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Beanball: The Art of Drafting an Unfair Rule

Writing in the Boston Globe several days ago, celebrity law professor Alan Dershowitz proposed new, harsher rules for baseball. What was the object of his ire? Steroids? Profligate salaries for players / owners? Actually, it's the sentencing of players in beaning incidents, i.e. when a pitcher intentionally hits a batter. Dershowitz uses the Rick Porcello-Kevin Youkilis imbroglio as a case study for why MLB needs new rules for such situations. [Read on for detailed analysis.]

The Harvard Law professor argues MLB should, like a criminal court, consider differences of intent and the severity of potential injuries, in sentencing:

Youkilis and pitcher Rick Porcello were both suspended for five days even though the decision to throw at Youkilis was premeditated and deliberate whereas Youkilis’s response was unpremeditated and provoked. Death, serious injury, and the end to careers can result from being struck by a ball, particularly in the head; it is rare for anybody to be seriously hurt when a batter charges the mound with his bare hands. Accordingly, an equal penalty for these two very different offenses was outrageous.

As Dershowitz notes, the penalty for both players was equal - 5 days. But while Youk missed over 20 at-bats and many innings in the field, Porcello's start was just pushed back a few days. Youk's absence deprived the Sox of arguably their best hitter, while the Tigers might've had to reshuffle the lineup.

So Dershowitz seems to be on pretty solid ground in calling for harsher penalties. Next he argues that the strategic benefit of beaning a player to make them charge the mound gives the pitcher's team an advantage:

The message conveyed by Major League Baseball, even if unintended, is that it pays for a pitcher to throw at a superstar. Since human nature will often cause a batter to respond impulsively to being struck, a pitcher can trade a meaningless suspension for a meaningful one against the opposing team.

Accordingly, Dershowitz concludes, this creates a perverse incentive for managers to have their pitchers throw at opposing teams' best players. For example, Joe Girardi might order Joba Chamberlain to throw at Bay or Youk at the beginning of the series, provoking him charge the mound and get tossed for the 4 or 5-game series.

For Dershowitz, the ultimate result of this nightmare scenario is "someone will be maimed or killed." To prevent this, he urges a Zero Tolerance policy. Pitchers who intentionally throw at opposing batters must be suspended for an entire season. Managers who order intentional throwing at batters must be suspended for the season, or even for life. These stiff penalties are necessary for Justice, so that the punishment suits the crime.

I agree with Dershowitz that equal sentences in the Youk-Porcello affair are unfair. Due to the intentional nature of the HBP, Porcello should have received a stiffer suspension. I'm not sure that throwing at a player is more dangerous than fisticuffs, as bare hands can also cause damage. But the case for differential sentences isn't strong enough to justify year-long suspensions.

Much of the argument for such exceptional penalties rests on the assumption that there is a trend of increased intentional HBPs; "it has become routine in baseball to throw at a batter," the professor writes. No statistical evidence is provided to justify this claim. This is significant because without data, there's no way to know whether intentional HBPs are up, down, or the same in comparison to past seasons.

If the risk of intentional HBPs is not elevated, then Dershowitz's argument loses all its footing. If incidents like Youk-Porcello are infrequent, and if the current sentences do nothing to encourage them, then harsh sentences aren't necessary. Even if intentional HBP are on the rise (which I doubt), there are other problems with the professor's case.

Dershowitz's penalties, which he claims are necessary for proportionality (i.e. "let the punishment fit the crime"), in fact defy it. It would create situations where one player would have a bruised hand or back, and another would be out of baseball for a year. The only defense for a player would be to claim the manager ordered him to do it. This would generate a great deal of litigation, as players and managers would lawyer-up to defend themselves. Teams might sue MLB to prosecute cases of alleged intentional beaning. And all this delightful litigation would be leaked to the media (if the discretion of lawyers involved in the steroid cases is any indication).

Another issue is that these harsh penalties would so severely impact players that umpires / the Commissioner may be reluctant to enforce them to the fullest extent. If Halladay or another high-profile pitcher threw at someone, the powers that be would think twice about suspending him all season. Yet if that were the only penalty, they might choose not to prosecute at all. Thus, by implementing Dershowitz's penalties we might be trading poor sentences (5-7 days) for none at all.

In other words, Dershowitz's zero tolerance policy would almost certainly cause more damage to the sport and to the individuals involved in it than the policy would prevent.