CrimLaw

Crossing the Us/Them Divide

Law makers in Richmond have backed down from the provision which would have mandated that 1st offense DUI convictions carry a mandatory 3 days in jail (link via SW Va Law).

There is a dynamic at work here. First, you must realize the hundreds of people who go through any major jurisdiction's courtroom each month who are DUI (first conviction). These are usually not the kind of people who will ever see the inside of a jail. They leave the courthouse with a healthy fine, a little suspended jail time over their head, and a restricted license. We must remember that these are all voters. Most come to the courthouse with trepidation and leave feeling duly chastised. They leave with a punishment that the general citizenry will tolerate - and maybe even embrace - as appropriate.

At this point pressure from prohibitionist groups such as MADD can push Legislators around. Ever increasing punishments on subsequent DUI's are acceptable because not so many people are subject to those punishments and they are from citizens less likely to vote (and after a 3d DUI they're felons and can't vote so nobody cares). These groups can even push a little on the 1st DUI by urging increased fines or lowered BAC levels. A perfect analysis of how this works is found in this note at Legal Fiction about single issue voting (I find that I only agree with this Blog about 20% of the time but it does some interesting analysis - especially when not discussing Southern issues).

However, there comes a point where the political survival instinct kicks in. Much of what is passed in the ever stiffening DUI laws is acceptable to the general populace because the populace sees it effecting the ubiquitous "them." These laws don't effect "us" because we would never get a second DUI (or, Heaven-forbid, a third). On the other hand, the three day jail sentence has an excellent chance of crossing over and impacting "us." Suddenly Uncle Joe or Dad or your girlfriend or your husband or your pastor or your doctor or your accountant (upstanding citizens who could never even conceive of the mens rea needed to try and float a check until payday, much less purposefully break the law) is going to jail for three days with the hooligans. That's just unacceptable. The potential backlash is easily foreseeable by any politician with a little sense. Angry citizens coalesce as "real people" start going to jail. Letters and phone calls pour into the office and other political actors are also upset. Judges and prosecutors tire quickly of numerous hard fought trials over DUI's which begin to clog the court's docket (while we Defense attorneys are chuckling all the way to the bank about how this was a guaranty that we'd be able to pay our bills). Prosecutors, elected officials themselves, get really tired of getting painted as the bad guys after about the 3d television news report talking about how they've sent fathers and pastors and doctors and accountants (upstanding citizens who could never even conceive of the mens rea needed to try and float a check until payday, much less purposefully break the law) to jail.

The politician faces a lot of pressure to "fix this." He's placed in a very difficult situation. He can see the electorate and other officials turning on him, probably in numbers great enough to make the next election very, very difficult to win. Yet, he knows that if he goes back, relents, and somehow gets a statute passed which takes the penalty away it will not get him any benefits. The citizenry will be content with a return to the status quo which it will not credit to him because he is the one who messed it up to begin with. But the prohibitionists will go nuts and during the next election will paint him as pro-driving drunk, making his election very, very difficult.

What's the solution? You make absolutely sure that law never makes it to the books. I'm kinda shocked it got as far as it did. I always thought our politicians had a little more foresight.