Sports and Courts: What Judges Can Learn from the NCAA

In the criminal justice system, our government agents—police, prosecutors, and judges—are supposed to follow certain rules when trying to convict us of crimes.  However, when they break those rules, there are usually no consequences for the rule-breakers.  The result, of course, is that there is little incentive for government agents to know and follow the rules that supposedly govern them.  And, as every five-year-old child in America knows, a rule without a consequence really isn’t a rule at all.  As some prosecutors mockingly say, “It’s more of a suggestion.”

For example, the police can freely violate our right to privacy because judges nearly always tell them it’s okay, and nearly always refuse to suppress the evidence that the police obtained by illegal means.  Similarly, police can fail to properly to inform us of our rights (as they are required to do), and even lie to us about our rights; however, if we lie to the police, it could be a crime.  And in other cases, certain police practices not only violate our rights (which is bad enough), but have also been proven to lead to wrongful convictions of innocent people.  Even in these cases, judges still find ways to let the police to do whatever they want, often elevating police convenience over the wrongful conviction of an innocent person. 

And prosecutors have it even easier.  For example, prosecutors—the so-called “ministers of justice”—are allowed to hide evidence of innocence from defendants, typically without consequence.  That is, in the rare case that such evidence-hiding is discovered after the fact, judges are inclined to say “Ah, it’s okay.  The evidence should have been turned over to the defense, but it probably wouldn’t have mattered anyway.  No harm, no foul.” And at trial, prosecutor’s can pretty much say and do whatever they want—no matter how many rules they violate—usually without consequence.  Why?  Because judges just can’t stand the idea of making them play by the rules, no matter how clear-cut and simple it would be to follow those rules. 

And judges?  Well, that’s another story altogether.  Judges can completely fail to do their jobs at trial by negligently (or sometimes willfully) violating the rules of evidence and trial procedure.  The result?  Just as when prosecutors hide evidence of innocence, the offending judge’s conduct is usually deemed “harmless error.”  And even in the rare case where a defendant gets a new trial (often after spending decades in prison), there is no consequence for the trial judge that botched the job. 

But the NCAA is different.  The NCAA—the organization that regulates college athletics—doesn’t have the power to incarcerate people for decades or even life, or kill people, as the justice system in Texas and some other states can do.  (Sure, the NCAA once issued the so-called death penalty to SMU football—ironically, a Texas college and football program—but that essentially meant that SMU had to take a short time off from the sport.)  All the NCAA can typically do is take away scholarships or keep a school out of bowl games for a few years.  But even though there is much less at stake, the NCAA has rules that govern its investigations, and it takes those rules seriously.

Recently, for example, the University of Miami was being investigated for some football players allegedly receiving some things of value above-and-beyond their scholarships and books.  And in the process of the investigation, the NCAA investigators may have obtained information by improper (but not illegal) means—that is, by means outside of the normal investigatory channels.  The result?  The investigation is shut down and the investigators are being investigated.  The NCAA realizes what the criminal justice system does not: A system of rules that allows those in power to break the rules is a joke.  The NCAA knows that “trust and credibility are essential” to any system that is even minimally concerned with fairness and, equally important, the appearance of fairness.   

Our criminal courts could learn from the NCAA.  With so much more at stake than lost scholarships or even a multi-year bowl ban, judges should be looking to hold police, prosecutors, and themselves to much higher standards.  And with all of the life-ruining power that they have, these government agents should welcome and embrace such heightened expectations.

Today, we live in a world where criminal laws are hyper-technical, have been designed with few or no defenses for the defendants that are targeted, and can put people in prison for decades, or even life.  And the government loves crime and punishment so much that people can find themselves in prison even when they had no bad intentions whatsoever, and even when no one was harmed, in any imaginable sense of the word, by their actions.  With so much at stake in today’s world we need our criminal justice system to be just a little more like the NCAA (or, as I've previously argued, at least like the NFL).