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August 22, 2007

Why don't they talk about capital punishment for drunk drivers in Texas?

As my students know, I often wonder why those who support the death penalty on deterrence grounds generally do not consider making drunk driving a potential capital offense.  This Dallas Morning News article reports that, based on the latest national statistics, "Texas led the country in the number of drunken driving fatalities last year with 1,354."  Interestingly, this means that, based on data from the Texas Department of Public Safety, the number of years drunk driving deaths in Texas is roughly comparable to the number of murders. 

As I have suggested in previous posts, typical drunk driving crimes seem likely to be much more deterrable than typical murders.  Moreover, we could and should expect that only the most horrific drunk driving offenses would ever lead to capital charges (just like we can and do expect that only the most horrific murders lead to capital charges). 

So, given the state's capital punishment track record, is it only a matter of time before some Texans start talking seriously about the possibility of the death penalty for drunk drivers who kill?

Some related posts on drunk driving sentencing:

August 22, 2007 at 08:32 AM | Permalink

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Comments

Because the Texans don’t consider drunk driving to be “bad” – merely “naughty” or “irresponsible.” There are a lot of bad people in Texas (more than any other state in the country), and to extend the definition of “bad” to merely boys just being boys would be impractical.

Posted by: S.cotus | Aug 22, 2007 8:44:36 AM

"I often wonder why those who support the death penalty on deterrence grounds generally do not consider making drunk driving a potential capital offense."

Because few, if any, consider deterrence to be the sole consideration. "Just deserts" matters too, and on that ground the death penalty is rarely appropriate for murders without intent to kill. A person who deliberately sets a wildfire in a dry forest, knowing it will be a major fire and that firefighters will likely die, might be a candidate even if he does not specifically intend that result.

Posted by: Kent Scheidegger | Aug 22, 2007 8:47:52 AM

Kent is right. Further, the folks who are on death row are really, really bad people. That said, we are a country in denial about our alcohol problem and instead would rather focus on illicit drugs which is a substantially smaller portion of the population.

Posted by: Steve | Aug 22, 2007 9:32:03 AM

If one defines violence as the intended and unjustified use of force resulting in death or trauma murder is a violent crime and vehicular homicide is not because there the use of force was unintended. As a consequence vehicular homicide is not a felony with a death penalty or LWOP as the sentence in most states. What is so bad about that?

Posted by: JSN | Aug 22, 2007 10:28:56 AM

Arson can be a predicate for felony murder, which can be punishable by death.

As for drunk driving, there are situations where death could theoretically be available, but it wouldn't be for drunk driving per se. Example: drunk guy decides that it would be fun to drive the wrong way down a highway. And if he continues driving the wrong way, even once he should know that he is driving the wrong way (this would distinguish from the accidental wrong way driver), then he theoretically could be prosecuted for murder (under a depraved indifference theory) and sentenced to death.

I wonder what the Supreme Court would think of a death penalty for a guy who drove drunk, killed someone, then after serving his time, drove drunk and killed someone else.

Posted by: federalist | Aug 22, 2007 11:27:28 AM

"Just deserts" matters too, and on that ground the death penalty is rarely appropriate for murders without intent to kill. A person who deliberately sets a wildfire in a dry forest, knowing it will be a major fire and that firefighters will likely die, might be a candidate even if he does not specifically intend that result.

The country is presumably well-enough aware of the dangers of drunk driving and of the fatality rate. If the wildfire setter might be a likely candidate, then the drunk driver should be as well.

The reason drunk driving isn't punishable by death is probably because we have a lot more drunks in office than murderers.

Posted by: | Aug 22, 2007 4:40:04 PM

The fact that Texas legislators do occasionally get charged with DUI might be a factor.

Posted by: Steve Hall | Aug 22, 2007 5:44:02 PM

I guess it's difficult for people to distinguish what is essentially reckless homicide from deliberate killing or felony murder. Plus, I doubt seriously that the Supreme Court would permit the death penalty for a drunk driving death, so the debate is moot anyway.

Posted by: federalist | Aug 22, 2007 6:02:35 PM

Would my distiguished colleagues analyze the following hypotheticalI was given by my crim law prof 30 years ago and advise whether the defendant would be eligible for the death penalty in any or all states:

Man goes to top of empire state building. Drops large rock from roof, saying as he does so, "I fervently pray this does not hit anyone." Assume he truly believes what he says. Unfortunately, two pedestrians are killed by the rock.

Posted by: Michael R. Levine | Aug 23, 2007 2:20:44 AM

Doug, believe it or not, some folks do talk about the death penalty for DWI in Texas, just like several politicians have advocated the death penalty for drug dealers in their campaigns. Given the Supremes rebuffs of the DP in Texas, though, there's basically a pragmatic limit to the amount of foolishness they think they can pull off. It's not unusual for repeat DWI offenders to receive life sentences in non-injury cases in some TX jurisdictions. Perhaps it's best not to give the Texas Lege any ideas on this score.

Posted by: Gritsforbreakfast | Aug 23, 2007 9:27:57 AM

The short and snarky answer to Michael's hypothetical is no, because New York's death penalty law is presently inoperative and no other state's law does or could apply to the crime described.

More seriously, this crime could be capital if a state chose to make it so. Under Tison v. Arizona, reckless disregard of human life is constitutionally sufficient, and this crime surely qualifies.

So the eligibility question turns on the state statute. In most states, the requirement amounts to first degree murder as traditionally defined plus an additional aggravating factor. Multiple murder is an aggravating factor in many states, so the killing of two people may get over that hurdle. However, the murder described is of the "depraved heart" variety, which is not first degree in most of the states that divide murder into degrees.

This wouldn't be a death-eligible murder in most states, but I can't say it wouldn't be in any without more research. Maybe one of the few that doesn't divide murder into degrees or one that has an unusual definition of the highest degree.

Posted by: Kent Scheidegger | Aug 23, 2007 11:02:49 AM

Why not? Crim Law 101, Professor Berman: there is no mens rea in the Texas DWI.

Do I get an "A"???

Posted by: Dweedle | Aug 23, 2007 12:46:39 PM

What could go wrong?

No innocent person has EVER been convicted of drunk driving, so the old argument (that innocent people might be executed) does not apply.

Posted by: Michael Ejercito | Sep 11, 2007 12:04:35 AM

Even if you believe that the death penalty actually provides any deterrence at all (and I am not convinced that it does - I actually think that life in prison without the possibility of parole is a worse penalty than death), the death penalty for DUI/DWI would provide no additional deterrence against driving drunk than already exists because there is already a large risk of dying from driving drunk. In fact, I'm sure the odds of the drunk driver dying in the accident would be way higher than the odds of a drunk driver dying by execution - jurors not to mention, legislators, judges, and prosecuting attorneys would be very likely in such a case to say "there but the grace of God go I [or a loved one]" and oppose death based on DUI even in the most egregious cases.

In fact, I think its reasonable to argue given that high odds of death during driving while intoxicated that the fact that so many people do it shows the fallacy in arguing that the death penalty actually deters crime. People continue to act (drive drunk) despite a high risk of death (likely way higher than the risk of death from execution) because they don't think it will happen to them - or because of diminished mental capacity (such as intoxication), they don't appreciate that their actions could result in their death or do not fear death. That won't change no matter how high the penalty for drunk driving is. Since driving drunk is by its nature, an irrational act committed under diminished capacity, notions of deterrence do not apply.

Posted by: Zack | Oct 11, 2007 5:22:33 PM

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