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December 8, 2012

Another young life cut short by famous drunk driver ... thanks in part to undue sentencing leniency

The NFL provides some more sad crime and punishment news this Saturday as detailed in this NBC Sports report headlined "Cowboys’ Jerry Brown dead, teammate Josh Brent charged." Here are the basics:

Cowboys linebacker Jerry Brown has died in an early morning car crash, and Cowboys nose tackle Josh Brent has been charged with intoxication manslaughter in Brown’s death. The police department in Irving, Texas, has confirmed that Brown died in a crash early this morning and Brent (whose legal name is Josh Price-Brent) was charged.

“Officers at the scene believed alcohol was a contributing factor in the crash; therefore, Price-Brent was asked to perform field sobriety tests,” a statement from the Irving Police Department said. “Based on the results of the tests, along with the officer’s observations and conversations with Price-Brent, he was arrested for driving while intoxicated. He was transported to an area hospital for a mandatory blood draw. Once it was learned that the passenger of his vehicle had died as a result of the crash, Price-Brent was booked into the Irving City Jail on one count of Intoxication Manslaughter.”

Adding aggravation and insult to this fatal injury is this follow-up story headlined "Josh Brent had a prior DUI arrest in college":

The arrest for intoxication manslaughter was not the first time Josh Brent has been charged with drinking and driving. The Cowboys nose tackle, who was arrested Saturday morning after a one-car crash that killed teammate Jerry Brown also had a drunken driving arrest in Illinois when he was in college.

In June 2009, he was sentenced to two years probation and 60 days in jail as part of a plea deal from a March 2009 DUI arrest in Champaign County, Illinois.

I cannot help but wonder if Jerry Brown would still be alive today if Josh Brent had gotten sentenced somewhat more severely for his first DUI.  And, looking forward, I think NFL Commissioner Roger Goodell would do more good for both his sport and society if, rather than worry too much about kickoffs, he were now to decree that any NFL player convicted of any DUI charge will be suspended for at least two years (and perhaps even for life).

December 8, 2012 at 04:45 PM | Permalink


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One would think that with the combined salaries of the two NFL players , that they could afford to be chauffeured throughout the period of time that they were drinking .

DJB Columbus Ohio 43209

Posted by: Anon. #2.71828 | Dec 8, 2012 4:52:23 PM

I am sorry to disagree. This crash is the fault of the lawyer profession. No, not for its initial leniency. Draconian penalties have lowered the number of DUI crashes, by a substantial but still too low a rate.

I believe that all drunk driving crashes can be prevented, I mean 100%, not 30%. With technology currently available, requiring no additional inventions. First, the tort plaintiff bar must be crushed. No one will install total driving technology while they can be bankrupted by these land pirates for the tiniest error, including software error.

If you want to save 10,000 lives a year, or one third of all fatal crash victims, immunize total automated car driving technology.

Posted by: Supremacy Claus | Dec 8, 2012 5:05:46 PM

If anyone has been in a crash, one knows one would do anything to prevent another. So Draconian punishments are fine, and may save the life of the defendant, himself.

What is objectionable is that DUI laws have become a big money maker for local government, the lawyer vermin that run them, and the thugs in the police that enforce them. That conflict of interest is a synonym for armed robbery, by people who are only half a notch above the felon in moral standing. Go sit in the back of traffic court for free great theater fun. It should be renamed Slimeball Theater. The biggest slimeball is the lawyer vermin on the bench. Nor are their agents in the laboratory any better, with their fraudulent and faulty programming of analyses.

The DUI defense bar should offer an Assembly program to all high schools, and colleges. Please, do not drive drunk, nor with any driver under 21. That being said, do not talk to the police. They are not your friend. Under no circumstance submit to a field sobriety test, unless physically forced. They have no scientific validity. Then question every aspect of what follows. Much of it is a money making scam for the lawyer profession.

Posted by: Supremacy Claus | Dec 9, 2012 3:47:11 AM

"I cannot help but wonder if Jerry Brown would still be alive today if Josh Brent had gotten sentenced somewhat more severely for his first DUI."

So you somehow fantasize that Brown was unaware Brent was drinking? You don't think he'd have chosen to climb into the car with another drunk to get home? In your mind, Doug, is Brown only a "victim" or does he also bear some culpability for his own decisions? He could have called a cab. He didn't. He paid with his life. Is death not a big enough disincentive? As for Brent, killing his best friend and roommate is likely as terrible a punishment as any the state will dish out - certainly a bigger disincentive than more jail time would have been. This is a tragedy involving two very young, immature people who don't necessarily behave rationally as though they're antagonists in a Law and Economics treatise.

The idea that Roger Goodell should worry less about player head injuries on the field and substitute NFL punishments for the courts on DWI seems off-base and unrealistic - for starters, he'd have to acquire that authority under the collective bargaining agreement. Don't hold your breath.

Posted by: Gritsforbreakfast | Dec 9, 2012 10:41:40 AM

Sorry but have to give grits this one. If two drunks get in a car and drive odds are somene is going to get hurt or die. The only good thing in this case was it was in fact one of the drunks...Not an innocent bystander like usual.

Posted by: rodsmith | Dec 9, 2012 11:32:09 AM

The only good thing in this case was it was in fact one of the drunks...Not an innocent bystander like usual.

Just as a point of fact, the "innocent bystander" is less likely to be killed than a passenger. For 2010, the US Department of Transportation recorded 10,228 people killed in alcohol-related traffic accidents, 6,037 (59%) of whom were a driver, 1,984 (19%) passengers, and 1,478 (14%) motorcyclists. Only 729 (7%) were of non-passengers. Of course, some passengers are totally innocent (e.g. children whose parents drive them while intoxicated) while some non-passengers bear at least some culpability (e.g. intoxicated pedestrians who don't follow traffic laws). Source: http://www-nrd.nhtsa.dot.gov/Pubs/811659.pdf pg. 114.

Aside from that, I think Grits is obviously right that it's very unlikely a union is going to allow a functional lifetime ban (Michael Vick notwithstanding, returning to a sport like football after two years off is extremely difficult) for a misdemeanor almost completely unrelated to the sport, nor should it. Frankly Goodell should be grateful for the authority he already exercises.

Posted by: dsfan | Dec 9, 2012 1:10:40 PM

Actually, I think I completely misread that data table, so ignore that comment(though I am pretty sure I have found elsewhere that the majority of fatalities are of the driver and his/her passengers).

Posted by: dsfan | Dec 9, 2012 1:25:54 PM

Yes, it's 1,151 occupants of other vehicles (vs. 1,721 passengers with the drunk driver). Table 1 here http://www-nrd.nhtsa.dot.gov/Pubs/811606.pdf

So drunk driving fatalities are 65% drunk drivers, 17% their passengers, 11% people in other vehicles, and 7% non-occupants.

Posted by: dsfan | Dec 9, 2012 1:30:42 PM


I do not know the particulars of the original DWI conviction in Illinois, but 60 days in jail and 2 years probation are not anything to be sneezed at or considered lenient for a first offense.

In addition, I consider the current BAC level of 0.08 to be too strict for most people and it should have remained at 0.10 as it was in most states before federal intervention. Confidence in the methods used to determine this BAC also needs to be well established and be able to be verified independently if asked as a point of defense.

As Bill says, the law is not perfect. Likewise, life cannot be made perfect, even by totalitarian means. Look at sex-offender laws or the methods of the TSA.

Posted by: albeed | Dec 9, 2012 3:51:01 PM

oh i agree dsfan. I have always considered children as passangers innocnet bystanders in DUI cases. Not like they can object to drunk parents driving. Of course with the current complete coverage with cell phones that could change!


Posted by: rodsmith | Dec 9, 2012 11:57:11 PM

Though I do not disagree with some of the above comments, they all accept as given that we as a society still treat the risky behavior of DUI much less seriously than less arguably less risky behavior like gun and drug possession. Plaxico Buress gets years in prison for recklessly carrying a gun, and he was lucky he was able to plea in a way that avoid an ever longer term. But we still consider 60 days in jail for recklessly getting behind the wheel while drunk to be a serious sanction for a first offender.

As I argued when Jalen Rose complained about a 20 day sentence for drunk driving, I think we can and should be trying to change the culture through a variety of tough criminal and civil sanction so that persons really fear the real risk of getting arrested for DUI and not just the remote and (seemingly unreal) risk of getting killed in a car crash.

I stress all these points because I like to believe that drunk driving is one crime that really could be (and probably already has been) significantly diminished by tougher sanctions and creative alternatives to prison. What if Brent had to deal with the hassle of an ignition lock for a couple years after his 2009 DUI or had to serve as a designated driver at a bar every weekend for a couple years or would know he would get a one-year suspension from the NFL if/when he ever had a second offense? I could go on and on, but I hope you all understand that my frustration here comes from a lack of creativity and a (worrisome and telling) willingness to treat DUI as a not-so-serious crime because we all know someone who makes a habit of driving after a few drinks when they shouldn't for a few hours.

Posted by: Doug B. | Dec 10, 2012 10:45:50 AM

Interesting debate. I would say that extreme or zero-tolerance DUI sentencing would not eradicate impaired driving or reduce the number of fatalities or injuries to zero. The hallmark of alcoholism and addiction is the continued use of the substance despite the known consequences. An untreated alcoholic continues to drink in excess despite his best intentions and knowing full well the problems that will ensue as a result. There is always the probability that that alcoholic will drive under the influence (and never have been arrested for DUI) and will not be deterred by a sentencing law. I am not saying I think DUI laws or sentencing options should not be strict, only that it is unrealistic to believe strict laws will eradicate the problem.

That all said, I find it curious that Prof Berman seems to embrace the prior-head-injury-as-a-disease-model (see post on football concussions) as a mitigating factor for a lighter sentence in a non-capital case but has little tolerance for individualized sentencing in the DUI context, when alcoholism and addiction are physical and mental diseases. Less sentencing culpability, or individualized sentencing, for assault because of prior concussions but not for the untreated alcoholic who drives in an impaired state? Just pointing that out as a possible discrepancy in sentencing policies.

Posted by: Hola | Dec 10, 2012 11:26:13 AM

I would also add that chronic drug and alcohol use causes brain damage, like concussions. Should that play a role at sentencing for any offense, even for DUI, either for the defense or the state?

Posted by: Hola | Dec 10, 2012 11:36:19 AM


I appreciate your concerns about DUI, however, I believe that many of our laws (i.e., felon in possession of (gun?) for non-violent felony, simple marijuana possession) to also be absurd and unconstitutional (no matter what guberment stooges in black pajamas ignorantly rationalize). What do we do when distracted driving, i.e. texting and cell phones surpasses DUI in the number of traffic fatalities?

Maybe, just maybe the answer is not more incarceration and probation but some other court-mandated activity. I'm open to phsychological experts.

Posted by: albeed | Dec 10, 2012 6:27:45 PM

" . . . . but I hope you all understand that my frustration here comes from a lack of creativity and a (worrisome and telling) willingness to treat DUI as a not-so-serious crime because we all know someone who makes a habit of driving after a few drinks when they shouldn't for a few hours."

I think most do, and my guess is that technology will eradicate this problem in the relatively near future.

Posted by: federalist | Dec 10, 2012 9:35:01 PM

In my hastily written comments earlier today, I did not mean to mischaracterize Prof Berman's views on DUI or its sentencing. I agree with the position that DUI is not viewed as serious an offense as other crimes, which is not a goood thing. However, unlike murder or home invasions, lots of people commit DUI on a regular basis, and everyone knows there is a good chance of not being caught. Both factors continue to contribute its being viewed as a less culpable offense.

Posted by: Hola | Dec 10, 2012 10:06:37 PM


As an engineer, I know that technology never fails, nor can it be deceived (sarcasm). When you can't start your car one day (because of this new technology) and miss a very important appointment, I believe you will rethink your faith in technology.

Don't forget that windshield washer fluid is about 50% alcohol (IPA). I know it is not ethanol, but to a sensor, alcohol is alcohol.

Posted by: albeed | Dec 11, 2012 4:11:35 PM

This so sad why drink and drive really

Posted by: Tutalib | Feb 1, 2013 8:14:57 PM

thats amazing drive.

Posted by: Diya | Sep 16, 2017 5:36:13 PM

Great post

Posted by: Dr jack | Sep 16, 2017 5:37:00 PM

Thats real issue from many decades, people drunk and do whatever the want. It should be law for this.

Posted by: Jackson | May 4, 2018 6:12:43 AM

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