Another sacrifice on the altar of alcohol

Repeat drunk driver kills a man and four dogs. You can’t keep these folks from driving; keep them from drinking.

A man with three previous DUI arrests smashed into a pair of pedestrians and four dogs in a well-lit crosswalk and kept on driving at an estimated 80mph. One of the pedestrians survived.

When the driver was arrested three days later, he was drunk (again? still?) and driving on a suspended license. He has now pleaded not guilty to vehicular homicide, and – since he didn’t hang around to show his driver’s license and take a Breathalyzer at the time – it may not be possible to convict him. There should be physical evidence to show that it was his car that struck the victims, but how will the prosecution prove he was driving it? Or that he was drunk at the time?

Demonstrating, once again, the utter futility of telling drunk drivers not to drive. The only workable approach is telling them not to drink, and enforcing that rule, after the fashion of South Dakota’s 24/7 Sobriety program (“If you fail, you go to jail”).

Swift and certain. Swift and certain. Swift and certain. Why is this hard?

Footnote And can we hear some more about how it’s only the dumb drug laws that convert the purely personal, medical problem of drug abuse into a criminal-justice problem?

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

50 thoughts on “Another sacrifice on the altar of alcohol”

  1. I personally think confiscation of any vehicle they are driving, whether it is their own, a rental, a family member’s, or a friend’s, would be a better deterrent.

  2. Christ, I hate these idiots. I had a cousin who lost his best friend to some stupid woman who had 5-6 DUIs and was driving on the wrong side of the road (drunk, of course). I’m just glad they managed to get her into court over it – she tried to drive off after it happened.

  3. Mark, how long is the person not allowed to drink for? How many years? What happens when they aren’t supervised anymore?

    1. Typical 24/7 term is 90 days. Positive effects seem to last for at least two years. Optimal term would have to defend on the seriousness and persistence of the underlying conduct.

  4. Ummm, I am all for your 24/7 sobriety program being broadened (although I am not sure how well it will scale up to larger municipalities), but most first-time offenders for DUIs (80% from what I remember)do not get arrested for DUIs again, a low recidicism rate. I am assuming 24/7 is for repeat offenders…

    A lot of drunk driving could be ended, one would suppose in large part, by certain check-points set-up in front of bars and crux locations, giving mild punishments such as hundreds of dollars in fines and detox breaks. However, I think this would put a lot of restaurants and bars out of business, with God knows how all the jobs would be replaced.

    I do think it should be pointed out that the drunk-driving problem, text-and-driving problem, road-rage problem, and sleeping-driving problem have one thing in commonn-driving. Almost of these problems could be solved via automated driving, when the technology becomes cost-effective.

    Hopefully all of the RBC community will be for mandating the technology when it cam becomed networked.

    1. I can hardly wait for automatic driving technology!

      There are breathalyzers that can be installed in the cars of offenders, that won’t start the car if the driver isn’t clean. Make ’em pay for them, and that’s probably enough disincentive to drop the offense numbers even further, especially if you get ’em on the first offense.

    2. While I would love for my car to be able to drive me places, I would never want my Harley under computer control, and there’s no way I’m giving up the joy of riding it. A self-driving vehicular network is much easier to accomplish if all the vehicles are under networked control, but that’s not likely to happen anytime soon. It’s going to take a great deal of time and effort to move self-driving cars from parallel parking to full-on network-drives-the-car-while-we-drink-in-the-back-seat.

  5. “Swift and certain” may be good criminology, but it’s not how the law works. Nor should it be: it gives too much discretion to ground-level operatives: cops or social workers. Crime control is not the only function of the criminal justice system: ordered liberty has some say in the matter, as well as other considerations.

    It is most appropriate, I think, in penology, as a means of controlling miscreant’s lives that is far more effective than incarceration. Such treatment of adjudicated miscreants is no threat to ordered liberty, or most other values I can think of. But swift and certain is no way to adjudicate a miscreant in the first place.

    1. Yes clearly you are right, but notice that your point does not control Professor Kleiman’s example in which the suspect had been convicted thrice previously. I think we can all agree that the suspect should have been given a choice between draconian financial penalties / imprisonment or a disruptive monitoring program in exchange for the waiving of said penalties. Both HOPE and 24/7 sobriety are only used post-conviction.

      Lawyers love to make a show of being extremely mature and reflective rule-utilitarians, which is great don’t get me wrong… but I think you might be underestimating the extent to which ground-level operatives are already capable of exercising tremendous discretion. As a practical matter police officers are able to exercise much more discretion than they are supposed to be able to legally, and in my opinion when they choose to use permitted or not-permitted discretion they do so in ways which conform to public opinion rather than the academic / legal opinion. Sacrifices are already made to expediencey

      1. … off of the street. I guess what I am saying is that the supposedly more refined elements of the criminal justice system are very capable of producing bad outcomes and the police already do a lot of the stuff that they are theoretically not allowed to do. Allowing for too much due process actually victimizes criminals by framing the consequences of their actions as distant events which they are unable to consider or weigh correctly.

      2. Kenneth Culp Davis wrote a magnificent little book on precisely this topic: Discretionary Justice. There is a balancing act here, which you clearly laid and and Mark tacitly assumed. I felt that I had to make Mark’s assumption explicit, because he chose very strong language, the better to make his point. But I would guess that you, me, and Mark are pretty much on the same page.

    1. I think the penalties for vehicular manslaughter can be laughably small.

      On the other hand, and opining as a pure layperson, Leaving The Scene is a felony in its own right and colors everything else that happens, so I doubt this will be a case where the penalties will be small. The Suspended License probably acts similarly.

      1. I think it might just be a matter of nomenclature. Some states I’ve been in have a category of crime that basically amounts to “you killed someone by accident while driving, and it was because you were driving pretty dangerously, but we can tell you feel bad about it, and you didn’t try to get away with anything.” Probably in this case what they’re aiming at is something closer to second degree murder or aggravated manslaughter–in which case it wouldn’t really matter from a punitive standpoint whether he was drunk or not. (IANAL in any relevant jurisdiction.)

        On the other hand, just so it’s said, if the sum total of evidence against this guy is that his car was involved in a crime, he won’t (and shouldn’t) be convicted. Now, I strongly suspect that this isn’t the case. But yeah, we don’t know if he was drunk, and we’ll never know. We can have our archly worded suspicions about whether he was drunk “(again? still?),” but there’s a reason we don’t use those in making verdicts or policy decisions. So I’m not sure this is the right example for Kleiman’s point.

    2. As I understand it, the big problem is proving that he was the one driving the car. If the prosecutor can’t do that, then it doesn’t matter how heavily any of the offenses are penalized.

  6. I question the “sacrifice on the altar of alcohol” title. Where is the idolatry and denialism so evident in the gun nuts? Who is saying that alcohol is the pillar of liberty, or the key to a self-respecting life? There are booze advertisements and wine-buff screeds that suggest imaginary benefits, but who takes these seriously? Real opinions range from “harmless pleasure” to “source of all social ills”, the absurd extremes being thin tails of the distribution. Pretty much everybody thinks that alcoholism is a grave dependency sickness and drunkenness a vice that often turns harmful to other people. A majority also hold that moderate use is both pleasurable and a useful social lubricant. That is, most of us start from a pretty realistic assessment of the problem. This is not to deny that the harms of alcohol are very serious and very difficult to contain.

    1. Where is the idolatry and denialism so evident in the gun nuts?

      I’m guessing you’ll find that passion in the lobbyists on the Hill who apparently prevent the House from even considering moderate tax increases on alcohol.

      Side notes:

      It would be interesting to look at this data (http://www.taxpolicycenter.org/taxfacts/displayafact.cfm?Docid=399) in regards to DUI arrests per State per capita…
      Is this correct? National tax on a can of beer is 5 cents? http://www.ttb.gov/tax_audit/atftaxes.shtml
      And check this out, both pages, people favor raising the tax on alcohol: http://www.cspinet.org/new/pdf/alcohol_poll.pdf

    2. I’d say the real gun nuts are the folks who think that it would be even remotely legitimate for the sort of laws the gun control movement couldn’t democratically enact at it’s height to be imposed by executive fiat when the movement is at it’s nadir.

      But, that aside, the altar of alcohol was built of the horrors of Prohibition, and will stand so long as memories of Prohibition linger. Which means it’s going to be a little while yet before you get to add alcohol to the controlled substances list, and give organized crime a new source of revenue.

      1. Are you referring to me in your first paragraph? Or another RBC blogger? If so, when and where? SFIK we’ve recommended stronger legislation. Executive action on climate change (fuel economy standards and coal power plant emissions) is different, because it’s a matter of the interpretation of the Clean Air Act; an expansive interpretation can be solidly defended, by arguments you naturally don’t like.

  7. “And can we hear some more about how it’s only the dumb drug laws that convert the purely personal, medical problem of drug abuse into a criminal-justice problem?”

    Sure thing. I’ll get right on that.

    In that same generous and honest spirit, can we also hear some more about how locking people up for smoking pot will keep drunk drivers from fleeing the scene of the murders they commit?

    1. Agreed. Anyone who campaigns against pot legalization and doesn’t campaign for much tighter alcohol controls shouldn’t be taken seriously.

      1. So anyone who doesn’t adopt exactly your entire schedule of policy preferences and prescriptions should not be taken seriously?

        1. No, you could reasonably be for marijuana legalization and against tightening alcohol policy, or against marijuana legalization and for tightening alcohol. Neither of those is my view, but either is logically consistent.

          But anyone who adopts the inconsistent positions that (1) the modest health and social costs of cannabis abuse justify the large numbers of arrests and the massive illicit market that result from prohibition and (2) the enormous health, social, and crime costs of alcohol abuse do not justify the very modest costs of raising alcohol taxes and making it harder for problem drunks to keep drinking (via 24/7 or selective prohibition enforced at the point of sale) is either a pure culture warrior who just wants to bash hippies or isn’t thinking clearly.

          1. Agreed. I find it interesting that the inconsistency doesn’t seem to hold so much if you flip it around and describe a position where (1) the modest health and social costs of cannabis abuse doesn’t justify the large numbers of arrests and the massive illicit market that result from prohibition and (2) the enormous health, social, and crime costs of alcohol abuse does justify the very modest costs of raising alcohol taxes and making it harder for problem drunks to keep drinking (via 24/7 or selective prohibition enforced at the point of sale).

  8. A genuinely smart car would require not just a breathalyzer interlock device (if I remember the gadget’s name correctly) but the insertion of a valid driver’s license. Why does my California DL have that magnetic strip anyway? Google and OnStar will get us there in a few yeras.

    In the meantime, it’s always been baffling to suspend a license (a toothless sanction) instead of simply seizing drunken driver’s cars and selling them as a down payment on their large fines. It’s pretty obvious that a habitual drunken driver will drive, licensed or not. If he doesn’t have a car, though …

    1. I’ve known two people who got their licenses suspended for DUI. In both cases it was a painful sanction. One had to change apartments so that she could use public transportation to reach her job, and another wasn’t able to make a similar adjustment and lost his job as a result. Both of them also suffered a lot of inconvenience and shame as a result. They’d done a terrible thing, and this was a just result. I’m not boo-hooing for my poor drunk-driving acquaintances. My point here is that pulling the license isn’t a toothless sanction.

      As to letting cops seize the cars of drunk drivers, it sounds appealing but the sorry history of asset forfeiture laws gives one pause. My half-assed impression is that these laws do very little good and an awful lot of harm by way of encouraging corruption.

      1. Agreed civil asset forfeiture is widely abused. As a criminal sanction post-conviction for a second or later offense, though, I can’t see the harm.

        And yes, to the generally law-abiding, a license suspension is a very big deal. To chronic alcohol abusers who don’t care anyway, it’s hardly effective.

        1. Here’s the harm: Many people with DUI convictions are married. They are driving the family car. Prohibiting them from driving? Perfectly reasonable, once they’ve demonstrated they can’t be trusted to do so sober. Taking away their spouse’s vehicle, too? That’s just piling troubles on somebody who has troubles enough.

          1. True enough, but one of the joys of marriage is sharing responsibility for one’s spouse’s screwups. The steep fines for repeat DUI offenders come out of the whole family’s budget and not some secret trust fund that only drunks have.

            In any case, that’d be a good reason to install that “licensed-driver only” interlock device. Does such a thing exist? I don’t have the tinkering chops myself, but someone should steal the idea.

        2. To chronic alcohol abusers who don’t care anyway, it’s hardly effective.

          True that. I’ve had two cars destroyed by drunken drivers within 13 months of each other while legally parked at the curb in front of my house, on a 25-mph speed limited residential street.

          In both cases, Kansas City’s finest showed very little interest in pursuing the perpetrators. The first one happened in the middle of the night, the woman was obviously wasted, wandering around the street in a daze. When the police finally showed up, they didn’t do any sort of sobriety test. They didn’t even ticket her for hitting a parked car on the left side of the road relative to her direction of travel with enough force to destroy it on a 25 mph street, or for failing to maintain liability insurance. A friend showed up for her and they totally let her go. I have no idea if she even had a valid driver’s license — I don’t think the cops even asked her to produce it.

          The second time was around noon on a Wednesday. It was a hit-and-run. My wife was home and heard the crash, but was told by the 911 operator that she would have to “walk in” the police report herself — they weren’t sending anyone out to investigate (and she would have had to literally walk it in — the car was destroyed). Another driver followed the perp and also called 911. The perp was apprehended after wandering into a neighboring suburb whose police department showed an actual interest in pursuing an impaired hit-and-run driver. That department called KCPD when they ran his ID and discovered KC had a warrant out for him. All of a sudden KCPD was interested in the case and sent two cars to our house to investigate the hit-and-run. That driver was tested and found to be drunk, and was driving under a suspended license.

          There seems to be a secondary issue of big-city police indifference to the problems of drunken driving, driving on suspended license, and driving without insurance. Pass all the laws you want, but they’re useless if you can’t get the cops to enforce them.

          1. Wow. I can speak from unfortunate personal experience that the police in California have a very different approach.

          2. Ironically, my own unfortunate personal experience (over thirty years ago) happened in the neighboring suburb I mentioned above. But that police department is vigilant to the extreme. While I deserved it that particular time, there have been other unfortunate incidents there that I didn’t deserve at all.

            They once charged me with failure to yield right-of-way (the day after the fact) for pulling about a fourth of the way into an intersection during an attempted left turn and halting there as I saw a pick-up appear from around a slight bend approaching at a very high rate of speed (again, on a 25-mph residential street) and watched him leave 167 feet of skid marks (which was measured by the very officer who later charged me) and slam into a telephone pole across the street before leaving the scene, while I remained behind to offer eye-witness testimony, as a resident who saw it all from her window had called the police. They caught up with the guy the next day, and found he was driving a borrowed truck and had a suspended license for previous DUI’s. The guy claimed he was sober and driving 25 mph and swerved to avoid me pulling out in front of him, causing him to veer into the telephone pole. The cop looked pretty stupid in court when I asked him to explain why he thought it feasible that someone driving 25 mph could leave 167 feet of skid marks leading right into the pole he hit with enough force to break the radiator and flatten both front tires, and the judge immediately dismissed the case.

            Another time I turned right from a dead stop onto a 35-mph access road running parallel to a 65-mph highway, went about a block in my wimpy 4-cylinder when I saw flashing lights in the rear-view. I was surprised when he stopped behind me instead of the guy I had waited for at the stop sign, who was barreling down the hill obviously above the speed limit, but even more surprised when he gave me a ticket for going 63 in a 35. My car was barely capable of reaching 35 in the distance traveled, much less 63. When I confronted that officer in court, it was discovered that it was his first day on the job and he had very little experience with the radar gun he used. I pointed out that it seemed obvious that his radar gun had picked up a reflection from the highway traffic behind me as he aimed his gun at my car. If not for my wife’s witness testimony, I get the sense that I would have been convicted anyway. As it was, I was convicted of 45 in a 35, even though there was no testimony given that I had been going that speed in the 35 zone.

            Immediately after I challenged the speeding ticket in court, they sent another cop to wait for me at a downhill exit ramp coming off a 65-mph highway to a 35-mph access road where most people are still going at least 50 at the merge and nabbed me at 42 as I drove my daily routine home from work. The cop actually apologized to me as he wrote the ticket and strongly inferred without coming out and saying it that I had been personally targeted. In nearly 40 years, I’ve never seen any other sort of speed enforcement at that location. I did not contest this one as I was actually guilty, but the two speeding convictions in a short period of time triggered a warning from the state that my license would be suspended if I had any more moving violations in the next 18 months. I’ve learned not to try to defend myself in that particular municipal court without an attorney.

            Sadly, where I live, I seem to be sandwiched in between extremes of law enforcement indifference and over-zealousness.

  9. How the sad case described above relates to the issue of whether using marijuana should be legal or illegal is beyond me. I remember back in the early 70s I’d do road trips and tended to have a heavy foot when I was looking at the scenery or something. I’d take a toke (NOT get ripped) and it would immediately knock 5-10 mph off my speed, effortlessly. I know I am not alone in that experience.

    Now I use cruise control, which is better.

    But I’d be curious as to whether there are any studies that link being stoned to driving with excessive speed and so on. Bassed on personal experience- my own and that of those I know, I doubt it. (To forestall a predictable response- I am not defending driving stoned although in the PARTICULAR case I mentioned I think I was actually safer to myself and others.) If there are no such studies Prof. Kleiman’s comments in this context impress me as mostly “grumpy.”

    1. I am pretty sure that there have been studies which have showed a strong link between being stoned and getting into an accident, but of course it could be studied more. I am inclined from personal experience to agree with you that speeding is not a likely result of driving stoned, however the true and ultimate danger (driving sleepy) definitely does go with being stoned, as it does with being drunk.

      1. I’d love a link to the research. Again, I am NOT defending driving while stoned. We need our wits and reflexes. I was saying a toke or two on 1970s weed would knock 5-10 mph off my speed with no noticeable ill effects. That was always in the day time. Sleepiness was never an issue.

        1. At work so I am not going to consult scholar or do any real research right now but here…

          http://usatoday30.usatoday.com/news/health/story/health/story/2012-02-09/Marijuana-users-twice-as-likely-to-cause-car-crash/53031202/1

          With sleepiness out its quite possible driving stoned is not very dangerous, I just don’t know. Thinking back to my time as a user it would have been extremely dangerous for me to have driven one of the first 100 times I inhaled. Once I became very used to the stuff I think it probably would have been safe to put me behind the wheel… just so long as I was not at all sleepy. Who knows? Anyway, the google has the information you were seeking.

  10. I’m a criminal defense attorney I can tell you that in my experience ignition interlock devices do not prevent repeat offenders. Most repeat offenders use other family/friends cars. Sadly I find that the IID requirement puts people in worse shape. Defendants who have to drive as part of their employment often end up losing their jobs. Inability to work often leads to them falling into a hole that they struggle to dig out of. Harsher financial penalties result in defendants being incarcerated rather than receiving treatment.

    In California if you have been convicted of a DUI and end up killing someone in a subsequent DUI incident it’s charged as second degree murder. Judges advise defendants of the dangers at sentencing. There is the requisite understanding that driving under the influence is dangerous to human life that elevates a vehicular manslaughter to murder.

    From my perspective heaping on more penalties at this point is counterproductive. DUIs are already immensely expensive, repeat offenders have issues that financial concerns override. I see a lot of 3rd time DUIs occur in cases of dual diagnosis situations (mental illness/substance abuse) without addressing both jail/high fines/ IIDs are going to do nothing to solve the problem. As usual in the criminal justice system you have to start with addressing our neglected mental health system.

    1. Not suprisingly, a lot of the push behind mandatory IID installation for DUI offenders comes from lobbying groups funded by manufacturers of such devices.

    2. Well what works then? DUI defendants who have to drive as part of their job are in the wrong job, aren’t they?

  11. Not just on the altar of alcohol. That altar is small and shrinking.

    The big church is the Church of Mandatory Automobility, where apostasy gets you into purgatory as a second or third class citizen in most of America, and transit is treated as an optional socialist frill. In Salem, Oregon, a state capital with a huge fraction of very poor and near poor residents, there is no transit service At All on weekends, because the CSt of running the ADA service is breaking the transit system into smithereens, and of course, the transit system is not funded by gas taxes, which is constitutionally locked up for roads. Conditions for bicyclist are horrible and many die each year thanks to cars, who also kill lots of pedestrians every year.

    It’s telling that you think it’s easier to modify behavior involving consumption of booze than to make it so that there’s no need for everyone to have to drive so damn much. On every axis (jobs, health, climate-environment, social capital creation, crime reduction, you name it) what America could really use is a good strong, sustained dose of car hating and the subsequent rediscovery and reinvestment in transit alternatives and a redesigned urban fabric to support that.

    1. Well, I agree with you that we need vastly more transit options, though I also do not in any way support the current war on driving. We need both transit and cleaner cars. It would be nice to live somewhere where one didn’t have to drive, but that’s not an option for everyone.

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