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January 26, 2014

Texas jury suggests it's much better for NFL players to kill pals than sell them pot and coke

I was pleased and intrigued by all the diverse comments that were part of reader reactions to my rant here last week about Justin Beiber and what I consider the harmful and dangerous leniency too often shown to serious DUI offenders. To summarize the gist of my prior rant(s), I am troubled many serious DUI offenses are punished so relatively leniently, and I fear that rich and famous DUI offenders get even extra leniency because they generally can afford the best lawyers and are generally viewed more sympathetically than most other defendants because of their fame.   It was very helpful to see different folks express different reactions to these sentiments.

Intriguingly, the day after the Bieber arrest news broke, a Texas jury handed down its punishment for another rich and famous person involved in a serious DUI offense.  Via this AP story, here are the details:

Former Dallas Cowboys player Josh Brent avoided prison Friday and instead was sentenced to 180 days in jail and 10 years of probation for a drunken car crash that killed his friend and teammate, Jerry Brown.

Brent was convicted Wednesday of intoxication manslaughter for the December 2012 crash on a suburban Dallas highway that killed Brown, who was a passenger in Brent's car.  Brent could have been sentenced to up to 20 years in prison.  He was also fined $10,000....

One of his attorneys, Kevin Brooks, described the former defensive tackle as "somber."... Brooks said, "It's kind of what we've been fighting for from Day 1. I'm happy for Josh.  Josh is still sad and grieving and that's something he's going to carry with him the rest of his life."

Brown's mother, Stacey Jackson, wasn't in the courtroom when the verdict was read.  She publicly forgave Brent, and said during Thursday's sentencing proceedings: "He's still responsible, but you can't go on in life holding a grudge. We all make mistakes."

Jackson was the last witness the jury heard, and lead prosecutor Heath Harris said her testimony probably helped Brent get probation.  "The victim's family will always have a bearing on the punishment phase," Harris said.  "Should it make a difference?  What if she had been wanting the maximum? Would they have given the maximum?  That's why we let the jury decide."

Prosecutors were pushing for prison time for Brent, whose trial came weeks after a teenage boy in neighboring Tarrant County received no prison time for an intoxication manslaughter conviction in a drunken crash that killed four people.  In that case, a defense expert argued that the teen deserved leniency because his parents had coddled him into a sense of irresponsibility -- a condition the expert termed "affluenza."

The group Mothers Against Drunk Driving, whose headquarters isn't far from the spot where Brent crashed, said in a statement that it was "shocked and appalled" by the athlete's sentence.  "This punishment sends the message that it's OK to drink and drive -- but it's absolutely not," MADD said....

Blood tests pegged Brent's blood alcohol content at 0.18 percent, which is more than twice the state's legal limit to drive of 0.08 percent.  Prosecutors told jurors that the burly, 320-pound lineman had as many as 17 drinks on the night of the crash....

Judge Robert Burns scolded Brent after reading the verdict, saying his actions "bring shame to the city of Dallas."  The judge also mentioned Brent's 2009 drunken-driving conviction in Illinois, which the prosecution revisited in making its case for prison time.

"The judge obviously has a right to express his opinion," said George Milner, one of Brent's attorneys. "I guess the difference is there's no one in that courtroom that knows Josh the way Kevin and I do. And so I see a different person."

Regular readers will not be at all surprised that I think a sentence of probation for 10 years and a $10K fine is far too lenient punishment for Brent's repeat and now deadly penchant for drinking and driving.  (My understanding from this local report is that the Texas jury imposed only the probation term and fine, but that the trial judge added the 180 days in local jail.)  And those who hope Brent will finally shape up after killing his friend might be interested in this NFL report from last year noting he failed two drug tests while on bail awaiting his trial.

Among other interesting aspects of this story is the obvious role that Brent's victims and Texas' system of jury sentencing played in the lenient sentence.  As the above stories suggests, the Texas jury was likely significantly moved by statements from the victim's mother seeming to urge giving Brent a big sentencing break, whereas the local judge was apparently still eager to throw the book at Brent.  I highlight these realities because far too many persons often believe or claim in far too many settings that giving voice to victims' interests and/or allowing jury sentencing will result in (too) harsh sentencing outcomes. In this notable case, giving voice to victims' interests and allowing jury sentencing result in a (too) lenient sentencing outcome.

Finally, as the title of this post indicates, what probably troubles me most about this outcome is what it says about the values and commitments of our modern criminal justice systems in the wake of last high-profile sentencing of an NFL player.  As detailed in this AP article from two months ago, former NFL receiver Sam Hurd was sentenced to 15 years in federal prison for being involved in "a lot of agreements to buy and sell marijuana and cocaine."  (Notably, the federal sentencing guidelines actually recommended that Hurd get a 30 year sentence, but the federal judge varied down to 15 years.)  

In other words, for his first offense trying to make money by selling his pals pot and coke, Sam Hurd got a federal prison sentence 30 times longer than the jail term to be served Josh Brent for killing his pal during his second (known) offense of drinking and driving.  Like the folks at MADD, I worry that these disparate punishment realities "send the message that it's OK to drink and drive" and kill your pal, just make extra sure you do not try to seel them some pot and coke or you might get in really big trouble.  (And do not get me started on the additional messaging from another famous NFL player, Plaxico Burress, having to cut a plea deal to get a state prison sentence only four times longer than what Brent will serve simply for carrying a gun the wrong way and shooting himself!)

Some related posts on drunk driving leniency and NFL player sentencings:

January 26, 2014 at 02:17 PM | Permalink

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Among other interesting aspects of this story is the obvious role that Brent's victims and Texas' system of jury sentencing played in the lenient sentence. As the above stories suggests, the Texas jury was likely significantly moved by statements from the victim's mother seeming to urge giving Brent a big sentencing break, whereas the local judge was apparently still eager to throw the book at Brent.

It probably helped him, but I would guess that the fact that the victim voluntarily got into the car with Brent mattered a great deal as well, and he wouldn't have gotten anything like the maximum even if the victim's mother did not support him. Like it or not, he freely chose to get in the car with Brent; this is not a case of a drunk driver mowing down a van full of kids.

Nor do I find the idea that this sentence (which incidentally I agree with you is probably too lenient, but more on that in a second) will "send the message that it's OK to drink and drive" to be very compelling. Who is going to be intoxicated and think "gosh, if I kill my best friend and only get 6 months in prison, that's a risk worth taking, but if it were 5 years, no thank you!" I don't think that's a model of human decision making that's remotely consistent with empirical evidence that people tend to ignore low-probability events.

As I think about it, I'm skeptical that the optimal strategy here involves increasing average penalties on convicted drunk drivers. About 17% of drunk driving fatalities are passengers in their own cars, basically the same percentage as are occupants of other vehicles or pedestrians combined. As much as it offends my libertarian-leaning sympathies, I think making it illegal to ride in a vehicle driven by a drunk driver, in the same way that passengers are required to wear seat belts, would likely deliver much more bang-for-the-buck in terms of saving "innocent" lives than increasing the average sentences of those convicted of manslaughter.

Posted by: dsfan | Jan 26, 2014 3:06:36 PM

Jerry Jeff Walker wrote a song for Mothers Against Drunk Drivers. Its called Up Against The Wall Redneck Mother. Here are the lyrics:

He was born in Oklahoma
His wife's name's Betty Lou Thelma Liz
And he's not responsible for what he's doing
Cause his mother made him what he is

And it's up against the wall Redneck Mother
Mother, who has raised her son so well
He's thirty-four and drinking in a honky tonk
Just kicking hippies asses and raising hell

Sure does like his Falstaff beer
Likes to chase it down with that Wild Turkey liquor
Drives a fifty-seven GMC pickup truck
He's got a gun rack"Goat ropers need love, too" sticker

And it's up against the wall Redneck Mother
Mother, who has raised her son so well
He's thirty-four and drinking in a honky tonk
Just kicking hippies asses and raising hell

Well
M is for the mudflaps you give me for my pickup truck
O is for the Oil I put on my hair
T is for T-bird
H is for Haggard
E is for eggs, and
R is for REDNECK

Up against the wall Redneck Mother
Mother, who has raised her son so well
He's thirty-four and drinking in a honky tonk
Kicking hippies asses and raising hell

He's up against the wall Redneck Mother
Mother, who has raised her son so well
He's thirty-four and drinking in a honky tonk
Just kicking hippies asses and raising hell

Songwriters
Ray Wylie Hubbard

Posted by: Liberty1st | Jan 26, 2014 3:08:28 PM

Interesting point, dsfan, though of course every "victim" of Sam Hurd's drug dealing freely chose to seek drugs from him. Not only does that fact not result in a lower sentence for Hurd, but folks involved in Hurd's economic offenses are actually called criminals, not victims. Interestingly, it seems you are prepared/eager to say anyone who gets in the car with a drunk driver is a criminal, which is an interesting approach to dealing with the massive harm caused by this too-common crime.

Critically, dsfan, the main point of this post is not to push very hard for harsher/longer prison sentences for repeat drunk drivers, but rather to help folks see how harsh/long federal prison sentences are for even first-offense drug offenses. That said, as my Beiber post stressed, I do want much harsher NON-prison sentences for repeat drunk drivers, such as forfeiture of all property used in conjunction with the offense, very big fines, very lengthy prohibition from driving for leisure and all sorts of shaming sanction and community service obligations.

Posted by: Doug B. | Jan 26, 2014 3:27:31 PM

Interesting point, dsfan, though of course every "victim" of Sam Hurd's drug dealing freely chose to seek drugs from him. Not only does that fact not result in a lower sentence for Hurd, but folks involved in Hurd's economic offenses are actually called criminals, not victims. Interestingly, it seems you are prepared/eager to say anyone who gets in the car with a drunk driver is a criminal, which is an interesting approach to dealing with the massive harm caused by this too-common crime.

"Criminal" is probably stronger than I was thinking, since I was imagining something in the manner of a speeding ticket. I'm certainly not thinking of anything like the drug war here. And I wouldn't say I'm eager for it, just that it would probably be higher on the list than prison if you asked me, "if you were a dictator tasked with reducing drunk driving fatalities by, say, 1000, what's the most cost-effective method you can think of to do it?" I guess I would probably rank approaches:

1) Introducing a modest non-criminal sanction for passengers
2) Increasing the non-prison penalty for high-BAC DUI (more or less your second paragraph minus the forfeiture provision, which has been IMO a disaster with drug policy)
3) Increasing penalty for manslaughter or injury cases
4) Increasing penalty for low-BAC DUI (which really isn't that much more dangerous than speeding IIRC)
5) Lowering the BAC limit (which I probably would not do)

Posted by: dsfan | Jan 26, 2014 4:01:12 PM

From the article: "'The judge obviously has a right to express his opinion,' said George Milner, one of Brent's attorneys. 'I guess the difference is there's no one in that courtroom that knows Josh the way Kevin and I do. And so I see a different person.'"

Indeed he does. He sees a person who pays him.

Posted by: Bill Otis | Jan 26, 2014 5:06:29 PM

Where did the judge get the authority to add the jail time?

Posted by: Poirot | Jan 26, 2014 10:01:22 PM

Doug, I do get it. Your point on how severe federal drug sentences are Vs serious DUI offenses.

For me, I can't believe nobody has challenged the 5 to 1 psuedo to meth. That's right, psuedo is 5 times higher in the conversion table.

A sentence of 180 days for a DUI car crash seems a bit light. Your everyday day joe being a young lad/lassie would not typically have the bucks for a really good lawyer,
So they face 10 yrs in the cross bar hotel, at least in my area.

Federal frug sentences really get ratcheted upwards for all of the little charges that
Some substance a users gather. Basically drug offenders are removed from society and are warehoused. The activities are anemic and job skills learned Donot exist.

Posted by: Midwest Guy | Jan 26, 2014 11:31:35 PM

Drunk drivers kill as many people as murderers, of course. The victims die horrible, butchery type deaths.

I think Prof. Berman is calling the criminal law policy makers and judges stupid here.

But here is the biggest idiocy of all. Draconian penalties has had only a small impact of the deaths. It is likely that decreased in deaths is from trauma care advances not stricter penalties.

The next step to ending all drunk driver deaths would be to immunize the self driving car from tort liability. Immunize the software and the hardware, make judges and prosecutors liable in torts. That way, the automated driving car could come in a year, not in ten.

Posted by: Supremacy Claus | Jan 27, 2014 12:14:39 AM

Of course 10 years probation is also nothing to sneeze at, I wonder what the stats are for offenders to successfully complete that length of supervision when they had at least one conviction prior to the act that landed them on probation.

Posted by: Soronel Haetir | Jan 27, 2014 1:33:00 AM

"Where did the judge get the authority to add the jail time?"

The jury ordered probation. The judge can order up to 180 days as a condition of probation. Further, the county sheriff can reduce the jail time based on good behavior in jail. He'll likely earn 3 days for every 1 and be out in 60 days.

Glad to hear Doug has modified his stance to now advocate "harsher NON-prison sentences" for DWI, but Soronel is right that 10 years probation is not a small thing. The judge added the maximum jail time he could and we don't know from the story what other conditions may be applied.

I tend to agree with dsfan about DB's "send a message" red herring. Causing a wreck that kills your best friend and ends your career isn't an outcome anyone will aspire to or think is a small price to pay for their next beer. Whether Brent got six months or ten years, nobody in Dallas would remember him as the Cowboys player who got X sentence, but the Cowboys player who drove drunk, killed his best friend and washed out of the NFL.

Posted by: Gritsforbreakfast | Jan 27, 2014 10:04:03 AM

There is a story in every major paper in every major city just about every week about someone who caused a wreck while driving drunk and killed one or more persons. And yet hundreds of people still drink and drive every week. If you do not think any criminal justice punishments can in any reasonable way address this public safety problem, then we should not use the CJ system at all to deal with it. But I think here, especially, all sorts of severe and visible sanctions (especially for repeat offenders like Brent) could help save a lot more innocent lives.

I think technology will help solve these problems before too long through passive detection systems that prevent persons from driving a car with a high BAC. But I actually think we will get to such a life saving technology faster if the Beibers and Brents in the world get massive fines and are required as part of a probation sentence to consult with car makers about how to better prevent them for using their cars as deadly weapons.

Posted by: Doug B | Jan 27, 2014 6:29:38 PM

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