If distasteful remarks caught on recordings were against the law rather than simply being offensive and outrageous, what would be Donald Sterling’s fate? Dan Markel, the D’Alemberte professor at Florida State University’s law school and an expert on criminal sentencing, told me that “there’s a lot to be said for using techniques that are morally educative.”
Markel and I were talking about public humiliation and creative sentencing as an aspect of criminal law (for a future column; stay tuned). What might a Sterling-shaming comeuppance, ordered from the bench by a creative judge, look like? Perhaps standing outside Staples Center with a cardboard cutout of Magic Johnson so that anybody passing by could pose for selfies with him and post them online?
“There’s a lot to be said for using techniques that are morally educative that don’t use public humiliation,” Markel told me. Someone like Sterling, as part of a legal sentence, “might have to watch a lot of civil rights films and documentaries. That would be a way where you could use penal coercion that would effect some contrition and moral education, which I don’t think is all that bad.”
Yet there is, Markel added, “something peculiar about a liberal state trying to force messages into people’s heads. You don’t want to reenact the Chinese Cultural Revolution, but there’s a way I think that you can still use punishment” in a fashion that respects individuals and the justice system.
What a good idea. Think of a binge-watching Sterling cueing up “Eyes on the Prize,” “To Kill a Mockingbird,” “Mississippi Burning,” “A Raisin in the Sun” and every episode of “Roots.”
At the moment, though, it’s censure and a harsh NBA judgment that seem to be Sterling’s lot, a lifetime sentence of public humiliation, with no parole.
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