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August 19, 2006

Is capital punishment for drunk driving morally required?

Earlier this week, as reported in the Washington Post, the New York Times, USA Today and elsewhere, "state and federal officials announced a campaign to target drunk drivers through stepped-up enforcement and an $11 million advertising campaign."  The newspaper articles confirmed my concerns here that we should be worrying a lot more about sentencing for drunk drivers than, say, sentencing for sex offenders.  Consider these data and quotes:

As first noted here, Professors Cass Sunstein and Adrian Vermeule have provocatively argued, in an article entitled "Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs," that governments may have an obligation to use the death penalty if it can deter killings and save innocent lives.  I argued here that their logic suggests the death penalty for drunk drivers may be morally obligatory because the failure to adequately deter drunk driving surely costs many innocent lives.  The new government campaign and the extraordinary number of alcohol-related driving fatalities have me returning to these ideas. 

If we really believe that the death penalty is justified by its ability to save lives through its deterrent impact, shouldn't we seriously consider using the ultimate penalty against drunk drivers?  Surely many lives likely could be saved as a result of only a few high-profile executions.

At the very least, shouldn't Congress be far more concerned with passing tough mandatory minimum sentencing laws for drunk driving than for other crimes?   Other than cynical explanations based in class and race, I have a hard time understanding why we so readily turn to super-tough criminal enforcement to deal with non-violent drug crimes, but then we go harmfully soft on drunk driving.

Related posts on drunk driving sentencing:

August 19, 2006 at 08:38 AM | Permalink


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This post just hints at the fundamental falacy of a deterrence argument to justify capital punishment.

Take a few more logical steps: If, for example, boiling in oil or, say, death by bodily dismemberment were shown clearly to have a deterrent effect, would it be ok for US to engage in those practices. I suspect most would say "no." But if not, why not?

Ultimately, the deterrence argument breaks down - reductio ad absurdum. You may argue that the death penalty deters, but you cannot use that as the fundamental justification for the penalty.

What's left is the real question, usually lost in the endless debate over whether deterrence even exists: What is acceptable behavior for US?

Scott Taylor
ODPI blog

Posted by: Scott Taylor | Aug 19, 2006 12:03:48 PM

Provocative stuff, Doc, but of course to buy the argument you have to believe capital punishment creates an actual deterrent. Here in Texas, which is the death penalty capital of the world, we have a much higher murder rate than states where the capital punishment has been eliminated.

The best way to reduce drunk driving is to require all first offenders to have a blow-to-drive mechanism installed in the ignition of any vehicles registered to them, and stiff fines if they're caught driving vehicles without such mechanisms. It would also help reduce all auto deaths substantially to boost the minimum age to get a drivers license to 18 or even 21.

You're right, though, that if you really care most about saving lives (I'd strongly argue that our society does NOT, and perhaps even shouldn't - that as Ben Franklin noted our nation's core values historically prized liberty over safety), drunk driving deserves more attention than murder, which by comparison is infrequent and usually a one-time, passion based incident or a result of conflicts among criminals. And, of course, tobacco company executives and marketers would also merit swift and merciless retribution under such an argument. Best,

Posted by: Gritsforbreakfast | Aug 19, 2006 12:23:02 PM

"Last year, 16,885 people died nationwide as a result of alcohol-related accidents." It would be interesting to know how many of those dead were the "alcohol-related" part of the "accidents"; for them, no further death would be much of a deterrence. It would also be interesting to know if "alcohol-related" means "an investigation showed the guy who was driving while intoxicated actually caused the fatal acciden" or "one of the drivers was drunk and presumably caused the fatal wreck".

Posted by: Anonymous | Aug 21, 2006 6:31:14 PM

Don't you think drunk driving is more a product of the alcohol industry, alcohol culture, and a general lack of decent public transportation (automobile addiction) than inadequate enforcement? It's fairly easy to lock people up; harder to address root-causes.

Posted by: Geoff | Aug 22, 2006 1:17:09 AM

At the end of the final version of their article, which was published in the Stanford Law Review, Sunstein and Vermeule discuss whether their theory requires the death penalty for drunk driving. In the end, they conclude that concerns about proportionality make the death penalty inappropriate in such situations. Cass R. Sunstein & Adrian Vermeule, Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs, 58 STAN. L. REV. 703, 748 (2006).

As Professor Carol Steiker notes in her response article, Sunstein and Vermeule's decision to back away from the death penalty for drunk driving is a decision to back away from deterrence as a sole theory for punishment allocation; punishment must also account for an offender’s culpability:

"The only good reason that the culpability of the individual agent of harm ought to matter in a ‘life-life tradeoff’ is a retributive one, as Sunstein and Vermeule seem to concede by recognizing that capital punishment for homicides caused by drunk driving ‘might stand on a different moral footing’ from capital punishment for intentional murders because of ‘constraints of proportionality.’ But bringing in the ‘constraints of proportionality’ to distinguish executions for drunk driving from executions for murder gives up the whole game; it eliminates the special moral force of the ‘life-life tradeoffs’ argument that Sunstein and Vermeule wish to assert."

Carol Steiker, No, Capital Punishment is Not Morally Required: Deterrence, Deontology, and the Death Penalty, 58 STAN. L .REV. 751, 781-82 (2006).

Posted by: C. Hessick | Aug 22, 2006 9:25:18 AM

The drunk driving should put in an interlock on your vehicle for the rest of your life. The only thing is that somebody could breathe in it for you if that person is sober. Then there you go again with another DWI. You might kill someone of you drive intoxicated...

Posted by: Da Slugz | Nov 13, 2009 12:49:09 PM

Whether or not the death penalty is a deterrent, it does prevent repeat offenses. An alarming number of drunk driving fatalities are committed by repeat offenders, many driving in spite of a revoked license. At least in those cases the death penalty would have prevented killing innocent people including children. Choosing against the death penalty for drunk driving is a choice to kill innocent men, women and children in order to spare the lives of drunk drivers.

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