There was a great op-ed piece by Judge Nancy Gertner, a recently retired federal judge from Massachussetts, and now Harvard professor, about how the media has driven and shaped sentencing issues in America over the last couple of decades. I won’t repeat the whole column here, but she deftly points out that sentencing policy in the United States has been an abysmal failure and that the media and those who are afraid of the media are largely to blame.
“We lead the world in imprisonment not just by a little — but by several orders of magnitude. Our nearest competitors are Rwanda and China, hardly good company. And the racial figures are even worse: At the end of 2010, black men had an incarceration rate of 3,059 sentenced prisoners per 100,000 U.S. black male residents. This rate was almost seven times higher than the incarceration rate for white men (456 per 100,000).”
It is easy to whip the mob into a frenzy about crime, particularly when an especially heinous offense is used as the example. The media likes to blast judges for what they will call “lenient” sentences, because they know it will stoke outrage in their viewers/readers. It is juicy and salacious. In reality, most judges are far from liberal and almost all sentencing is done by guidelines set out by professional committees free of the passions conjured by any specific example. Unfortunately, the politicians are either so opportunistic that they join in the fracas and try to prove their “tough on crime” bona fides or they are so spineless that they go along with the crowd for fear of looking weak (when, of course, that is true weakness).
This is precisely how we have ended up with the DUI laws in Kansas as they sit today. Over the nearly 19 years that I have handled DUI cases, I have watched the media and politicians constantly stoke the flames of anger of the issue of drunk driving in Kansas and consistently, almost annually, tweak the law to be harsher and harsher, to the point where now we have a Frankenstein’s monster of a statute with hundreds of interconnected, and sometimes contradictory or at least confusing, facets. To be sure, drunk driving is dangerous and is a problem. It had to be addressed. It was always easy to find a case of some recidivist who causes tragedy and try to brand it as the rule instead of the exception. Yet, all of the longer jail sentences, the higher fines, the weakening of the laws of evidence, the shunning of forensic science, the longer driver’s license suspensions and branding of people as criminals did nothing or very little to change the situation. It did make for decent soundbites and springboards to getting elected, though.
Over 2 years ago a blue-ribbon committee of interested parties (although the panel only included one lawyer who actually represented people charged with DUI’s in Kansas) was established to come up with a comprehensive reform of the DUI laws to make them effective and harmonious with one another. That committee, heavily influenced by police and prosecutors, resulted in recommendations which mostly just made the laws more complicated and further eroded the Constitutional protections that individual citizens of our country have had since its inception to check the power of the government. There were some common-sense reforms I applaud, like allowing ignition interlock devices for Kansas drivers instead of lengthy suspensions and removing the lifetime lookback on prior DUI records which resulted in thousands of regular people becoming convicted felons and losing their careers, among other ancillary penalties. But, these reforms also, of course, increased jail sentences, increased fines, and now include items like making it a crime to refuse a breath, blood or urine test – even if you aren’t drunk or have a religious, moral or other good reason for refusing to give up bodily fluids at the command of the government (a new law that by itself is estimated to cost the state millions in additional incarceration expenses).
This is all just whining on my part, but I see the regular people who find themselves or their loved ones snatched up in the system and I can actually see the dawn of realization in their eyes that they had looked away when the laws came for others, and now that it had come for them it was too late. There is plenty of lip-service these days about how the government is too big, yet there is almost no one who will stand up and say that we have gone far enough with the prison-industrial complex and its exponential growth as a result of the failed “war on drugs”, “war on DUI” and the general “war on crime”. We are the land of freedom but imprison more of our own than any other country. I would like to believe that one day the people will demand better of the media and politicians but I fear that we are in too deep. It is akin to what happened with the “Occupy” movement: Yes, the 1% have taken over the country, and those who want reform and to put the power back in the hands of the people, where it was originally intended to reside, are allowed to have their little protests (in the area designated and approved by the government) until those in power decide that playtime is over and they move in with the bulldozers and pepper-spray. “We must keep order.” The masses shrug and pull into the mall.
Kansas DUI laws, and the other criminal statutes, will continue to expand and become ever more punitive in the near future. The DUI and crime problems aren’t going away, though. As Judge Gertner’s piece points out, every dollar spent on jails is a dollar not spent on treatment or actually fixing the problem. Anyone who has looked at these issues has concluded that filling the jails does not work. Until we demand better reporting by our media, and laws that are actually effective from our representatives, the monster will continue to be chased by the mob, with no understanding of what it actually is.