ex Survey says: Hall will shut door on McGwire; Bonds may get in

Note the quotes from several Hall of Fame voters near the end of the article -- that because it wasn't "illegal" at the time McGwire and Bonds allegedly used, they shouldn't be penalized and their numbers should be taken at face value.

Taking steroids without a prescription has been illegal in this country for at least 15 years. Bonds' and McGwire's conduct may not have been against baseball's rules, but that conduct was in violation of federal law. I think this is an important point, and one of which many pundits are either honestly unaware or willfully neglectful of mentioning.

Really, this issue comes down to a question of incorporation: are all activities/conduct that violates the law to be considered, by extension, violations of the rules of the game? Well, no -- there are many activities, such as speeding, that cannot be fairly said to be against the rules of baseball. But the distinction is harder to make when it comes to the ingestion of illegal drugs, especially those taken for the sole purpose of enhancing one's performance on the field. It's a question of fair notice: were Bonds and McGwire on fair notice that their illegal conduct could be considered in violation of baseball's rules of conduct, and that their illegal conduct could affect their eligibility for the Hall, or even merely their attractiveness as candidates for the Hall? Is there really an ex post facto problem when the conduct in question was against the law at the time it was committed, but the "penalties" (like Hall eligibility) are increased after the fact?

I'm of the opinion that there is no fair notice problem; however, I can at least understand the other side of the argument. But the question of fair notice/retroactivity/fair notice should be the epicenter of the debate. Those who would attempt to parse the non-juiced vs. juiced numbers of Bonds and McGwire engage in a wildly hypothetical and utterly irrelevant exercise. For example, if, as a law student here at UVa, I were to engage in some conduct that may arguably be considered cheating -- say, taking another student's outline, copying it and pasting it into another document, putting my name on it, and calling it my own because the professor does not allow outside outlines -- there would be no inquiry into what my grade on the exam would have been had I not used the outline, or whether the outline helped me on the exam. No, the dispositive question would be, "Was the conduct cheating?" Once that question is answered, punishment would be swift and severe -- expulsion from UVa Law, no further inquiry necessary.

It's as simple as that. If what Bonds and McGwire did can fairly be considered "cheating" or against the rules of baseball, as an extension of the overall illegality of the conduct, then the penalty, in my opinion, is not a question: you don't get in the Hall. That is not to say that Bonds and McGwire should be ineligible for the Hall; each voter will have to answer the cheating question for himself. But once that question is answered, in my opinion, the inquiry should be over.