Penn State Goings-On

[Malthus]

Jail is deterrence to the individuals.  But what is deterring the institution as a whole?  To flip around your analysis, if you're a university president, board of directors and whatever - you don't particularily care if a few employees are thrown in jail.

If you are a university president, and you cover up a crime, *you* should be thrown in jail, and if you aren't, that's a bigger problem.

OTOH, if someone lower down in the administraton covers up a crime, and you know nothing about it - why should you, or the institution you serve, be punished at all? That's like punishing the police for failing to detect a crime, only worse - as the university president is not really equipped to investigate crimes by his subordinates, right?

The claim isn't that the President covered up the crime, but that the President, Board of Regeants and whomever failed to exercise sufficient (or any) control or oversight over the football team.  It's not a criminal offence, but doesn't mean it shouldn't be looked at very seriously.

My understanding is that the allegation is that the upper management was in on the cover-up, but I could be wrong in that.

The problem is that, should the execs who actually run the show decide to do criminal things like run a cover-up, what duty - and what ability - does the board have to prevent that? They are not cops.

It's a vicarious liability issue essentially.  Plenty of cases have found institutions like universities liable for failing to provide adequate oversight (and plenty where they have not).  Hell, here's the SCC saying how it happens:

http://canlii.ca/en/ca/scc/doc/1999/1999canlii693/1999canlii693.html

I don't agree that this is a vicarious liability issue. Vicarious liability has to do with compensating victims - essentially, as between an innocent victim and an employer, who should bear the risk of damage done by a criminal employee?

This has nothing to do with that. It isn't a balancing of who should bear the risk of damage. It is a punishment, imposed collectively. Victims are not being compensated for damages here; wrongdoers are being punished, presumably to discourage future wrongdoing. 

[Malthus]

It wasn't a one time thing.  Sandusky raped multiple children in the Penn State Athletic building and was witnessed doing so at least twice.  Neither time did anyone go to the police.  Sandusky, who had retired from the program a decade previously, still had an office in the Athletics building until just a year or two ago.  People that knew he was a child rapist saw him on campus with children and did nothing about it.  Even though he was no longer on the staff, and was a known child rapist, Sandusky continued to hang around the Penn Sate football program, and they say he used his connections to the Penn State football program as bait to lure children from his own charity into his predatory web.

Sandusky used the Penn State football program to attract children and used their facilities to rape those children and the University President, the VP in charge of Campus Safety, the Athletic Director, and the Head Football Coach knew about this for over a decade and not only chose to hide it, but helped to cover it up.

A janitor that witnessed Sandusky raping a child decided not to report it because he knew he would be fired and the charges would never go anywhere.  The Penn State football culture was so incredibly broken it needed to be torn down and rebuilt from scratch.

I know all of that. There is no question that the wrongdoing was extensive. But "culture" makes a bad, amorphous target for punishment. What's wrong with specifically identifying and punishing the actual wrongdoers?

[The Minsky Moment]

I know all of that. There is no question that the wrongdoing was extensive. But "culture" makes a bad, amorphous target for punishment. What's wrong with specifically identifying and punishing the actual wrongdoers?

I agree with you but it arises from same rationale that says you can charge a corporation with a crime, which can and does happen.

[jimmy olsen]

]The punishments have always seemed arbitrary but there has always been due process for the charged institution. Indeed the articles I've read make clear that the NCAA knowingly dispensed with its own rules to enable itself to dispense summary justice and justified it by stating "there has never been a case like this."

Um yes there has been a case almost exactly like this.  The Baylor case where the coach tried to cover up a murder to keep his guy playing, just like Penn State covered up for Sandusky and allowed him to keep coaching.  Granted Baylor school cooperated alot more thoroughly (I think they blew the whistle on their coach IIRC) but that is a BS excuse.  Considering how obvious the violations are it does seem odd the NCAA would do some sort of bending of the rules.  The old rules allowed it to hammer Baylor Basketball with very similar penalties (well...except for the size of the fine).  So surely if they had left the old procedures in place the resulting penalties probably would have been similar.  Why did they do it in this case?  Any speculation?

Didn't they technically hammer the school because they found recruiting violations/impermissible benefits? Sure they went after them because of the murder, and the punished them so hard because of it, but they used the fig leaf of the violations to do it. So far no violations at Penn state have been found.

The NCAA had a different president then though. This one probably would have hammered them explicitly for covering up the murder.

[crazy canuck]

My personal opinion is that the halfway house between high school and the pros of collegiate football/basketball isn't working and is getting worse all the time.  Better to cut them loose and turn them into actual minor leagues instead of distorting the focus of higher education.

I heard Brent Musburger musing about that this morning on the Mike and Mike show.  Although he came to the conclusion that it is too late to go in that direction.

[Malthus]

I know all of that. There is no question that the wrongdoing was extensive. But "culture" makes a bad, amorphous target for punishment. What's wrong with specifically identifying and punishing the actual wrongdoers?

I agree with you but it arises from same rationale that says you can charge a corporation with a crime, which can and does happen.

That makes sense in the context of regulatory offences, because where the "crime" consists of breaching regulations to make a profit, identifying who actually made the call may be impossible or not cost-effective for the regulator - better to hit the company in the pocketbook.

That sort of efficiency argument doesn't seem to make as much sense in a case like this, where serious personal-injury offences are involved and hardcore investigations undertaken to root out the actual perps.

Do corporations ever get charged with crimes like murder or rape, or covering up the same? I don't think they do here in Canada.

[crazy canuck]

Jail is deterrence to the individuals.  But what is deterring the institution as a whole?  To flip around your analysis, if you're a university president, board of directors and whatever - you don't particularily care if a few employees are thrown in jail.

If you are a university president, and you cover up a crime, *you* should be thrown in jail, and if you aren't, that's a bigger problem.

OTOH, if someone lower down in the administraton covers up a crime, and you know nothing about it - why should you, or the institution you serve, be punished at all? That's like punishing the police for failing to detect a crime, only worse - as the university president is not really equipped to investigate crimes by his subordinates, right?

The claim isn't that the President covered up the crime, but that the President, Board of Regeants and whomever failed to exercise sufficient (or any) control or oversight over the football team.  It's not a criminal offence, but doesn't mean it shouldn't be looked at very seriously.

My understanding is that the allegation is that the upper management was in on the cover-up, but I could be wrong in that.

The problem is that, should the execs who actually run the show decide to do criminal things like run a cover-up, what duty - and what ability - does the board have to prevent that? They are not cops.

It's a vicarious liability issue essentially.  Plenty of cases have found institutions like universities liable for failing to provide adequate oversight (and plenty where they have not).  Hell, here's the SCC saying how it happens:

http://canlii.ca/en/ca/scc/doc/1999/1999canlii693/1999canlii693.html

Ok so why is the NCAA stepping into the area of civil jurisdiction and imposing penalties for the breach of the law of negligence rather then a breach of NCAA rules?

[crazy canuck]

I know all of that. There is no question that the wrongdoing was extensive. But "culture" makes a bad, amorphous target for punishment. What's wrong with specifically identifying and punishing the actual wrongdoers?

I agree with you but it arises from same rationale that says you can charge a corporation with a crime, which can and does happen.

except that in those circumstances they are the acts of the corporation - although carried out by individuals.  Does not translate well in this instance.

[grumbler]

I know all of that. There is no question that the wrongdoing was extensive. But "culture" makes a bad, amorphous target for punishment.

It's not a great target, but it's a necessary target.  PSU is an extreme example of what can happen when a man or program becomes more important than the institution, but it isn't the only case.

What's wrong with specifically identifying and punishing the actual wrongdoers?

Do some research, and you will find out that this was done as well.  We needn't make a choice between sanctioning an institution for allowing one of its programs to proceed without checks and balances, and punishing individual perpetrators.  We can do both. 

[The Minsky Moment]

That makes sense in the context of regulatory offences, because where the "crime" consists of breaching regulations to make a profit, identifying who actually made the call may be impossible or not cost-effective for the regulator - better to hit the company in the pocketbook.

Which is really a classic "civil" case, not criminal.  If the breach, then there should be evidence of individual knowledge or conduct.

Do corporations ever get charged with crimes like murder or rape, or covering up the same?

Corps in the US have been charged with criminally negligent homicide.

[The Minsky Moment]

except that in those circumstances they are the acts of the corporation - although carried out by individuals.

The question is - can an organization be subject to collective punishment for the bad acts of its agents or constituent members?  Seems like the same thing to me.

[crazy canuck]

except that in those circumstances they are the acts of the corporation - although carried out by individuals.

The question is - can an organization be subject to collective punishment for the bad acts of its agents or constituent members?  Seems like the same thing to me.

The context of when collective punishment is imposed is the critical question.  For example it is settled law here in Canada that if a person was acting outside the scope of their duties then the corporation/institution will not be held liable.

As Malthus mentioned there are strict liability offences and regulations.  But in those situations there are clear rules - one of the requirements of a strict liability offence being upheld by the courts.  Here, as I understand it there is no such thing.  The NCAA appears to have imposed these penalties by fiat over matters properly dealt with through the criminal or civil courts.

[frunk]

I do not agree with this at all.

The very point of making these punishments extremely harsh is to convince administrators that the cost of the cover-up is worse than the cost of coming clean.

That is the entire purpose behind all NCAA sanctions.

This is truly a classic case of the need to make an example. Not so much an example of what happens when you let assistant coaches fuck minors in your locker (I certianly hope that is a isolate incident) but what happens when you let the football culture dominate the university culture so much that basic integrity is somehow lost.

Hopefully this is very much an eye opening experience for not just PSU (and honestly, PSU had their eyes opened before anyone slapped them with these penalties) but for other university presidents and athletic directors. The penalty for losing focus to this extent should be extreme, otherwise you are right - it won't stop.

I think part of the reason you have these insular and secretive sports programs is precisely because of the NCAA rules around student athletes.  They develop cultures of keeping things quiet to avoid some violation of the NCAA's rules from becoming public.  As the multi-billion dollar collegiate sport's industry grows larger and the penalties for NCAA violations become more punitive I don't see the secrecy lessening.

I'd be surprised if the Sandusky cover-up started as a concern over NCAA rules.  I'd like to think that Paterno and co. started out not believing the accusations.  Not because it excuses them but at least it would mean they didn't think they were protecting a child molester right from the start.  If they still didn't believe the evidence in 2002 they either had a huge blind spot towards Sandusky or decided they were trapped in the cover-up.  The problem is the insularity and secrecy built to avoid external threats (like NCAA sanctions) let them get away with it for so long.

[Valmy]

I think part of the reason you have these insular and secretive sports programs is precisely because of the NCAA rules around student athletes.  They develop cultures of keeping things quiet to avoid some violation of the NCAA's rules from becoming public.  As the multi-billion dollar collegiate sport's industry grows larger and the penalties for NCAA violations become more punitive I don't see the secrecy lessening.

Ah the "everybody is doing it" defense.  And the penalties for NCAA violations are not becoming more punitive.  What are you basing this on?

I'd be surprised if the Sandusky cover-up started as a concern over NCAA rules.  I'd like to think that Paterno and co. started out not believing the accusations.  Not because it excuses them but at least it would mean they didn't think they were protecting a child molester right from the start.  If they still didn't believe the evidence in 2002 they either had a huge blind spot towards Sandusky or decided they were trapped in the cover-up.  The problem is the insularity and secrecy built to avoid external threats (like NCAA sanctions) let them get away with it for so long.

Did you read the report or are you just guessing here?  And LOL that the problem was fending off the NCAA.  The NCAA would never have suspected Penn State of wrong doing in a million years.

[Valmy]

The question is - can an organization be subject to collective punishment for the bad acts of its agents or constituent members?  Seems like the same thing to me.

My question is how else could you do it?  The NCAA has very limited ability to punish individuals.