“A 20 percent drop in conviction rates since 2005”

That subject line up there is cited as one of the new problems cited by the Texas Senate Criminal Justice Committee, regarding DWI in the state. Houston DWI attorney Paul Kennedy has a smart post about it on his blog, and it’s revealing to me something about “tough on crime” and unintended consequences.

Basically, the problem as described by the Senate Criminal Justice Committee is that, because of the new “tough on crime” penalties for DWI, pleading guilty has less to recommend it. As a result, more people accused of drunk driving are choosing to go to trial, where they’re – gasp! – being acquitted at a higher rate than they were when they could be convinced to plead guilty.

Because there’s a massive disconnect in the brains of the public regarding DWI and how to make our streets safer – a goal shared by me and everyone else at Sumpter & Gonzalez, as well as presumably our lawmakers, judges, and prosecutors – the higher acquittal rate is viewed as a problem. I guess the thinking goes that you curb drunk driving by convicting people as drunk drivers whether or not there’s evidence that they actually drove drunk, in the hope that the punishment that’s meted out to them is so severe that no one would ever want to drive drunk again. As creating cultural disincentives go, it’s not totally illogical, though it has a few obvious problems: One, it sucks to be convicted of a crime you didn’t commit, and two, most people who are driving drunk are in an impaired state that leads to them not using their best judgment, including weighing potential consequences for being caught.

We could view the drop in the conviction rate as the system correcting itself – eventually, as you disincentivize pleading guilty to DWI (as opposed to actually committing the act, since those who are guilty of it are not capable of making a sober decision), you force the state to carry the burden of proof, and – theoretically, at least – those harsh punishments will be meted out more often to people for whom the evidence suggests actually did the crime. A win for justice!

But because DWI is a magic crime where the mere accusation of it – “using my experience and training”, the infallible police officer will inevitably write – means that you’re a criminal who deserves punishment, this self-correcting system is viewed as a tragedy.

As Kennedy concludes in his blog post, just be grateful the Texas Legislature only meets for 140 days every other year.

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