The NHL and Theories of Punishment

The recent suspension to Niklas Hjalmarsson this week has spawned a lot of articles, mostly in a rush to condemn the NHL and its apparently arbitrary method for meting out justice. Probably for good reason, since the league has never officially codified their reasoning behind certain punishments for certain deeds and seems to act more on whim than principle. There’s a reason Colin Campbell’s Wheel of Justice is an easily googled term.

My aim here is not to add to the chorus of condemnation. Nor will this be a defense of the NHL’s apparently befuddled forays into issues of crime and punishment. My focus is to discuss the salient issues facing the league when it comes to justice, the resultant perceptions as well as the fact that in trying to (ostensibly) battle violence the league is battling the culture of hockey itself.

Theories of Punishment

It should be noted that there are actually several theories of punishment and they fall under a couple of broad fields: utilitarian and retributive. Utilitarian punishment is usually guided by an overall societal aim.  For example, deterrence and reformation are usually considered utilitarian forms of punishment. Deterrence punishment is something aimed at curbing or stopping a behavior by making it’s action unpleasant for the perpetrator. Reformation’s primary aim is to rehabilitate the offender through education, relocation, etc.

On the other hand, retributive theories are couched more in terms of vengeance and rights of the victim. The biblical “eye for an eye” form of justice, wherein the mode punishment is closely fitted to the damages of the crime, is the best known form or retributive punishment. The expiatory theory is closely related, where the perpetrator of the offense is made to offer restitution to the aggrieved party. A lot of tort law falls in this area.

When it comes to the NHL, almost all of the punishment employed by the league falls under deterrence. What is often argued on messageboards and angry blog posts is retributive, however, particularly by fans of the injured player in cases of flagrant injurious fouls. This is usually where calls to suspend players for as long as their victim is injured come from, although they are often masked as a form of deterrence.

The NHL as a league has never shown interest in retributive justice and probably for good reason. Trying to mete out substantive punishments in a  tooth-for-a-tooth fashion on the basis of each foul would no doubt create more problems than the current mandate. Perhaps some outcomes would be more preferable for irate fans at the time, but the principle of satisfying vengeance as an aspect of justice is one that proceeds on shaky ground. It’s arguable that a retributive punishment in the form of matching suspension length with injury time could also act as a deterrent, but then the punishment of an act is disproportionally dependent on the outcome. This is potentially problematic because outcomes can be moderated by a number of variables, some perhaps outside the control of the perpetrator. For example, the same body check can concuss one guy but leave another standing. In addition, swinging a hockey stick at an opponents head or kicking him with skate may not result in a serious injury, but it’s certainly a flagrantly dangerous action.

Perception of Justice Versus Efficacy

So deterrence is the way of things. Deterrence via suspension. The suspension punishment does a couple of things to theoretically discourage the Matt Cookes of the world: it takes them out of the active line-up and takes money out of their pocket. Hockey players are both highly competitive and paid by the game, so removing a guy from the rotation is both vexing and expensive.

The perception of incompetence or impropriety surrounding this strategy seems to stem from two things: firstly, the apparent lack of consistency of matching fouls to suspension length and secondly the apparent inability of these sentences to adequately deter the behaviors in questions (specifically, dangerous hits). The first issue is mostly one of optics, while the second is one of effectiveness.

To deal with the lack of consistency problem, the league could codify a system of suspensions matched to the act and track record of the perpetrator. This would make each sentence at least seem less arbitrary and ineffable (a perception that hang on every subsequent Campbell decision like a bad smell). The expectations of such a system being truly efficacious in terms of eliminating cheap shots and blind-side hits is another matter altogether. Not only because the game is inherently fast and humans are prone to error, but because the incentives for the players run counter to the disincentives offered by suspensions.

Hockey has a long standing and deeply established culture of violence. A frequent metaphor for the game is war. Perhaps the worst stigma to be stuck with as a hockey player is “soft”. The entire bottom-end of modern NHL rosters are built around guys that are described as “tough”, “mean”, aggressive”, “hard to play against” etc. There are NHLers whose career depends on continually out-battling the other guy, as being seen as tougher than the rest, as an aggressor; an intimidator. As a result, their perceived value to the coach and the hockey fraternity as whole depends on attacking the opposition. Indeed coaches and GM’s value guys who want to hurt the other team. By way of example, CBC’s Jeff Marek had this to say about the Patrice Cormier hit:

Cormier’s pro career won’t be affected by the Tam incident. Many teams would rather “tame a tiger than paint stripes on a kitty cat”.

Deterring violence and ending acts that endanger health and violate rules is therefore at odds with all sorts of powerful incentives at the other end: namely, is it better to “play with an edge” and risk a few games suspension or not to be in the league at all? To most NHLer’s, it’s no doubt preferable to be considered a scumbag and wrecker than a good guy who is soft.

What this means is that the antecedents of such acts are much more complex and deep-rooted than the league’s apparent ambivalence towards conjuring a explicit and universal system of punishment: it’s entirely possible, short of banning players for life, that their efforts will always inevitably result in no meaningful reduction in dangerous plays.