My own thoughts--for me.
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Thursday, August 25, 2005

Should We Pillory Lance? 

After a year hiatus from this blog, it's sports again that moves me to post. I'm not even a serious sports fan, although I've gotten into cycling in the last few years, just about the years Lance has been winning the Tour de France. In the last few days, Le Equipe, a French newspaper has claimed that there are positive tests for EPO in urine samples of Lance's from 1999. EPO is a blood agent that boost the red blood cell count, as if one were breathing more oxygen-rich air. There was no test for it in 1999, but it was banned anyway. There were remaining samples from that year, and now there are good tests, and so the old urine was tested with the new test.

I'm not married to the idea that Lance is innocent, but it's a very interesting question how someone could defend themselves against a charge like this. I'm just watching Lance on Larry King Live, and he raises a few points that seem to me to raise the kind of reasonable doubt that should prevent us from supposing he is guilty given the evidence we've seen.

The first point addresses the reasons people have, before seeing these latest charges, for thinking it's likely that he doped. Critics have said that there was no way he could perform the way he did in 1999, after his devastating battle with cancer, unless he'd used performance enhancing drugs. Lance responds to that background suspicion this way: there were tests for EPO beginning in 2000 (though not officially approved until 2001). He was tested with those new tests in those years, and proved clean. If his performance in 1999 was owed to the use of EPO, then how could it be even better, not worse, in those succeeding years when we know there was no EPO in his system? I think this is an important point. It doesn't respond to the purported scientific evidence we're hearing about now, but I'll come to that. What it does do is effectively remove any real basis for thinking his 1999 performance was too good be true. Even if we forgive those who said that in 1999, when he came back and performed even better year after year when no one is claiming he was using drugs, there is no longer any basis for thinking the 1999 performance is fishy in any way.

Still, if they have lab results they have lab results, right? Wrong. They may have lab results, but there are very serious questions about whether they should be trusted. To judge him guilty on the basis of this evidence, a person would need to have good confidence in the evidence. But this urine sample was (evidently--we'll learn more as time goes on) not performed according to the protocols that presently govern drug testing in cycling. The samples were tested by researchers, not people enforcing drug rules in cycling. The clearest missing check on the process is the absence of any separate control sample--a "B" sample--that could be tested to confirm results obtained on the first sample. If the first sample was mishandled or contaminated in some way there would be no way to discover that.

It's true, on the other hand, that most samples aren't contaminated, and so there is no particular reason to think this one was. There is this caveat, however. The French press and public have been shockingly hostile to Lance ever since 1999. The very newspaper reporting this story in France editorialized, upon his retirement, that this was the most welcome retirement of a champion ever. He was rated in a poll as the third most hated sports figure in France. We have no evidence that the urine sample was intentionally tampered with, but it is not a normal run of the mill scientific sample. There are journalists and others who are highly motivated to bring this guy down. I think that can't be ignored in a context where there was no adequate oversight or confirming sample, no reason to think his performance needed a special chemical explanation (since it only got better later), and more drug tests from this man's boday than any athlete in the history of sports without a singe one ever being positive.

Unfortunately, this doesn't prove him innocent. What's a fan to think? I think there are really three different questions the fan faces here: First, does this latest story (speaking of the evidence we have today) make it more likely that Lance indeed used EPO in 1999. I think the answer is yes. Second, considered all together, does the evidence we have now make it more likely than not that he used performance enhancing drugs. My own judgment is no. Others, though, might feel that there is not enough reason to discount this latest lab result, and that it points toward drug use. It's a tough call.

But, third, does the evidence warrant any of us in publicly judging that he is probably guilty. I think this is a separate question from simply asking whether he is probably guilty, and here's why. Public opinion, in a case like this, is a massive coercive power over Lance. It is not a legal punishment like jail, but it is no less devastating in many cases. There is a question of justice about how it is to be used. There can't be a question about justice about what we are to believe. If we're interested in the question, we should believe what seems most likely to be true, I think. But it's not clear that we should weild the great power of what I'm calling public judgment just as freely.

The analogy with legal punishment is useful. Almost everyone agrees that we should not legally judge (so to speak) that a person is guilty just whenever that seems more likely than not. Even if we should believe, based on the evidence, that the person is guilty, we need a much higher standard of proof before we can justly sentence him or her to jail. If you agree, then you should agree that there is a parallel issue about the justice of publicly judging Lance guilty, an issue that is not settled simply by deciding whether it is more likely than not that he is guilty.

Of course, Lance is just an example. If this is right it would matter for lots of uses of our opinions in public. Often we should withold condemnation even if we think it more likely than not that the person is guilty of whatever accusation is in question. A person should be presumed, in public opinion, to be innocent until proven guilty beyond a reasonable doubt. I don't mean that this standard of reasonable doubt is as demanding in the public opinion context as it is in the context of legal punishment. My point is simply that there is the very same kind of issue of justice that goes beyond the mere question of whether the person is probably guilty.

So, even if you think the evidence overall makes it slightly more likely than not that Lance used drugs, that is not enough to justify a public judgment and condemnation that treats him as if he were guilty. I know this is tricky. And I don't mean that we should lie about our opinions. But unless we are in a place where these distinctions can be carefully made, if we're asked whether we think Lance is guilty, we should say no. If given more time we might go on to explain that we mean no, at least not beyond the sort of reasonable doubt to which he is entitled.

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