My law partner Bassel recently posted on our blog about Myles Garrett cracking Mason Rudolph upside the head with his own helmet and posed the question of whether he should be criminally charged. The post got a lot of attention by our standards. Over 1,300 people voted in a poll with 77% voting that Garrett should not be criminally charged. I’ve probably missed the zeitgeist of the week, but I still wanted to offer a comment since Bassel mentioned that we disagreed on whether Garrett committed a crime.
I do believe that Myles Garret committed a criminal act. I get that the rules on a football field don’t mirror the rules in society. Post-play pushing happens every game. Dirty hits happens every game. People get concussed every game. It’s a rough sport, but there's still a reasonable scope to what’s acceptable on a football field. It reminds me of a quote from Happy Gilmore: “During high school, I played junior hockey and still hold two league records: most time spent in the penalty box; and I was the only guy to ever take off his skate and try to stab somebody.”
Garrett, perhaps inspired by his deep and abiding love for Adam Sandler movies, decided that he wanted to be the only guy to ever rip off his opponent’s own helmet and beat him with it. There is a reason why Happy was the only hockey player to ever try to stab someone with a skate. Because it’s not part of the game and only a true Captain Insano would do it (points if you spotted the second Adam Sandler reference).
But just because I think Garrett committed a crime doesn’t mean that I think he should be arrested and hauled away in handcuffs. In fact, I don’t believe that he should be charged at all despite the fact that he committed a crime. And that’s where I get to the subject of this post: prosecutorial discretion. Prosecutors have total discretion to charge or decline to charge someone. They also get to decide which charges to pursue. That extraordinary discretion makes them the most powerful actors in the criminal justice system by far.
Every prosecutor (I hope) will tell you that their duty is to do justice and not just obtain convictions. So what is a good prosecutor looking at when deciding whether to bring the smackdown or take it easy on a particular defendant? A non-exclusive list would be things like: 1.) The seriousness of the crime. Was it violent or non-violent? Was anyone hurt?; 2.) The defendant’s prior criminal history; 3.) Does this defendant fit within a larger criminal ecosystem in the community; 4.) Has the defendant taken steps to make things right such as paying restitution or entering treatment?; 5.) Has the defendant been punished outside of the criminal justice system; 6.) Does the victim want the case to be prosecuted?
Let give you an example. The allegation is that the defendant was caught selling dime bags of marijuana.
Scenario 1: The defendant is 18 years old with no prior record. He’s on track to graduate from high school and go to college in the fall.
Scenario 2: The defendant is 32 years old. He has 8 prior felony convictions including malicious wounding, possession of a gun by a felon, and selling drugs to minors.
Should we treat both defendants the same because they committed the same crime? Of course not. Lady justice may wear a blindfold, but she isn’t dumb, deaf, and blind. A well functioning criminal justice system takes into account the specific facts of each case and the personal characteristics of each defendant.
In Garrett’s case, the crime wasn't all that serious. Mason Rudolph walked away with a sore noggin, but that’s about it. Garrett doesn’t have a prior criminal record off the field. There's nothing to suggest that he’s a danger to society. Instead, all of the evidence is that he’s a guy who has a hard time controlling his emotions on the field. He’s already received a massive punishment through the NFL costing him millions of dollars not to mention possible lost endorsements and other opportunities. Moreover, Mason Rudolph has said that he doesn’t want to pursue it.
I think the 77% of the people responding to our poll voted the way they did because they know that no justice will come from permanently labeling Garrett as a criminal and/or putting him in jail. Perhaps that sentiment might be a teachable moment to some young baby prosecutor out there who believes that every defendant is a nail that needs to be hammered. You have incredible power. Don’t use it just because you can. There will be many more situations like this one where the best outcome is for the criminal justice system to sit on the sidelines.