extra mile, but not worthy enough for the officer to choose to conclude that for admitted alcoholic the choice the officer could make for this citizen-clients own good would be to get him into rehab, likely meaning starting with an arrest.