Spitzer’s Boner

Eliot Spitzer has resigned as Governor of New York, giving the state its first African-American governor.

Michael Barone has reflections on the danger of selective enforcement when a law on the books generally goes unenforced:

When society has effectively legalized something that is still theoretically illegal, there is always the possibility of selective prosecution—targeting individuals who are in disfavor with someone in government. Selective prosecution is tyranny, and the possibility of selective prosecution is a powerful argument for legalization of the behavior that the society has chosen to condone.

I call this the Merkle problem. Fred Merkle was the youngest player in the major leagues in what may have been the game’s most exciting season. (Six teams finished within 1 1/2 games of the pennant.) On September 23, 1908, Merkle, first baseman for the New York Giants, was on first base after singling in the ninth inning of a game against the Cubs, sending Moose McCormick to third. Al Bridwell, the next batter, singled to center, scoring McCormick, and apparently ending the game. Merkle trotted to the dugout. Cubs second baseman Johnny Evers (of “Tinker-to-Evers-to-Chance” fame) noticed that Merkle hadn’t touched second base, and called to the center fielder Solly Hofman to throw him the ball. With many of the 20,000 fans present storming onto the field, Giants pitcher Iron Man Joe McGinnity found the ball before Hofman could get to it and threw it into the stands. Evers got a new ball from umpire Hank O’Day and touched second. O’Day called Merkle out, negating the run (and depriving Christy Mathewson of the win; he had 37 others that year). Darkness prevented resumption of the game, which was declared a tie.

The Giants and Cubs ended the season tied. On October 8, therefore, the game was replayed, and the Cubs won 4-2.  The Giants fell back into a tie with the Pirates for second place.  Chicago went on to beat the Detroit in the World Series for its third straight series win.

Merkle’s “boner,” as it came to be known, wasn’t the rookie mistake it was later thought to be. There was a rule that a force out would negate a run scored before the out, just as there is today. But nobody before O’Day enforced it; Merkle’s action was routine at the time.

The general moral: having unenforced laws on the books is a recipe for controversy, selective enforcement, injustice, and personal disaster. That may be an argument for dropping the law, as Barone notes; it may also be an argument for enforcing the law or delineating more carefully circumstances in which the relevant behavior is prohibited.

Is Merkle’s boner analogous to Spitzer’s? (I’m so sorry.) I don’t think so, for at least four reasons. First, prostitution is not routinely practiced. It is tolerated by police forces with more pressing problems, but it remains a fringe activity. Second, Spitzer was a prosecutor who made a reputation partly by going after prostitution rings; it would be as if Merkle had previously been the chief enforcer of the forced-out rule. Third, Spitzer, as prosecutor and then Governor, was an official in charge of enforcing the laws, whatever they happen to be. At the very least, he needed to abide by those laws himself. Finally, prostitution is exploitation, incompatible with respect for the other party as well as self-respect. That it is mutual exploitation doesn’t change that.

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