Sentiment no base for sensible laws
By James Alan Fox
Monday, September 26, 2005

When did naming legislation for slain little girls become standard practice? Megan's Law registers sex offenders; Jessica's Law forces them to wear electronic tracking devices; and Jennifer's Law assists police in locating their victims.

Besides exploiting our emotions, this ``poster girl'' strategy tends to silence dissenters who may fear being perceived as trampling on the memory of poor Megan, Jessica or Jennifer.

In Massachusetts, ``Melanie's Bill'' targets another hated class of public menace - drunken drivers, particularly repeat offenders. Named for Melanie Powell, a 13-year-old Marshfield youngster fatally struck in July 2003 by a repeat drunken driver, the legislation is on a fast track through the State House.

As a parent, I can surely sympathize with the frustration and anguish expressed by Melanie's grandfather at a recent public hearing. Still, it seems odd that no one spoke publicly against the bill, as if it were a ``no-brainer.''

In pushing for legislative approval, Gov. Mitt Romney has suggested that the state will lose precious highway funds unless it comes into compliance with federal guidelines for handling repeat drunken drivers. While true, this bill goes miles past the federal guideposts into areas that are questionable on both constitutional and efficiency grounds.

Not only does the bill lengthen the licensure suspension for drivers who refuse a Breathalyzer or field sobriety test, but it enforces the suspension even if the accused is subsequently exonerated. Also, the proposal increases the punishment for anyone who drives - even sober - while suspended for a DUI offense, mandating jail time no matter what the mitigating circumstances.

Of course, the folks who insist that we ``lock 'em up and throw away the car key'' may be pleased and appeased by the mandatory terms of incarceration. Yet, reasonable and less expensive solutions - such as ignition interlocking mechanisms, plate removal and home confinement with electronic monitoring that is employed in dozens of states - can keep the violator off the roads virtually as well as imprisonment. The resulting savings can then be used to enhance treatment programs.

Some may complain that under these intermediate sanctions, offenders could still drink at home while watching beer ads on TV. However, the drunken driver, though a menace on wheels, has not necessarily harmed anyone. By our system of jurisprudence, we punish for the harm caused - and we should punish severely when injury or death results from drunken driving, but not for the potential harm that could have occurred.

Legislative and grassroots supporters of Melanie's Bill have voiced the need to deter repeat offenders through stiff penalties - to send a clear message of intolerance. When pressed for details, however, advocates are unable to provide any firm evidence of a deterrent effect.

It is difficult to impact the decision-making of an inebriated person who believes he or she is not too impaired to drive. It is hard to deter drunken driving when only about 1 percent of intoxicated drivers on the road get pulled over and arrested. And clearly, it is almost impossible to deter someone who is already undeterred by the greater intrinsic consequences of drunken driving - being seriously or fatally hurt in a crash.

At the risk of being labeled ``anti-Melanie'' or ``pro-drunk driver,'' I urge the Legislature to go slowly in passing this legislation. Meet the federal requirements, but take a hard and sober look at the far-reaching features of this bill.

Time after time, we've seen how legislation motivated by high-profile tragedy tends to be poorly crafted and of dubious value. This goes double when such laws are named for a deceased child. Melanie's legacy should be sensible, not sentimental.

James Alan Fox is the Lipman Family Professor of Criminal Justice at Northeastern University. Talk back at j.fox@neu.edu.