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October 17, 2011

"In His Prior Life, Herman Cain Fought Stricter Drunk Driving Laws"

The title of this post is the headline of this notable new report from TPM2012.  Here are the interesting particulars:

While leading the National Restaurant Association, Herman Cain served as the industry’s lobbyist-in-chief, leading the charge against laws that could harm the food service business.  One of his signature causes: stopping stricter drunk driving laws.

When Cain took over as CEO of the NRA in 1996, anti-drunk driving groups were leading a campaign to lower the blood alcohol limit for a DUI to .08 across the country: the equivalent for a 170 pound-man of about five beers in two hours.  The majority of states used a .10 limit as their standard, which advocates argued was an insufficiently tough deterrent and left plenty of still-dangerous drivers on the road.

Enter the restaurant industry, whose members with liquor licenses faced diminished business as a result of the changes.  Led by Cain, they lobbied hard against .08 changes at the state and federal level, claiming that research showed little improvement in states that had made the switch already.

Cain himself took to the pages of his local Omaha World-Herald in 1998, where Godfather’s Pizza is headquartered, to argue with the paper’s editorial board against efforts to impose a federal law.  "The problem is not the responsible drinker," Cain wrote in one letter to the editor.  "It is the alcohol-abuser who gets behind the wheel of a car. In fact, according to the National Highway Traffic Safety Administration, two-thirds of all alcohol-related fatalities are caused by drivers with a BAC of 0.15 or higher."

MADD Vice President Diane Riibe responded with her own op-ed. “Mr. Cain suggests going after the ‘alcohol abuser’ rather than the ‘responsible drinker,’” she wrote.  “In 1996, 17,126 people were killed in alcohol-related crashes.  More than 3,700 people were killed in crashes in which the drivers’ blood-alcohol levels were under 0.10 percent -- Nebraska’s limit.  Does Mr. Cain think that ‘responsible drinkers’ killed those 3,700 people?”

This prompted an angry response from Cain, who took offense at Riibe for impugning his industry’s motives. “It’s a shame that an organization that has done so much to save lives resorts to personal attacks and accuses the other side of using fudged numbers and having ill intentions,” he wrote. “MADD should channel its energy toward alcohol abusers, not people who respectfully and politely disagree with MADD.”

The NRA claimed vindication the next year when a report by the nonpartisan General Accounting Office determined that several studies cited to demonstrate the effectiveness of .08 laws relied on flawed methodology.  But the report didn’t exactly shoot down the .08 idea either, concluding that it “can be an important component of a state’s overall highway-safety program, but a 0.08 BAC law alone is not a ‘silver bullet.’”

It was good enough for Congress at least, which sent a federal .08 law to President Clinton for his signature with strong bipartisan support in 2000. It’s now the limit in all 50 states....

A spokesman for Cain did not respond to requests for comment on the candidate’s current position.

Very interesting.  As regular readers know, I think drunk driving is one of a few very risky and harmful criminal offenses often subject to sentences that are generally too lenient (especially for repeat offenders).  That said, I also think there is something to the suggestion that the very toughest drunk driving laws and sanctions ought to be targeted to those with especially high BACs and to repeat offenders.  Moreover, there is particular value in this setting at considering empirical evidence about what kinds of laws and what kinds of sanctions are most effective at reducing drunk driving harms.

For all these reasons, I am disinclined to assail Herman Cain for his past advocacy on this front.  But I am now even more eager to hear not only what the GOP's hottest candidate thinks about drunk driving harms and sanctions, but also what he thinks about a range of other crime and punishment issues.  Perhaps this TPM2012 report will even prompt some  discussion of these kinds of policy issues in the next scheduled GOP debate, which happens to be located in a place (Vegas) where there is no shortage of drinking and driving.

Some recent and older related posts:   

October 17, 2011 at 11:13 AM | Permalink


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When I started practicing law, there were two drunk-driving offenses in Michigan, with blood-alcohol limits of 0.15% and 0.10%, each carrying up to 90 days in jail, and a fine of up to $100, and 6 points, or 4 points, against the driver's license. Repeat offenders faced up to year for second offenses, and up to five years in prison for third or subsequnet convictions. Now the fines for first-offenders are up to $500, the repeat-offender provisions remain in effect, the blood alcohol levels are down to 0.08% for the more serious offense, we have serious felony or misdemeanor sentences for drunk-driving causing injury, or death, or driving with minors in the car, or for being "super-drunk" (0.17%+).
Since Hammurabi and Magna Carta, and the Eighth Amendment, punishmensts are supposed to be proportional to the offender and the offense. With new offenses filling the interstices of the laws as they stood 30 or 40 years ago, why, Prof. Berman, do you favor harsher penalties for actions that do not have harsher results? I'm thinking here of the ordinary first-offense drunk-driving case, blood alcohol level around 0.12%, no accident, no injuries, no near-collision with incoming traffic, but a stop due to the time of night, some traffic violation, such as crossing the center line, or the edge of the road, with a subsequent drunk-driving arrest when the officer smells intoxicants, and the driver flunks a preliminary breath test or field sobriety tests.
Do you similarly favor harsher penaties for assault-and-battery misdemenaors, because some people die in fights, for example? For petty thieves, becuase some people go on to steal sums like Bernie Madoff's figures? How, and where, and why, do you draw your line where you do, about increased penalties for other offenses?

Posted by: Greg Jones | Oct 17, 2011 12:09:42 PM

Greg, I favor tough (but fair) penalties for all offenses in which (1) the offense itself creates a serious risk of serious harm to innocent people, and (2) there is good reason to believe that tough penalties are effective at reducing repeat offenses and perhaps help deter initial offenses. If there was evidence that petty assaults resulted in hundreds of deaths of innocents EVERY SNGLE WEEK and that harsher sentences for these assaults reduced these harms, then I would endorse harsher sentences. Same goes for any other crimes.

Of course, harsher sentences might not mean more prison time --- it might mean massive fines (as with super-speeding), especially for the rich (as in Norway/Sweden) and/or lengthy periods of community service and/or ignition locks and/or lots of other non-prison sanctions that could and should help reduce offending AND have other potential benefits.

Is your gripe with tough sentencing of drunk drivers, Greg, or is it really with the use of prison for these offenses? I share a concern with prison being the way we get tougher, but I do think I would support increased sanctions for any and all offenses that produce so many innocent victims and seem subject to a rational deterrence calculus for most potential offenders.

Posted by: Doug B. | Oct 17, 2011 6:26:56 PM

I share a concern with DUI as a government revenue raiser, masquerading as an ineffective safety measure. Most reductions in car crashes and damages are from technology, not Draconian laws, including enhancements in trauma care developed during war. Over the long haul, the lives lost in combat may save 100 times more people back home by changes in trauma care.

In the absence of a damage, DUI is a malum prohibitum, and a legal pretext to plunder the assets of mostly productive males by stealthy feminists in MADD and in the legal system. The rent seeking theory explains the costliness of DUI to first offenders not causing damage, and the leniency toward repeat offenders causing damage. Government revenue raising would be hurt by no longer heavily fining the first harmless DUI, and incapacitation of high damage repeat offenders. Much of the leniency with the damaging, very drunk, car crashing DUI does not take place at sentencing. The coddling takes place with a prosecutor offer of plea bargain in the majority of cases, down to charges unrelated to alcohol, such as careless driving.

One could be over the limit with just 3 or 4 glasses of wine at dinner, for a male, and just 2 glasses of 5 oz of wine for a female (!!). Sweden, a Commie country of government lawyer rent seekers, has a DUI standard of 0.02, not our arbitrary and money making 0.08 (How do you get such a low blood level, by sniffing cognac?). If you stop all cars during the daytime, 10% of drivers are over the limit, yet the overwhelming majority do not cause damage. Potentially, 10% of the entire driver population could enter the DUI money machine. That machine serves to fund lawyers salaries, and that of their agents, the nearly worthless police. (All lawsuits against the police should name the prosecutor of the town, the police's boss. Repeated attempts to pierce the self-dealt immunity of these government workers should be made, despite all the decisions of the Supreme Court prohibiting them.)

If you want to be fair, consistent, and safe, attack all distracted driving with the same courses, fines, jails, and other penalties. Texting, make-up, eating, phone calls, radios, arguing, checking on the kids in the rear view mirror, fellatio.

Posted by: Supremacy Claus | Oct 18, 2011 7:24:48 AM

Punishments should not be a consequence of likelihoods. The law should not seek to punish those whose likelihood of causing harm is greater. The law should punish those who cause actual harm with malice aforethought.

Drunk driving should be handled as an administrative manner by forfeiting the license of those who drive drunk. If they continue to drive drunk then through civil forfeiture, take the car.

If physical harm is done to other as a consequence of drunk driving then the harm can be remedied in the civil courts just like any other kind of harm.

Posted by: Jaridinero1 | Oct 18, 2011 5:36:56 PM


'Punishments should not be a consequence of likelihoods. '

I like that, nicely put.

Posted by: comment | Oct 18, 2011 7:34:17 PM

Dear comment:

"Punishments should not be a consequence of likelihoods."

I like that, nicely put.

If you like that, a bigger example is this country's Sex-Offender Laws which are based on nothing representing reality but myths and lies!

Posted by: albeed | Oct 18, 2011 11:07:40 PM

how true albeed but they have good company since the govt's "state secrets" and "soverign immunity" are also based on out and out FRAUD against the people of this country!

Posted by: rodsmith | Oct 19, 2011 2:00:53 AM

What I find frustrating in these debates is the citation of *all* accidents where one of the drivers is above .08, as "alcohol involved" accidents, with the implication that every one of those hundreds of thousands of accidents would not have happened but for alcohol. In reality, I suspect that some, and maybe many, of those accidents had nothing to do with alcohol. If I have 3 beers and drive home with a BAC of .08, and while stopped at a stop sign, I am rear-ended by a texting teen, I am pretty sure that ends up in the statistic (assuming there is a rule that requires the police to take BAC of all accident-involved drivers).

Given all the drivers who are sleepy, distracted, texting, half-blind, etc., I just think it is poor logic/science to effectively attribute all harms to alcohol in these kind of scenarios.

Posted by: Anon | Oct 21, 2011 3:36:58 PM

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