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Juridical and ethical peculiarities in doping policy
  1. Mike J McNamee1,
  2. Lauri Tarasti2
  1. 1Swansea University, University of Wales, Swansea, UK
  2. 2Supreme Administrative Court of Finland, Helsinki, Finland
  1. Correspondence to Professor Mike J McNamee, Swansea University, University of Wales, Swansea, Singleton Park, Swansea SA2 8PP, UK; m.j.mcnamee{at}swansea.ac.uk

Abstract

Criticisms of the ethical justification of antidoping legislation are not uncommon in the literatures of medical ethics, sports ethics and sports medicine. Critics of antidoping point to inconsistencies of principle in the application of legislation and the unjustifiability of ethical postures enshrined in the World Anti-Doping Code, a new version of which came into effect in January 2009. This article explores the arguments concerning the apparent legal peculiarities of antidoping legislation and their ethically salient features in terms of: notions of culpability, liability and guilt; aspects of potential duplication of punishments and the limitations of athlete privacy in antidoping practice and policy. It is noted that tensions still exist between legal and ethical principles and norms that require further critical attention.

  • Anti-doping
  • applied and professional ethics
  • legal aspects
  • liability
  • privacy
  • sports medicine ethics
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Sports physicians,1 medical ethicists2 and technologists3 4 generally have recently argued for the liberalising of regulations concerning human enhancement in sports. Critical discussion has focused on the legitimacy of the use of steroids, genetic manipulation and other forms of illicit performance enhancement. Surprisingly little discussion has been had on the interface between law, medicine and ethics as they converge in sports medicine and elite sports. The use of a wide variety of banned and non-banned supplements is prevalent among casual gym users, those active in sports, and is by no means restricted to elite sportspersons (hereafter ‘athletes’).5 This development is to be seen in the context of changes in social attitudes to medical and pharmaceutical products and services that have developed in relation to the supratherapeutic goals of medicine. As Parens6 has argued, better is not always good. Athletes, whether they choose to or not, provide role models for society, and their better performances are not morally admirable when their record-breaking feats are not the product of what Murray calls the ‘virtuous perfection of our natural talents’.7 Developing coherent ethical and legal responses to the use of doping is difficult partly because of the challenges ethical postures have traditionally created for the law. The policy context for this paper is the newly revised World Anti-Doping Code (WADC), which became effective in January 2009. In this paper, we seek to highlight the tension between legal and ethical postures arising from the WADC, and offer some, albeit critical, justification for their application in the broader contexts of sports' doping legislation, which may affect athletes and physicians alike.

The ethics of doping

On an almost weekly basis, we hear or read of the latest ‘doping’ exposé. ‘Doping’ is a pejorative term that emerged from descriptions of those who were addicted to opium,8 which is considered illegitimate in the vast majority of elite sports.i There have been several sceptical challenges9 to the legitimacy of the antidoping position arising from both philosophers working in the field of medical ethics and sports ethics. They argue, typically, that the bans on certain performance-enhancing processes and substances rest on principles that are inconsistently applied.10 11 Sport, it is widely canvassed, is about healthy, natural and ethically regulated activity. The WADA itself employs three criteria, of which at least two must apply in order for a product or process to be proscribed: it should be performance enhancing; it should present an actual or potential health risk and it should violate the spirit of sport (WADC Article 4.3).12 Performance enhancement per se, is of course the heart of elite sport. The other criteria establish means by which it is unacceptable. In response, sceptics typically argue that: (1) doping is no more unnatural than the muscle-bound and technologically saturated athletes and sports equipment, prostheses, and so on; (2) athletes who train harder do not coerce their opponents to follow likewise and doping should be thought no different; (3) doping is no more harmful than other legitimated behaviours such as punching in boxing, or brutal tackling in rugby or American football; or (4) doping confers no more of an unfair advantage than is enjoyed by athletes or teams from economically or technologically superior countries/clubs/systems. A more passive case made by the antidoping lobby is that by failing to proscribe socially undesirable behaviours, it would celebrate bad role models and promote undesirable lifestyles. Such a stance is consistent with public health policies against smoking or the use of marihuana (even when the harmed are solely the users themselves). To this, the sceptics may argue that the undesirability of doping would be chimerical if antidoping rules were repealed and not forced upon athletes seeking only to optimise their own athletic potential while only (potentially) harming themselves.ii Each of these sceptical challenges has some merit. In addition, the ethical and legal legitimacy of doping control may diminish if undetectable gene technology comes into widespread use. Nevertheless, what deflects sceptical challenges is the fact that the sporting practice communitiesiii 13 themselves have rejected doping through their engagement in the processes of the formulation of antidoping policies and practices.iv

International doping policy: the WADA and the WADC

The World Anti-Doping Agency (WADA), established in 1999, is based on the cooperation between sports organisations and governments, and is financed by sports organisations and governments on an equal basis. Its most notable achievement has been the worldwide WADC in 2003 and its revision implemented in 2009. The rationale behind the WADC is the harmonisation of antidoping rules and measures. Nearly all international sports federations have accepted the WADC. Concerning doping, therefore, WADA and the WADC enjoy a hegemonic position with respect to medical, policy, scientific, as well as juridical matters. The WADC is predicated upon the evidence of sports medicine and sports science experts who determine which substances or processes are to be prohibited. The determination of the resultant list of prohibited substances and methods is juridically final. This position has, however, never been challenged in any court. Antidoping rules are juridical norms and belong to the area of sports law,14–16 whose relationship with public legislation is not always clear. This means not only that athletes are uncertain of the legitimacy of the legislation, but so too are physicians and healthcare professionals who are part of the sports medical entourage. We probe this relationship in the section that follows.

Between the WADC and state legislation

Despite co-funding and legitimation by national sports federations and governments on an equal basis, the juridical norms of the WADC are not generally binding and apply only to the international sports federations who are signatories to the WADC. They do not apply directly to athletes themselves. Instead, athletes fall under the jurisdiction of their own national sports federation antidoping rules, which themselves are governed by the WADC. Typically sports are organised nationally, but fall under the jurisdiction of international sports federations and, when relevant, the International Olympic Committee.

Nearly all major sports federations now have their own antidoping rules; nevertheless, the WADC obliges them to apply the obligatory articles of the WADC and thus to follow the principles of the WADC. In this way the juridical norms of the WADC now concern not only the athletes but also other people taking part in one or other way in the sport concerned under the jurisdiction of a signatory of the WADC. This development is an important development because it is now well known that the athlete engages in doping as part of a systemic effort between coaches, masseuse, physicians, physiotherapists, team management and so on. The clearest examples of this systemic sports medicine and sports science development in former times was the East German state sports science apparatus, and more recently the Tour de France 2007, in which, it is widely thought, that the majority of professional teams were engaged in doping practices to some degree. Article 2.8 may now be employed to hold sports physicians to account for their complicity with doping violations.v

A sports organisation may impose a sanction for this violation in accordance with its rules. This is not a punishment in the same sense as in the criminal code, but is better thought of as a disciplinary consequence or sanction. These sanctions are limited to the powers of a private organisation.vi So, if these doping rules are broken, the question is not typically one of a crime being committed but rather the lesser one of a violation of the rules of a private organisation.

Doping has been criminalised in some European countries (eg, France, Italy, Slovenia), but seldom beyond there. In some member states of the European Union related acts such as drug abuse or the smuggling of medicines are criminal acts. In other cases, tax law, for example, has been used by state authorities to use coercive powers such as search and seizure for the detection of crimes to prosecute the case. It is important to note that doping has not, however, usually been defined in criminal codes exactly in the same way as in sport. Doping in criminal law is often more limited in scope than in sports legislation. The validity of a doping violation is established by a sports tribunal, which is convened by national sports federations or international sports federations. Sanctions normally take the form of ineligibility and the loss of medals, prize money and so forth. These override rights to compete and reward, which are internal to the sport and its governance. In cases of dispute, and in accordance with the WADC, the Court of Arbitration for Sport (CAS) arbitrates between parties. It is noteworthy that this is obligatory in cases of antidoping under the auspices of the WADC, whereas in other disputes both parties must normally consent for the case to be heard there and to abide by its rulings. By contrast, antidoping rules of sports organisations have emerged within the sphere of private law and, in most cases, remain there.

The differences between public law and private law have kept these two sets of procedures juridically distinct. On one hand, sports organisations or their tribunals apply their antidoping rules with disciplinary sanctions, whereas on the other hand criminal courts apply the state law concerning doping punishments. One significant consequence of this dual legal economy has been that the same antidoping violation can now be, and often is, punishable both as a crime in a criminal court and as a disciplinary offence in a sports organisation or its tribunal (or a surrogate such as the CAS).17 The incidence of these cases has greatly increased in recent years. More countries have included doping offences in their criminal legislation, the supervision of doping offences has expanded and, when previously only athletes were punished, now the focus is also on the elite sports support system including sports physicians. This dual legal economy—the processes in accordance with state legislation and in accordance with the sports organisation's antidoping rules—have sometimes converged.

A cursory examination of this convergence is found in the following recent and high profile examples. The Tour de France doping scandal in cycling in 1998 started from police investigations,18 and the Chinese doping scandal in swimming in 199819 started from Australian customs officers' seizure of human growth hormones entering Australia for the world championships of that year. Similarly, in Spain Operation Puerto was conducted by the Spanish authorities into doping practices that followed the seizure of prohibited substances and other material by the Spanish police in 2006.20 It should be noted, here, however, that tax evasion legislation initially uncovered an illegal pharmacology trade, and the fallout led to the revelations that led to UK sprinter Dwayne Chambers' ban from international athletic competition for 2 years and (controversially for some) his lifetime ban from representing Britain at the Olympic Games.21 In the Athens Olympic Games in 2004 two Greek sprinters, Kenteris and Thánou, evaded doping control officers.22 Perhaps the most recent high profile case are the investigations in the USA into Balco Laboratories, where tax investigations uncovered widespread illicit doping, which saw the greatest ever American female athlete being imprisoned. We will comment on this below. These high profile cases seems to reinforce the idea that there is a certain dependency on the powers of state authorities if antidoping rules are to be effective. In the following section we probe this dual legal economy between sports antidoping rules and criminal law.

Ethics, antidoping rules and criminal law

When cases of the dual prosecution of athletes and their medicoscientific support systems become more common, the question of whether the principles of criminal law should be applied to doping disciplinary processes will be accentuated. At least three ethicolegal dimensions of doping prosecution deserve critical scrutiny: (1) notions of guilt, negligence and liability; (2) aspects of punishment and (3) privacy.

Guilt, negligence and liability

Rule breaking exhibits degrees of intentionality. It also typically elicits guilt. Culpability is not limited to premeditated acts. The rugby player who stretches his foot out to trip his opponent, or the football player who swears at the referee in response to a perceived poor judgement intend their acts and may or may not feel guilty.23 Equally, players may feel guilty for accidental career-ending injuries they inflict unintentionally on another professional. Moreover, there are many instances during games when the official decides that a pattern of rule-breaking behaviour, which, although it does not appear premeditated, exhibits intentionality in the habitual nature of the act.24 Aside from these cases, there are others in which a rule is determined to have been broken when the athlete fails in some other duty. So, the relay runner who steps on or over the inside lane marking is deemed not to have completed a minimum of 400 m thereby and is disqualified irrespective of the absence of mens rea (guilty mind).

The establishment of an offence without mens rea is not without precedent in sports rules, but a particularly strong variant arises in antidoping policy when a prohibited substance is found to be present within an athlete's body tissue or fluids. Article 2.1 in the WADC wording states that an offence is merely for ‘the presence of a prohibited substance or its metabolites or markers in an athlete's sample’. The wording of this violation indicates that this type of doping offence can include wider liability than other types of doping offences in which liability is estimated in accordance with normal juridical principles.25 Strict (or ‘wide’ as it is sometimes referred to) liability is justified in doping cases because the standards of criminal proof would be unreasonably high to establish against athletes who conceal their actions.

Therefore, in its judgement of 15 March 1993, concerning the juridical nature of the awards pronounced by CAS, the Swiss Federal Tribunal pointed out that ‘as for the opinion of the CAS, whereby it is sufficient that the scientific analyses performed reveal the presence of a banned product for there to be presumption of doping and, consequently, a reversal of the burden of proof, this relates not to public policy but to the burden of proof and the assessment of evidence, problems which cannot be resolved, in private law matters, in the light of notions proper to criminal law, such as the presumption of innocence and the principle in dubio pro reo, and corresponding guarantees which feature in the European Convention on Human Rights.’vii When, therefore, prohibited substances have been detected, the athlete has demonstrated their negligence with respect to their active duty to avoid doping. This interpretation arises from and focuses upon the assiduousness and prudence of the athlete. Athletes are advised by relevant sporting bodies as to which substances may or may not be ingested. They, and the medical team that support them,viii are expected to be educated as to the products that may contain illicit substances and to use only approved supplies. The application of these powers of self-surveillance is experienced by most athletes as burdensome or anxiety provoking. Yet elite athletes are necessarily creatures of habit by virtue of the need to adhere to strict training regimes. Some Norwegian research suggests athletes perceive it as a necessary evil,26 while there has been much discussion in journalistic media as to its burdensome nature. We discuss the matter further below. Nevertheless, the requirements in this respect are indeed strict, because liability is not limited to the intention of the athlete to use doping products or processes.

Ought then the principle of nulla poena sine culpa (no punishment without guilt) to be applied in doping offences without intention? It is important to note that culpa, guilt, may be constituted by an act or omission. The common omission is that of negligence. Guilt may indeed be relatively blameless in the case of the accidental or unwitting ingestion of banned substances provided by other parties.ix

Yet beyond the legal sphere, it could be argued that this strict liability is in conflict with the more general presumption of innocence. It might be argued that doping offences ought not to be considered an exception to the general ethical norm of demonstrating culpability. The application of strict liability is not unique. There exist numerous other examples in which the level of care demanded is as high when imposing sanctions; such as in the transport of radioactive substances and wastes, or in dealing with hazardous chemicals or medicines, in dangerous building works and so on. Here the sanction operates to prevent harm to others and the self engaged in dangerous practices. Moreover, the CAS (95/142) has held that: ‘The use of the term “strict liability” in the context of doping could be misleading: under the term “strict liability”, one should understand a concept of liability similar to that of civil liability, without fault in tort, or comparable to product liability cases.’27 It does not raise the issue of guilt, or the ‘presumption of guilt’, with respect to the applicability of disciplinary sanctions. The concept of ‘strict liability’, as it has been used in doping cases, as we have argued, does not entail intentionality. The sanction is an inevitable consequence, if a doping offence has been established. Whether a severe sanction such as a 2-year ban may be imposed on an athlete without examining the issue of guilt is a point worthy of further consideration.

Finally, the CAS (95/141) holds, in generally stark terms, that ‘too literal an application of the principle nulla poena sine culpa could have damaging consequences on the effectiveness of antidoping measures. Indeed, if for each case the sports federations had to prove the intentional nature of the act (desire to dope to improve one's performance) in order to be able to give it the force of an offence, the fight against doping would become practically impossible.’ In summary, without strict liability antidoping legislation would not so much be impotent as it would be inoperable.

One crime, one punishment?

One of the leading principles in criminal law and part of everyday morality is that for one and the same crime only one punishment can and ought to be imposed, ne bis in idem (not twice for the same). Can or ought it to be applied also in the context of doping sanctions? Theoretically speaking the answer is clear and generally accepted. Despite appearances to the contrary, however, punishment in a criminal court and a doping sanction in a sports organisation or its tribunal do not offend the principle ne bis in idem because the punitive measures are qualitatively different. Only the punishment by a criminal court is a punishment in the sense of criminal law, whereas the other is better conceived of as a sanction. The doping sanction by a sports organisation or its tribunal is a thus disciplinary measure. The first one belongs to the area of public law, the latter of private law.

Many examples of this distinctness both in nature, procedure and purpose exist with regard to sports. Monetary fines and imprisonment have thus been measures taken by legal courts while measures relating to ineligibility and loss of prize money have been levied by sports organisations or their tribunals. It might be thought that, for example, a loss of prize money or financial sanction might function to reduce an ineligibility ban. Such a view is explicitly rejected in Article 10.12 Imposition of Financial Sanctions of the revised WADC, which came into force in 2009. In accordance with this Article: ‘Anti-Doping Organizations may, in their own rules, provide for financial sanctions on account of antidoping rule violations. However, no financial sanction may be considered a basis for reducing the period of Ineligibility or other sanction which would otherwise be applicable under the Code.’28 It is interesting to ask, though, what additional lattitude is given by the phrase ‘other sanction’ and whether this lattitude offends the principle of ne bis in idem? One such other sanction, and a fairly obvious one at that, is a financial penalty. If this Article is enacted, there can be in one and the same doping offence two fines, one imposed by a criminal court and another imposed by a sports organisation or its tribunal. Can the separateness of these two sanctions still stay without offending the principle ne bis in idem? It seems not. Rather, the athlete merely has to pay twice for one act, only the recipient is separate. From the athlete's point of view there is no difference in fines between public and private law because the consequence is the same. The ne bis in idem principle has, however, been valid as a part of human rights only in criminal processes, and has not hitherto been related to disciplinary sanctions. If this kind of situation were to arise the civil court or the execution authority would be obliged to deal with and to resolve whether the ne bis in idem principle shall or shall not be applied. We hold that it would be both intrusive and wasteful of public resources, if the province of public law were to start to determine ineligibility in sport given the quasi-autonomous nature of sport's own regulatory frameworks. Nevertheless, the WADC code could easily be revised to eradicate the replication of the punishment that ceteris paribus seems unjust.

One potential exception arises in the case of the private sponsorship of sports teams and individual athletes therein. Athletes and members of the support team frequently make an agreement with third parties for different kinds of economic and other benefits and entitlements (such as state-funded health care). In these agreements it is possible that the athletes commit themselves to compensate to their federation for the loss to their image and/or economic losses in the case of a doping offence of which the athlete is found guilty. Contractual penalties are normal in business contracts and there is no reason to suppose that athletic contracts ought to be considered an exception.x There may be cases then when there can be in one and the same doping offence three different sanctions: punishment according to criminal law; disciplinary sanctions according to the national sports federations antidoping rules and contractual penalties (financial compensation) according to private law and the agreement between the athlete and his/her sports federation.

Finally, it should be noted that sanctions may come in forms other than official. Consider the recent case of the British sprinter Dwain Chambers, who served a 2-year ban for the illicit use of growth hormone obtained from Balco Laboratories. Following his 2-year ban, he won the right to represent the UK in the 2008 World Indoor Athletics Championships 60 m sprint. The British Olympic Association is unusual, although not alone, in having a byelaw that precludes any British competitor convicted of a doping offence from representing them at an Olympic Games. The former Head of WADA (and barrister), Richard Pound, has suggested it is unlikely to be upheld in a court of law.29 To his cost, however, Chambers unsuccessfully challenged the ruling against him in the High Court in 2008.xi Whether other courts would follow this precedent is not clear, nor is it clear that if challenged the ruling could not be repealed, but Chambers has decided (almost certainly on financial grounds) not to appeal. Legal and sports regulatory frameworks are not the only mechanisms of power in sports. While commonly derided for their pathological intrusion into sports, there are times when commercial agencies can intervene. In the case of Chambers, the leading athletics events organisers, taken aback by some of Chambers ill-advised comments in his 2-year sojourn, have withheld invitations to him in their televised track and field meetings, thus lawfully depriving him of the ability to earn income.

Privacy

Undoubtedly, what has been the most contentious of the revised WADC has related to the privacy of the athlete. There are two cases that may be thought problematical: urine sample provision and the athlete's location and availability for testing.

  1. The ability of police officers to undertake bodily searches is forbidden in law in all but highly serious criminal cases. By contrast, in doping control all athletes have an obligation to give a urine or blood sample in any place at any time upon request. These samples have to be given under the supervision of a doping control officer so that he/she can observe urination at all times. This ruling was established in order to prevent athletes using a catheter to provide ‘clean’ urine samples, which were stored at a time when they were not on a doping cycle. Clearly, there is no privacy in this operation, and this is confounded in the case of athletes who are legal minors, when a chaperone is required.

  2. In democratic societies one may move freely without announcing to public authorities where one is going. Yet elite athletes belonging to a doping testing pool in each sport are, according to Article 14.3 of the WADC, required to give whereabouts information. Typically, this means nominating one hour per day—3 months in advance—when they must consider it their duty to be present. The information must thus be accurate and predictive. A tester may arrive, unannounced, at the stated location in order to take a sample. Three failures to comply within an 18-month period constitutes an antidoping violation. The consequent sanction will be ineligibility from athletic competitions for between 1 and 2 years.

The surrender of certain freedoms of movement from surveillance is a highly controversial issue.30 Nagel31 puts the general problem as ‘how to join together individuals with conflicting interests and a plurality of values under a common system of law that serves their collective interests equitably without destroying their autonomy’. While there may be a justification for such expanded surveillance in the matter of, say, terrorists' threats to public safety, the case for its application in antidoping seems less obvious.

One justification for the privacy limitations is that the athletes have agreed to observe all the sports rules when they compete. They cannot select which to observe and which not. A rejoinder might be that they have no choice other than compliance but that they do not assent to its legitimacy. It may well be thought that the request for whereabouts information is a coercive offer; that elite sportsmen and women can only ply their trade effectively in one arena, and thus that the controls undermine autonomous assent. The imposition on the athlete to surrender an aspect of their privacy non-elite athletes enjoy may also comprise a coercive offer. This contextual element increases the burden upon the WADA to justify its application. A defence, similar to that offered by CAS above, is that the entire system cannot operate without a procedure that allows random out-of-competition testing, which demands whereabouts information. A key concern here will be one of proportionality. Does the surrender of one's privacy need to be so severe? Might the burden be less than 3 months? There will also be inevitable cases of unfairness in the application of the rule. While tester A may leave the designated site at exactly T+1 h (as stated) another may wait T+70 and find the athlete arrives merely late because of heavy traffic en route. Clearly the issue of weighing the demand to surrender privacy and to examine the latitude of testers merits further discussion.

Conclusions

The idea that sport is somehow beyond the ethics of everyday living and law has long been jettisoned. The legal peculiarities highlighted here and their ethical implications reveal how antidoping legislation and rules appear to differ from other areas of law and commonsense morality. Although it has sometimes been argued that doping legislation is unacceptably burdensome, we have attempted to disambiguate certain apparent tensions between criminal law, private law and everyday ethics. We do not suggest that the relations between these spheres are not without problems. Nevertheless, the nearly unanimous decision of national sports federations and sports federations to regulate against doping has been a response to a genuine crisis in the representation of the values of sport themselves and serves to protect the interests of all engaged therein.

Acknowledgments

The authors are grateful for the helpful comments of David McArdle, Hugh Upton and Richard Griffiths.

References

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Footnotes

  • Competing interests MJM has been a consultant for the World Anti-Doping Agency.

  • Provenance and peer review Not commissioned; externally peer reviewed.

  • i There are exceptions. Much ink has been spilt over the status of Barry Bonds, the American baseball player who broke the alltime record for home runs while openly using steroids.

  • ii An argument similar to this is put forward by Miah3 among others. Nevertheless, two counter-arguments might be made: (i) that doping-induced hyperaggression would harm opponents in certain sports; and (ii) that denying no-doping ahtletes their just rewards in itself represented a harm to others.

  • iii We follow MacIntyre's practice/institution distinction in which the former refers to various complex social activities (eg, agriculture, chess, football), whereas the latter refers to its mediating bureaucracies (eg, the International Olympic Committee, Federation of International Football Associations, and so on).

  • iv Responses to doping do not stop at sports bodies. In 2004 the first WADC was signed by 186 states.

  • v The latitude opened up by the precise wording warrants further consideration: ‘any (…) type of complicity involving an anti doping violation’ will render sports physicians culpable. This seems indiscriminately broad.

  • vi Sports organisations do not have such coercive powers as authorities. Their powers are limited within their sport. Therefore, for example, they can prevent the athlete from competing in official competitions or tournaments. Similarly, the execution of the sanctions is limited.

  • vii Strictly speaking, there is no presumption of guilt: the mere presence of the doping product renders the athlete guilty of a violation.

  • viii On advice from the team doctor the 17-year-old Romanian gymnast, Andreea Raducan, took an analgesic that contained ‘pseudoephedrine’ a banned substance. She was thus subsequently stripped of her individual gold gymnastics medal at the Sydney 2000 Olympics.

  • ix The newly revised WADC includes a more flexible sanction system than the previous system to allow for this fact.

  • x On an analogous point, sports physicians have been known to offer their services on a voluntary basis even in highly lucrative sports in order to avoid what they perceive as problematical contractual terms and conditions.

  • xi One commonly cited reason for the failure is that the athlete sought an injunction immediately before the Beijing Olympics thus attempting to ‘spring’ the judge into a decision in his favour. It appears that Chambers and his team underestimated the judge's respect for due process.

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