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THE DARK SIDE: How the law became a monstrous chimera

The maximum penalty for armed robbery is not just a prison term, but a fine of $100,000.

But can anyone even imagine a fine actually being imposed at sentencing for armed robbery? I can’t. For whatever reason, we just don’t impose fines on serious criminals in state court.

Armed robbery is also a scourge on society. But do our appellate courts make a note of that, much less do so in every case in which the defendant is charged with it?


Our courts are quite capable of weighing whether an armed robber’s Fourth Amendment rights were violated without noting what a scourge on society armed robbery is.

And for some reason, the state doesn’t feel the need to squander taxpayer money by running television commercials telling us we had better not commit armed robbery, or there will be serious consequences.

And strangely enough, the next time the Legislature convenes, there won’t be any special interest groups bawling for armed robbers to be burned at the stake.

And yet, armed robbery is a very serious crime.

But every defendant sentenced for operating while intoxicated receives a fine, and a hefty one at that. Every Wisconsin Supreme Court opinion affirming a conviction for that offense contains obligatory language on what a scourge it is.

The state spends millions of our dollars on TV commercials warning us not to drive drunk. And no legislative session is complete without demands that the penalties be increased for operating while intoxicated. Finally, every municipality save the city of Milwaukee uses the laws as a source of revenue – a speed trap on steroids.

That final fact is telling. In Milwaukee, police have serious crimes to deal with, and can’t be bothered with enforcing traffic laws. Only if an accident occurs will the police get involved.

What we have now is a sort of legal schizophrenia. Is operating while intoxicated a serious crime or a traffic violation? Or is it a hybrid of the two?

No, it is not a hybrid; instead it is more like a monstrous chimera, with features of both that combine for a grotesque whole.

Consider the fines. In a normal criminal case, courts consider a defendant’s ability to pay in selecting an appropriate fine. For operating while intoxicated, no such consideration is given. Instead, it’s treated like a really expensive speeding ticket; everybody pays the same regardless of ability to pay.

In contrast, when courts do a Fourth Amendment balancing test in a case involving an intoxicated driver, it’s no longer a traffic issue.

Whatever Fourth Amendment interests a defendant has, they are trumped by the interest of the state in punishing this serious crime. When it comes to the television commercials, it’s back to a traffic offense. The state doesn’t run commercials telling people not to commit armed robbery, because armed robbers are actual criminals, and they would laugh at the state.

Ditto with the demands for harsher penalties.

Nobody insists on stiffer sentences for armed robbery, because armed robbers are criminals who are not deterred by stiffer penalties. People who drink and drive are largely law-abiding citizens who are deterred, just as they are deterred from speeding by stiffer fines.

The origin of this chimera, I suspect, is the federal law requiring that .08 be the arbitrary line of demarcation between sobriety and intoxication. Everyone who works in the criminal justice system sees videotapes of drivers who test at or slightly above the legal limit.

They are not like the ones you see on the TV show “Cops” or the ones of drivers well in excess of the limit. Although the defendants are guilty of having a prohibited blood alcohol content, they generally are not guilty of driving while intoxicated.

But federal law requires they be treated as criminals for the offense of driving while sober. As long as that situation persists, the law will be torn. Sometimes, it will treat very dangerous people as if they were only speeders; and sometimes it will treat people who are less dangerous than speeders as if they were armed robbers.

But some courts are trying hard to do what’s best for everybody. If you have a client in Waukesha County, look into the county’s Alcohol Court. It’s a good effort, and if it’s successful, I hope they expand it. Right now, the criteria for acceptance are pretty narrow.

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