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December 12, 2011

Is it time for Texas to consider making drunk driving a potential capital offense?

NA-BO494_DRUNK_NS_20111211161802The question in the title of this post is prompted by this new Wall Street Journal article, which is headlined "Texas Blood Test Aims at Drunk Drivers."   The focus of the piece concerns the trend in Texas for local official to demand "that drunken-driving suspects who refuse to take breathalyzer tests submit to blood tests that measure the amount of alcohol in their systems."   But the chart reprinted here and some stats from the article, combined with the historical affinity of Texas for capital justice and my own belief that drunk driving is a kind of crime that could (and should) be readily deterred, prompts the question.  Here are the stats:

Over the July 4 weekend, almost 500 law-enforcement agencies in Texas participated in a no-refusal campaign that netted about 1,500 DWI arrests. Bexar County, which includes San Antonio, recently implemented mandatory blood testing year-round....

Last year, about 800 traffic deaths in Texas involved a legally intoxicated driver, and that number has steadily increased in recent years, according to the Texas Department of Transportation. In 2009, Texas had the most people killed in alcohol-impaired crashes, according to the most recent data from the National Highway Traffic Safety Administration.

Perhaps Grits for Breakfast or some other Texas criminal justice bloggers can help me understand why there have been hundred more drunk driving death in the Lone Star State in recent years. Whatever accounts for this trend, the fact that there is evidence that thousands of drunks drive on Texas roads over a holiday weekend suggest to me that getting tougher on this offense is needed in order to try to save innocent lives.  I have often said to my students that I think simply making just one repeat drunk driver who kills someone in an accident simply eligible for a death sentence might greatly reduce the number of drunk driviers and potentially save a significant number of lives.  With a number of holiday weekends coming soon, perhaps it is time for Texas to test my hypothesis.

UPDATE:  In response to some early comments expressing constitutional concerns with my suggestion, let me articulate a bit more fully what kind of drunk driving offense I think might be subject to being a potential capital offense.  I am imagining a drunk driver with a lengthy criminal history who, with a very high BAC and perhaps also with a minor in his car and with no possible need to be driving after heavy drinking, drives very recklessly and kills multiple people. 

Though I do not know Texas capital murder law very well, it seems possible that the existing state felony murder laws might already be read to make such an extremely reckless and deadly case of drunk driving a capital offense.  (I think Texas law makes driving drunk with a minor in the car and a third DWI offense a felony, which in turn could be the basis for a felony murder capital charge if/when such a drunk driver were also to kill multiple victims.)  And, under existing SCOTUS jurisprudence, I think it is constitutional to make a capital offense of any felony that causes a death as long as the defendant's underlying felonious behavior involves extreme recklessness with respect to human life.

Notably, though not even involving a death, this ABC News article from last year discusses a case in which a repeat drunk driver received a life sentence for his ninth DWI offense.  I think capital punishment might be constitutionally permissible for an offender like this who caused multiple deaths.

December 12, 2011 at 04:07 PM | Permalink


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Brilliant thread to get going here (and probably no place else).

Posted by: AAAnon | Dec 12, 2011 4:33:14 PM

Have you ever supported a law that knew or should have known was unconstitutional? Put another way, would SCOTUS approve this death penalty when the underlying offense was not even a felony and there was no intent to murder?

Posted by: Anon | Dec 12, 2011 4:34:13 PM

The answer to the title question is no, of course - and that is even leaving aside the moral repugence of the idea of executing someone for what is in fact a negligent act, the slippery slope where if the drunk drivers are killed, will other people who cause fatal accidents through lesser degrees of negligence be killed (if you kill a drunk driver, why not also kill the hunter who through reckless handling of a firearm accidentially shoots his friend in the face? or the driver who while sending text messages (likely even more dangerous than drunk driving) runs through a red light causing a fatal crash?) and simply looking at it practically.

drunk driving is already a "potential capital offense" - unless you are so naive to believe that everyone who dies in a drunk driving accident was an innocent victim, the number of "drunk driving related deaths" already include many people who were the drunk drivers themselves. Many fatal drunk driving accidents are single vehicle crashes which kill the driver who was driving alone. In a large, largely rural state like Texas, it is likely that a large number of fatal drunk driving accidents meet this description.

Its extremely silly to think that a person who is not deterred by the immediate risk of dying in an accident when driving while intoxicated will be deterred by the remote and unlikely possibility of death from capital punishment. Its silly enough that you'd have to be a real fool or law professor to think its even worth considering ;)

Posted by: virginia | Dec 12, 2011 4:42:31 PM


Again, I have some trouble reconciling, on the one hand, your enthusiasm for extreme sentences for drunk driving on the grounds that "drunk driving is a kind of crime that could (and should) be readily deterred," and, on the other hand, your coolness toward somewhat harsh (but I would say not extreme) prison sentences for perpetrators of white-collar fraud -- which to my mind is the ultimate deterable crime. Do you not agree there is a seeming inconsistency here?

Posted by: Anon | Dec 12, 2011 4:55:49 PM

Texas Penal Code 19.03, defining capital murder

"...if the person commits murder as defined under Section 19.02(b)(1) and ... (2) the person intentionally commits the murder in the course of committing or attempting to commit kidnapping, burglary, robbery, aggravated sexual assault, arson, obstruction or retaliation, or terroristic threat under Section 22.07(a)(1), (3), (4), (5), or (6)..."

Nope, drunk driving doesn't do it.

I don't know of any state that makes it capital murder to kill during the commission of any felony at all.

Posted by: Kent Scheidegger | Dec 12, 2011 7:31:41 PM

Kent, after a little research, I see that I was mistakenly thinking that a murder conviction under 19.02(b)(3) could be the hook for capital murder. But, even now that I see a murder must first qualify under 19.02(b)(1), what about some of the other viable statutory capital aggravators like Texas Penal Code 19.03(7)(A), which makes it capital murder when "the person murders more than one person during the same criminal transaction," or 19.03(8), which makes it capital murder when "the person murders an individual under six years of age"?

Of course, murder under 19.02(b)(1) requires that one cause a death "intentionally or knowingly," but in turn Texas defines knowingly causing a result "when [the person] is aware that his conduct is **reasonably** certain to cause the result." (This is a contrast to the MPC, which requires "practical certainty" as to a result.) I do think it would be a big stretch for a prosecutor to allege that a very reckless drunk driver is a "knowing" killer, but I do think that this is a viable theory under some extreme circumstances --- e.g., a drunk driver flooring it in a parking lot as folks are walking out of Cowboys Stadium. Moreover, the Texas legislature could --- and this post posits that it perhaps should --- now enact a special capital murder provision to cover extreme reckless repeat drunk driving that causes a death.

As for Anon at 4:55:49, the inconsistency you suggest goes away for me because I am moved by JS Mill's views about how the criminal mind likely processes long terms of imprisonment vs. death as a punishment. Mill convincingly argued that death makes a greater "impression on the imagination" than even the most extreme prison term, and modern behavioral research supports Mill's view that marginal increases in already long prison terms do not have any tangible impact on deterrence benefits. Consequently, while the marginal COSTS of a white-collar (or drunk driving) sentence of 35 years as opposed to 17 years is quite considerable, the marginal BENEFITS of many decades in prison for deterrence purposes is quite questionable. (Incapacitation is a different matter, though that goal too strikes me as even more critical in the context of drunk driving than in the context of major white-collar offending.)

Does this mean, you might ask, I might support the death penalty for certain extreme white-collar offenses? My answer is a qualified "probably," especially if/when there is any strong evidence linking the extreme white-collar behavior to the deaths of many innocents. As a consequentialist, I am generally open to use of the death penalty if/when there is good reason to believe that its use on a clearly guilty person will possibly save a number of innocent lives. For this reason (and others), I would like to see a state like Texas that has a functioning death penalty and a serious problem with drunk driving fatalities at least consider using its death sentencing scheme to try to save some of the many dozens of innocent lives now dying on its roadways every month.

Also, Anon at 4:55:49, what is the basis for calling only "somewhat harsh" sentences of 50 and 35 years for white-collar first offenders who are likely to be dead or infirm before these years are all served? What kind of prison sentence would be "very harsh" for these kinds of offenders? (Indeed, for someone in their mid 30s or 40s who is likely to remain alive for decades, these kinds of sentences strike me as even harsher than what Madoff got because he likely will only live to serve only abut 10% of his 150-year sentence.)

Finally, I am always inclined to be MUCH more sympathetic to first offenders than to recidivists at sentencing because I agree with former Prez Bush that America is (and should be) the land of second chance. Thus, I would not want extreme sentences for 1st-time DWI convictions (for those folks, I just want ignition locks). But for repeat DWI offenders, especially if/when they kill others in the course of a repeat offense, there are relatively few modern punishments that I would categorically take off the table at the outset.

Posted by: Doug B. | Dec 12, 2011 10:02:07 PM

Prof. Berman is approaching 123D in this analysis. Intent is from the catechism analysis of mortal sin, and unlawful in our secular nation. If public asfety is the aim of the criminal law, then it is also a waste of time to examine intent. 123D gives people a chance to turn from crime. The repetitiveness is the most reliable predictor of future crime, and therefore the sentence will deter the deceased.

Kent likes the law as it is, because it provides him a living. Victims do not like the law as it is because they suffer without pity under it. The self dealt immunities of the horrible people running the criminal law fully justifies violent self help against the judges and lawyers that had the homicidal drunk driver still on the road.

As a generality, torts and criminal law save no one. Victims will have to look toward technology. Cars can now drive themselves straight or shut off if driven dangerously, with no new invention necessary, just the will of makers or demand from consumers. Because cheap software and actuators are all that is needed, the additional cost could be very small.

Posted by: Supremacy Claus | Dec 12, 2011 11:49:03 PM

The statistics are not always clear. The term alcohol related does not always mean that the driver was intoxicated, yet that is how it is reported. More people die of poisening each year than drunk drivers. More than twice as many people die from falls, and the vast majority of traffic fatalities happen when no alcohol is involved.

This in no way excuses the drunk driver, but we do shine a spotlight on certain behaviors and tend to see it as epidemic when it is really rare. It appears that age and youth are much more likely to contribute to fatalities. What do we do about that?

Posted by: beth | Dec 13, 2011 1:46:14 AM

First, I wonder about the accuracy of the data, which doesn't jibe with other stats I've seen, e.g., the NHSTA says in 2009 there were 1,437 Texas deaths where BAC was above .01 (i.e, "alcohol-related), and 1,235 where it was above .08 - why the disconnect? I do not believe it's true Texas had only 431 DWI related deaths in 2006. According to NHTSA it was 1,569 in 2006. Something's not right about those numbers.

Why have DWI deaths increased, to the extent it's true? You might start with the state's population increasing 20+% over the last decade, during which time the state built scarce little public transport and moved toward toll roads instead of investing in infrastructure. So a lot more people driving on increasingly inadequate roads may may play a part.

FWIW, we hand out life sentences in Texas for multiple DWIs with some frequency, if you pay attention, not just one last year, and they almost never involve a death. I noticed one a couple of weeks ago.

Doug, you've now driven yourself over the edge: So intent you've become to reconcile your contradictory stances on DWI with your other more moderate and evidence-based sentencing views, you've talked yourself into supporting capital punishment for non-violent crimes to justify it. As SC observes, you're slowly but surely moving closer to his (nutjob) position, and that's no intellectual compliment.

Posted by: Gritsforbreakfast | Dec 13, 2011 6:50:55 AM

Grits: Nutjob if threatening government make work jobs generated by coddling criminals, not even allowing criticism of criminals. Quite rational if preventing victimization. Your left wing, pro-criminal, pro-government make work bias disturbs the average Texan.

I want you to utter the V word. See if you can do it without coughing, choking, getting dizzy. The V word is the reason to have government at all. It is quite important. You can't say it, because it is incompatible with the harmful rent seeking you propagandize, by your highly selective postings.

Posted by: Supremacy Claus | Dec 13, 2011 7:20:08 AM

Beth: Technology has been, not the biggest, but the sole factor in traffic safety. Outside of incapacitation, the law is worthless for safety.

Posted by: Supremacy Claus | Dec 13, 2011 7:22:54 AM

Grits (and Beth): I am glad you are questioning the data here, because I always wonder (and lack the resources to check) if data like this reported by the media is accurate. And, as you rightly suggest Grits, I am always eager for my sentencing positions to be "evidence-based." And if in fact DWI deaths are going up even as more repeat DWI offenders are getting life sentences, this provides more "evidence" for my belief/concern that the marginal deterrence benefits of very long prison sentences are negligible (even though the marginal costs are considerable). It thus also provides more support for the simple idea that drive this post: to save innocent lives, it is time for Texas to consider another approach to repeat drunk driving offenses.

Grits et al., it is precisely because I favor evidence-based sentencing policy that I do not want to categorically take any punishment off the table unless and until we can be certain its costs outweigh its benefits. Of course, there is always going to be normative disagreement about costs and benefits AND there are often going to be other means to get public safety benefits without criminal justice costs (e.g., ignition locks for all convicted drunk drivers, or perhaps for ALL drivers). But when there is a crime that cuts short thousands of innocent lives every year, I want to at least consider (on this blog as well as in policy debates) every possible punishment to save these lives.

Posted by: Doug B. | Dec 13, 2011 7:45:12 AM

Doug, since I believe the premise of the WSJ article and this post - that Texas DWI deaths nearly doubled since 2006 - is simply false, I'd be careful before presuming to interpret the data as you suggest. IMO, beyond simple incapacitation for that one driver, harsher sentencing likely doesn't have much effect one way or another on drunks' decisions whether to drive, not nearly as much as stuff like zoning, parking, proximity to public transit, and public education campaigns advertising the dangers of DWI. The impact of criminal sentencing on addiction-related offenses IMO is minimal (and has been long-ago maxxed out); you get most of the deterrence benefit from DWI enforcement in the first hour after the stop, regardless of the eventual (usually months later) sentence. Greater and greater authoritarianism is not the only answer, and the justice system isn't the only tool in the toolbox.

It's one thing for you to "consider" every possible punishment, quite another to advocate them sans evidence or reason, as Virgina's final paragraph coyly asserted. Many of the "DWI deaths" are drunk drivers themselves, not just victims of drunk drivers. There's a far, FAR greater risk of death from the act than from the justice system punishing the act, which should provide all the deterrence the threat of death could possibly offer. Please explain: Why would the unlikely, theoretical threat of death at the hands of the justice system impress one's imagination more than the very real and much more likely risk of death in an accident? How does that even make sense?

SC, you're a buffoon and your invitation to debate reminds of an old saying: Never wrestle with a pig; you both get filthy and the pig likes it.

Posted by: Gritsforbreakfast | Dec 13, 2011 8:56:19 AM

Grits: Call me names. I understand your frustration with the facts. But the rent trumps all other considerations for the left.

I am not inviting you to debate. I am inviting you to utter the V word out loud. Better have EMS standing by to start resuscitation in case you choke on it. You care only about the criminal. Never about the far larger number of victims. Each criminal has dozens to hundreds of victims a year, mostly with skin darker than yours. You care only about the jobs the criminal generates mostly for people with your skin color.

Posted by: Supremacy Claus | Dec 13, 2011 9:05:24 AM

Prof. Berman: From a basic civics course or ethics course or common sense, can we agree that general deterrence violates the procedural due process right of the defendant to a fair trial? To punish a person to potentially prevent speculative others from committing speculative crimes in the speculative future, totally unknown to the defendant, and not under the control of him or anyone else in the case is just unfair.

This is a never before used freebie to the defense bar. If the prosecutor or judge ever hints of general deterrence, that is an improper motive, and a mistrial should be demanded.

Posted by: Supremacy Claus | Dec 13, 2011 9:13:49 AM

"Your left wing, pro-criminal, pro-government make work bias disturbs the average Texan.
I want you to utter the V word."

Supremecy Claus: The following words do not describe all who care not a whit for the VICTIM, but who gladly contort the truth to give someone like 8-time-murderer Stewart of NC an *ambien defence.* [Which earns him acquittal from all Murder 1 convictions.]

These words do describe a significant number in America: "Who knowing the judgment of God, that they which commit such things are worthy of death, not only do the same, but have pleasure in them that do them." Rom1:32

Posted by: Adamakis | Dec 13, 2011 10:06:58 AM

A man goes to the top of the empire state building with a rock. He says to himself "I fervently pray this rock does not hit anyone." And he throws he rock over the edge; and kills a mother and two of her children. Does anyone have a problem convicting this man of murder? Isn't this degree of recklessness "malice aforethought" under the common law?

X has 5 prior convictions for drunk driving; he has ben through several classes explainig the dangers of drunk driving. Neverthless, after 10 beers, he he gets in his car, and says "I pray I don't hit anyone"; he drives and and crashed into and kills a mother and her 2 children. I say murder.

What say you??

Posted by: anon3 | Dec 13, 2011 10:08:11 AM

You ask me, Grits, to address a very sound and sensible question: "Why would the unlikely, theoretical threat of death at the hands of the justice system impress one's imagination more than the very real and much more likely risk of death in an accident?" I am sure I do not have a compelling answer, but my basic thinking is that some (many, most, all?) repeat drunk drivers have stupidly concluded that they face no personal risks (0%) of getting killed when driving drunk.

MADD claims that the average drunk driver has driven 80 times drunk before a first arrest; even if they overstate the reality by 800%, this still means that the average arrested drunk driver already has had 10 drunk drives without getting hurt/caught and thus likely comes to believe that the risks of hurting/killing himself via drinking and driving are negligible. Of course, having the death penalty as a punishment option for a repeat drunk driver who kills others is not going to, in any statistical way, change this calculus for this driver or others. But it might have a symbolic echo effect on others who have a few too many and get behind the wheel (or on those who care about those with a drunk driving record). Or it might not. We do not know, and that's why I am suggesting that Texas at least consider this tool in its public safety tool box (especially if it is true that there has been a significant spike in DWI-caused deaths in recent years).

As my prior comments note, I share your sense that we have, generally speaking, often gone overboard on PRISON sentences to achieve deterrence in various settings (perhaps also in Texas in this arena if folks are often getting LIFE prison terms for drunk driving). But, tellingly and disconcertingly, we still hear calls for more and longer PRISON sentences whenever there is a new crime/harm that troubles us. Also, as I hope you know, I share your desire to encourage different kinds of thinking for public safety, and I generally endorse non-criminal-justice interventions. But if/when we are using the criminal justice system, I continue to want to encourage consideration/engagement with ALL punishment possibilities, especially if and when the steady upward move of prison sentences are failing to give us the benefits we seek while, at the same time, imposing considerable economic and social costs.

Part of what is driving my thinking here is that the economic and social costs to Texas of just considering making "extreme repeat drunk driving causing many deaths" a capital offense seem pretty low, while potential benefits are at least uncertain and may possibly be quite tangible in terms of lives saved and/or some psychic satisfaction for victims. Again, I have no magic knowledge that such benefits will be achieved (or that there will not be surprising costs to Texas that I now fail to see), but all I mean to do is to start a robust cost/benefit discussion in this setting (and others). And I thank you, and others, for engaging in this discussion (though, as always, I wish SC would avoid his annoying screeds and counter-productive name-calling).

Posted by: Doug B.. | Dec 13, 2011 11:29:09 AM

To be blunt Doug it's shocking to me as a psychologist that you would still quote JS Mill on just about anything regarding the mind. If you wish to pretend that the entire psychological revolution of the last 150 years never took place you can but you look silly doing so and undermine your credibility.

Overall I agree with grits analysis especially this "as stuff like zoning, parking, proximity to public transit". One of the major fallacies that people fall into with drunk driving is that focus on the drunkenness and not the driving. New Mexico was the first state to promote interlocks precisely for this reason. We are a rural state where most people drive on a daily basis in order to procure a living. Someone is going to drive because they need to eat. The drunkenness is a side-effect of that reality.

I have zero faith in the deterrence effect of long sentences for drunk driving. The only benefit is incapacitation and like you I only support it when it is a repeat offender. It is an enduring source of frustration to me that despite the progress we have made I still see in the news on a monthly basis articles about people who have been arrested for their 8th or 10th DWI.

Posted by: Daniel | Dec 13, 2011 12:11:13 PM

Prof. Berman: I think you are great, but I do not call people names. I get called names. Ironic and hilarious that I am accused of name calling. When I say, rent seeking, that is not name calling, but the Grand Unifying Theory of Anomalous Lawyer Policy and Appellate Decision Making. It is a powerful explanation for the utter failure of the criminal and other law subjects. If you find it offensive, I go way beyond you, and find it a criminal act, threatening our civilization.

The drunk driver drives in defiance of the risk of gruesome crash results, crush injuries, decapitations, getting stuck down a ravine for hours or days. So prison is not that impressive to these aggressive impulsive people. Many have been there several times, and are not scared of it. Nor is anyone calculating 10 years, 20 years, LWOP, capital punishment in the bar parking lot.

Sorry. Nothing the lawyer does will have an impact on the death or injury rate. Drunk driving is not even that dangerous. It is the personality of the car crashers that is dangerous. Stop all cars in the afternoon. 10% of drivers are legally drunk, but few if any will crash the car. Indeed, a hallmark of drunk driving is driving that is too slow and tentative.

That means 2 remedies remain, neither involving ordinary sentencing or retribution, 1) incapacitation: of the aggressive, impulsive driver, which is similar to the general criminal population or 2) technology: cars that drive themselves or that will shut off if driven erratically.

Posted by: Supremacy Claus | Dec 13, 2011 12:24:38 PM

Hey Daniel, I do not know enough JS Mill or enough modern psychology research to engage on that front in detail. But am I wrong to believe that modern research support JS Mill's instincts about the working of the criminal mind and the notion that marginal increases in already long prison terms will not have any tangible impact on criminal deterrence?

I share the views of you and Grits (and SC?) that any criminal punishment is generally unlikely to change drunk driving patterns as much or more than any number of other public policy interventions. Of course, the same might well be said for lots and lots and lots of other common crimes and risky behaviors (e.g., drug dealing, prescription drug abuse, texting while driving, etc). But that reality still does not undercut my belief that the idea of making extreme repeat DWI that kills any persons a potential capital offense is worthy of discussion. Indeed, the long, thoughtful and engaged comment thread here provides support for JS Mill's contention that the death penalty makes an "impression on the imagination" that is different in kind than even the most extreme of prison terms.

Posted by: Doug B. | Dec 13, 2011 7:14:53 PM

One of the significant problems with Mill today is that he wrote in a time when sociology, politics, psychology, and even philosophy were all agglomerated and as a consequence he conflated and confused a lot of concepts and ideas that subsequent generations have separated, refined, and clarified. The most important aspect of psychology in this regard is that it rejects broad characterizations of people like "criminal mind" because there are all sorts of criminals and they have different minds. Indeed, strictly speaking there is no such thing as a criminal mind because a crime is by definition the province of the law and more broadly sociology or politics. The mind doesn't commit crimes. Such distinctions are utterly foreign to Mills and using his ideas to support an argument is an anachronism.

What the comments in this thread show is that human beings are social creatures and like all social animals they take an interest in what concerns their fellows. It's a safe bet that some commentators are here not because death has left any impression on their minds, quite the opposite; it's the life of the community here they find attractive.

Posted by: Daniel | Dec 13, 2011 9:35:33 PM

Daniel: Take it easy there. JS Mill is still pretty good stuff today. You and I know incapacitation is the sole useful remedy. However, the official lawyer dogma is that there are four other worthy goals of the criminal law. JS Mill's utilitarianism leads to that conclusion. Prof. Berman does not deserve criticism for his interest in JS Mill, but praise.

I hope you can join me in advocating a short course in behaviorism (response to punishment and rewards) for all law students, perhaps as a prelaw requirement, and certainly for any judge training before taking to the bench. Punishment is the sole tool of the law, and judges know nothing about its technical aspects.

Posted by: Supremacy Claus | Dec 13, 2011 9:40:34 PM

Lets look at this in a new twist, the feds are reccomeding no texting or cell phone conversations while driving...It was reported that 11 texts were sent in 11 mins during a recent accident that the texting driver killed...Due to being inattentive.....

Question is: SHould we have a recidivist mark on this as well...If they get caught talking on the phone 3 times its a felony....May as well take it a step further...Just 3 yrs ago the Feds said that drunk driving was a violent crime (we all know Begay reversed it) so whats the odds that this will get blown up to the same level as OWI is..(prong in Career and ACCA)

My answer is never.. Because there is no MADD committee to push it..
Texting and inattentive cell drivers are dangerous...How many times have you had to stop or swerv to avoid an accident....Do you see this is si,ilar to OWI and should it be treated similar?

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