So Draymond Green has been suspended for tonight’s game in the NBA finals because he swiped Lebron James in the groin. Reasonable minds can differ whether Lebron provoked that unsportsmanlike conduct by straddling and stepping over Green after knocking him to the ground rather than stepping around him. Nearly everybody agrees that Green’s contemptuous and casual swipe in and of itself was not designed to disable or seriously injure James and thus did not deserve a full game suspension. But Green’s prior behavior, his accumulation of flagrant foul points from foul moves in earlier games made this particular one cross the threshold.

So controversy swirls: Should a foul not serious enough in itself to qualify for suspension, when coupled with prior bad behavior, constitute a sufficiently serious violation? The criminal law has long faced an analogous controversy. “Three strikes and you’re out” laws have resulted in life in prison sentences meted out to recidivists whose third strike was, standing alone, relatively petty – such as stealing golf clubs from a pro shop, or an unarmed burglary.

So that raises the basic question: If we in society or the sport community commit ourselves to having the punishment fit the crime, exactly what is the crime here being appropriately punished? Casually swiping at someone’s groin or casually-swiping-at-someone’s-groin-having-previously-kicked-another-player-in-the-balls et al.?

Within any particular game, a player may foul out and thereby be excluded from playing the rest of the game, although his sixth foul, in itself, was trivial. A fan may protest: “He doesn’t deserve to foul out for that.” No, not in isolation, but given the five before it, of course.

Some commentators justify suspending Green to send a message to other would-be foulers. We advocates of punishment as retribution reject using person as a means for other ends. For us retributivists, however, committed to proportionate penalties and just deserts, the past does count. Draymond Green’s earlier fouls count as part of his latest. I believe Green should have been suspended for his earlier unprovoked shot below the belt on Steven Adams. He wasn’t. So perhaps this is a make-up call – itself a subject of interesting and deep controversy.

In any event, I’ll be rooting for Golden State tonight. But win or lose, I’m glad they’ll play without Draymond Green.