Wrist slaps, yes; but BALCO sentences matter

Updated: May 2, 2006, 11:14 AM ET
By Roger Cossack | ESPN.com

After Patrick Arnold's guilty plea last week to one count of conspiracy to distribute steroids, several people asked me what the government has accomplished through the course of its BALCO-related prosecutions. It's a good question. Thousands of hours were spent by investigators and prosecutors, and an untold amount of money was committed to the case. And to date, none of the defendants has received a sentence longer than four months in jail (not including a short time under house arrest).

Arnold, the chemist who supplied the BALCO lab with the substance known as "the clear," originally was charged with three counts of conspiracy, but two of them were dropped in exchange for his guilty plea to the remaining charge last week. His likely sentence is three months of jail time and a subsequent period of home detention.

That puts Arnold in line with the other BALCO defendants, all of whom also pleaded guilty and received similar or even lighter sentences:

• BALCO founder Victor Conte recently finished a four-month prison sentence and has begun a four-month term under house arrest.

• Personal trainer Greg Anderson served three months in prison and another three under house arrest.

• James Valente, a BALCO executive, was sentenced to three years of probation.

• Remi Korchemny, a track coach who worked with a number of world-class sprinters, received one year of probation.

That's it.

Victor Conte
The Associated PressWas a four-month prison term for Victor Conte worth the work for the BALCO investigators?
In the course of the investigation, the names of a number of high-profile athletes surfaced in connection with BALCO, including Olympic gold medalist sprinter Marion Jones, pro football player Bill Romanowski and baseball superstars Barry Bonds and Jason Giambi. But the prosecution never brought a case against any of them or -- so far -- any other big-name athlete. The reason is this: There is a difference between furnishing steroids and possessing them for personal use. It would have been extremely difficult for the prosecution to make a case against the "users" without actually catching them using the performance enhancers, or at least carrying them in a pocket. The government's case would have rested on the testimony of Conte or anyone else who admitted to furnishing the steroids, and testimony from those kinds of people -- who often cut deals of their own before testifying -- is difficult to sell to a jury.

Plus, until recently, the penalties for possession of steroids -- and even for selling them -- weren't much more than a slap on the wrist. It simply wouldn't have paid for the prosecution to try to make a case against the athletes.

And because none of the aforementioned defendants who did, are doing or will do time ever went to trial -- they all pleaded guilty -- none of the athletes has even been forced to testify in open court about steroid use.

That's why it's a good question. What are we left with now from the BALCO case?

I think there's a good answer. I believe the BALCO prosecution accomplished what it set out to do. First, it took steroids and the athletes who use them and placed them squarely in the public eye and into a national debate. Until the BALCO matter, very few people had ever heard of Conte and his group. Now, steroid use is no longer a dirty little secret. It's entered the public consciousness, and we talk about the athletes who use them as cheaters rather than heroes.

The excitement of the Mark McGwire/Sammy Sosa home run contest back in 1998 now seems more like a Wednesday night TV wrestling match, at which the fans cheer for their favorites knowing full well that the fix is in. Remember when those home runs were soaring out of the parks? Most of the speculation then was that the ball was juiced. Many of us ignored the possibility that it was the ballplayers, instead.

Yes, Conte and the others got slaps on the wrist with such light sentences. Even one of the prosecutors, Kevin Ryan, showed his frustration over not being able to get the defendants more jail time. When Conte was sentenced last year, Ryan told the San Francisco Chronicle, "The sentences were as harsh as they could be, as existing legislation was weak and some chemicals [that were] involved were not banned at the time they were used."

That, too, has changed since the BALCO story broke. In March of this year, the U.S. Sentencing Commission changed the way the amount of steroids is calculated for sentencing purposes. The result is that even possession or distribution of a small amount of any of numerous substances can lead to a substantially longer time in jail than Conte served.

But there is another shoe, and it might still drop. The grand jury that indicted the BALCO defendants is still meeting, and reports say it is investigating whether Barry Bonds committed perjury in his earlier testimony. Then, Bonds allegedly told the grand jury that he did not know the substances he was using were illegal steroids, and he presumably said that after he'd been granted immunity by the prosecutor.

No lawyer would let his client, especially a client who might be a defendant, testify before the grand jury unless he was granted immunity. Immunity means that the witness is to be free from prosecution from anything he tells the grand jury, as long as he tells the truth. But there is no immunity for lying to the grand jury, and that's a crime the prosecution takes very seriously.

If he is convicted of perjury, Bonds, who I am quick to add has not been charged with anything as of now, would be looking at years in prison, rather than months.

Roger Cossack is ESPN's legal analyst.

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