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March 28, 2015

Working text of Amended RID bill for reducing drunk driving crimes and harms

As you should recall, we ended class on Thursday with a working draft proposal for new drunk-driving legislation.  Here is what has made it through our drafting committee so far:

First Offense DUI: imprisonment from minimum term of zero to five years max

Second Offense DUI: imprisonment from minimum term of six month to seven years max

Third (or Greater) Offense DUI: imprisonment from minimum term of two years to ten years max

In addition, a sentencing judge should (must?) give the minimum term for any DUI offense if and only when the defendant's BAC was .10% or lower and no tangible harm result from the offense.  A sentencing judge should (must?) impose a sentence above the minimum if the defendant's BAC was above .10% or tangible harm resulted from the offense.

We could (and perhaps should) continue to discuss and debate other offense-related provisions to incorporate into this sentenceing --- e.g., we might provide more specific guidance/mandates concerning what other BAC levels or types of harms should/must result in a certain amount of jail time.  But, in order to reduce the risk of potential unwarranted disparity, I think it may be even more important that we consider whether and how to provide some offender-related instructions to judges for the exercise of their sentencing discretion in this setting.  And to get the discussion started, here are some proposals for consideration:

Proposal 1.  A judge generally should (must?) sentence an offender at or near the applicable minimum term if and when the defendant has no criminal history, has pleaded guilty and accepted responsibility and shown remorse, and has demonstrated a willingness to seek treatment for any substance abuse or personal problems that may have contributed to the offense.

Proposal 2.  A judge generally should (must?) sentence an offender at or near the applicable maximum term if and when the defendant has a significant criminal history, has refused to accept responsibility and shown remorse, and has failed to demonstrate a willingness to seek treatment for any substance abuse or personal problems that may have contributed to the offense.

(Contrary) Proposal 3.  A judge generally should (must?) not in exercising his sentencing discretion consider in any way a defendant's criminal history, whether he has shown any remorse, or whether any substance abuse or personal problems may have contributed to the offense. 

As these proposals are written, it is possible (but not essential) to favor both Proposal 1 and Proposal 2.  But Proposal 3 is intended to be directly contrary to the Proposal 1 and my goal here is to explore whether and how you favor (or oppose) the consideration of some common offender-related sentencing factors.

I would encourage students to use the comments to discuss any part of this on-going debate over our new sentencing bill, and folks should feel especially free to propose any additional amendments and modifications to the bill.  We will build on what we have done to date in our class discussion on Tuesday and Wednesday.

March 28, 2015 in Aggravators and mitigators, Class activities, Offense Conduct, Who decides | Permalink


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I was really surprised in class how many people were upset with the possible maximum sentences. A drunk driver is not only risking his/her own life, but the lives of every single person in the vicinity. Drunk driving is not only a crime that can be devastating to the community, it is one that I believe people engage in habitually. I have known several people who have been convicted of multiple DUIs--not only is it a freaking miracle that they had never killed anyone, it was a miracle that they had only been caught drunk driving a couple times because they did it constantly. The center of disease control estimates that the average drunk driver has driven drunk somewhere around EIGHTY times before they get caught. I think people take drunk driving a lot less seriously than they should because so many people get away with it and they have never experienced the pain that it can cause. By allowing harsher penalties, I think more people will be deterred from getting behind the wheel while intoxicated.

As to the new proposals, if I had to pick one, I would pick the first one. If a defendant has shown to meet all of these factors, then I do not think it would be fair to throw the book at them. I would be more inclined to believe that a person's offense was just a one-time mistake if there was no criminal history, if they showed genuine remorse, and if they were committed to seeking treatment for any issues that they have. I think the proposal should use "should" instead of "must" because there still must be some leeway for judges to impose their discretion.

Posted by: Jenna | Mar 29, 2015 11:58:30 PM

I feel as if I would be ok with both Proposal 1 and 2 as advisory guidelines if we included an expiration date for stale offenses, especially given that research shows that after several years the recidivism rate for many offenses decreases to that of the general population. I don’t per se have a problem with considering criminal history at sentencing, but that generally it is viewed technically and unilaterally as an aggravating factor in a deterrence/incapacitation based value system, and I would argue that to properly incorporate offender-related factors, we should do so in a holistic way. Similarly, while acceptance of responsibility is a theoretically important concept in a sentencing environment, it is also a factor that must be appropriately balanced with considerations such as the impact of prosecutorial bargaining and the youthfulness of offender. On a deeper level, we should think deeply about reasons why a person may not want to take responsibility—justified or not. The shaming impact of an arrest for this strict liability crime—conviction or not—labels offenders as an “other” group based on perceived “dangerousness” and/or “recklessness,” in a way that practically deprives individuals of their ability to ever be heard regarding their intentions/circumstances in the situation.

More broadly, while I agree to the limited proposition that a mandatory minimum will have some deterrent effect, I disagree that it will have the impact we want if the current issues prompting the legislation are likely a primarily result of outside factors, including 1) a lack of awareness concerning the perils and risks of even a very low intake, and 2) under-enforcement.
I worry because while I also know many people with DUI’s, most of their experiences result in a quite contemplative and safety-oriented perspective once they learn and reflect on 1) the impact of how few drinks you actually need to have—given a variety of circumstances—to reach the legal limit, and the impact of that status on crash potential, 2) the sentence and collateral consequences associated with their actions—and those attendant to a 2nd offense—and 3) the potentially tangible (e.g. financial) or intangible (e.g. professional social culture) issues facing an attempted behavioral change.
I feel as if in constructing mandatory minimums, we are focusing our efforts on trying to deter the “worst of the worst” in the DUI world—those who we should trust judges to use their discretion to give higher sentences.
All else equal, DUI convictions can result from a variety of circumstances. Offenders can be convicted though under the legal limit, and a second offense can encompass offenders who smoked marijuana several weeks before—and were not intoxicated at the time of offense—as well as a mother with three children who had one glass of wine before her business dinner, and her prior DUI was 20 years before.
By enacting these mandatory minimums, were are giving the prosecutors—rather than judges—the discretion to determine the culpability of offenders at the charging stage. Beyond theoretical arguments, I don’t think that altering the structure of our sentencing laws in this way will effectively solve the issues which prompted this legislation.

Posted by: Dilynn Roettker | Mar 31, 2015 1:30:58 PM

I'm more comfortable with a middle ground between the first two proposals and the third one. In the context of DUI offenses, I'm not convinced criminal history--apart from past DUI offenses--is at all relevant. Thus, my support of Proposal 3. But I like the idea of considering whether the offender pled guilty, showed remorse, and demonstrated a willingness to seek treatment. Thus, my support of Proposals 1 and 2. I would vote for a proposal that allows the sentencing judge to consider only past DUI offenses, as well as whether the offender pled guilty, showed remorse, and was willing to seek treatment.

Posted by: Collin Flake | Mar 31, 2015 2:48:13 PM

I think I would echo everything stated above. I agree with Collin that prior criminal history (apart from DUI convictions) might not be the best criteria for sentencing those accused of DUI offenses. However, as Jenna said, DUIs really are very serious and should not be treated lightly! But if it is a first-time offense, the offender shows remorse, and is open to treatment options, why should they receive the same penalty as someone who couldn't care less about what they did? Thus, I am most comfortable with Proposals 1&2 (but would like to see the "criminal history" element narrowed/further explained).

Posted by: Hallie Saferin | Apr 23, 2015 3:33:13 PM

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