The goals of DWI arrests, and laws to effectuate those arrests, can get lost in the rhetoric about the menace of drunk driving. “DWI Courts — intensive treatment programs designed to rehabilitate repeat DWI offenders — have been bashed for being too soft on habitual offenders, but new stats show that they may actually be working.” So says Abby Rogers of the Business Insider.
Rogers doesn’t say who is doing the bashing. A recent correspondent on my Facebook page understandably took me to task for helping people get away with DWI, as she saw it ( “It makes me SICK to see someone counseling folks on how to get away with it. Gross. Don’t be an ass,” she reasoned.)
We’re all talking about different things, though.
When Rogers says DWI Courts are working, she is talking about recidivism rates as well as arrests and accidents related to drunk driving. A Minneapolis Star Tribune article from this summer states simply: “Drug courts work.” The metric, again, is recidivism and, in this case, treatment of addiction.
Treating addiction, reducing recidivism, public safety, and punishment are different goals that may or may not be achieved by the same means. In fact, the means of accomplishing some of these goals may inhibit the ability to accomplish others.
For example, Minnesota’s Whiskey Plates laws primarily serve the purpose of shaming. They serve no legitimate law enforcement purpose (no, the police cannot pull you over just because you have Whiskey Plates). State v. Henning, 666 N.W.2d 379 (Minn., 2003) . Jail is punishment (and a little enforced sobriety), but it can also cost someone a job and lead, indirectly, to the various pathologies of poverty that include the crime that often follows from loss of income, educational opportunities, or housing, for example.
My goal in criminal defense is different than any of these: it is to constrain the State’s ability to infringe on people’s fundamental civil liberties.
It is fundamental to our freedom as Americans that we are free from government intrusion in our daily lives. William Blackstone’s formulation, that it is “better that ten guilty persons escape than that one innocent suffer,” is central to the American system of justice, inextricably bound up in our constitutional freedoms, such as freedom from unreasonable search and seizure or to be forced to testify against oneself.
Late Supreme Court Justice William J. Brennan has written “consensus that a particular law enforcement technique serves a laudable purpose has never been the touchstone of constitutional analysis.”
I treat clients as individuals with inherent dignity, and freedom from government intrusion is an essential part of that dignity. My goal is to preserve all citizens’ liberties by holding the state to the strictest requirements before taking those liberties away from a single individual.
So, the bashers can bash away. If your over-riding goal is punishment, drug courts and aggressive defense of criminal charges may not satisfy your sense of justice. But I’ll defend your right to those differing opinions, too!
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