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Tuesday, August 22, 2006

Overcriminalization in Action?

As reported in today's Milwaukee Journal Sentinel, a hotly contested issue in this year's hotly contested Wisconsin AG race is whether state law should criminalize first-time drunk-driving offenses.  Wisconsin criminalizes repeat offenses, but leaves the first-time offender to punishment under local ordinances.  Ordinances provide for fines and license suspension, but not jail time.  Wisconsin is apparently the only state not to penalize first-time offenses--perhaps a reflection of the state's hard-drinking cultural traditions.  In any event, in this year's Republican primary, one candidate supports criminalization, while the other opposes it.  And, on the Democratic side, one candidate supports the proposal, while the other declines to take a position.

I am skeptical of criminalization, although I must admit I am not on top of the relevant social science and medical research (deterrent effects of criminalizing DUI, characteristics of first-time DUI offenders, actuarial risks associated with them, etc.).  My skepticism stems from the standard reasons that I think should always give us pause before we create new crimes, especially when criminalization is not accompanied by any new commitment of law enforcement resources.  More crimes means greater police and prosecutor discretion, which I do not trust to be exercised in an evenhanded manner.  Prosecution of new crimes drains resources from the prosecution of old crimes.  And when the new crime is a strict liability crime, like DUI, there ought to be particular concerns about directing limited law enforcement resources towards those cases where punishment has the least moral legitimacy.

Crim prawfs are, of course, aware that "overcriminalization" has been the subject of much recent scholarship.  Professor Stuntz has done some of the most interesting work in the area.  Interestingly, if Wisconsin is now on the path to criminalization, the politics don't seem driven by the institutional pathologies that play such an important role in Stuntz's account.  Prosecutors are divided in their views of the proposal.  My suspicion is that the real reason the issue has emerged in the AG race this year is that the incumbent AG, who is running for reelection, was convicted of DUI two years ago, and her opponents are looking for ways to make the DUI issue more salient.

Posted by Michael O'Hear on August 22, 2006 at 05:40 PM in Criminal Law | Permalink


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I take the point of sliding scale BAC--I think there's some discussion of an analogous ratio of mens rea:speeding in the Dressler casebook, ie, the faster you go, the more we can presume about your mens rea, and I think that makes sense. And at some point, there needs to be a floor from which we can ascribe some mens rea to the conduct of getting drunk and not taking reasonable precautions to prevent oneself from risky conduct thereafter. But going back to the first point about enhanced penalties for recidivism--I certainly think you're right that there's more public support for that, and I've given a retributive justification for that in some of my prior work -- or at least gestured at it. But what you're talking about, or at least what I thought you were talking about, is no penalty and no criminal liability for the first-time DUI. (I read your post as about whether to criminalize at all first time DUI, not about whether to enhance penalties for those who are convicted.) To be clear, my sense is that first time DUI offenders should receive criminal sanctions (absent evidence of involuntary intoxication), and those criminal sanctions should be as severe as something like robbery or manslaughter (maybe b/w 3-10 years is my instinct). Enhancements for recidivism thereafter also can be justified (I think). That said, what I haven't got a good sense of is just how high the BAC should be to trigger criminal liability at the outset, ie., what should be the floor for ascribing a mens rea to an offender. It seems you urge a BAC higher than 0.08 before criminalizing. I would go to the opposite place: i would think it's perfectly legitimate for a society to take a Zero Tolerance approach, out of precaution. But I doubt that will happen...and I'm not sure I'd vote that for myself.

Posted by: Dan Markel | Aug 25, 2006 3:58:21 PM

Dan, thanks for the thoughtful comments and reference to the Brown article. How can I justify treating DUI first-timers differently than recidivists? This is, of course, a variation on that vexing theoretical problem of why criminal history should matter in determining punishment. The ubiquity of recidivism-based sentence enhancements suggests that my first-time/second-time distinction would not be inconsistent with public values. While the distinction might seem more likely to find support in consequentialist theories of criminal law than deontological, it has been argued--not unpersuasively, I think--that second-timers are more blameworthy than first-timers because they have already had the demands of the law impressed upon them once.

I should, though, lay my cards on the table, too: I am not especially keen on criminalizing even DUI recidivism--at least to the extent that DUI means a BAC of .08. Sure, some drunk drivers are extremely blameworthy, maybe even equally blameworthy as the manslaughterer. But I would not be willing to conclude that all, or even most, DUI offenders are that blameworthy without knowing more than I do about such things as the actual dangerousness associated with marginal BAC levels; the ability of people to know when they are approaching .08; social beliefs regarding the dangerousness of whatever level of drinking is associated with .08; and the relationship between addiction and DUI. WIthout a strong empirical case that driving with a marginal BAC level really is more dangerous and willful than a host of other dangerous activities that are usually handled noncriminally (e.g., driving while using a cell phone, or driving a few mph over the speed limit), I would be inclined to (1) raise the threshold BAC required for criminal punishment, and (2) respond to lower BAC levels with noncriminal sanctions like fines, license suspension, and car forfeiture.

Posted by: Michael O'Hear | Aug 25, 2006 3:21:00 PM

Darryl's paper is up on BEPress now--here's the link:

Posted by: Dan Markel | Aug 25, 2006 10:31:22 AM

On the overcriminalization thesis, here's the relevant paragraph from Darryl Brown's piece I mentioned earlier, but without footnotes, that summarizes many of his claims advanced in the paper: "In fact, legislatures decline to enact bills proposing new crimes or increased punishments every year, for reasons familiar to students of legislative process. Legislators sometimes repeal longstanding criminal statutes, reduce punishments, reduce offense severity, and occasionally convert crimes to civil infractions. Moreover, interest groups and popular opinion often support and sometimes drive these reforms, which means both that democratic sentiment is not solely in favor of ever-increasing harshness and that democratic processes can accurately respond to that sentiment—even when, as in the case of consensual sex crimes, popular sentiment is not uniform. Legislatures criminalize very little conduct that most people think should be completely unregulated, and they sometimes reduce punishments for widely endorsed offenses. And what offenses legislatures leave on the books, democratically accountable prosecutors often nullify in practice: many of the crimes scholars complain about are rarely prosecuted.”)

Posted by: Dan Markel | Aug 22, 2006 11:45:02 PM

My knee-jerk inclination is in favor of criminalization here, but I can't back it up much, and more importantly:

(1) At best, this push to criminalize DUI in Wisc. is an example of good policy getting advocated almost by accident, i.e., for reasons divorced from whether it's good policy (specifically, that it's a good issue for running against the incumbent AG).

(2) Whether or not it's SL, it's certainly a major jump in penalty, which runs into the problem Dan Kahan mentioned in his "Gentle Nudges, Hard Shoves" article (U.Chi.L.Rev. citca 2000): dramatically increasing penalties can lead to defiance by decision-makers (e.g., jurors, & some judges); and this defiance can become a self-perpetuating cycle, because when some juries defy the law (e.g., acquit in strong cases because the penalties seem excessive), that liberates others to avoid enforcing the law as well...

Posted by: Scott Moss | Aug 22, 2006 9:36:30 PM

Michael, interesting post. A couple reactions.
a) You may not have seen it yet, but Darryl Brown has a great paper (sadly, not up on SSRN yet) deflating the overcriminalization orthodoxy. When it's out, it'll be the standard "but see" to Stuntz, et al.
b) As to the merits of the DUI issue, I would be reluctant to call DUI a strict liability offense, as that might suggest there's no fault determination involved in assessing the relevant conduct. Absent evidence of involuntary intoxication, I can't accept that claim uncritically. In any event, your critique (too much discretion to enforcers) would probably touch upon those enforcing recidivist DUI offenders too, no? How do you distinguish?
Is it that criminalizing repeat DUI has more "moral legitimacy"? If so, what's different in the reprehensibility of the conduct such that it only becomes worthy of criminal stigma the second time one does it? I think DUI is something that broader social norms are recognizing as unmitigated perfidy, so while there may be a claim for concern with other activities being too easily criminalized, I don't think it's the case with DUI. Just to put my cards on the table, DUI should be punished as severely as manslaughter, even if in the activity, no one is hurt. (But the relevance of harm to wrongdoing is a subject for another thread.)

Posted by: Dan Markel | Aug 22, 2006 6:38:59 PM

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