Saturday, April 23, 2005


In the daily paper today we see where Aidan Quinn, movie star, paid a $500 fine and lost his driving rights [they are not privileges, in a government of delegated powers, with a constitution, such as ours] for 90 days. He waited 18 months, then pleaded guilty without personally appearing. In the same paper, not on F-6 where Quinn's ordeal appeared, but on A-1, we see the ordeal of Judge Thomas Fitch. He pleaded guilty immediately, served a two-day mandatory sentence, lost driving rights, then took 30 days in rehabilitation, and now faces resignation or removal from office.

The criminal justice system is not perfect, but it is a good one; and it can be improved. One thing, sentences should be subject to review, for too much leniency, and for too harsh, or draconian, knee-jerk, or frivolous punishment. In Judge's school in Reno, Nevada, a few years back, the instructor conducted an experiment. Handed out a news item of a crime; and a presentence report from probation, and said the range of punishment is 0 years to 16 years. The Judges (they were all already on the bench) used a secret ballot. The answers given as a fair punishment were from outright probation (zero years) to 16 years.

Here is a partial answer to the problem, in DWI cases. Use the technology we have at present, and that which will come with new developments. In the case of DWI, we have the technology to prevent drinking (prevent ingestion of alcohol); or to limit the alcohol in the bloodstream (hence on the watery substance of the brain); and to limit the ingestion, or limit the amount, at certain times of the day, or to certain locations, or away from certain locations (aversion).

For example, by the ankle bracelet we can monitor the blood alcohol content, and allow drunkenness at home but prevent it at the workplace. With present technology, we can render machinery (automobiles, tractors, trucks, forklifts, cranes) inoperable by an impaired operator. Fifty years ago, without modern technology, the railroads figured out how to determine whether the train was being operated by an unconscious engineer.

Very important, however, is that the citizens be allowed to monitor the police and Courts and corrections and probation officers, through the internet. When Jane Sixpack is sentenced to abstinence, her bracelet reports in digits to the police, probation officer, Courts, and to the citizens. Modern technology would be more acceptable to the public if the citizens could monitor the monitors.

Instead of getting a driver out of a car and having her walk a chalk line in a dangerous location, we can hand her an IPod-type device for an immediate, accurate, recorded, monitored, impairment test, as a screening device. Fail that, and you get an invitation to a breath test; refuse that and you get detained for presentation of the evidence by wireless to the neutral, detached magistrate, and in a proper case, to an involuntary blood test. The screening tests and Court proceedings by wireless can and should be monitored by the citizens, through the internet.

Let the Judge decide the punishment for DWI. Should this convict be sentenced to abstinence (no alcohol) for a period of time? Abstinence except for when she is home (the alarm rings if the blood-alcohol is up and the convict is out of the house). Why punish the car with forfeiture, or a boot? The driver is the one who is at fault; limit or eliminate her alcohol intake, for a reasonable time. Limiting driving rights is wrong (economically costly) if there is an effective alternative, and there is. Let the Judge decide the punishment or corrective action, not the prosecutor (through charging decisions and plea bargaining); not the Legislature or City Council (through mandatory punishment schemes); not the police (through unbridled discretion conferred by the Legislature or the City Council).

Our purpose is to prevent DWI. The present DWI Lottery takes the people who are DWI each day (hundreds? thousands?), and puts their names in a hat and draws out 20 for arrest. Our justice system tosses 40%, or eight, by way of some technicality such as the officer did not appear; that leaves a dozen. We must come down hard on that dozen, to deter the thousands. For every crime, someone does time; but it is not always the one who commits the crime.

This lottery is not right. We should apprehend and convict more of the guilty, and the punishment will be more evenly spread over all of those who commit the offense. That is the fair thing to do; it is possible through technology [see post DRIVE DWI, LOSE CAR TO CITY]; and it will turn out to be the most effective, in that it will restore the confidence of the citizens in the administration of this important part of the justice system.

Thursday, April 21, 2005


Today in the Albuquerque Journal we see that the City of Albuquerque intends to give its police the power to take the automobiles of persons arrested for DWI first offense. There are alternatives which may be used, the boot for 30 days, etc. Due process is covered by provision for an administrative hearing after the fact.

The administrative and police authority conferred by the City is based on a lack of trust in the judiciary. It seems that the City has lost confidence that DWI cases filed as criminal cases in Metropolitan Court will result in justice being done in this class of traffic offenses. Is there another explanation for immediate loss of use of an automobile, based upon an accusation of a police officer, without probable cause (if not guilt) being determined by a neutral, independent magistrate?

The City could consider establishing its own Municipal Court, and run the traffic offenses through that Court, or run the DWI cases through that Court. Have the City Council appoint the Municipal Judge, and have the Judge subject to a retention election every two years. There was a time when a person accused of DWI got a jury trial (six-person); now the City wants to eliminate the trial altogether, and replace it with an administrative hearing (or peremptory action by a police officer). What is the reason for this trend? It is especially disturbing in the criminal law, because it indicates that the government has lost confidence in its own criminal justice system. Mandatory sentences are commonplace; why? Because the legislatures have lost confidence in the judiciary to do the right thing. The legislatures (including the City Council) believe that they, or the prosecutor, can be trusted to enforce the law, but the judiciary cannot.

The principal problem with the law relating to DWI is nullification. We have been so frustrated that we increase the penalties (or make them mandatory, which in fact is an increase if it is carried out); and the result is a reluctance on the part of those charged with arrest, prosecution, conviction of guilty, and reasonable punishment of guilty convicts, to do their jobs. Nullification.

One answer is to increase the liklihood of detection, apprehension, prosecution and conviction of dangerous drivers. This can be done with radar video and computers programmed to detect (by driving pattern) the dangerous driver. This should be handled by our police officers, not outside sources; and the surveillance should be on the internet, so that the citizens can monitor the surveillance. The identity of lawful drivers and their vehicles need not be disclosed. This loss of privacy is worth the cost, and can be more palatable than the loss of privacy in some present methods of law enforcement, for example, the road block or surveillance by officers in cherry pickers.