Public Shaming of DUI Offenders

We were recently alerted to a practice employed by the Nassau (NY) County PD over the last month that effectively amounts to a scarlet letter-like shaming of people accused of DUIs without due process. Hester Prynne has nothing on Lawrence W. Mulvey, Nassau Co.'s Commissioner of Police, and Thomas R. Suozzi, County Executive.

According to Newsday (NY), Nassau County PD is asking local news organizations to publish the names and mug shots of accused DUI offenders in an effort to deter others from getting behind the wheel drunk. The PD is also putting photos of the offenders on a website "Wall of Shame," which some organizations such as Newsday have copied. Here's what County Executive Suozzi has to say on the site:

We are sending a message in Nassau County – if you’ve been drinking and you decide to get behind the wheel of a car we're going to arrest you. By putting the names and photos of those who break the law by driving drunk onto our “Wall of Shame” we’re going to make sure that their friends neighbors and families know about it.

Does anyone else see a problem with this?

The key concept that Suozzi seems to be missing is that by putting the names and photos on his "Wall of Shame," he's acting as judge, jury and executioner all in one swoop before the accused have had a chance to defend themselves. Each of the DUI offenders that are posted on the Nassau County site were arrested (ostensibly based on evidence-based probable cause), but none have actually been convicted of any crime yet. Gregory N. Anagnostopolous? Nope. Dan Kerendi? Nope. Lisa Ziegler? Nope.

The Nassau County spokeswoman, Jennifer Kim, has this to say:

The county executive is not looking to ruin people's lives but to prevent exactly that from happening. We know that this is not a tactic that anyone has tried and we're hoping that it works and that it serves as a deterrent from drunk driving.

Public shaming is a tried-and-tested method as a deterrent, and although conventional wisdom may suggest that stigmatization like as used here is an effective deterrent to crime, the criminology academic literature shows otherwise. John Braithwaite writes in his influential book, Crime, Shame and Reintegration:

Branding on the cheek of offenders was abandoned in eighteenth-century England because it had 'not had its desired effect by deterring offenders from the further committing of crimes and offences, but, on the contrary, such offenders, being rendered thereby to be unfit to be entrusted in any service of employment to get their livelihood in any honest or lawful way, become the more desperate.' (Pike 1876: 280-81)

Along the same lines, Larry J. Siegel argues in his criminal text, Criminology:

As a specific deterrent, stigma is doomed to failure: people who suffer humiliation at the hands of the justice system are just as likely to 'reject their rejectors' by joining a deviant subculture of like-minded people who collectively resist social control.

Yet public officials think it works, and the trend appears to be taking hold. The Maricopa (AZ) County Attorney, Andrew Thomas, has also enacted a public shaming initiative of DUI offenders on his jurisdiction's website and even some local billboards.

Well, at least he waits until they're convicted of a crime before putting these offenders through public humiliation, which is more than we can say for the Nassau County PD.

Other Coverage:

Pajamas Media - You Can't Shame People Out of Driving Drunk
NY Times - A Starring Role for Drivers Who Drink
Total DUI - DUI Shame & Humiliation: Punishment, Deterrent or Embarrassment?

GOP Seeks Drinking Law Exception

Today’s New York Times reported that the Republican Party has asked St. Paul, MN, officials to keep the city’s bars open two hours longer than normal, from 2 to 4 AM—for the eleven days preceding, during, and after the September Republican national convention this fall.
Read more from original article: Let’s Par-Tay Till 4 A.M.
This news item appears on this blog because of the author’s experience with holier-than-thou piousness commonly assumed by prosecutors of the Republican persuasion in Bay Area superior courts when talking to the judges about my DUI clients. [Ok, some of these deputy D.A.s are Democrats, but not many.]

Republican hypocrisy among northern CA district attorneys is so blatant in the sex crimes and child porn area of my practice I barely take note. But drinking until almost sunup while taking responsibility for electing the leader of the free world?

The GOP thinks it so important that their delegates be allowed to drink almost all night that they ask the convention host city to make an exception of long-established booze laws during this world-important event?

Time and time again I have heard a deputy DA appearing in my San Francisco, Marin, Alameda, Contra Costa, Sonoma, Napa, San Mateo or Santa Clara county DUI cases go on and on and on about how everyone knows the dangers of drinking and driving.

I realize there are taxis available at 2 AM in St. Paul (there are, aren’t they?), but somehow this news item really grated on me as someone defending DUI cases on a regular basis.

I guarantee you that one or more of those GOP delegates will drive drunk in St. Paul during 2 and 4 AM between September 1 and September 11, 2008, due in part to the exception to the MN law that the GOP has requested.

Most likely no GOP delegate(s) will get stopped for driving drunk (statistically less than .09% of drunk drivers actually do get stopped) but still . . .

DUI Law: World History of Driving Under the Influence

As a California criminal defense lawyer who has defended DUI cases since the time of Moses, I enjoyed reading Wikipedia's entry for "driving under the influence."

Some items found there and randomly selected include:

* Norway introduced the world's first "per se" law in 1936. All 50 states in this country subsequently followed Norway's lead and all now have two categories of DUI offenses: the per se violation based on the amount of alcohol in your system (requiring no other proof of intoxication) and the other drunk driving violation (requiring independent proof, such as the testimony of a police office).

*Turkey has a limit of 0.05 for PASSENGER-LESS COMPACT CARS only; otherwise, it is 0.00% (as in zero).

*In this country California leads the way (of course) in bringing second degree murder charges if there is evidence of reckless indifference to the lives of others.

*Germany takes your license away automatically for one year if found driving with a blood count of 0.08% or higher and takes it away indefinitely if found driving with a blood count of 0.16% or higher--that it, until you pass a rigorous medical-psychological driver assessment test.

Marin's GI Jane DUI Case

The Marin County DA is taking GI Jane back to trial. Army reservist 'G.I. Jane' going back to court

Jane Parkhurst, the Army reservist who inspired the movie, G.I. Jane, ran her Hummer H2 off a West Marin highway and was arrested for a DUI in late 2006. The matter was tried and the jury deadlocked on one count while acquitted on the other.

In California, all DUIs are charged as two counts, one for driving while intoxicating and the other for driving with a BAC of .08% or over. In this case, the jury concluded it could not decide whether or not Ms. Parkhurst was driving drunk, but that she was not driving with an over-the-limit BAC.
The acquittal on the second count might be due to the fact that the jury believed Ms. Parkhurst claim that she did all her drinking after the accident, before being tested!

The Marin DA wants to re-try her on the first count only in that double jeopardy rules out a re-trial on the count for which she was acquitted.

Drunk Driving: An Argument for Lowering Blood Alcohol Concentration (BAC)

The Center for Disease Control and Prevention, a part of the U.S. Department of Health and Human Services, has an interesting study on alcohol-related crash rates involving young drivers
As a criminal defense lawyer with an active DUI practice, I took particular note of the arguments in favor of:
* Lowering the minimum BAC to .05 from .08
* Prompt and longer suspensions of drivers’ licenses, a la the Scandinavian model
* Substantially increasing the number of alcohol check-points

If these arguments are as persuasive to state legislators as they were to me (and that may be the case), the DUI bar has nothing to worry with respect to getting enough business.

The evidence supports two conclusions: 1) the lower the legal BAC, the fewer deaths and injuries; 2) the more onerous the consequences, the fewer deaths and injuries.

Other items I found interesting:
* It is estimated that less than 1% of alcohol-impaired drivers are caught
* Roughly one in four traffic deaths is alcohol-related
* The driver is drunk in more than half of accidents involving deaths of child passengers age 14 or under (as opposed to the other driver)
* Men are twice as likely as women to have a BAC of .08% and higher when killed in an alcohol-related accident
* Young men between 18 and 20 do the most drunk driving per capita of any age group

But here is the big one, at least from my criminal law practice point of view:

- Drivers with BACs over .08% were NINE TIMES more likely to have a DUI on their record than the other non-drinking driver.

As I tell my first-time DUI clients, emphatically and dramatically, if they want to plea: “You have nothing to worry about with this one other than what is going to happen to you the next time. You have to think about what changes you are going to make so you will not get another DUI.”