Should DWI be a capital crime?

Douglas Berman over at Sentencing Law and Policy seemed quite upset that motorists in Texas continued to get behind the wheel of a car after drinking. He couldn't understand why, even with No Refusal weekends popping up all across the state, we insist on drinking and driving.

His suggestion was to make a drunk drivers involved in accidents in which another person is killed eligible for the death penalty. Whoa! There's crazy and then there's driving the bus over the cliff. Mr. Berman is driving the bus.

In Texas you are eligible for the needle if you kill a police officer or a prison guard. You are eligible for the needle if you kill someone during the commission of certain felony offenses (kidnapping, robbery, sexual assault, burglary or arson - among others). You are eligible for the needle if someone paid you to kill another person. You are also eligible if you kill more than one person or a child under the age of six ten (thanks, Amy).

In each instance, the defendant must have committed the murder - or the underlying felony offense - with the proper mental state. You remember, that whole bad act + bad thought = crime.

Now Mr. Berman is correct that some DWIs are prosecuted as felonies. If you are driving while intoxicated with a child under the age of 15 in the car - that's a state jail felony (if you're not from Texas, don't ask). Rack up two DWI convictions and your next will land you in felony court as well.

But here's where Mr. Berman's idea fails - there is no culpable mental state for driving while intoxicated. The theory is that an intoxicated person cannot form the necessary mental state to commit a felony offense. And, if you think about the definition of intoxication in Texas, it makes sense.

Texas defines intoxication as the loss of the normal use of one's mental or physical faculties by the introduction of alcohol into the body. Well, if you've lost the normal use of your mental faculties, you are incapable of intentionally or knowingly committing any other act. That's why when someone is killed in a wreck involving an alleged drunk driver, the defendant is charged with intoxication manslaughter, not murder.

One thing we don't know from the data Mr. Berman is viewing is how many of those deaths in 2010 were the result of the drunk driver's negligence. As perverse as it sounds, it's quite plausible that the drunk driver was not at fault for the accident. I would also argue that it's possible that the increased number of deaths resulting from drunk driving has more to do with increased detection through the use of mandatory blood draws in fatality accidents in which intoxication is suspected.

I don't know whether Mr. Berman was being extreme in order to generate discussion or whether he actually feels that way; either way, as a civilized society we should be looking for ways to reduce the number of people our government kills, not increasing it.

Looking at the death penalty county-by-county

Robert J. Smith, a visiting professor at the DePaul University College of Law has taken the analysis of death sentences across the country to an entirely new level. He authored a paper that will be in an upcoming issue of the Boston University Law Review tracking death sentences by county.

While Texas has a reputation for lining 'em up and mowing 'em down, the reality is that 220 of the 254 counties in Texas issued no death sentences between 2004-2009. Over that period, 19 counties imposed a death sentence only one time. Of the remaining 15 counties that imposed more than one death sentence over that period, only four counties sentenced defendants to die at a rate of more than one a year.

For anyone practicing in Harris County, these results should not come as a surprise. According to Professor Smith's research, these are the four counties that lead the state in death sentences:

• Harris (26)
• Bexar (10)
• Tarrant (10)
• Dallas (8)

Texas isn't even the leader in ordering the murder of its own citizens. Los Angeles County imposed more death sentences (33) in 2009 that the entire state of Texas. Maricopa (AZ) County imposed more death sentences (37) that the entire state of Alabama.

Professor Smith's research shows that 10% of the nation's counties account for every death sentence issued between 2004-2009. Less than 1% of the nation's counties sentenced, on average, more than one person a year to death - accounting for 50% of all death sentences. Thirteen counties average more than two new death sentences a year - they accounted for 29% of all death sentences.

It is also important to track executions at the county level. The strongest remaining rationale for the continued Eight Amendment validity of capital punishment is its retributive effects; however, if counties sentence people to death that the states do not execute then the retributive function of the death penalty is diminished because the act of execution is not realized. -- Robert J. Smith, "The Geography of the Death Penalty and its Ramifications"

If we look at the number of executions carried out, however, Texas is far and away the leader in the number of state-sponsored murders committed between 2004-2009 with 134 executions, accounting for 45% of the executions carried out during that period. The State of Ohio was a distant second with 25 executions, accounting for 8% of the total.

If we look at the "efficiency" of the state killing machine, only four counties across the nation saw more than one of their death sentences carried out (on average) each year. Those counties are:

• Harris (42)
• Dallas (13)
• Bexas (12)
• Tarrant (11)

Here's one other little nugget to think about, in Florida, a jury can sentence a person to death by a majority vote of the jurors while Alabama only requires that 10 jurors agree to death in order to impose the death penalty. Alabama and Florida also permit judges to overrule jury recommendations and impose a death sentence anyway.

The death penalty is applied arbitrarily and capriciously. It doesn't undo the deed that led everyone to the courtroom. It only serves to give politicians and judges a platform to declare that they are tough on crime.

A view of the wildfires from outer space

This is a view of the wildfires burning in Texas from the space station.

If you read Robert Caro's biography of Lyndon Johnson, you'll find out that over the course of history, wildfires sparked by lightning strikes made the Central Texas soil fertile enough to farm. As more and more people moved into the Hill Country, nature's cycle of destruction and new life was interrupted and the soils lost a good deal of their fertility. The increase in population also made the natural occurrence of wildfires more dangerous and destructive.

New website to check driver license status

If you need to check the driver's license status of yourself or a client, here's a new website from the State of Texas that will allow you to make a quick check:

https://txapps.texas.gov/txapp/txdps/dlreinstatement/login.do

The site will give the license status, compliance requirements, other requirements and necessary fees to be paid.

A look lack at the 82nd Texas Legislature

Here's an update on matters affecting lawyers and the criminal (in)justice system that were introduced into the recently completed regular session of the Texas Legislature that were mentioned in this blawg.

HB1173: This bill would give the state 36 hours to hold a probable cause hearing in counties with more than three million residents (Harris County) instead of having to hold the hearing within 24 hours. The bill passed both the House and Senate and was sent to the Governor on May 30, 2011.

SB1879/HB3807: This bill would have allowed the City of Houston to use recording devices instead of court reporters in trials in municipal court. The House passed its version but the bill never got out of the senate committee.

HB243: This bill would make it a criminal offense to text while driving in Texas. The House passed the bill but it never came up for a vote in the Senate.

HB96: This bill would have allowed the prosecution's chief investigator to set in the courtroom and listen to testimony - even if "The Rule" were invoked. It passed the House but never came up for a vote in the Senate.

HB1072: This bill would have waived State Bar dues for lawyers employed by the State of Texas. It passed the House but never came up for a vote in the Senate.

HB189: This bill would have made first-time DWI offenders eligible for deferred adjudication - but not for an order of nondisclosure. The bill would also allow a DWI "dismissed" through deferred adjudication to be used for enhancement purposes. The bill passed the House but failed to get out of committee in the Senate.

SB152: This bill would have allowed for the admissibility of evidence of prior bad acts by individuals charged with certain sexual offenses. The Senate passed the bill but it never came up for a vote in the House.

SB232: This bill would have mandated the SCRAM device for certain probationers in alcohol-related cases. It failed to get out of committee.

SB1526: This bill would have mandated reciprocal discovery in criminal cases. It, too, failed to get out of committee.

When the right hand doesn't know what the right hand is doing

Scott Henson over at Grits for Breakfast points out that the Teabaggers aren't necessarily playing along with the "big government" conservatives up in Austin. It seems that the more libertarian of the bunch have a problem with the right's war on the Bill of Rights.

According to Sharon Edmonds at the Texas District and County Attorneys Association:

Earlier this week, SB 1717 by Duncan/Lewis, an omnibus judicial reform bill, became what we call a "Christmas tree," so named because of all the amendments that other members tried to "hang" on it. Many of those amendments were formerly dead bills, including HB 1507 by Christian, a prosecutor-supported bill that would authorize non-lawyer JPs to issue evidentiary search warrants in smaller counties. Once offered, the amendment immediately started taking fire from several House members—urban and rural, Democrat and Republican—who expressed concerns about expansive searches, especially relating to blood draws in DWI cases. Now, there has always been some generalized resistance at the capitol to the existence of non-lawyer magistrates, but this time, the anti-government Tea Party effect crystallized that opposition into a solid voting bloc that defeated the amendment by a stunning vote of 17-121. As a result, the author of the amendment joined the ignominious "100 Club" for putting forth a matter that drew over 100 "nay" votes. We bring this to your attention because it is only one of several indications that things are changing at the state capitol. Just be glad that we passed some blood draw legislation last session, because if we hadn't, that bill would be D.O.A. this session. And that, friends, is the new legislative math for the foreseeable future.

I say "Bravo!" to the Teabaggers on this front. It is about time someone stood up and argued against bills expanding the state's power to force folks to give up evidence that might incriminate themselves. The right wing of the Republican party has long championed itself as the party of limited government. As I have pointed out before, that moniker only applies when it comes to state-funded services for the poor. The right wing has never had any problem expanding the role of government when it comes to criminal justice matters.

It would appear that some members of the Tea Party movement aren't mere puppets of the GOP but actually adhere to the maxim that the government who governs least, governs best. It's good to see someone pointing out the hypocrisy in the Republican camp.

The Economist has even piped in about conservatives bringing about sentencing reform in the face of budge shortfalls.

So long as the Republican party is split among fiscal conservatives, Bible-thumpers who feel the need to tell the rest of us how to lead our lives and libertarians there will be conflicts between those who wanted limited government and those who just mouth the words.

Will the bad ideas ever cease?

Alcohol Monitoring Systems, Inc. must be paying their lobbyists in Austin a pretty penny as legislation is pending before the Senate Criminal Justice Committee that would require motorists placed on probation for DWI to wear a SCRAM bracelet. The legislation was authored by Sen. Jane Nelson (R-Grapevine).

For those of y'all not familiar with SCRAM, it's an ankle bracelet that supposedly monitors a person's sweat for the presence of alcohol. The device is supposed to be super-sensitive to alcohol and is, therefore, known for giving false readings due to cologne, perfume, body spray and lotions (just to name a few). The device is also prohibitively expensive for most folks who find their way into the criminal (in)justice system.

The device requires a deposit and a monthly fee approaching $500.

Interestingly enough, AMS markets its ankle monitor for the "hard-core" drunk driver -- not the first-time offender.

All such a requirement will do is force more motorists to accept jail time instead of probation due to the prohibitive cost and will increase the number of motions to revoke filed by probation officers due to faulty equipment.

Sen. Nelson and her ilk don't seem to realize that a DWI probation is the more severe sentence a first-time offender can receive. This person, who likely has no prior contact with the criminal (in)justice system, must now report to a probation officer once a month, be subject to random piss tests, and drive around for at least a year with an ignition interlock device in their car. There is a reason that most criminal defense attorneys advise their clients to take time served and a fine (if offered).

I noticed there is no fiscal note attached to the proposed legislation. It would appear that Sen. Nelson hasn't thought about the increase in the number of people who may have no choice but to opt for jail time instead of probation. It also appears that Sen. Nelson has no idea of the true cost to a motorist of a DWI conviction as things stand currently.

Enough of the piling on. What's next? A registry for motorists convicted of driving while intoxicated? Oh, that's already been proposed.

Lone Star State turns 175

In a sleepy little town on the banks of the Brazos River, while Santa Ana's forces laid siege to the Alamo, 59 men met and declared Texas independent. On March 2, 1836, the Republic of Texas was born.

The Texas Declaration of Independence was modeled after Thomas Jefferson's declaration - spelling out the role of government and listing the grievances the Texans had with Mexico. George Childress is generally credited as being the author of the document.

Mr. Childress was born in Tennessee in 1804 and crossed the Red River into God's country in December of 1835. In 1841, after several unsuccessful attempts to establish a law practice, Mr. Childress killed himself by slashing his abdomen with a bowie knife.

So, raise a glass of iced tea and wish Texas a happy birthday.

Remembering the Alamo

175 years ago today began the 13 days of glory that defined the Republic of Texas. On February 23, 1836, General Santa Ana's forces arrived in San Antonio de Bexar and laid siege to the mission known as the Alamo.

For thirteen days about 190 men fought off the Mexican army. On March 5, 1836, with the end in sight, Col. William Travis gathered the men together and told them if they stood their ground, they would be killed. Legend has it that Col. Travis took his sword and drew a line in the sand and asked those men who were willing to fight and die with him to cross it. As the story goes, only one man didn't cross it.

Santa Ana's army made its final assault the next morning, and by the time the sun rose, the Alamo had been taken and the defenders were all dead.

The legend of the Alamo is deeply ingrained in everyone who grew up in Texas. It remains my daughters' favorite place to go.

Fighting for the rights of the accused and standing beside them before a jury sometimes feels as hopeless as trying to defend the Alamo against a superior army. But sometimes it's the fight itself that is the victory. It was  fall of the Alamo and the death of the defenders that provided the spark that spurred on the Texans as they ultimately prevailed on the banks of the San Jacinto River.