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Are Massachusetts Drunk Driving Penalties Overly Punitive And Poorly Conceived?

In recent years, punishments for drunk-driving offenses have become ever more severe in Massachusetts and throughout the country. Laws that provide for tough drunk driving penalties, such as Melanie’s Law in Massachusetts, are very popular politically, perhaps because many unthinkingly take the view that severe sentences will reduce the number of deaths and injuries that are caused by drinking and driving. However, a much more thoughtful consideration of penal theory is necessary to answer the question, “How much punishment is appropriate?”
There are three main theories of criminal punishment: deterrence, retribution, and rehabilitation. This blog post addresses deterrence and retribution in terms of increasingly severe drunk driving penalties. While rehabilitation would perhaps be the most effective approach to drunk driving, particularly when offenders have problems with alcohol, current laws leave little opportunity for rehabilitation analysis, especially with respect to penalties for second and subsequent offenses.

Deterrence theory can be broken down into two parts: general deterrence and individual deterrence. The reasoning behind general deterrence is as follows: if people know that punishment will follow the commission of a given crime, then people will be less likely to commit that crime. In other words, general deterrence serves to provide self-interested persons with reasons to not commit crimes. Individual deterrence is the idea that once a person is punished for a crime, he or she will be less likely to offend again for fear of being punished again. With regard to general deterrence, increasing drunk driving penalties , standing alone, is of little value because it is known that the perceived risk of detection and arrest is of much more consequence than severity of punishment. Considering individual deterrence, the problem with simply imposing harsher penalties is that the majority of OUI/DUI-related fatalities and injuries are caused by problem drinkers struggling with alcohol addiction, and it is more than difficult to deter those with such problems. Moreover, this theory hinges on the concept of the rational thinker, but those who are truly drunk are presumably not thinking entirely rationally. Statistics do show that no matter how severe the potential punishments, drunk driving continues.

Retribution is currently the leading justification for criminal punishment, and it has been on the rise since the 1970s. The idea behind retributivism is essentially “an eye for an eye.” While there are different camps within retributivism (negative, positive, assaultive), this is a somewhat simple approach to punishment, with the basic premise being that society is justified in punishing criminal offenders because the offenders have earned it. In the context of strict drunk driving statutes, this theory does not work because there is no black and white. Anyone with a blood alcohol concentration of .08% or higher is treated as a drunk driver, and while that is convenient, not every person is the “average person” in terms of physiology. Drunk -driving laws leave room for punishing those who were not drunk, and sometimes, for punishing those who were not even really driving. Thus, a theory based entirely on moral culpability falls apart.


The solution to the drunk- driving problem in our society is unclear, but it is clear that our constitutional rights must be honored. If you have been charged with drunk driving/OUI/DUI/DWI in Massachusetts, speak with a Massachusetts OUI lawyer who can protect those rights. You can reach the Law Offices of Stephen Neyman P.C. by calling (617) 263-6800 or you can e-mail Attorney Neyman for a prompt response.