Dershowitz in Boston Globe: Major League Baseball needs tougher penalties for ‘beaning’

HLS Professor Alan Dershowitz wrote “Baseball errs with lax penalty on pitchers who take aim at hitters,” an op-ed that appeared in the Aug. 19, 2009, edition of The Boston Globe.

Professor Alan Dershowitz

Professor Alan Dershowitz

The time has come to look hard at the policy of Major League Baseball with regard to pitchers who deliberately throw at the head of batters and the managers who order them to do so. As the 89th anniversary of the death of Ray Chapman at the hands of a pitcher has just passed, it is important to remember how soft Major League Baseball has been on this life-threatening practice.

It has become routine in baseball to throw at a batter. Being beaned is part of the risk of playing baseball, as any Boston fan who remembers the throw that eventually ended the career of Tony Conigliaro can attest. The beaning of Conigliaro was, by all accounts, an accident, as was the recent beaning of New York Mets third baseman David Wright. But now throws are often deliberate, even if they aren’t aimed for the head.

Such was the case with Kevin Youkilis, back in the Red Sox lineup last night after a five-day suspension. The throw that prompted Youkilis to rush the mound was, according the Major League Baseball, deliberate. He was hit on the back.

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.

Moreover, the penalties were anything but equal in impact. Youkilis, one of the most consistent hitters and fielders in Major League Baseball, and one of its most difficult outs, missed approximately 25 at bats and numerous fielding chances. During his five game suspension, the Red Sox lost 4 games and won only 1. The five day suspension of Porcello, on the other hand, barely affected his team. Normally a starting pitcher gets to the mound only once in five days, so Porcello didn’t even miss one full rotation. His appearance in the rotation was merely postponed by a game or two.

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.

Moreover, had Youkilis not charged the mound, it is extremely unlikely that Porcello would have been suspended at all. But even if he were to have received a slap on the wrist, managers will now have an incentive to continue to encourage pitchers to throw at valuable batters, since their team can derive a benefit.

If this continues, someone will be maimed or killed, despite the presence of helmets. The time has come for Major League Baseball to ban the bean ball. The only way to do this is for baseball to adopt a zero tolerance policy and to impose draconian sanctions not only on pitchers who throw at the heads of batters but, more importantly, on the managers who instruct them to do so. A manager cannot order a pitcher to accidentally hit a batter. Anytime a manager instructs a pitcher to throw at the head of a batter, he has committed the serious crime of reckless endangerment or assault with a lethal weapon. Baseball cannot tolerate such criminality.

The minimum penalty for a manager must be suspension for an entire season, perhaps even for life. For the pitcher, suspension for the season should be mitigated only if the pitcher turned in the manager. There should also be penalties for any baseball player who hears the manager or coach order the beaning of a player without reporting it.

There will be problems of proof in some cases but once Major League Baseball has determined that the decision was a deliberate one, the punishment must fit the crime. It did not do so in the Youkilis-Porcello situation.