Wednesday, February 18, 2009

Baseball's Faustian Bargain

In the Faust legend, an aging scholar makes a deal with the devil to exchange his soul for demonic assistance in obtaining a young woman’s caress. The ensuing tragic consequences make “Faustian bargain” a shorthand phrase for giving up too much to gain an immediate objective.

The ongoing fallout from major league baseball’s steroids scandal shows the fateful consequences of a Faustian bargain still unfolding. On February 11, five-time All-Star shortstop Miguel Tejada became the first high-profile player to be convicted of a crime in connection with the scandal. He pleaded guilty to a misdemeanor for misleading Congress about the use of performance-enhancing drugs by withholding information about a former teammate’s use of steroids and human growth hormone (HGH). Tejada also admitted buying — but not using — HGH, and will be sentenced (probably to probation) later this year.

Meanwhile, two of the most celebrated players of the past 25 years find the legal pincers closing on them. Career homerun leader Barry Bonds, whose bulging muscles and outlandish accomplishments exemplified the steroids era, goes on trial next month on charges that he perjured himself when he denied to a federal grand jury in 2003 that he ever knowingly used performance-enhancing drugs. Dominant starting pitcher Roger Clemens, whose productivity over more than two decades seemed to defy gravity, is being investigated by a federal grand jury. Clemens may have committed perjury last year when he told Congress that he had never used steroids or HBH.

For individual players, direct legal penalties are only one consequence of their choice to use banned or illegal substances. They also must confront the court of public opinion, where an angry mob is already forming to make Yankee superstar Alex Rodriquez’s life miserable now that media reports have linked him to the use of performance-enhancing drugs in 2003. Though major league baseball (MLB) did not have any penalties in place for testing positive at that time, Rodriquez now must face the fact that his desire for fame has backfired on him, as he morphs into the infamous A-Fraud.

One also wonders what the long-term effects on players’ bodies will be, after rolling the dice with dangerous drugs. It can't be good.

All along, MLB’s response to the use of performance-enhancing drugs has been cynical and slow to form. As sports commentators have written, the toll on the goodwill of the fans from the 1994 strike severely cut into MLB’s revenues. The homerun derby unleashed by steroids in the late 90s was the antidote to the attendance decline, and took the game to new heights of popularity at the gate. One can see now, however, that in baseball, as in Ponzi schemes and fraud of all types, if something seems too good to be true, it probably is.

Thursday, February 12, 2009

Milk

Gus Van Sant’s film “Milk” offers a vivid account of last eight years of the life of Harvey Milk, the first openly gay politician elected to significant public office in the United States. Moving to San Francisco in 1970, at the age of forty, Milk soon became active in the political organizing that led to his election to the Board of Supervisors in 1977. He was at the forefront of a turbulent national debate about civil rights for gay and lesbian people when he and Mayor George Moscone were murdered by Dan White, Milk’s former colleague on the Board of Supervisors, on November 27, 1978.

The notorious “Twinkie defense” at White’s trial in 1979 has generated a tremendous amount of commentary — and given rise to misleading myths and misconceptions. In popular consciousness, the notion took hold that White was convicted only of manslaughter for the double assassination because eating an inordinate amount of junk food (such as Twinkies) had caused him to become depressed, and therefore incapable of the premeditation necessary for a murder conviction.

In fact, Twinkies were never mentioned in the courtroom. The defense’s psychiatrist testified that White’s reliance on junk food was one of several symptoms of depression. Other factors included quitting his job, avoiding his wife, and becoming slovenly in appearance. White was paroled in January 1984, after serving only five years in prison for the double homicide. Less than two years later, in October 1985, he committed suicide, leaving a note saying he was sorry for the “pain and trouble” he caused.

Van Sant’s film, with Sean Penn as Milk, neither flinches from depicting the assassinations nor dwells on them. The focus is on Milk’s participation in the bruising and demanding politics of California in the 70s. His contribution extended beyond the Bay Area to an active role in successfully opposing a proposed statewide referendum that would have allowed public employees to be fired for suspected homosexual activity.

In this tumultuous political climate, Milk’s important victories often came at great personal cost. I’m referring here not merely to the courage he showed in the face of death threats, or to his senseless murder by White. The private cost of public engagement can affect any public figure, gay or straight. But striking a balance between public and private was particularly challenging for a pioneer like Milk, at a time when gay relationships were still emerging from the shadows. Toward the close of the film, in a touching scene involving the opera “Tosca,” Milk seemed to be moving toward some sort of rapprochement between his public and private selves — before his life was cut short.

Monday, February 9, 2009

Super Sized Incarceration

The super-sizing of American convenience foods (and waistlines) has been well documented. Erik Schlosser began publishing parts of “Fast Food Nation” in Rolling Stone in the late 90s, and Richard Linklater followed up in 2006 with a fine film of the same name. These and other works have exposed the grim production realities behind the shiny sales counters, extending back deep into the food chain, and contributed to a greater level of awareness of the considerations involved in Americans’ national struggle with obesity.

The data are disturbing. In the last forty years, the number of Americans classified as obese has risen from 13 percent to 31 percent, and nearly two in three are overweight, according to the standards used by the Centers for Disease Control. An astounding 3.8 million Americans are over 300 pounds and an equally astounding 400,000 people are over 400 pounds. Many factors beyond the ubiquitous “would you like fries with that?” contribute to this. Yet in public health terms, all that extra weight clearly puts millions of people at increased risk of harm.

Is an analogy to America's super-sized corrections system too obvious? More than 7 million people — 3.2 percent of the adult population — were imprisoned or under community supervision in 2006. The number of incarcerated Americans kept going up in 2007, by 1.5 percent, with 2.3 million prisoners in state or federal prisons or local jails. This means that more than 1 in every 100 adults in the U.S. is behind bars. These numbers are several times more than in any previous era in American history and place us as an outlier among developed nations.

What are we getting for all this stepped-up incarceration and expanded community surveillance, which of course costs a pretty penny? Yes, offenders must be appropriately punished. But for how long? I’ve heard George Will and others argue that crime rates would be even higher if there weren’t so many people behind bars. This position doesn’t really recognize that virtually all offenders who are imprisoned will eventually be released to the community. “Reentry” is the term of art in the corrections biz, and it’s all-too-often overlooked in what passes for national debate on these issues.

In the Gospels, Jesus urges his followers to avoid litigation wherever possible, lest they be put in prison for contempt of court. If that were to happen, he warns, “You will never get out until you have paid the very last penny.” Will America be able to reassess its criminal justice policies before we pay our very last penny and find ourselves unable to borrow more from the Chinese?

Monday, February 2, 2009

Marguerite at the Scaffold

In the third act of Minnesota Opera’s production of Gounod’s “Faust,” Marguerite — the woman Faust seduced and abandoned — is in her prison cell, awaiting execution for killing their child. Amid the orgiastic chaos of Walpurgis Night, Faust sees a vision of her facing the scaffold and, with assistance from Mephistopheles, visits her in prison. Refusing Faust’s pleas for her to escape with him, Marguerite goes to the gallows. Her soul is saved, however, after she implores heaven for help and angels intervene.

However one interprets the cosmology behind the Faust legend, one cannot but see Marguerite’s plight through the prism of what we now know about postpartum depression. Rather than the devil being personified by Mephistopheles, it often comes in the form of “The Noonday Demon,” as Andrew Solomon put it in his National Book Award-winning book. Solomon’s book deals broadly with the phenomenon of depression, of which past-partum is one (often terrible) type.

The most notorious national case of filicide is probably that of Andrea Yates, who in 2001 killed her five young children (ages six years to six months) by drowning them one by one in the bathtub of their Houston home. Yates had been battling postpartum depression and psychosis for years, but was initially sentenced to life in prison, with the possibility of parole after 40 years. That sentence was later overturned and in 2006 a Texas jury found her not guilty by reason of insanity. The court then committed Yates to a state mental hospital. The terrible circumstances of her case are well documented in “Are You Alone?” by Suzanne O’Malley and “Breaking Point” by Suzy Spencer.

Another tragic case of the criminal justice system’s failure to take proper account of postpartum depression is still unfolding in Iowa. Heidi Anfinson was convicted of second-degree murder after her two-week-old son Jacob drowned in bathwater in September 1998 while under her care. Anfinson contended that Jacob’s death was an accident, but she was sent to prison, despite considerable evidence (not adduced at trial) that she was suffering from post-partum depression.

After years of legal battles, Anfinson’s conviction was overturned in October 2008. In granting her the right to a new trial, the Iowa Court of Appeals held that Anfinson’s trial counsel had erred in ignoring evidence of her compromised mental state. Even if her counsel was not making outright defenses of insanity or diminished responsibility at trial, the appellate court found that evidence of the toll depression had taken on her was directly relevant to her defense of accidental death.

This evidence could have helped the jury understand how Anfinson could have left her infant in the bath while going into the next room to use the telephone, why she might bury the body under rocks at a nearby lake, and why she might seem flat and unemotional to investigators when questioned about Jacob’s disappearance. If Heidi Anfinson was suffering from severe post-partum depression, a condition so bad it included elements of self-mutilation, her behavior may not have been bizarre at all. Criminal justice practitioners should learn to recognize signs of "the noonday demon" when they see it, even if its calling cards are not always Faustian devils with horns and tails.

Monday, January 26, 2009

Frost Nixon Confessional

Using movies as a window on reality is always tricky business, particularly when the subject is an American president. Oliver Stone’s forays into the genre –from JFK to his recent W – are well known, and discerning viewers are wise to keep their antennae up for the spin coming from Mr. Stone and others. Nonetheless, there can be much to learn from a cinematic perspective on a president’s life and times when one approaches with the right level of wariness.

The current film Frost Nixon, from director Ron Howard, is based on a 2006 play by Peter Morgan and features an uncanny performance by Frank Langella as Nixon, with Michael Sheen as David Frost, the British talk show host who conducted lengthy interviews with the disgraced Nixon for broadcast on television in 1977. At first, Nixon is eager to defend himself, but the film builds gradually to two memorable moments, in which his desire to make some sort of confession becomes palpable.

As depicted in the film, in their fourth and final interview, Frost nails Nixon with a previously little-known but highly incriminating piece of evidence regarding Nixon’s participation in a cover-up of the Watergate break-in. The two men tangle briefly over the legal definition of “obstruction of justice” before Frost, sensing that Nixon is on verge of some sort of confession, throws his notepad to the floor and asks Nixon pointblank whether he is prepared to admit his actions were wrong and apologize to the American people.

Initially, Nixon will only go so far as to admit “mistakes,” but other words to describe his actions are hovering close at hand. I found myself wondering: If he’s willing to admit to mistakes or errors, and has a look of such agony on his face, is Nixon prepared to say the word “crime” or – even more fundamentally – “sin”? Though those precise words do not exactly pass his lips, Nixon concedes, with downcast eyes and an ashen expression, that he let the American people down. Frost’s crew quickly revels in the “gotcha” moment while a bewildered Nixon leaves the interview site in a daze, still trying to come to terms with his sense of shame and isolation.

What was it about Nixon’s character that led to the fateful choices he made? In what may have been a moment of dramatic license, Ron Howard’s film offers much to speculate about in a scene that occurs shortly before the final interview session. An anxious Nixon calls Frost late at night and launches into a remarkable, rambling pro vita sua. On the one hand, Nixon claims that he and Frost are kindred souls, because each rose to the top of his profession despite humble origins but was denied acceptance by the old elites due to sheer snobbery. Yet having claimed this kinship with Frost, in the next breath Nixon is vowing to vanquish him in the last interview, because in American life there can be only one winner.

In the culture of fame we live in today, such a statement scarcely makes sense. By the standards of fame, Frost and Nixon were complicit with each other in attracting the widest possible audience for their common venture. With a sense of irony, one might even call them co-conspirators seeking to co-opt the Nielsen rating game.

Yet Nixon came from another America, one where, as Vince Lombardi famously asserted, “winning isn’t everything, it’s the only thing.” His simplistic conceptions of winning and losing were reflected in his hardball political tactics and his refusal to end the Vietnam War. For all his knowledge of geopolitics, he didn’t see that Frederick the Great was wrong: God is not on the side of the big battalions. Indeed, in a world turned upside down by Christianity, God is especially close to the victims, even if that doesn’t fit with Kissinger’s Realpolitik. It would have been a breakthrough far bigger than the openings to Russia and China if Nixon could have reclaimed enough of his Quaker roots to recognize this.

Monday, January 12, 2009

Read, mark, learn . . .

When I arrived at Valparaiso University to begin law school, there was an assignment posted on the notice board just inside the entrance to Wesemann Hall. First year students were to “read, mark, learn, and inwardly digest” several cases on lost or abandoned property for the required property course.

At the time, I did not know this language had been appropriated from the Book of Common Prayer. Though I had spent six months in Oxford as an undergraduate, and had frequently attended Anglican services, it was not familiar to me. I was oblivious to the irony of using language taken rather too freely from a completely different context to make a school assignment about lost or misappropriated property. Years later, I wondered whether the irony was intentional or merely the result of what Walker Percy calls linguistic drift. In any case, the theme of digesting reading material, in the sense of making it part of one’s inner apparatus, still carries power for me, a quarter century later.

In Real Presences, his remarkable meditation on the nature of creativity in the arts, George Steiner picks up the ingestion metaphor. Citing Ben Jonson, he writes eloquently of how what we know by heart becomes an active shaping force in our consciousness. Memory is crucial to identity – a fact known to the Greek muses and a reality that becomes agonizing for those suffering from forms of dementia, when they feel the old anchors of the self slipping away.

On the subject of criminal justice, what have I (in a secular sense) ingested? In high school, I came across Oscar Wilde’s Ballad of Reading Gaol in our little library, and portions of that poem stay with me. Around that time, I also read much of Solzhenitsyn’s monumental Gulag Archipelago, as well as Falconer by John Cheever. A little more than twenty years later, when Tom Wolfe published A Man in Full, I had occasion to compare Cheever’s prison descriptions to Wolfe’s. More importantly, by then I had first-hand experience of visiting real correctional facilities to draw upon, starting with Clarinda, Iowa, in 1999, followed by most of the state-run correctional facilities in Minnesota, including Stillwater, St. Cloud and Oak Park Heights, in 2001. What I quickly learned, on these visits to actual correctional facilities, is that books can only take you so far. How could it be otherwise?

Saturday, January 3, 2009

All Was Not Calm

The Christmas Truce of 1914 is a powerful, yet still little known, symbol of peace. At more than one place along the Western front, German, British, French and Belgian troops left their positions to sing sacred songs, play soccer, share a drink or two, and bury the dead who had been trapped in No Man’s Land. The French film “Joyeux Noel” (2005) offered a vivid version of these events, and two musical groups in the Minneapolis – St. Paul area recently staged a theatrical production based on them called “All Is Calm.”

On Christmas Eve in 2008, all was decidedly not calm in Covina, California. Bruce Pardo, a 45-year-old man dressed in a Santa Claus suit, burst into the home of Joseph and Sylvia Ortega, parents of his ex-wife, also named Sylvia, armed with a gun and an explosive device. A family gathering was in progress. Pardo began by shooting an 8-year-old girl in the face, sprayed others with bullets, and set fire to the house, killing nine people, wounding two, and leaving thirteen children orphans. Though he had planned to escape (having purchased a plane ticket), Pardo was badly burned in the fire he set and ended up driving forty miles to his brother’s house, where he committed suicide by putting the gun in his mouth and pulling the trigger yet again.

While this carnage was unfolding in California, on another side of the world, in the northeastern part of the Democratic Republic of Congo, an equally gruesome set of massacres began on Christmas Day. According to the aid agency Caritas, a Ugandan rebel group calling itself the Lord’s Resistance Army killed a total of more than 400 people in at least three sites by using swords, clubs and machetes to force them into fires. More than 20,000 people fled to the mountains after their villages were burned down, and five people had their lips cut off by the LRA fighters in a brutal effort to forestall speech with terror. Forty-five of those killed had attempted to take refuge in a Catholic church.

In the grimmest of circumstances, the idea of sanctuary holds up well neither for place nor for time. In May 2002, the Church of the Nativity in Bethlehem was the site of a prolonged siege by Israeli forces, with Palestinian fighters holed up inside; the impasse eventually ended with the church in shambles. Revered graves in the Iraqi city of Najaf fared no better at the hands of American forces in 2004, as the U.S. sought to stamp out resistance to its occupation of Iraq by taking the fight into Islamic cemeteries.

Despite all the bloodshed, however – one might even say because of it – the hope for not merely a truce, but a lasting peace, remains a deep need of the human heart. Longfellow gave voice to this in "I Heard the Bells on Christmas Day," written at the height of the American Civil War, upon hearing news that his son was wounded.

And in despair I bow'd my head;
"There is no peace on earth," I said,
"For hate is strong, and mocks the song
Of peace on earth, good will to men."

Then pealed the bells more loud and deep:
"God is not dead, nor doth he sleep;
The wrong shall fail, the right prevail,
With peace on earth, good will to men."

Today, charities are already at work, raising money for the Covina survivors and the killings and cutting off of lips by the Ugandan rebels have not stopped Caritas from giving voice to the victims or continuing its work on their behalf. Surely this why, in the Christian liturgical year, December 29 is set aside to remember “the holy innocents” – the infants martyred by Herod in a futile, desperate gesture to suppress the new world being ushered in by the baby Jesus. Without looking away from the violence around us, we can still say Joyeux Noel.