Prisoners are persons whom most of us would rather not think about. Banished from everyday sight, they exist in a shadow world that only dimly enters our awareness. They are members of a "total institution" that controls their daily existence in a way that few of us can imagine. "[P]rison is a complex of physical arrangements and of measures, all wholly governmental, all wholly performed by agents of government, which determine the total existence of certain human beings (except perhaps in the realm of the spirit, and inevitably there as well) from sundown to sundown, sleeping, walking, speaking, silent, working, playing, viewing, eating, voiding, reading, alone, with others. . . ." It is thus easy to think of prisoners as members of a separate netherworld, driven by its own demands, ordered by its own customs, ruled by those whose claim to power rests on raw necessity. -- Justice William Brennan, dissenting in O’Lone v. Estate of Shabazz, 482 U.S. 342, 354-55 (1987).

Sunday, April 20, 2008

Michael Vick... Final Thoughts

[I originally wrote this on December 17, 2007 but was concerned about publishing it, knowing that some of the comments would not be popular. I also don't like to push the "publish" button after writing an article that is written in anger. While anger is a great motivator and inspires some occasional rhetorical flourishes, sometimes I later regret what I have written and wish I had toned things down a bit.

It has now gotten to the point where I don't care so much because I have since already made some strong comments in my recent posts and someone needs to say the things I am saying because, for some reason, the mainstream media won't do it. If I go "over the top" occasionally, I'll deal with it.

Furthermore, I have found a couple of articles in the "not so mainstream" online media that support, or at least are consistent with, my positions in this post. There is always comfort in numbers :)

Must reading (especially the first one):

1. Michael Vick and the Feds -- This guy definitely channels my thinking on almost all subjects related to federal criminal law.

2. Vick's Sentence Too Long -- Don't agree with everything he says, but agree with conclusion that punishment was too harsh.

3. Analyzing the Vick Sentence

OK... now for my post.]

Michael Vick was sentenced last Monday [remember I wrote this on 12/17/07] to 23 months in prison. According to the Atlanta Journal Constitution poll (see link above), 40% thought it was too harsh, 30% thought it was just right, and 30% thought it was too lenient.

1. First the facts

Vick's plea deal was for 12-18 months (level 13 of the USSG.. see However, that included 2 points "credit" for "acceptance of responsibility," which is typically given to defendants who take plea deals (and in fact is a major incentive to take a deal). The judge however did not give him those two points, raising him to level 15, which is 18-24 months, and then gave him almost the maximum within that range.

At 23 months, Vick will earn almost exactly 90 days good time credit, which means he will serve 20 months, the last 2 months (10%) in a halfway house. Since he surrendered early on November 20, 18 months means he will leave prison for a halfway house before May 20, 2009 and leave the halfway house before July 20, 2009. In theory, he would be available for training camp for the 2009 season, especially if he is allowed to relocate and report to a halfway house near whatever team decides to give him a chance (and I suspect there are one or two who will) if Commissioner Goodell doesn't suspend him further (and my initial sense is that Goodell will conclude that Vick has more than paid for his sins). Of course, this assumes that he won't serve additional time for the state charges he is facing in Virginia. Sigh.

Is it possible that Vick could get out early through the drug program? As I have discussed previously, inmates who qualify for the program (and I think Vick might) can enter once they are within 27 months of release, although in practice it is closer to 23-24 months. The program is 9 months, followed by 6 months halfway house.

Vick will serve 20 months. However, by the time he reports to a federal facility (remember, he surrendered early and I guess is in the custody of the US Marshalls, not BOP, yet). He will likely not be assigned and transferred to a BOP facility until late January, more than 2 months after he surrendered, meaning he will only has 18 months left (16 months in prison, 2 months in a halfway house). Even if he were to get in the RDAP program immediately (which I don't think is possible... it usually takes 1-2 months minimum), he would end up with 9 months in prison, 6 months in halfway house). The difference is only 3 months and that is the best case scenario. Yes, the shorter prison time is a big plus, but halfway houses are a crap shoot... I know some people who would have preferred staying in the prison camp. Plus, the supervision restrictions with respect to drugs and alcohol are so strict once someone has completed the RDAP program that Vick risks violating his probation and being sent back to prison if he slips up, which he has already shown a tendency to do!

Bottom line is I don't think the RDAP program makes much sense for him if his only goal is to get out early. Of course, he might just want to benefit from the program in which case he should go for it... it's free.

[UPDATE: Vick was transferred to Leavenworth Prison on January 7, 2008, where he apparently is playing prison football, although BOP denies it. Too funny. Furthermore, he apparently has applied for RDAP (drug treatment program) although, as of March 8, he has not been admitted... I told you he wouldn't get in immediately. As of today, Vick has served 6 months. He has 14 left, of which 2 are release to halfway house. If he gets into drug program today, it would take 9 months to finish (Jan 20, 2009) and then he would be released to 6 months of halfway house. The net effect is only 1 month saved (15 more months instead of 16), although he would save 5 months in prison but serve 4 months longer in the halfway house. Tough call for me as to whether it's worth it, although any time off is good, even if only a month. Plus I'm still concerned that the stricter drug and alcohol conditions of supervised release are a huge risk for him.]

2. Ok, enough of the facts... now for the things that trouble me about this case.

First, Vick himself.

He made about every mistake in the book in responding to this legal crisis.

Had he come clean last April (2007) with the state authorities when the case broke, instead of denying any involvment, not only would the feds likely not got involved, but he likely would have received no jail time on the state charges. He still might have been suspended, but there is not doubt that Vick was in a legal strait-jacket where the more he struggled to escape, the tighter it became. And struggle he did. And tighter it got.

He lied to his team owner and league commissioner.

He assumed his "friends" would not "rat" on him. Almost the entire case against Vick came from codefendants who plead before Vick did. In particular, Tony Taylor, who only received a 2 months sentence, really did him in. Vick is a notoriously loyal friend. He apparently assumed that loyalty, if that is what you want to call it, would be reciprocated. Bad assumption. Amazing what a little threatened prison time will do to loyalty .

After finally being forced into a plea deal, under threat of a superceding RICO indictment, [read Michael Vick and the Feds] Vick tests positive for marijuana and then gives inconsistent accounts of why. He lied to a probation officer and FBI agent (which actually is a separate crime in and of itself... ask Martha Stewart!), hedging about his involvement in killing dogs.

Ironically, the killing of dogs was not a necessary element of the crime he was charged with, but it was the most damning fact from a public relations and reputational perspective (and it probably was one factor in the judge giving him a harsher sentence than the guidelines called for). Understandably, he was reluctant to admit it. I don't know how his lawyers could have allowed this to happen unless he lied to them also, not usually a good idea.

Was he scared? Of course he was. I understand that, but his inability to get beyond his fear was a major factor in his undoing. Once he entered his guilty plea, he had to come clean. By the time he finally did (he basically broke down under questioning by an FBI agent while wired to a lie detector), the damage was already done. He gave a judge who seems predisposed to handing down harsh sentences all the ammunition he needed to show no mercy. And Vick got none.

3. Now, my thoughts about the government, which I saved for last because they are more controversial.

While I hold no brief for Vick's conduct, I am more disturbed by that of the federal government. I realize many believe the feds handled this case very professionally, but that refers to their efficiency and effectiveness, not the justice of their cause.

I realize I am in the minority because the average Joe on the street doesn't care about the legal minutia of the way this case was handled... Vick killed dogs. He is going to jail. Justice is served. Case closed. That is all the public cares about. There is almost a lynchmob mentality that takes on a life of its own, in which everyone tries to outdo the other in expresing outrage.

I, on the other hand, care about the process, which I think was very unfair to Vick. Only someone who understands the system would see this.

First, this never should have been a federal case. You may not recall that this case started because Vick's cousin, who apparently lived at the Virginia property, was arrested for marijuana and listed the house as his address. A search of the house by state authorities discovered the dogs and evidence of dog fighting. This was an ordinary state case that involved violations of state dog fighting statutes.

How did the federal government get involved?

According to East Coast Blogger:

The only federal law against dogfighting is found in 7 U.S.C. 2156, which generally prohibits dogfighting where the dogs have been transported across state lines (a jurisdictional "hook" to get the crime under the Commerce Clause of the U.S. Constitution). Paragraph (f) of that code section allows the Secretary of Agriculture (former Nebraska Governor Mike Johanns) to enlist the FBI in investigating possible dogfighting infractions. The crime was recently made a felony by a bill signed May 7, 2007. It would appear to me that Vick would only be facing the previous misdemeanor penalties.

Let me repeat: the only federal law against dog fighting prior to May 7, 2007 was a misdemeanor. And the only way the feds could even get involved is if the dogs were transported across state lines, which is something of a technicality.

To make this a felony, the prosecutors also charged Vick with a violation of "Conspiracy in interstate commerce/aid of unlawful animal fighting venture" (Title 18, USC, Section 371)

Huh? I hate these gobbledygook statutes that, in the hands of a motivated prosecutor, are designed to encompass almost anything. Essentially, Vick was charged with conspiracy to commit a state crime. The state crimes were dog fighting and gambling, which in Virginia are felonies, therefore making the federal conspiracy charge a felony.

In other words, the only substantive federal dog fighting law that Vick violated was a misdemeanor. It was the conspiracy to commit a state felony that became a federal felony. This is absurd, although this type of legal maneuvering to federalize state crimes is actually quite common.

What about abusing and killing dogs? Those facts, which were identified in paragraph 83 of an 84 paragraph indictment, were utterly irrelevant to the legal charges. They were presented for PR purposes only. The prosecutors knew that the public would focus on that one issue and ignore the more mundane legalities, which had nothing to do with killing dogs. In other words, the torture and killing gave the feds the "cover" to execute what was essentially a very unfair and sneaky maneuver in undercutting the state in this matter.

Why would the feds to this? Simple. It was Michael Vick. Period. If this case only involved the other defendants without Michael Vick, does anyone seriously believe the feds would have pursued it? Has anyone ever been prosecuted federally for dogfighting under this statute?

Look, I understand the public sentiment against Michael Vick. The killing of several dogs in particularly cruel fashion sealed his fate in the court of public opinion, understandably so. However, I also believe the legal process should be fair and that Vick was a victim of "piling on" by the feds. I don't like individuals being singled out for selective prosecution for their celebrity (re: Martha Stewart) so a prosecutor can pad his resume.

From a public policy point of view, the DOJ gets more "bang for the buck" in prosecuting celebrities. The publicity acts as a general deterrant. If the goal is to reduce anti-social behavior, then making an example of someone is an effectivestrategy. The cost however is injustice to the individual. That is, one individual is singled out for harsher punishment in order to discourage similar conduct by others.

[By the way, this is also precisely why the feds are seeking a 3 year maximum sentence for Wesley Snipes for failure to file a tax return: "This case presents the court with a singular opportunity to deter tax fraud nationwide," the government said in its sentencing recommendation." ]

Congress passed a Animal Fighting Prohibition Enforcement Act which was signed by George Bush on May 3, 2007. What better way to publicize the issue of dogfighting than by going after a celebrity like Michael Vick even though his crimes occured before the new law went into effect? The timing was perfect. Of course, that begs the question why such a law was necessary since the feds apparently didn't need it to prosecute Vick federally anyway.

Vick also had the misfortune of drawing a tough judge... Henry Hudson. Vick presented to the judge what I thought was a heartfelt, handwritten letter from prison, explaining how he made these bad choices, in a manner that made sense to me. He grew up in an environment in which drugs were prosecuted but dogfighting was not. Dogfighting was part of his subculture and no one ever got in trouble for it. Does that make it right? Of course not, but I can understand it and I think it mitigates somewhat his conduct just as other cultures have different values with respect to the treatment of animals. (See "What's Wrong With Eating Dogs?")

The judge apparently totally dismissed his letter as well as those of other important people. This is something I hear frequently in emails I receive.... that an entire law-abiding life is dismissed as meaningless and the defendant's entire life is now defined by one illegal act.

One particular decision of the judge that I found troubling was the failure to extend the very basic and routine courtesy of allowing Vick to wear a suit at sentencing, instead of requiring him to attend in his black and white striped prison garb. What other purpose could this have served other than to humiliate Vick unnecessarily?

As I mentioned at the beginnig of this post, the judge also rejected Vick's 2 points for acceptance of responsibility. I understand the basis for that but it also ignored the fact that Vick willingly spent almost $1 million dollars to care for the remaining 50+ dogs that normally would have been executed legally by the state. Does that count for nothing? Has any other dogfighting defendant gone to that length to demonstrate acceptance of responsibility. Yes, he was responsible for the killing of several dogs, but he was also single-handedly responsible for the saving of over 50 dogs, who are now being "rehabbed" for adoption.

I think it is fair to say that no one has ever suffered anywhere close to the consequences Vick has for running a dogfighting operation. (Actually, a SC man got 30 years for dog fighting related activities, which is really bizarre.) The punishment is so ridiculously disproportionate to the offense, it is almost impossible to comprehend how far he has fallen. To say, unsympathetically, that he brought this on himself is simply naive. The punishment goes far beyond the time in prison, which is oftentimes the case. The financial costs of Vick's prosecution have been estimated at $142 million. These are the collateral consequences of his conduct.

Finally, if anyone is looking for an excuse to be sympathetic to Vick, read the following column by Gregg Easterbrook of ESPN:

In conclusion, I am compelled to agree with William Anderson's column I referred to earlier ("Michael Vick and the Feds"):

"Whatever one thinks of dogfighting – and I believe it to be cruel and barbaric – nonetheless what the federal authorities are doing is much more cruel and barbaric, and threatens life and liberty more than anything Vick and his friends might have done at the Bad Newz Kennels. The bad publicity already has ensured that no more dogs ever will fight and die on Vick’s Virginia property, but one must understand that what federal prosecutors do every day makes the actions of Vick and his friends seem tame by comparison"

"What he did was wrong and thuggish, but while Michael Vick allegedly was a danger to some dogs, that was and is nothing compared to the dangers that federal authorities impose upon the people of this country – and, indeed, the world – every day. That, I believe, is the central issue in this case, not the guilt or innocence of a professional football player."


Anonymous said...


Great post, you are right on point with pretty much everything. Thanks for saying what others don't have the courage or intelligence to say.

Anonymous said...

Sorry to burst your bubble, but it states in the bill it began 4th of January, 2007, the date of introduction. It was being processed before Vick commited his crime. There have been cases where laws that began the process before a crime, but were signed after a crime, are still applied to the crime and upheld.

Vick deserves what he gets.

Bill Bailey said...

First, I am not sure how a bill that is not signed into law until May 4 can be retroactively applied beginning 4 months earlier. That seems a clear violation of the Constitution's ex post facto clause. I would be curious to see the cases you say exist.

In any case, I'm not sure what bubble of mine was burst. If the law was effective in January, why wasn't Vick prosecuted under that law? Instead, the feds used what are sometimes called "derivative" statutes to federalize a local law.

Furthermore the threat of a RICO indictment (which is totally absurd... read the link in my post)forced Vick into a plea.

If Vick had been prosecuted in state court and received 23 months, you would get no complaints from me.

My concern is that federal laws basically give prosecutors the power to turn relatively minor state crimes into significant federal crimes with long sentences. Otherwise harmless conduct (such as dropping a letter in the mail or depositing a check in the bank) can turn a state misdemeanor with releatively small prison time into a federal felony with a 20 year sentence.

It is really absurd. And I wouldn't be too confident or smug if I were you. Just about everyone in this country has engaged in conduct that could, in the hands of a sufficiently creative and motivated prosecutor, put you away for years before you even knew what hit you.

Bill Bailey said...

Of course, my other concern, which I think is uncontestable, is that Vick was selectively prosecuted for his celebrity. There is no chance that Vick, had he not been famous, would have been prosecuted federally. That should concern any fair person.

Anonymous said...

Bill, My only comment is as follows: I truly believe that this was a public relatios stunt by the USAO/AUSA. Big name big recognition. The public ahhh this is another problem, where all they care about is punish and lets move to the next one....

Sad but true that this was such a waste, an alternative punishment would have done quantifiable justice, care for 50 dogs was a great start...non guideline sentencing must be used by the judges...its not about points and levels all the time.