State vs. Michael Phelps

A South Carolina sheriff is investigating whether to prosecute Michael Phelps for using marijuana at a party somewhere in South Carolina last fall.

Stanton Peele noted in The Wall Street Journal that thousands of young adults are arrested for marijuana every day -- but in New York City, which leads the nation in marijuana arrests -- 83 percent were black or Hispanic. In general, it would be pretty remarkable for someone like Phelps to be arrested.

Why should Michael Phelps be arrested? Smoking marijuana is against the law. Correct, but why should anyone be arrested for smoking marijuana?

A person should only be arrested because they are suspected of committing a crime.

What is a crime?
A crime is an act that interferes with rights of some one else -- hurting them in some way like an assault or taking their property -- or an act that is a failure to do a duty like paying taxes. For an official to take a bribe is the failure to provide honest services to the employer, typically the public.

It is not sufficient a reason to make something a crime because some in society -- even a majority -- do not like the behavior.

For example, would it be an appropriate exercise of the government's power to punish to make smoking tobacco cigarettes a crime?

No. It would not be moral to make smoking cigarettes a crime. Only when a person smokes cigarettes in a way that interferes with another person's ability to inhale uncontaminated air is he or she doing something that might be criminal. The typical level of interference might be a summary offense. Perhaps the conduct would be a misdemeanor if the interference were substantial in time or degree.

But it would be wrong for the state to attempt to punish a person for smoking cigarettes privately or with other persons who are smoking cigarettes.

Would it be a legitimate use of the government's power to punish to punish adults who smoke cigarettes in order to send a message to young people that they should not smoke cigarettes? No. It is wrong to punish people simply as a way to communicate a message or lesson to other people. This is known as collective punishment.

The extreme examples of collective punishment illustrate why it is wrong. During World War II, there were instances in which the German SS troops killed all the people in a village because someone in the village harbored Jewish refugees, escaped prisoners of war, or a person who had sabotaged a munitions train. This was collective punishment, and this conduct was determined to be a war crime.

When you hear someone saying that punishment is necessary to send a message to others, think of collective punishment. This is, of course, a different case from one in which someone has done something wrongful, such as raping a person, and in imposing a sentence the court says that it is imposing a long sentence as a way of sending a message to deter potential rapists.

Along these lines it is wrong for the government to punish a person said to be a role model simply because the person behaved inconsistently with our notion of what a role model should do.

We should distinguish between Olympic stars and Olympic stars with endorsement contracts. Is the fact that a person an Olympic gold medalist a ground for the state to punish the person for a minor transgression? Of course not.

If one has an endorsement contract, again, there is no role for the government. The issue is whether the company with the contract has the legal right to suspend its contractor for behaving in a manner that is disreputable and that brings the company into disrepute. What might be such conduct?
Cutting in line at the post office or the movie theater?
Leaving an ungenerously small tip for a waiter at a restaurant after a meal?
Cheating on a girl friend?
Drinking too much at a party?
Driving too fast on the highway?
Smoking marijuana?

If the company canceled the contract for such conduct, it is within their right, but does the company look small and petty?

We could ask, do role models ever go off duty? Do role models have any privacy?

This brings us to the question of whether any of us have any privacy?
Should people be entitled to privacy at all?
Do we have any kind of right to anonymity?
Can we just be unidentified as we mind our own business walking down the street, down the boardwalk, or in the mall or at the beach?

Or are we -- the moment we walk out our door -- fair game to spy upon, to examine, to comment about, to ridicule? Can anyone publish photographs of me, including my unattractive body parts that I am not most proud of?

Are we always in public, on the public stage? Are private events like a private party, now public events? Is there any longer an event at which you can let your hair down and "go wild?" Can young people any longer be young?

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